Weekly Compilation of Presidential Documents Volume 31 Issue 49 (Monday, December 11, 1995)

[Weekly Compilation of Presidential Documents Volume 31, Number 49 (Monday, December 11, 1995)]
[Pages 2127-2130]
[Online from the Government Publishing Office, www.gpo.gov]

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Executive Order 12981--Administration of Export Controls

December 5, 1995

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.) (``the Act''), and in order to take additional steps with respect
to the national emergency described and declared in Executive Order No.
12924 of August 19, 1994, and continued on August 15, 1995,
I, William J. Clinton, President of the United States of America,
find that it is necessary for the procedures set forth below to apply to
export license applications submitted under the Act and the Export
Administration Regulations (15 C.F.R. Part 730 et. seq.) (``the
Regulations'') or under any renewal of, or successor to, the Export
Administration Act of 1979, as amended (50 U.S.C. App. 2401 et. seq.)
(``the Export Administration Act''), and the Regulations. Accordingly,
it is hereby ordered as follows:
Section 1. License Review. To the extent permitted by law and
consistent with Executive Order No. 12924 of August 19, 1994, the power,
authority, and discretion conferred upon the Secretary of Commerce
(``the Secretary'') under the Export Administration Act to require,
review, and make final determinations with regard to export licenses,
documentation, and other forms of information submitted to the
Department of Commerce pursuant to the Act and the Regulations or under
any renewal of, or successor to, the Export Administration Act and the
Regulations, with the power of successive redelegation, shall continue.
The Departments of State, Defense, and Energy, and the Arms Control and
Disarmament Agency each shall have the authority to review any export
license application submitted to the Department of Commerce pursuant to
the Act and the Regulations or under any renewal of, or successor to,
the Export Administration Act and the Regulations. The Secretary may
refer license applications to other United States Government departments
or agencies for review as appropriate. In the event that a department or
agency determines that certain types of applications need not be
referred to it, such department or agency shall notify the Department of
Commerce as to the specific types of such applications that it does not
wish to review. All departments or agencies shall promptly respond, on a
case-by-case basis, to requests from other departments or agencies for
historical information relating to past license applications.
Section 2. Determinations. (a) All license applications submitted
under the Act and the Regulations or any renewal of, or successor to,
the Export Administration Act and the Regulations, shall be resolved or
referred to the President no later than 90 calendar days after
registration of the completed license application.
(b) The following actions related to processing a license
application submitted under the Act and the Regulations or any renewal
of, or successor to, the Export Administration Act and the Regulations
shall not be counted in calculating the time periods prescribed in this
order:
(1) Agreement of the Applicant. Delays upon which the Secretary and
the applicant mutually agree.
(2) Prelicense Checks. Prelicense checks through government channels
that may be required to establish the identity and reliability of the
recipient of items controlled under the Act and the Regulations or any
renewal of, or successor to, the Export Administration Act and the
Regulations, provided that:
(A) the need for such prelicense check is established by the
Secretary, or by another department or agency if the request for
prelicense check is made by such department or agency;
(B) the Secretary requests the prelicense check within 5 days of the
determination that it is necessary; and
(C) the Secretary completes the analysis of the result of the
prelicense check within 5 days.
(3) Requests for Government-To-Government Assurances. Requests for
government-to-government assurances of suitable end-use of items
approved for export under the Act and the Regulations or any renewal of,
or successor to, the Export Administration Act and the Regulations, when
failure to ob-

[[Page 2128]]

tain such assurances would result in rejection of the application,
provided that:
(A) the request for such assurances is sent to the Secretary of
State within 5 days of the determination that the assurances are
required;
(B) the Secretary of State initiates the request of the relevant
government within 10 days thereafter; and
(C) the license is issued within 5 days of the Secretary's receipt
of the requested assurances. Whenever such prelicense checks and
assurances are not requested within the time periods set forth above,
they must be accomplished within the time periods established by this
section.
(4) Multilateral Reviews. Multilateral review of a license
application as provided for under the Act and the Regulations or any
renewal of, or successor to, the Export Administration Act and the
Regulations, as long as multilateral review is required by the relevant
multilateral regime.
(5) Consultations. Consultation with other governments, if such
consultation is provided for by a relevant multilateral regime or
bilateral arrangement as a precondition for approving a license.
Sec. 3. Initial Processing. Within 9 days of registration of any
license application, the Secretary shall, as appropriate:
(a) request additional information from the applicant. The time
required for the applicant to supply the additional information shall
not be counted in calculating the time periods prescribed in this
section.
(b) refer the application and pertinent information to agencies or
departments as stipulated in section 1 of this order, and forward to the
agencies any relevant information submitted by the applicant that could
not be reduced to electronic form.
(c) assure that the stated classification on the application is
correct; return the application if a license is not required; and, if
referral to other departments or agencies is not required, grant the
application or notify the applicant of the Secretary's intention to deny
the application.
Sec. 4. Department or Agency Review. (a) Each reviewing department
or agency shall specify to the Secretary, within 10 days of receipt of a
referral as specified in subsection 3(b), any information not in the
application that would be required to make a determination, and the
Secretary shall promptly request such information from the applicant.
If, after receipt of the information so specified or other new
information, a reviewing department or agency concludes that additional
information would be required to make a determination, it shall promptly
specify that additional information to the Secretary, and the Secretary
shall promptly request such information from the applicant. The time
that may elapse between the date the information is requested by the
reviewing department or agency and the date the information is received
by the reviewing department or agency shall not be counted in
calculating the time periods prescribed in this order. Such information
specified by reviewing departments or agencies is in addition to any
information that may be requested by the Department of Commerce on its
own initiative during the first 9 days after registration of an
application.
(b) Within 30 days of receipt of a referral and all required
information, a department or agency shall provide the Secretary with a
recommendation either to approve or deny the license application. As
appropriate, such recommendation may be with the benefit of consultation
and discussions in interagency groups established to provide expertise
and coordinate interagency consultation. A recommendation that the
Secretary deny a license shall include a statement of the reasons for
such recommendation that are consistent with the provisions of the Act
and the Regulations or any renewal of, or successor to, the Export
Administration Act and the Regulations and shall cite both the statutory
and the regulatory bases for the recommendation to deny. A department or
agency that fails to provide a recommendation within 30 days with a
statement of reasons and the statutory and regulatory bases shall be
deemed to have no objection to the decision of the Secretary.
Sec. 5. Interagency Dispute Resolution. (a) Committees. (1)(A)
Export Administration Review Board. The Export Administration Review
Board (``the Board''), which was established by Executive Order No.
11533 of June 4, 1970, and continued in Executive Order No. 12002 of
July 7, 1977, is hereby

[[Page 2129]]

continued. The Board shall have as its members, the Secretary, who shall
be Chair of the Board, the Secretary of State, the Secretary of Defense,
the Secretary of Energy, and the Director of the Arms Control and
Disarmament Agency. The Chairman of the Joint Chiefs of Staff and the
Director of Central Intelligence shall be nonvoting members of the
Board. No alternate Board Members shall be designated, but the acting
head or deputy head of any member department or agency may serve in lieu
of the head of the concerned department or agency. The Board may invite
the heads of other United States Government departments or agencies,
other than the departments or agencies represented by the Board members,
to participate in the activities of the Board when matters of interest
to such departments or agencies are under consideration.
(B) The Secretary may, from time to time, refer to the Board such
particular export license matters, involving questions of national
security or other major policy issues, as the Secretary shall select.
The Secretary shall also refer to the Board any other such export
license matter, upon the request of any other member of the Board or the
head of any other United States Government department or agency having
any interest in such matter. The Board shall consider the matters so
referred to it, giving due consideration to the foreign policy of the
United States, the national security, the domestic economy, and concerns
about the proliferation of armaments, weapons of mass destruction,
missile delivery systems, and advanced conventional weapons and shall
make recommendations thereon to the Secretary.
(2) Advisory Committee on Export Policy. An Advisory Committee on
Export Policy (``ACEP'') is established and shall have as its members
the Assistant Secretary of Commerce for Export Administration, who shall
be Chair of the ACEP, and Assistant Secretary-level representatives of
the Departments of State, Defense, and Energy, and the Arms Control and
Disarmament Agency. Appropriation representatives of the Joint Chiefs of
Staff and of the Nonproliferation Center of the Central Intelligence
Agency shall be nonvoting members of the ACEP. Representatives of the
departments or agencies shall be the appropriate Assistant Secretary or
equivalent (or appropriate acting Assistant Secretary or equivalent in
lieu of the Assistant Secretary or equivalent) of the concerned
department or agency, or appropriate Deputy Assistant Secretary or
equivalent (or the appropriate acting Deputy Assistant Secretary or
equivalent in lieu of the Deputy Assistant Secretary or equivalent) of
the concerned department or agency. Regardless of the department or
agency representative's rank, such representative shall speak and vote
at the ACEP on behalf of the appropriate Assistant Secretary or
equivalent of such department or agency. The ACEP may invite Assistant
Secretary-level representatives of other United States Government
departments or agencies, other than the departments and agencies
represented by the ACEP members, to participate in the activities of the
ACEP when matters of interest to such departments or agencies are under
consideration.
(3)(A) Operating Committee. An Operating Committee (``OC'') of the
ACEP is established. The Secretary shall appoint its Chair, who shall
also serve as Executive Secretary of the ACEP. Its other members shall
be representatives of appropriate agencies in the Departments of
Commerce, State, Defense, and Energy, and the Arms Control and
Disarmament Agency. The appropriate representatives of the Joint Chiefs
of Staff and the Nonproliferation Center of the Central Intelligence
Agency shall be nonvoting members of the OC. The OC may invite
representatives of other United States Government departments or
agencies, other than the departments and agencies represented by the OC
members, to participate in the activities of the OC when matters of
interest to such departments or agencies are under consideration.
(B) The OC shall review all license applications on which the
reviewing departments and agencies are not in agreement. The Chair of
the OC shall consider the recommendations of the reviewing departments
and agencies and inform them of his or her decision on any such matters
within 14 days after the deadline for receiving department and agency
recommendations. As described below, any reviewing department or agency

[[Page 2130]]

may appeal the decision of the Chair of the OC to the Chair of the ACEP.
In the absence of a timely appeal, the Chair's decision will be final.
(b) Resolution Procedures. (1) If any department or agency disagrees
with a licensing determination of the Department of Commerce made
through the OC, it may appeal the matter to the ACEP for resolution. A
department or agency must appeal a matter within 5 days of such a
decision. Appeals must be in writing from an official appointed by the
President by and with the advice and consent of the Senate, or an
officer properly acting in such capacity, and must cite both the
statutory and the regulatory bases for the appeal. The ACEP shall review
all departments' and agencies' information and recommendations, and the
Chair of the ACEP shall inform the reviewing departments and agencies of
the majority vote decision of the ACEP within 11 days from the date of
receiving notice of the appeal. Within 5 days of the majority vote
decision, any dissenting department or agency may appeal the decision by
submitting a letter from the head of the department or agency to the
Secretary in his or her capacity as the Chair of the Board. Such letter
shall cite both the statutory and the regulatory bases for the appeal.
Within the same period of time, the Secretary may call a meeting on his
or her own initiative to consider a license application. In the absence
of a timely appeal, the majority vote decision of the ACEP shall be
final.
(2) The Board shall review all departments' and agencies'
information and recommendations, and such other export control matters
as may be appropriate. The Secretary shall inform the reviewing
departments and agencies of the majority vote of the Board within 11
days from the date of receiving notice of appeal. Within 5 days of the
decision, any department or agency dissenting from the majority vote
decision of the Board may appeal the decision by submitting a letter
from the head of the dissenting department or agency to the President.
In the absence of a timely appeal, the majority vote decision of the
Board shall be final.
Sec. 6. The license review process in this order shall take effect
beginning with those license applications registered by the Secretary 60
days after the date of this order and shall continue in effect to the
extent not inconsistent with any renewal of the Export Administration
Act, or with any successor to that Act.
Sec. 7. Judicial Review. This order is intended only to improve the
internal management of the executive branch and 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.
William J. Clinton
The White House,
December 5, 1995.

[Filed with the Office of the Federal Register, 2:31 p.m., December 6,
1995]

Note: This Executive order was released by the Office of the Press
Secretary on December 6, and it was published in the Federal Register on
December 8.