[Weekly Compilation of Presidential Documents Volume 30, Number 46 (Monday, November 21, 1994)]
[Pages 2386-2389]
[Online from the Government Publishing Office, www.gpo.gov]
<R04>
Executive Order 12938--Proliferation of Weapons of Mass Destruction
November 14, 1994
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the National
Emergencies Act (50 U.S.C. 1601 et seq.), the Arms Export Control Act,
as amended (22 U.S.C. 2751 et seq.), Executive Orders Nos. 12851 and
12924, and section 301 of title 3, United States Code,
I, William J. Clinton, President of the United States of America,
find that the proliferation of nuclear, biological, and chemical weapons
(``weapons of mass destruction'') and of the means of delivering such
weapons, constitutes an unusual and extraordinary threat to the national
security, foreign policy, and economy of the United States, and hereby
declare a national emergency to deal with that threat.
Accordingly, I hereby order:
Section 1. International Negotiations. It is the policy of the
United States to lead and seek multilaterally coordinated efforts with
other countries to control the proliferation of weapons of mass
destruction and the means of delivering such weapons. Accordingly, the
Secretary of State shall cooperate in and lead multilateral efforts to
stop the proliferation of weapons of mass destruction and their means of
delivery.
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Sec. 2. Imposition of Controls. As provided herein, the Secretary of
State and the Secretary of Commerce shall use their respective
authorities, including the Arms Export Control Act and the International
Emergency Economic Powers Act, to control any exports, to the extent
they are not already controlled by the Department of Energy and the
Nuclear Regulatory Commission, that either Secretary determines would
assist a country in acquiring the capability to develop, produce,
stockpile, deliver, or use weapons of mass destruction or their means of
delivery. The Secretary of State shall pursue early negotiations with
foreign governments to adopt effective measures comparable to those
imposed under this order.
Sec. 3. Department of Commerce Controls. (a) The Secretary of
Commerce shall prohibit the export of any goods, technology, or services
subject to the Secretary's export jurisdiction that the Secretary of
Commerce determines, in consultation with the Secretary of State, the
Secretary of Defense, and other appropriate officials, would assist a
foreign country in acquiring the capability to develop, produce,
stockpile, deliver, or use weapons of mass destruction or their means of
delivery. The Secretary of State shall pursue early negotiations with
foreign governments to adopt effective measures comparable to those
imposed under this section.
(b) Subsection (a) of this section will not apply to exports
relating to a particular category of weapons of mass destruction (i.e.,
nuclear, chemical, or biological weapons) if their destination is a
country with whose government the United States has entered into a
bilateral or multilateral arrangement for the control of that category
of weapons of mass destruction-related goods (including delivery
systems) and technology, or maintains domestic export controls
comparable to controls that are imposed by the United States with
respect to that category of goods and technology, or that are otherwise
deemed adequate by the Secretary of State.
(c) The Secretary of Commerce shall require validated licenses to
implement this order and shall coordinate any license applications with
the Secretary of State and the Secretary of Defense.
(d) The Secretary of Commerce, in consultation with the Secretary of
State, shall take such actions, including the promulgation of rules,
regulations, and amendments thereto, as may be necessary to continue to
regulate the activities of United States persons in order to prevent
their participation in activities that could contribute to the
proliferation of weapons of mass destruction or their means of delivery,
as provided in the Export Administration Regulations, set forth in Title
15, Chapter VII, Subchapter C, of the Code of Federal Regulations, Parts
768 to 799 inclusive.
Sec. 4. Sanctions Against Foreign Persons. (a) In addition to the
sanctions imposed on foreign persons as provided in the National Defense
Authorization Act for Fiscal Year 1991 and the Chemical and Biological
Weapons Control and Warfare Elimination Act of 1991, sanctions also
shall be imposed on a foreign person with respect to chemical and
biological weapons proliferation if the Secretary of State determines
that the foreign person on or after the effective date of this order or
its predecessor, Executive Order No. 12735 of November 16, 1990,
knowingly and materially contributed to the efforts of any foreign
country, project, or entity to use, develop, produce, stockpile, or
otherwise acquire chemical or biological weapons.
(b) No department or agency of the United States Government may
procure, or enter into any contract for the procurement of, any goods or
services from any foreign person described in subsection (a) of this
section. The Secretary of the Treasury shall prohibit the importation
into the United States of products produced by that foreign person.
(c) Sanctions pursuant to this section may be terminated or not
imposed against foreign persons if the Secretary of State determines
that there is reliable evidence that the foreign person concerned has
ceased all activities referred to in subsection (a).
(d) The Secretary of State and the Secretary of the Treasury may
provide appropriate exemptions for procurement contracts necessary to
meet U.S. operational military requirements or requirements under
defense production agreements, sole source suppliers, spare parts,
components, routine servicing and maintenance of products, and medi-
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cal and humanitarian items. They may provide exemptions for contracts in
existence on the date of this order under appropriate circumstances.
Sec. 5. Sanctions Against Foreign Countries. (a) In addition to the
sanctions imposed on foreign countries as provided in the Chemical and
Biological Weapons Control and Warfare Elimination Act of 1991,
sanctions also shall be imposed on a foreign country as specified in
subsection (b) of this section, if the Secretary of State determines
that the foreign country has, on or after the effective date of this
order or its predecessor, Executive Order No. 12735 of November 16,
1990, (1) used chemical or biological weapons in violation of
international law; (2) made substantial preparations to use chemical or
biological weapons in violation of international law; or (3) developed,
produced, stockpiled, or otherwise acquired chemical or biological
weapons in violation of international law.
(b) The following sanctions shall be imposed on any foreign country
identified in subsection (a)(1) of this section unless the Secretary of
State determines, on grounds of significant foreign policy or national
security, that any individual sanction should not be applied. The
sanctions specified in this section may be made applicable to the
countries identified in subsections (a)(2) or (a)(3) when the Secretary
of State determines that such action will further the objectives of this
order pertaining to proliferation. The sanctions specified in subsection
(b)(2) below shall be imposed with the concurrence of the Secretary of
the Treasury.
(1) Foreign Assistance. No assistance shall be provided to that
country under the Foreign Assistance Act of 1961, or any successor act,
or the Arms Export Control Act, other than assistance that is intended
to benefit the people of that country directly and that is not channeled
through governmental agencies or entities of that country.
(2) Multilateral Development Bank Assistance. The United States
shall oppose any loan or financial or technical assistance to that
country by international financial institutions in accordance with
section 701 of the International Financial Institutions Act (22 U.S.C.
262d).
(3) Denial of Credit or Other Financial Assistance. The United
States shall deny to that country any credit or financial assistance by
any department, agency, or instrumentality of the United States
Government.
(4) Prohibition of Arms Sales. The United States Government shall
not, under the Arms Export Control Act, sell to that country any defense
articles or defense services or issue any license for the export of
items on the United States Munitions List.
(5) Exports of National Security-Sensitive Goods and Technology. No
exports shall be permitted of any goods or technologies controlled for
national security reasons under the Export Administration Regulations.
(6) Further Export Restrictions. The Secretary of Commerce shall
prohibit or otherwise substantially restrict exports to that country of
goods, technology, and services (excluding agricultural commodities and
products otherwise subject to control).
(7) Import Restrictions. Restrictions shall be imposed on the
importation into the United States of articles (that may include
petroleum or any petroleum product) that are the growth, product, or
manufacture of that country.
(8) Landing Rights. At the earliest practicable date, the Secretary
of State shall terminate, in a manner consistent with international law,
the authority of any air carrier that is controlled in fact by the
government of that country to engage in air transportation (as defined
in section 101(10) of the Federal Aviation Act of 1958 (49 U.S.C. App.
1301(10)).
Sec. 6. Duration. Any sanctions imposed pursuant to sections 4 or 5
of this order shall remain in force until the Secretary of State
determines that lifting any sanction is in the foreign policy or
national security interests of the United States or, as to sanctions
under section 4 of this order, until the Secretary has made the
determination under section 4(c).
Sec. 7. Implementation. The Secretary of State, the Secretary of the
Treasury, and the Secretary of Commerce are hereby authorized and
directed to take such actions, including the promulgation of rules and
regulations, as may be necessary to carry out the purposes of this
order. These actions, and
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in particular those in sections 4 and 5 of this order, shall be made in
consultation with the Secretary of Defense and, as appropriate, other
agency heads and shall be implemented in accordance with procedures
established pursuant to Executive Order No. 12851. The Secretary
concerned may redelegate any of these functions to other officers in
agencies of the Federal Government. All heads of departments and
agencies of the United States Government are directed to take all
appropriate measures within their authority to carry out the provisions
of this order, including the suspension or termination of licenses or
other authorizations.
Sec. 8. Preservation of Authorities. Nothing in this order is
intended to affect the continued effectiveness of any rules,
regulations, orders, licenses, or other forms of administrative action
issued, taken, or continued in effect heretofore or hereafter under the
authority of the International Economic Emergency Powers Act, the Export
Administration Act, the Arms Export Control Act, the Nuclear Non-
proliferation Act, Executive Order No. 12730 of September 30, 1990,
Executive Order No. 12735 of November 16, 1990, Executive Order No.
12924 of August 18, 1994, and Executive Order No. 12930 of September 29,
1994.
Sec. 9. Judicial Review. This order is not intended to create, nor
does it create, any right or benefit, substantive or procedural,
enforceable at law by a party against the United States, its agencies,
officers, or any other person.
Sec. 10. Revocation of Executive Orders Nos. 12735 and 12930.
Executive Order No. 12735 of November 16, 1990, and Executive Order No.
12930 of September 29, 1994, are hereby revoked.
Sec. 11. Effective Date. This order is effective immediately.
This order shall be transmitted to the Congress and published in the
Federal Register.
William J. Clinton
The White House,
November 14, 1994.
[Filed with the Office of the Federal Register, 3:16 p.m., November 14,
1994]
Note: This Executive order was published in the Federal Register on
November 15.