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105th Congress, 1st Session - - - - - - - - - - House Document 105-12
ADMINISTRATION OF EXPORT CONTROLS ON ENCRYPTION PRODUCTS
__________
COMMUNICATION
from
THE PRESIDENT OF THE UNITED STATES
transmitting
REVISIONS TO THE PROVISIONS THAT APPLY TO THE DEPARTMENT OF COMMERCE IN
THE EXPORT ADMINISTRATION REGULATIONS, 15 CFR PART 730 ET SEQ.--
RECEIVED IN THE UNITED STATES HOUSE OF REPRESENTATIVES NOVEMBER 15,
1996, PURSUANT TO 50 U.S.C. 1703(b)
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
January 7, 1997.--Referred to the Committee on International Relations
and ordered to be printed
The White House,
Washington, November 15, 1996.
Hon. Newt Gingrich,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: In order to take additional steps with
respect to the national emergency described and declared in
Executive Order 12924 of August 19, 1994, and continued on
August 15, 1995, and August 14, 1996, necessitated by the
expiration of the Export Administration Act (EAA) 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 provisions that apply
to the administration of the export control system maintained
by Department of Commerce in the Export Administration
Regulations, 15 CFR Part 730 et seq.
The new Executive order relates to my decision to transfer
certain encryption products from the United States Munitions
List administered by the Department of State to the Commerce
Control List administered by the Department of Commerce. When I
made that decision I also decided to amend Executive Order
12981 of December 5, 1995, which sets forth procedures for the
interagency review and disposition of dual-use export license
applications, to include the Department of Justice among the
agencies that have the opportunity to review such applications
with respect to encryption products transferred to Department
of Commerce control.
Also, in issuing the new order, I provided for appropriate
controls on the export and foreign dissemination of encryption
products transferred to the Department of Commerce. Among other
provisions, I determined that the export of encryption products
transferred to Department of Commerce control could harm
national security and foreign policy interests of the United
States even where comparable products are or appear to be
available from foreign sources. Accordingly, the new order
makes clear that any EAA provision dealing with issuance of
licenses or removal of controls based on foreign availability
considerations shall not apply with respect to export controls
on such encryption products. Notwithstanding this, the
Secretary of Commerce retains the discretion to consider the
foreign availability to comparable encryption products in any
particular case.
Sincerely,
William J. Clinton.
Executive Order
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Administration of Export Controls on Encryption Products
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.), and in order to
take additional steps with respect to the national emergency
described and declared in Executive Order 12924 of August 19,
1994, and continued on August 15, 1995, and on August 14, 1996,
I, WILLIAM J. CLINTON, President of the United States of
America, have decided that the provisions set forth below shall
apply to administration of the export control system maintained
by the Export Administration Regulations, 15 CFR Part 730 et
seq. (``the EAR''). Accordingly, it is hereby ordered as
follows:
Section 1. Treatment of Encryption Products. In order to
provide for appropriate controls on the export and foreign
dissemination of encryption products, export controls of
encryption products that are or would be, on this date,
designated as defense articles in Category XIII of the United
States Munitions List and regulated by the United States
Department of State pursuant to the Arms Export Control Act, 22
U.S.C. 2778 et seq. (``the AECA''), but that subsequently are
placed on the Commerce Control List in the EAR, shall be
subject to the following conditions: (a) I have determined that
the export of encryption products described in this section
could harm national security and foreign policy interests even
where comparable products are or appear to be available from
sources outside the United States, and that facts and questions
concerning the foreign availability of such encryption products
cannot be made subject to public disclosure or judicial review
without revealing or implicating classified information that
could harm United States national security and foreign policy
interests. Accordingly, sections 4(c) and 6(h)(2)-(4) of the
Export Administration Act of 1979 (``the EAA''), 50 U.S.C. App.
2403(c) and 2405(h)(2)-(4), as amended and as continued in
effect by Executive Order 12924 of August 19, 1994, and by
notices of August 15, 1995, and August 14, 1996, all other
analogous provisions of the EAA relating to foreign
availability, and the regulations in the EAR relating to such
EAA provisions, shall not be applicable with respect to export
controls on such encryption products. Notwithstanding this, the
Secretary of Commerce (``Secretary'') may, in his discretion,
consider the foreign availability of comparable encryption
products in determining whether to issue a license in a
particular case or to remove controls on particular products,
but is not required to issue licenses in particular cases or to
remove controls on particular products based on such
consideration;
(b) Executive Order 12981, as amended by Executive Order
13020 of October 12, 1996, is further amended as follows:
(1) A new section 6 is added to read as follows: ``Sec. 6.
Encryption Products. In conducting the license review described
in section 1 above, with respect to export controls of
encryption products that are or would be, on November 15, 1996,
designated as defense articles in Category XIII of the United
States Munitions List and regulated by the United States
Department of State pursuant to the Arms Export Control Act, 22
U.S.C. 2778 et seq., but that subsequently are placed on the
Commerce Control List in the Export Administration Regulations,
the Departments of State, Defense, Energy, and Justice and the
Arms Control and Disarmament Agency shall have the opportunity
to review any export license application submitted to the
Department of Commerce. The Department of Justice shall, with
respect to such encryption products, be a voting member of the
Export Administration Review Board described in section 5(a)(1)
of this order and of the Advisory Committee on Export Policy
described in section 5(a)(2) of this order. The Department of
Justice shall be a full member of the Operating Committee of
the ACEP described in section 5(a)(3) of this order, and of any
other committees and consultation groups reviewing export
controls with respect to such encryption products.''
(2) Sections 6 and 7 of Executive Order 12981 of December
5, 1995, are renumbered as new sections 7 and 8, respectively.
(c) Because the export of encryption software, like the
export of other encryption products described in this section,
must be controlled because of such software's functional
capacity, rather than because of any possible informational
value of such software, such software shall not be considered
or treated as ``technology,'' as that term is defined in
section 16 of the EAA (50 U.S.C. App., 2415) and in the EAR (61
Fed. Reg. 12714, March 25, 1996);
(d) With respect to encryption products described in this
section, the Secretary shall take such actions, including the
promulgation of rules, regulations, and amendments thereto, as
may be necessary to control the export of assistance (including
training) to foreign persons in the same manner and to the same
extent as the export of such assistance is controlled under the
AECA, as amended by section 151 of Public Law 104-164;
(e) Appropriate controls on the export and foreign
dissemination of encryption products described in this section
may include, but are not limited to, measures that promote the
use of strong encryption products and the development of a key
recovery management infrastructure; and
(f) Regulation of encryption products described in this
section shall be subject to such further conditions as the
President may direct.
Sec. 2. Effective Date. The provisions described in section
1 shall take effect as soon as any encryption products
described in section 1 are placed on the Commerce Control List
in the EAR.
Sec. 3. Judicial Review. This order is intended only to
improve the internal management of the executive branch and to
ensure the implementation of appropriate controls on the export
and foreign dissemination of encryption products. It 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, November 15, 1996.
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