[Federal Register: November 19, 1996 (Volume 61, Number 224)]
[Presidential Documents]
[Page 58767-58768]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 58767]]
Executive Order 13026 of November 15, 1996
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
[[Page 58768]]
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.
(Presidential Sig.)<Clinton1><Clinton2>
THE WHITE HOUSE,
November 15, 1996.
[FR Doc. 96-29692
Filed 11-18-96; 8:45 am]
Billing code 3195-01-P