Presidential Documents

62981

Federal Register

Vol. 60, No. 236

Friday, December 8, 1995

Title 3—

The President

Executive Order 12981 of December 5, 1995

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.

(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,
62982 Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Presidential Documents

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.

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 informa-
Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Presidential Documents 62983

tion 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

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 representa-
62984 Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Presidential Documents

tives 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 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.
Federal Register / Vol. 60, No. 236 / Friday, December 8, 1995 / Presidential Documents 62985

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

[FR Doc. 95–30106

officers or employees, or any other person.

THE WHITE HOUSE,

December 5, 1995.

œ–

Filed 12–6–95; 2:31 pm]

Billing code 3195–01–P