[House Document 104-142]
[From the U.S. Government Publishing Office]
104th Congress, 1st Session - - - - - - - - - - - - House
Document 104-142
REVISIONS TO THE EXPORT CONTROL REGULATIONS
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
TRANSMITTING
NOTIFICATON THAT HE HAS EXERCISED THE AUTHORITY GRANTED TO HIM TO ISSUE
AN EXECUTIVE ORDER (A COPY OF WHICH IS ATTACHED) TO REVISE THE EXISTING
PROCEDURES FOR PROCESSING EXPORT LICENSE APPLICATIONS SUBMITTED TO THE
DEPARTMENT OF COMMERCE, PURSUANT TO 50 U.S.C. 1703(b)
December 6, 1995.--Message and accompanying papers referred to the
Committee on International Relations and ordered to be printed
To the Congress of the United States:
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,
necessitated by the expiration of the Export Administration Act
on August 20, 1994, I hereby report to the Congress that
pursuant to section 204(b) of the International Emergency
Economic Powers Act, 50 U.S.C. 1703(b) (``the Act''), I have
today exercised the authority granted by the Act to issue an
Executive order (a copy of which is attached) to revise the
existing procedures for processing export license applications
submitted to the Department of Commerce.
The Executive order establishes two basic principles for
processing export license applications submitted to the
Department of Commerce under the Act and the Regulations, or
under any renewal of, or successor to, the Export
Administration Act and the Regulations. First, all such license
applications must be resolved or referred to me for resolution
no later than 90 calendar days after they are submitted to the
Department of Commerce. Second, the Departments of State,
Defense, and Energy, and the Arms Control and Disarmament
Agency will have the authority to review any such license
application. In addition, the Executive order sets forth
specific procedures including intermediate time frames, for
review and resolution of such license applications.
The Executive order is designed to make the licensing
process more efficient and transparent for exporters while
ensuring that our national security, foreign policy, and
nonproliferation interests remain fully protected.
William J. Clinton.
The White House, December 5, 1995.
Executive Order
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 of, 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 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 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 of 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 Defense, the Secretary of Energy, and
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 the 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.
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.