[House Document 105-293]
[From the U.S. Government Publishing Office]
105th Congress, 2d Session - - - - - - - - - - - House Document 105-293
RESPONSE TO THREAT OF WEAPONS OF MASS DESTRUCTION
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
TRANSMITTING
HIS REPORT ON EXERCISING STATUTORY AUTHORITY TO ISSUE AN EXECUTIVE
ORDER TO AMEND EXECUTIVE ORDER 12938 IN ORDER TO MORE EFFECTIVELY
RESPOND TO THE WORLDWIDE THREAT OF WEAPONS OF MASS DESTRUCTION
PROLIFERATION ACTIVITIES
July 29, 1998.--Message and accompanying papers referred to the
Committee on International Relations and ordered to be printed July 29,
1998
To the Congress of the United States:
On November 14, 1994, in light of the danger of the
proliferation of nuclear, biological, and chemical weapons
(weapons of mass destruction) and of the means of delivering
such weapons, using my authority under the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), I
declared a national emergency and issued Executive Order 12938.
Because the proliferation of weapons of mass destruction
continues to pose an unusual and extraordinary threat to the
national security, foreign policy, and economy of the United
States, I have renewed the national emergency declared in
Executive Order 12938 annually, most recently on November 14,
1997. Pursuant to section 204(b) of the International Emergency
Economic Powers Act (50 U.S.C. 1703(b)), I hereby report to the
Congress that I have exercised my statutory authority to issue
an Executive Order to amend Executive Order 12938 in order to
more effectively to respond to the worldwide threat of weapons
of mass destruction proliferation activities.
The amendment of section 4 of Executive Order 12938
strengthens the original Executive order in several significant
ways.
First, the amendment broadens the type of proliferation
activity that is subject to potential penalties. Executive
Order 12938 covers contributions to the efforts of any foreign
country, project, or entity to use, acquire, design, produce,
or stockpile chemical or biological weapons (CBW). This
amendment adds potential penalties for contributions to foreign
programs for nuclear weapons and missiles capable of delivering
weapons of mass destruction. For example, the new amendment
authorizes the imposition of measures against foreign entities
that materially assist Iran's missile program.
Second, the amendment lowers the requirements for imposing
penalties. Executive Order 12938 required a finding that a
foreign person ``knowingly and materially'' contributed to
aforeign CBW program. The amendment removes the ``knowing'' requirement
as a basis for determining potential penalties. Therefore, the
Secretary of State need only determine that the foreign person made a
``material'' contribution to a weapons of mass destruction or missile
program to apply the specified sanctions. At the same time, the
Secretary of State will have discretion regarding the scope of
sanctions so that a truly unwitting party will not be unfairly
punished.
Third, the amendment expands the original Executive order
to include ``attempts'' to contribute to foreign proliferation
activities, as well as actual contributions. This will allow
imposition of penalties even in cases where foreign persons
make an unsuccessful effort to contribute to weapons of mass
destruction and missile programs or where authorities block a
transaction before it is consummated
Fourth, the amendment expressly expands the range of
potential penalties to include the prohibition of United States
Government assistance to the foreign person, as well as United
States Government assistance to the foreign person, as well as
United States Government procurement and imports into the
United States, which were specified by the original Executive
order. Moreover, section 4(b) broadens the scope of the United
States Government procurement limitations to include a bar on
the procurement of technology, as well as goods or services
from any foreign person described in section 4(a). Section 4(d)
broadens the scope of import limitation to include a bar on
imports of any technology or services produced or provided by
any foreign person described in section 4(a).
Finally, this amendment gives the United States Government
greater flexibility and discretion in deciding how and to what
extent to impose penalties against foreign persons that assist
proliferation programs. This provision authorizes the Secretary
of State, who will act in consultation with the heads of other
interested agencies, to determine the extent to which these
measures should be imposed against entities contributing to
foreign weapons of mass destruction or missile programs. The
Secretary of State will act to further the national security
and foreign policy interests of the United States, including
principally our nonproliferation objectives. Prior to imposing
measures pursuant to this provision, the Secretary of State
will take into account the likely effectiveness of such
measures in furthering the interests of the United States and
the costs and benefits of such measures. This approach provides
the necessary flexibility to tailor our responses to specific
situations.
I have authorized these actions in view of the danger posed
to the national security and foreign policy of the United
States by the continuing proliferation of weapons of mass
destruction and their means of delivery. I am enclosing a copy
of the Executive order that I have issued exercising these
authorities.
William J. Clinton.
The White House, July 28, 1998.
EXECUTIVE ORDER
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Proliferation of Weapons of Mass Destruction
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.) (IEEPA), the National Emergencies Act (50
U.S.C. 1601 et seq.), the Arms Export Control Act (22 U.S.C.
2751 et seq.) (AECA), and section 301 of title 3, United States
Code,
I, William J. Clinton, President of the United States of
America, in order to take additional steps with respect to the
proliferation of weapons of mass destruction and means of
delivering them and the national emergency described and
declared in Executive Order 12938 of November 14, 1994, hereby
order:
Section 1. Amendment of Executive Order 12938
(a) Section 4 of Executive Order 12938 of November 14,
1994, is revised to read as follows:
``Sec. 4. Measures Against Foreign Persons.
(a) Determination by Secretary of State; Imposition of
Measures.--Except to the extent provided in section 203(b) of
the International Emergency Economic Powers Act (50 U.S.C.
1702(b)), where applicable, if the Secretary of State
determines that a foreign person, on or after November 16,
1990, the effective date of Executive Order 12735, the
predecessor order to Executive Order 12938, has materially
contributed or attempted to contribute materially to the
efforts of any foreign country, project, or entity of
proliferation concern to use, acquire, design, develop,
produce, or stockpile weapons of mass destruction or missiles
capable of delivering such weapons, the measures set forth in
subsections (b), (c), and (d) of this section shall be imposed
on that foreign person to the extent determined by the
Secretary of State in consultation with the implementing agency
and other relevant agencies. Nothing in this section is
intended to preclude the imposition on that foreign person of
other measures or sanctions available under this order or under
other authorities.
(b) Procurement Ban.--No department or agency of the United
States Government may procure, or enter into any contract for
the procurement of, any goods, technology, or services from any
foreign person described in subsection (a) of this section.
(c) Assistance Ban.--No department or agency of the United
States Government may provide any assistance to any foreign
person described in subsection (a) of this section, and no such
foreign person shall be eligible to participate in any
assistance program of the United States Government.
(d) Import Ban.--The Secretary of the Treasury shall
prohibit the importation into the United States of goods,
technology, or services produced or provided by any foreign
person described in subsection (a) of this section, other than
information or informational materials within the meaning of
section 203(b)(3) of the International Emergency Economic
Powers Act (50 U.S.C. 1702(b)(3)).
(e) Termination.--Measures pursuant to this section may be
terminated against a foreign person if the Secretary of State
determines that there is reliable evidence that such foreign
person has ceased all activities referred to in subsection (a)
of this section.
(f) Exceptions.--Departments and agencies of the United
States Government, acting in consultation withthe Secretary of
State, may, by license, regulation, order, directive, exception, or
otherwise, provide for:
(i) Procurement contracts necessary to meet U.S.
operational military requirements or requirements under defense
production agreements; intelligence requirements; sole source
suppliers, spare parts, components, routine servicing and
maintenance of products for the United States Government; and
medical and humanitarian items; and
(ii) Performance pursuant to contracts in force on the
effective date of this order under appropriate circumstances.''
(b) Section 6 of Executive Order 12938 of November 14,
1994, is amended by deleting ``4(c)'' and inserting ``4(e)'' in
lieu thereof.
Sec. 2. 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 IEEPA, AECA, the Nuclear Non-
Proliferation Act of 1978, the Nuclear Proliferation Prevention
Act of 1994, the Atomic Energy Act, the Export Administration
Act (50 U.S.C. App. 2401 et seq.), Executive Order 12730 of
September 30, 1990, Executive Order 12735 of November 16, 1990,
Executive Order 12924 of August 18, 1994, Executive Order 12930
of September 29, 1994, or Executive Order 12938 of November 14,
1994.
Sec. 3. Judicial Review.--Nothing contained in this order
shall create any right or benefit, substantive or procedural,
enforceable by any party against the United States, its
agencies or instrumentalities, its officers or employees, or
any other person.
Sec. 4. Effective Date.
(a) This order is effective at 12:01 a.m. eastern daylight
time on July 29, 1998.
(b) This order shall be transmitted to the Congress and
published in the Federal Register.
William J. Clinton.
The White House, July 28, 1998.