[Federal Register: November 19, 1996 (Volume 61, Number 224)]
[Presidential Documents]               
[Page 58767-58768]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



                        Presidential Documents 




___________________________________________________________________

Title 3--
The President

[[Page 58767]]

                Executive Order 13026 of November 15, 1996

 
                Administration of Export Controls on Encryption 
                Products

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including but not limited to the International 
                Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), 
                and in order to take additional steps with respect to 
                the national emergency described and declared in 
                Executive Order 12924 of August 19, 1994, and continued 
                on August 15, 1995, and on August 14, 1996, I, WILLIAM 
                J. CLINTON, President of the United States of America, 
                have decided that the provisions set forth below shall 
                apply to administration of the export control system 
                maintained by the Export Administration Regulations, 15 
                CFR Part 730 et seq. (``the EAR''). Accordingly, it is 
                hereby ordered as follows:

                Section 1. Treatment of Encryption Products. In order 
                to provide for appropriate controls on the export and 
                foreign dissemination of encryption products, export 
                controls of encryption products that are or would be, 
                on this date, designated as defense articles in 
                Category XIII of the United States Munitions List and 
                regulated by the United States Department of State 
                pursuant to the Arms Export Control Act, 22 U.S.C. 2778 
                et seq. (``the AECA''), but that subsequently are 
                placed on the Commerce Control List in the EAR, shall 
                be subject to the following conditions: (a) I have 
                determined that the export of encryption products 
                described in this section could harm national security 
                and foreign policy interests even where comparable 
                products are or appear to be available from sources 
                outside the United States, and that facts and questions 
                concerning the foreign availability of such encryption 
                products cannot be made subject to public disclosure or 
                judicial review without revealing or implicating 
                classified information that could harm United States 
                national security and foreign policy interests. 
                Accordingly, sections 4(c) and 6(h)(2)-(4) of the 
                Export Administration Act of 1979 (``the EAA''), 50 
                U.S.C. App. 2403(c) and 2405(h)(2)-(4), as amended and 
                as continued in effect by Executive Order 12924 of 
                August 19, 1994, and by notices of August 15, 1995, and 
                August 14, 1996, all other analogous provisions of the 
                EAA relating to foreign availability, and the 
                regulations in the EAR relating to such EAA provisions, 
                shall not be applicable with respect to export controls 
                on such encryption products. Notwithstanding this, the 
                Secretary of Commerce (``Secretary'') may, in his 
                discretion, consider the foreign availability of 
                comparable encryption products in determining whether 
                to issue a license in a particular case or to remove 
                controls on particular products, but is not required to 
                issue licenses in particular cases or to remove 
                controls on particular products based on such 
                consideration;

                    (b) Executive Order 12981, as amended by Executive 
                Order 13020 of October 12, 1996, is further amended as 
                follows:
                    (1) A new section 6 is added to read as follows: 
                ``Sec. 6.  Encryption Products.  In conducting the 
                license review described in section 1 above, with 
                respect to export controls of encryption products that 
                are or would be, on November 15, 1996, designated as 
                defense articles in Category XIII of the United States 
                Munitions List and regulated by the United States 
                Department of State pursuant to the Arms Export Control 
                Act, 22 U.S.C. 2778 et seq., but that subsequently are 
                placed on the Commerce Control List in the Export 
                Administration Regulations, the Departments of State, 
                Defense, Energy, and Justice and the Arms Control and 
                Disarmament Agency

[[Page 58768]]

                shall have the opportunity to review any export license 
                application submitted to the Department of Commerce. 
                The Department of Justice shall, with respect to such 
                encryption products, be a voting member of the Export 
                Administration Review Board described in section 
                5(a)(1) of this order and of the Advisory Committee on 
                Export Policy described in section 5(a)(2) of this 
                order. The Department of Justice shall be a full member 
                of the Operating Committee of the ACEP described in 
                section 5(a)(3) of this order, and of any other 
                committees and consultation groups reviewing export 
                controls with respect to such encryption products.''
                    (2) Sections 6 and 7 of Executive Order 12981 of 
                December 5, 1995, are renumbered as new sections 7 and 
                8, respectively.
                    (c) Because the export of encryption software, like 
                the export of other encryption products described in 
                this section, must be controlled because of such 
                software's functional capacity, rather than because of 
                any possible informational value of such software, such 
                software shall not be considered or treated as 
                ``technology,'' as that term is defined in section 16 
                of the EAA (50 U.S.C. App. 2415) and in the EAR (61 
                Fed. Reg. 12714, March 25, 1996);
                    (d) With respect to encryption products described 
                in this section, the Secretary shall take such actions, 
                including the promulgation of rules, regulations, and 
                amendments thereto, as may be necessary to control the 
                export of assistance (including training) to foreign 
                persons in the same manner and to the same extent as 
                the export of such assistance is controlled under the 
                AECA, as amended by section 151 of Public Law 104-164;
                    (e) Appropriate controls on the export and foreign 
                dissemination of encryption products described in this 
                section may include, but are not limited to, measures 
                that promote the use of strong encryption products and 
                the development of a key recovery management 
                infrastructure; and
                    (f) Regulation of encryption products described in 
                this section shall be subject to such further 
                conditions as the President may direct.

                Sec. 2. Effective Date. The provisions described in 
                section 1 shall take effect as soon as any encryption 
                products described in section 1 are placed on the 
                Commerce Control List in the EAR.

                Sec. 3. Judicial Review. This order is intended only to 
                improve the internal management of the executive branch 
                and to ensure the implementation of appropriate 
                controls on the export and foreign dissemination of 
                encryption products. It is not intended to, and does 
                not, create any rights to administrative or judicial 
                review, or any other right or benefit or trust 
                responsibility, substantive or procedural, enforceable 
                by a party against the United States, its agencies or 
                instrumentalities, its officers or employees, or any 
                other person.

                    (Presidential Sig.)&lt;Clinton1&gt;&lt;Clinton2&gt;

                THE WHITE HOUSE,

                     November 15, 1996.

[FR Doc. 96-29692
Filed 11-18-96; 8:45 am]
Billing code 3195-01-P

