[Executive Orders]
The White House
Office of the Press Secretary
_______________________________________________________________
For Immediate Release December 6, 1995
Executive Order
#12981
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Administration Of Export Controls
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.
Sec. 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.
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(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 obtain
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.
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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 continued.
The Board shall have as its members, the Secretary, who shall be
Chair of the Board, the Secretary of State, the Secretary of
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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.
Appropriate 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
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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 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.
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