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Justice - General (8)
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Justice - General (8)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
subjects
Department of the Treasury. Internal Revenue Service. (07/09/1953 - )
President (1974-1977 : Ford). Presidential Clemency Board. (09/16/1974 - 09/15/1975)
Foreign aid
Law enforcement
Gun control
Executive orders
Legislation
Capital punishment
Law and legislation
Speeches, addresses, etc.
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1977-01-01
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1977
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1974-09-01
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9
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1974
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The original documents are located in Box 23, folder "Justice - General (8)" of the Philip
Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 23 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
sign
Ask Bobbie to
Scan this and
prepare response
forme.
P.
Shirley has approved
Bobbie the attached & returned
it togody gaston. L. FURO
it LIBRARY QERALD
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date: January 3
Time:
1000am
FOR ACTION: NSC/S
cc (for information):
Max Friedersdorf
Jack Marsh
Bobbie Kilberg
Jim Connor
Robert Hartmann
Ed Schmults
FROM THE STAFF SECRETARY
DUE: Date: January 4
Time: 500pm
SUBJECT:
Executive Orders - Administration of Arms Export Controls
Administration of Foreign Assistance
and Related Functions
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X For Your Comments
Draft Remarks
REMARKS:
please return to judy johnston, ground floor west wing
FORD i LIBRARY GERALD
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
James in, Cannon
telephone the Staff Secretary immediately.
For the President
Office of the Attorney General
SEQUITUR
Washington, D.C. 20530
DEC 3 U 1976
The President,
The White House.
Dear Mr. President:
I am transmitting herewith, in accordance with the provi-
sions of Executive Order No. 11030, as amended, a proposed
Executive order entitled "Administration of Foreign Assistance
and Related Functions."
The proposed order was submitted to the Office of Manage-
ment and Budget by the Department of State. It was revised
in the Office of Management and Budget on the basis of comments
by the Departments of the Treasury, Defense, Justice, and
Commerce, and the Agency for International Development.
The order, as revised, was forwarded by the Office of
Management and Budget, with the approval of its Director, to
the Department of Justice for consideration as to form and
legality.
The proposed order is approved as to form and legality.
Respectfully
Antonin Sealia
Assistant Attorney General
RALD FORD
Office of Legal Counsel
DEC 3 U 1976
MEMORANDUM
Re: Proposed Executive orders entitled:
"Administration of Foreign Assistance
and Related Functions"
and
"Administration of Arms Export Controls.'
The proposed two orders were originally presented by
the Department of State to the Office of Management and Budget
(OMB) as a single order entitled: "Amending Executive Order
No. 10973, Relating to Administration of Foreign Assistance
and Related Functions; Revoking Executive Order 11501, Relat-
ing to Foreign Military Sales; and Providing for the Adminis-
tration of Arms Export Controls." That proposal was revised
in OMB on the basis of comments from the Departments of the
Treasury, Defense, Justice, and Commerce, and the Agency for
International Development and divided into the two above-
entitled proposed orders. The orders, as revised, were
forwarded by OMB, with the approval of its Director, to the
Department of Justice for consideration as to form and
legality.
The proposed orders were occasioned by legislation of
the last two Congresses, especially the International Security
Assistance and Arms Export Control Act of 1976, Public Law
94-329, which made substantial changes in the Foreign Assist-
ance Act of 1961 and the Foreign Military Sales Act, changing
the title of the latter to Arms Export Control Act. This
required corresponding amendments in the Executive orders
providing for the delegation of the authority vested in the
President by those statutes.
The purposes of those orders and the reasons for their
formulation are set forth in detail in the letter of submis-
sion from the Assistant Secretary of State for Congressional
Relations to the Director, OMB, dated August 19, 1976, and
the letters of transmittal from the General Counsel, OMB, FORD
of which are attached.
the Attorney General, dated December 16 and 21, 1976, copies GERALO
LIBRARY
The proposed orders are acceptable as to form and
legality. OMB requests that the proposed Executive orders
be expeditiously presented for the President's considera-
tion so that they may be issued during the first two weeks
of January 1977.
Antonin Scalia
Assistant Attorney General
Office of Legal Counsel
Attachments
GERALD FORD LIBRARY
- 2 -
DEPARTMENT OF STATE
THE
Washington, D.C. 20520
AUG 19 1976
Dear Mr. Lynn:
In accordance with Executive Order 11030, as
amended, there is transmitted herewith a proposed
Executive order, together with seven copies, to
implement the provisions of the International
Security Assistance and Arms Export Control Act of
1976 (Public Law 94-329). That Act has substan-
tially revised the provisions of the Foreign
Assistance Act of 1961, as amended (hereinafter
"the FAA"), relating to security assistance, and
has made even more sweeping changes in the legisla-
tion governing foreign military sales and exports
of commercially sold military equipment, material
and services. The new legislation extensively
amends the Foreign Military Sales Act, which it
redesignates the Arms Export Control Act (hereinafter
"the AECA"), and incorporates therein provisions on
munitions export control which supersede section 414
of the Mutual Security Act of 1954.
The enclosed draft Order amends Executive Order
10973, the principal instrument whereby functions
vested in the President by the FAA are delegated to
various Executive Branch officials. It also revokes
Executive Order 11501, which delegates functions under
the former Foreign Military Sales Act, and replaces
it with a new set of delegations to implement the
AECA.
The principal reason for proposing a new
Executive order at this time is to delegate new
functions vested in the President by P.L. 94-329.
However, we have also included a number of provisions
in the draft Order which implement legislative changes
enacted by the Foreign Assistance Acts of 1973
(P.L. 93-189) and 1974 (P.L. 93-559) and by the
The Honorable
James T. Lynn, Director,
Office of Management and Budget.
DERALD 11817 FORD
- 2 -
International Development and Food Assistance Act
of 1975 (P.L. 94-161). We have thus taken into
account all amendments to the relevant legislation
enacted since the issuance in 1972 of Executive
Order 11685, the most recent general updating of the
delegations of functions concerning this subject.
The nature, purpose, background and effect of the
provisions of the enclosed draft Order, and their
relationship to pertinent laws, are explained below.
PART I. FOREIGN ASSISTANCE
This part of the draft Order amends Executive
Order 10973, the basic delegation of functions vested
in the President by the Foreign Assistance Act of
1961. The basic Order delegates all functions under
the FAA to the Secretary of State, except those other-
wise expressly delegated or expressly reserved to the
President.
Delegation to the Secretary of State.
Paragraph 1 adds to the list of statutory func-
tions delegated to the Secretary of State those under
section 607 of P.L. 94-329. That provision requires
the President to report to Congress substantiated
instances of bribery and extortion involving U.S. firms
and foreign officials. This function is closely related
to the responsibilities vested in the Secretary of State
by section 39 of the Arms Export Control Act concerning
reports of agents' fees and other payments. Although
this function is enacted as permanent law, it does not
amend either the FAA or the AECA and, therefore, must
be specifically delegated.
Paragraph 2 revokes a provision regarding coordina-
tion of munitions control functions under section 414
of the Mutual Security Act of 1954. That provision of
law is repealed by section 212 (b) (1) of P.L. 94-329.
Munitions control functions, now authorized by sec-
tion 38 of the AECA, are dealt with in part III of theRD
draft Order.
GERALD
LIBRARY
- 3 -
Delegation to the Secretary of Defense.
Paragraph 3 deletes a reference to section 664 (i)
of the FAA, which section was repealed by section 22
(2) of P.L. 93-189.
Paragraph 4 adds to the functions on which the
Secretary of Defense must consult with the Secretary
of State those under sections 514 (e) of the FAA. That
provision, enacted by section 103 of P.L. 94-329,
requires the President to report to Congress on new
overseas stockpiles of defense articles, or additions
to existing stockpiles, of more than $10 million in
value.
Exclusions from Delegation to the Secretary of
Defense.
Paragraph 5 excludes from the functions delegated
to the Secretary of Defense the following additional
responsibilities, thereby causing those functions to
be delegated to the Secretary of State:
(a) Those under section 502B (a) (3) of the FAA
(except to the extent they relate to DOD functions).
That provision, enacted by section 301 (a) of P.L. 94-329,
directs the President to formulate and conduct security
assistance programs in a manner that will promote human
rights and avoid identification of the United States
with governments which deny human rights to their
people. Delegation of this function to the Secretary of
State is consistent with other provisions of the FAA
regarding human rights, and with the Secretary of State's
supervisory responsibilities for security assistance.
(b) Those under sections 504 (a) and 505 (d), (e),
and (g) of the FAA. Section 504 (a), as amended by
section 101 of P.L. 94-329, authorizes the President to
increase the amounts allocated for military assistance
to certain countries. Allocations of funds for military
assistance under section 653 (a) of the FAA are made by
the Secretary of State and this new allocation function
should be similarly delegated. Section 505 (d), as
amended by section 304 (a) of P.L. 94-329, requires the FORD
President to report to Congress if information is
GERALD
LIDRARY
- 4 -
received indicating a substantial violation of an
international agreement regarding the use of U.S.
furnished defense articles and defense services.
Section 505 (e), enacted by section 12 (a) (3) of
P.L. 93-189 and amended by section 204 (b) (2) of
P.L. 94-329, requires the President to observe
certain conditions in considering requests for
consent to third country transfers of U.S. furnished
defense articles and services. This provision
superseded section 9 of P.L. 91-672 under which
functions regarding third country transfers had
been delegated to the Secretary of State. These
functions have continued to be performed by him.
Section 505 (g), enacted by section 302 (a) of
P.L. 94-329, requires the President to report to
Congress on instances of discrimination by foreign
governments against American citizens because of
their race, religion, national origin, or sex.
(c) Those relating to consent under sections
505 (a) (1) and (4) of the FAA. These provisions
authorize the President to consent to disposition
of United States furnished defense articles and
services other than by return to the United States.
The exclusion of this function from the responsi-
bilities of the Secretary of Defense complements the
delegation to the Secretary of State of responsi-
bility for third party transfers.
Delegation to the Secretary of the Treasury.
Paragraph 6 modifies the delegation to the Secre-
tary of the Treasury by deleting references to former
section 514 of the FAA, which was repealed by section
12 (a) (5) of P.L. 93-189, and to section 414 of the
Mutual Security Act of 1954, repealed by section 212
(b) (1) of P.L. 94-329. The deletion of reference to
the former section 514 of the FAA is not intended to
affect responsibilities of the Secretary of the
Treasury with respect to foreign currencies owned by
the United States which were obtained pursuant to
this repealed provision of law.
FORD if LIBRARY GERALD
- 5 -
This paragraph retains the Secretary of the
Treasury's functions of making reports to Congress
under sections 634 (f) and (g) of the FAA regarding
the indebtedness of foreign countries. These
provisions were enacted by section 17 of P.L. 93-189
and were delegated to the Secretary of the Treasury
by Executive Order 11816 of October 25, 1974 (39 F.R.
37965). In addition, it delegates to the Secretary
of the Treasury the function of transmitting to
Congress and the Comptroller General reports of the
International Bank for Reconstruction and Development
and the Asian Development Bank received under sec-
tion 301 (e) (3) of the FAA. This section of the FAA
was added by section 9 (1) of P.L. 93-189. It also
delegates to the Secretary of the Treasury the func-
tion of implementing section 102 (d) of the FAA with
respect to international development organizations in
which the United States is represented by the Secretary
of the Treasury. Section 102 (d), enacted by section
301 of P.L. 94-161, directs the President to endeavor
to bring about the adoption of certain criteria by
international development organizations. These
criteria are to be developed by AID pursuant to other
provisions of section 102 (d).
Reservation of Functions to the President.
Subparagraphs (a) and (b) of paragraph 7 reserve
to the President the following additional functions:
(a) Those under section 505 (c) of the FAA. That
provision requires the reduction and termination of
military assistance grants to any country having
sufficient wealth to enable it to maintain and equip
its own military forces without undue burden to its
economy. This function involves the formulation of the
President's budget and is considered inappropriate for
delegation.
(b) Those under sections 620 (x) and 620A of the
FAA. The former provision, added by section 22 of
P.L. 93-559 and amended by section 403 of P.L. 94-329,
authorizes the President to make determinations and
certifications regarding military assistance and sales
to Turkey. The latter provision, enacted by section
CAKE
303 of P.L. 94-329, requires the President to terminate
- 6 -
assistance to countries which aid terrorists and
authorizes him to waive this requirement on national
security grounds.
(c) Those under section 481 (a) of the FAA. The
reference to section 481 (a) conforms the Executive
order to an amendment made to section 481 of the FAA
by section 11 (a) of P.L. 93-189. That amendment
designated the former section 481 as subsection (a)
and added a new subsection (b) requiring certain
reports to the Congress on the International Narcotics
Control Program. The submission of these periodic
reports need not be reserved for the President and,
in fact, the required reports have been submitted by
the Department of State on the President's behalf.
This change would also cause the function vested in
the President by section 481 (c) (2) of the FAA to be
delegated to the Secretary of State. This function,
added by section 504 (b) of P.L. 94-329, involves a
study and report to Congress on placing our narcotics
control program under international organization
auspices.
(d) That under section 504 (a) (6) of the FAA of
determining that the furnishing of sophisticated
weapons systems to certain less developed countries is
important to the national security. This function,
enacted by section 101 of P.L. 94-329, is similar to
one in existing law which, in practice, has been
performed only by the President.
(e) Those under sections 505 (d) (2) (A) and 505 (d)
(3) (A) of the FAA of determining that a country is
ineligible for further assistance because it has
violated an agreement on the use of United States
furnished defense articles or defense services and
determining that such a violation has ceased. These
provisions were enacted by section 304 (a) of P.L.
94-329.
(f) Those under section 662 (a) of the FAA. That
section, added by section 32 of P.L. 93-559, prohibits
the expenditure of appropriated funds for foreign
operations of the Central Intelligence Agency other
than intelligence gathering unless the President
is
FORD
GERALD
- 7 -
determines that the operation is important to the
national security and provides a timely report to
the Congress.
(g) Those under section 663 of the FAA. That
provision authorizes the President to furnish assist-
ance under the FAA or defense articles or services
under the FMS program in exchange for raw materials
and to allocate raw materials so received to any
appropriate U.S. agency for stockpiling or disposal.
It was added by section 32 of P.L. 93-559.
(h) Those under. section 669 (b) (1) of the FAA
relating to waiver of the prohibition against assist-
ance to countries which deliver or receive nuclear
reprocessing or enrichment equipment, materials or
technology. This provision, enacted by section 305
of P.L. 94-329, contemplates that such a waiver be
made only by Executive order.
Subparagraph (c) of paragraph 7 adds a proviso
to the existing reservation of the function of
finding whether military assistance to a country will
strengthen the security of the United States and
promote world peace. This proviso continues in effect
the delegation of authority to the Secretary of State
to make such a finding in the context of proposed
third country transfers to countries with respect to
which an eligibility finding has not previously been
made by the President. Similar authority is now
delegated to the Secretary of State by Presidential
Determination 73-10 of January 2, 1973 (38 F.R. 7211).
This subparagraph complements the delegation to the
Secretary of State of functions under sections 505 (a)
(1), (a) (4) and (e), as proposed in paragraph 5 of
the draft Order.
PART II. FOREIGN MILITARY SALES
This part of the draft Order revokes Executive
Order 11501, which contains the delegations of func-
tions vested in the President by the Foreign Military
Sales Act (P.L. 90-629), as amended. That Act has been
FORD
renamed the "Arms Export Control Act" by P.L. 94-329,
GERALD
LIBRARY
- 8 -
and its provisions have been so extensively revised
as to require substantial changes in the delegations
of authority. These changes are reflected in part
III of the draft Order.
PART III. ARMS EXPORT CONTROLS
This part of the draft Order delegates functions
vested in the President by the Arms Export Control
Act (AECA). To the extent that the provisions of the
newly entitled AECA remain similar to those previously
contained in the Foreign Military Sales Act, the
delegations follow the basic pattern of Executive
Order 11501. However, the draft Order also makes
provision for the many new functions established in
the recently enacted legislation. Functions not
expressly delegated are reserved to the President.
Delegation of Functions.
Section .1 of the draft Order delegates functions
vested in the President by specific sections of the
AECA, as follows:
Eligibility - Paragraph (a) delegates to the
Secretary of State functions under section 3 of the
AECA, except the finding that sales to a given country
will strengthen the security of the United States and
promote world peace, the waiver of a suspension of
eligibility because of fishing boat seizures, and the
determinations regarding ineligibility because of
violation of an agreement on the use of United States
furnished defense articles or defense services. These
specified functions are reserved to the President.
Paragraph (a) also contains a proviso to the
reservation of the function of making findings of
eligibility under section 3 (a) (1) of the AECA. This
proviso allows the Secretary of State to make such a
finding in the context of a proposed third country
transfer. The proviso is parallel to that set out in
paragraph 7 (c) of part I of the draft Order, which is
limited to articles and services furnished under the
FAA, and similarly complements the functions delegated CERT
- 9 -
to the Secretary of State with respect to third country
transfers.
Discrimination - Paragraph (b) delegates to the
Secretary of State functions under section 5 of the
AECA, which was added by section 302 (b) of P.L. 94-329.
These functions involve the furnishing of reports to
Congress on discrimination by foreign governments
against Americans on the basis of race, religion,
national origin, or sex. The statute contemplates the
participation of the State Department's Coordinator
for Human Rights and Humanitarian Affairs in the
preparation of certain of these reports.
Sales from Stock Paragraph (c) continues the
existing delegation to the Secretary of Defense of
functions under section 21 of the AECA, relating to sales of
defense articles and defense services from Department
of Defense stocks. This paragraph excepts from the
delegation functions under the final sentence of sub-
section (d) and under subsection (h) of section 21.
These excepted functions are reserved to the President.
Subsection (d), added by section 205 of P.L. 94-329,
involves the extension of time for payment under sales
contracts when an emergency requires a delay in order
to seek legislation to finance the sale. Subsection
(h), added by section 206 of P.L. 94-329, requires a
certification and report to Congress for any sale that
would have a significant adverse effect on the combat
readiness of U.S. forces.
Procurement for Cash Sales - Paragraph (d) continues
the delegation to the Secretary of Defense of authority
to make sales from new procurements under section 22
of the AECA. However, the extraordinary authority in
section 22 (b) to approve delayed interest-free payment
for such sales in emergencies is reserved to the
President. This authority, as amended by section 207 (b)
of P.L. 94-329, is similar to that contained in section
21 (d), which authority is similarly reserved to the
President by paragraph (c) of this section of the draft
Order.
FORD GREATS LIBRARY
- 10 -
Sales Credits - Paragraph (e) continues the
delegation to the Secretary of Defense of authority
to extend credits under section 23 of the AECA to
finance the procurement of defense articles and
defense services. This delegation of authority is
modified, however, by a reservation to the President
of authority to approve concessional interest rates
as being in the national interest under section 23 (2)
This function was added by section 45 (a) (2) of
P.L. 93-559.
Guaranties - Paragraph (f) continues the delega-
tion to the Secretary of Defense of authority to issue
repayment guaranties under section 24 of the AECA to
private U.S. lenders and to the Federal Financing Bank
to finance military procurements.
Annual Justification - Paragraph (g) delegates to
the Secretary of State authority to transmit to
Congress an annual estimate and justification for the
Foreign Military Sales program, as required by section
25 of the AECA. This delegation is consistent with
the existing responsibility of the Secretary of State
for the Congressional presentation. In recognition
that information on estimated sales orders must come
from the Department of Defense, and arms control impact
analysis must involve the Arms Control and Disarmament
Agency, the heads of those agencies are directed to
assist the Secretary of State in the preparation of
presentation materials. Section 25 of the AECA was
added by section 209 of P.L. 94-329.
Standards and Criteria - Paragraph (h) continues
without change the delegation to the Secretary of State,
with concurrence from the Departments of Defense and
Treasury on certain aspects, of authority to prescribe
standards and criteria for credit and guaranty trans-
actions under section 34 of the AECA.
Less Developed Countries - Paragraph (i) continues
the delegation to the Secretary of State to find a
less developed country ineligible for sales, credits
and guaranties under section 35 (a) of the AECA because
it has diverted resources needed for development to
unnecessary military expenditures.
- 11 -
Foreign Military Sales Reports - Paragraph (j)
delegates to the Secretary of Defense responsibility
for making quarterly reports to Congress under sec-
tion 36 (a) of the AECA of past sales, projected sales,
financing for such sales, and the numbers and func-
tions of overseas personnel. Reports containing some
of this information have been submitted by the
Secretary of Defense since the enactment of section
36 (a) by section 45 (a) (5) of P.L. 93-559. The scope
of these reports has been modified by section 211 (a)
of P.L. 94-329.
This paragraph also delegates to the Secretary of
Defense authority under section 36 (b) of the Act to
submit notices to Congress of proposed individual major
governmental sales. This function has also been
performed heretofore by the Secretary of Defense
without formal delegation. The waiver of the thirty-
day waiting period after submission of such a notice
is reserved to the President.
Consistent with existing practice, the Secretary
of Defense is required to consult with the Secretary
of State in the performance of functions under this
paragraph of the draft Order. The draft Order also
requires consultation with ACDA in responding to
requests from Congress under section 36 (b) (1) of the
AECA for information concerning the arms control
aspects of proposed sales.
Commercial Sales Reports - Paragraph (k) delegates
to the Secretary of State authority to submit quarterly
reports to Congress on exports of commercially sold
defense articles and defense services and on the
numbers of American personnel employed overseas in
implementing such exports. These reports, required
by an amendment to section 36 (a) of the AECA made by
section 211 of P.L. 94-329, supersede the periodic
reports formerly submitted by the Secretary of State
under the now repealed section 414 (e) of the Mutual
Security Act of 1954, as amended.
In addition, this paragraph delegates to the Secre-
tary of State responsibility for reporting to Congress
quarterly on political contributions, gifts, fees,
commissions and other payments reported to him under
GERALD
section 39 of the AECA. Such reports are required by
- 12 -
section 36 (a) (8) of the AECA, as added by section 604
(a) of P.L. 94-329.
This paragraph also delegates to the Secretary
of State authority for submitting notices to Congress
of proposed major commercial exports under sections
36 (c) and 36 (d) of the AECA. The requirement for such
notices was enacted by section 211 of P.L. 94-329.
Export Licenses - Paragraph (1) continues the
delegation of functions regarding controls over the
import and export of defense articles and defense
services. Such controls have previously been exercised
under section 414 of the Mutual Security Act of 1954,
which is superseded by section 38 of the AECA, as added
by section 212 of P.L. 94-329.
Subparagraph (1) delegates export control functions
to the Secretary of State, subject to the same coordina-
tion with the Secretary of Defense as is presently
required by section 105 of Executive Order 10973.
Subparagraph (2) delegates import control functions
to the Secretary of the Treasury, subject to the same
coordination with the Secretaries of State and Defense
as is presently required by section 301 (b) of Executive
Order 10973.
Subparagraph (3) implements the newly enacted sec-
tion 38 (e) of the AECA, which makes administrative
enforcement powers under the Export Administration Act
also available to enforce section 38 of the AECA. This
subparagraph has been included in the draft Order
because the Departments of State and Commerce are
discussing the possible utilization of Commerce Depart-
ment compliance mechanisms to assist in implementing
the administrative powers authorized by section 38 of
the AECA. It makes clear that any services which may
be performed by the Commerce Department relating to
such enforcement powers (e.g., decisions by that
Department's Appeals Board on behalf of the Secretary of
State) are duly authorized.
GERA
- 13 -
Fees and Payments - Paragraph (m) delegates to
the Secretary of State authority to prohibit, limit
or prescribe conditions on payments made to solicit,
promote or otherwise secure governmental or commercial
sales of defense articles or defense services. This
authority is contained in section 39 (b) of the AECA,
added by section 604 (b) of P.L. 94-329. Other
regulatory functions under section 39 are vested
directly in the Secretary of State by statute. In
carrying out this delegation of authority with respect
to sales under section 22 of the AECA, the Secretary
of State is required to consult with the Secretary of
Defense in order to avoid interference in the applica-
tion of the Armed Services Procurement Regulations and
other Department of Defense regulations. Sales under
section 22 of the AECA are to be administered by the
Secretary of Defense in accordance with paragraph (d)
of this section of the draft Order.
General Provisions - Paragraph (n) continues the
delegation to the Secretary of Defense of authority to
approve offshore procurement under section 42 (c) of
the FAA. In addition, it delegates to the Secretary
of Defense responsibility under section 42 (f) for
maximizing the overseas use of contractor services,
as opposed to services of U.S. military personnel.
This new directive in section 42 (f) of the AECA was
added by section 605 (b) of P.L. 94-329.
Coordination.
Section 2 of the draft Order is derived from
sections 2 and 3 of Executive Order 11501. Paragraph
(a) continues the requirement for consultation by the
Secretaries of State and Defense with the Secretary
of the Treasury, the Administrator of the Agency for
International Development, and the Director of the
Arms Control and Disarmament Agency. However, this
paragraph is written in more general terms and is not
limited to those specified agencies.
Paragraph (b) affirms the supervisory responsi-
bilities of the Secretary of State under section 2 (b)
of the AECA. In addition, it expressly provides that
international agreements under the Act shall be
GERAL
- 14 -
negotiated, entered into and terminated by or under
the authority of the Secretary of State. This
provision relating to international agreements
parallels the delegation to the Secretary of State
under the FAA resulting from section 203 (e) of
Executive Order 10973, as set out in part I of the
draft Order. The terminology is comparable to that
contained in other Executive orders. See, e.g.,
section 4 (a) of Executive Order 10841 (24 FR 7941).
Paragraph (c) requires the Secretary of State
to ensure that the Coordinator for Human Rights and
Humanitarian Affairs participate in the formulation
and conduct of security assistance programs. The
Coordinator, whose office is established within the
Department of State by section 301 (b) of P.L. 94-329,
will not be an agency head to whom it would be
appropriate to delegate functions directly. However,
a principal purpose of P.L. 94-329 is to require the
taking into account in arms export control and
security assistance decisions those considerations
specified in the legislation as being of particular
concern to Congress. Among these, human rights
issues are most prominent. The objectives of the
Coordinator's participation as described in this sub-
paragraph is derived from section 502B (a) (3) of the
FAA, as enacted by section 301 of P.L. 94-329.
Reservation of Functions.
Section 3 of the draft Order is identical to
section 4 of Executive Order 11501. It expressly
reserves to the President those functions not expressly
delegated.
Allocation of Funds.
Section 4 of the draft Order, which allocates
funds under the AECA to the Secretary of Defense, is
identical to section 5 of Executive Order 11501.
General Provisions.
FOND
Section 5 of the draft Order makes clear that
references to the AECA in this Order shall include
amendments to the Act made from time to time. This
GERALS
section is identical to section 6 of the Executive
Order 11501.
- 15 -
The provisions of the enclosed draft Executive
order have been approved by the Under Secretary of
State for Security Assistance, following coordina-
tion of the views of the several agencies concerned.
We hope that formal interagency clearance can be
obtained on an expedited basis and the enclosed
documents submitted in final form to the President
at an early date.
Sincerely,
Robert June (doskey
Robert J. McCloskey
Assistant Secretary for
Congressional Relations
Enclosure:
Proposed Executive
Order.
10 GERALD ASVECIT
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
OF LEGAL COUNSEL
RECEIVED 10 Fll 76
GENERAL COUNSEL
DEC 16 1976
Honorable Edward H. Levi
Attorney General
Washington, D. C. 20530
Dear Mr. Attorney General:
Herewith, in accordance with the provisions of Executive
Order No. 11030, as amended, are two proposed Executive
orders entitled "Administration of Arms Export Controls"
and "Administration of Foreign Assistance and Related
Functions" respectively.
These two orders were submitted by the Department of
State, along with the enclosed transmittal letter. The
submission by the Department of State was in the form
of a single Executive order. For reasons of form and
administrative convenience, it was revised in this office
into two proposed orders. Part I of the State draft
is now a proposed order entitled "Administration of
Foreign Assistance and Related Functions", and Part III
is now a proposed order entitled "Administration of Arms
Export Controls." Part II of the State draft order has
become Section 4 of the proposed order on arms export
controls.
The purpose of these two proposed Executive orders is
to delegate some of the new functions vested in the
President by the International Security Assistance and
Arms Export Control Act of 1976 (Public Law 94-329)
and the Foreign Assistance Acts of 1973 (Public Law 93-
189) and 1974 (Public Law 93-559), and the International
Development and Food Assistance Act of 1975 (Public Law
94-161).
The delegations of Presidential authority in the proposed
orders are consistent with existing delegations. Some
substantive changes have been made in the proposed order.
Those changes and relevant agency comments are discussed
below.
ORD
LIBRARY
2
A very thorough discussion of the proposed orders is
contained in the enclosed transmittal letter from the
Department of State. The following discussion will track
the State letter and, except as noted, the proposed
orders also track the format of the State draft, thus
making it easy to read the State letter, this letter,
and the proposed orders together.
Part I of the State draft - now a separate proposed order
entitled "Administration of Foreign Assistance and Related
Functions.'
Section 1 was changed to add Section 413 (b) of Public
Law 94-329 to the functions delegated to the Secretary
of State, as suggested by the Agency for International
Development (AID), Department of State. This would allow
AID to settle claims arising out of the collapse of pro-
western governments in Indochina.
Section 2 was changed by adding a new Section 105 to
Executive Order No. 10973, as amended. This provision
provides that with respect to determining the alloca-
tion of assistance funds, the Secretary of State will
consult with the Director of the Office of Management
and Budget.
Section 6 was changed, at the request of the Department
of the Treasury, to reflect that the Secretary of the
Treasury would continue to administer the still active
special foreign country accounts established under prior
provisions of law. We have not used the proposed dele-
gatory language, only because there no longer exists
any statutory authority to delegate.
There were a few other minor editorial changes, which
were made for reasons of clarity, style, or form. For
example, the last citation in Section 1 was changed from
"22 U.S.C. 239a" to "22 U.S.C. 2394a".
Part III of the State draft - now a separate proposed
order entitled "Administration of Arms Export Controls."
Section 1 (a) was modified by changing " (c) (4) (A) If to read
" (c) (4) See Section 304 (b) of Public Law 94-329 for
:
GERALD
LIBRARY
3
the latest amendments to Section 3 (c) of the Foreign
Military Sales Act, now the Arms Export Control Act
(AECA).
Sections 1(j) and (k) were changed, at the request of
a representative of the Department of State, by deleting
references to subsections (a) (4), (a) (7), and (a) (8)
of Section 36 of the AECA. The references would have
had the effect of withholding certain reporting require-
ments from the Department of Defense and vesting them
in the Department of State. These items in the required
report to the Congress should logically all be made by
one department head - the Secretary of Defense.
Section 1 (j) was also modified to provide that the Secre-
tary of Defense would consult with the Director of the
Office of Management and Budget on the report of pro-
jected foreign sales transactions.
Section 1 (j) has additionally been modified at the re-
quest of the Department of Defense to reflect that appro-
priate consultation with the Director of the Arms Control
and Disarmament Agency shall be performed by the Secretary
of State. According to the Department of Defense, this
is consistent with established procedures between the
Departments of State and Defense.
In Section 1 (1) (3) we have deleted the unnecessary
reference to a designee of the Secretary of Commerce.
Section 2 (b) has been modified to more accurately reflect
the statutory language.
Section 2 (c) has been deleted as unnecessary. To the
extent that the Coordinator for Human Rights and Humani-
tarian Affairs is to participate in functions under the
AECA, such participation is already required by statute
(see Section 301 of Public Law 94-329, adding Section
502B to the Foreign Assistance Act of 1961, as amended,
especially Section 502B (f) (1) and (a) (2) and (d) (2) )
Section 3 has been deleted as unnecessary, since functions
not delegated remain vested in the President.
Section 4, concerning allocation of funds, has become
Section 3.
GERALE FORD 1
4
Part II of the State draft order has been added as Section 4
of this proposed order.
There were a few other minor editorial changes, which
were made for reasons of clarity, style, or form. For
example, the second sentence in Section 1 (c) was changed
from "exception of subsections (d) (final sentence) and
(h) to "exception of the last sentence of subsection
(d) and all of subsection (h)".
It is urged that these proposed Executive orders be expedi-
tiously presented for the President's consideration so
that they may be issued during the first two weeks of
January 1977.
These proposed Executive orders have the approval of
the Director of the Office of Management and Budget.
Sincerely,
William m. Nichols
William M. Nichols
General Counsel
11 Enclosures
2 Executive orders
State transmittal
Comments from:
Commerce
DOD
Treasury
CIA
NSC
USIA
AID
ACDA
GERALD
ADVUGIT
RESIDENCE
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
DESTRIBE
STATES
WASHINGTON, D.C. 20503
GENERAL COUNSEL
December 21, 1976
Honorable Edward H. Levi
Attorney General
Washington, D. C. 20530
Dear Mr. Attorney General:
This is in reference to my letter of December 16, 1976,
transmitting two proposed Executive orders entitled
"Administration of Arms Export Controls" and "Admin-
istration of Foreign Assistance and Related Functions"
respectively.
Enclosed are pages 4 and 5 for the proposed order
entitled "Administration of Arms Export Controls."
Please substitute these pages for those transmitted on
December 16, 1976.
This change only modifies the provisions of Section 2 (b)
of the proposed order. This change was informally
requested and discussed with a representative of the
Department of State, who concurs. The change expands
the language of the proposed Section 2 (b) and more closely
follows the wording of Section 2 (b) of the Arms Export
Control Act, as amended (including the amendments made
by Section 212 (a) (2) of Public Law 94-329). Language
has been added to make it clear that the responsibilities
of the Secretary of State include the supervision and
direction of the negotiation, conclusion, and termination
of international agreements. This addition is consistent
with the statutory language.
Although we are of the opinion that this proposed Section
2 (b) is basically unnecessary, and would ordinarily
delete it as surplusage, we have agreed to include it
because similar language is included in the related
Executive Order No. 10973. We would anticipate that
such language would not be included when Executive Order
No. 10973, as amended, is completely revised.
2
This proposed revision has the approval of the Director
of the Office of Management and Budget.
Sincerely,
Williamm.nichole
William M. Nichols
General Counsel
Enclosure
GERALD
EXECUTIVE ORDER
ADMINISTRATION OF FOREIGN ASSISTANCE AND
RELATED FUNCTIONS
By virtue of the authority vested in me by the
Constitution and statutes of the United States of
America, including Section 621 of the Foreign Assist-
ance Act of 1961, as amended (22 U.S.C. 2381), and
Section 301 of Title 3 of the United States Code, and
as President of the United States of America, Executive
Order No. 10973, as amended, is hereby further amended
as follows:
Section 1. Section 101 is amended by striking
out "and (6)' and inserting in lieu thereof " (6) sections
413 (b) and 607 of the International Security Assistance
and Arms Export Control Act of 1976 (90 Stat. 761,
768; 22 U.S.C. 2431, note, 2394a), and (7)
Sec. 2. Section 105 is revoked and the following
new section is substituted therefor:
"SEC. 105. ALLOCATION OF FOREIGN ASSISTANCE.
In carrying out the functions conferred upon the
President by section 653 of the Act, the Secretary
of State shall consult with the Director of the Office
of Management and Budget.'
Sec. 3. Subsection (c) of Section 201 is revoked.
Sec. 4. Section 202 is amended to read as follows:
"SEC. 202. REPORTS AND INFORMATION. In carrying
out the functions under sections 514 (e) and 634(b)
of the Act delegated to him by section 201 of this
order, the Secretary of Defense shall consult with
the Secretary of State.
2
Sec. 5. Section 203 is amended to read as follows:
"SEC. 203. EXCLUSIONS FROM DELEGATION TO SECRE-
TARY OF DEFENSE. The following described functions
conferred upon the President by the Act are excluded
from the functions delegated by the provisions of
section 201 (a) of this order:
" (a) Those under section 502 (B) (a) (3) of the
Act, except to the extent they relate to functions
under the Act administered by the Department of Defense.
" (b) Those under sections 504(a), 505 (a) relating
to other provisions required by the President, and
505(d), (e), and (g) of the Act.
- (c) Those relating to consent under sections
505 (a) (1) and (4) of the Act.
" (d) Those under sections 505 (b) (1), (2) and
(3) of the Act to the extent that they pertain to
countries which agree to the conditions set forth
therein.
" (e) Those of negotiating, concluding and termi-
nating international agreements
Sec. 6. Section 301 is amended to read as follows:
"SEC. 301. DEPARTMENT OF THE TREASURY.
There are delegated to the Secretary of the Treasury
the functions conferred upon the President by the third
sentence of section 102 (d) as it relates to international
development organizations in which the United States
is represented by the Secretary of the Treasury, sec-
tion 301 (e) (3) as it relates to organizations referred
to in section 301 (e) (2), the second sentence of section
612(a), section 634(f), and section 634(g) of the Act.
FORD
GERALD
3
The Secretary of the Treasury shall continue to
administer any open special foreign country accounts
established pursuant to former section 514 of the Act
as enacted by section 201 (f) of Public Law 92-226 (86
Stat. 25) and repealed by Section 12 (b) (5) of Public
Law 93-189 (87 Stat. 722) .".
Sec. 7. Section 401 is amended as follows:
(a) Subsection (a) is amended:
(1) by inserting "505(c)" immediately after
"504(b)"; and
(2) by inserting "620(x), 620A" immediately
after "620(d)"; and
(3) by striking out "and 633(b)" and inserting
in lieu thereof "633(b), 662(a), and 663(b)".
(b) Subsection (c) is amended:
(1) by striking out "481" and inserting in lieu
thereof "481(a), 504 (a) (6)": and
(2) by inserting "505 (d) (2) (A), 505 (d) (3)'
immediately after "505 (b) (4) ,"; and
(3) by striking out "and 634(c)" and inserting
in lieu thereof "634(c), 663 (a) and 669 (b) (1)".
(c) Subsection (d) (1) is amended to read as
follows:
(d) (1) Those under section 503 (a) which relate
to findings: Provided, That the Secretary of State
in the implementation of the functions delegated to
him under section 505 (a) (1), (a) (4) and (e) of the
Act, is authorized to find, in the case of a proposed
transfer of a defense article or related training or
a related defense service by a foreign country or
FORD
GERALD
LIBRARY
4
international organization to a foreign country or
international organization not otherwise eligible under
section 503 (a) of the Act, whether the proposed trans-
fer will strengthen the security of the United States
and promote world peace. "
THE WHITE HOUSE
1977
BERALD FORD
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
DEC 16 1976
GENERAL COUNSEL
Honorable Edward H. Levi
Attorney General
Washington, D. C. 20530
Dear Mr. Attorney General:
Herewith, in accordance with the provisions of Executive
Order No. 11030, as amended, are two proposed Executive
orders entitled "Administration of Arms Export Controls"
and "Administration of Foreign Assistance and Related
Functions" respectively.
These two orders were submitted by the Department of
State, along with the enclosed transmittal letter. The
submission by the Department of State was in the form
of a single Executive order. For reasons of form and
administrative convenience, it was revised in this office
into two proposed orders. Part I of the State draft
is now a proposed order entitled "Administration of
Foreign Assistance and Related Functions", and Part III
is now a proposed order entitled "Administration of Arms
Export Controls." Part II of the 'State draft order has
become Section 4 of the proposed order on arms export
controls.
The purpose of these two proposed Executive orders is
to delegate some of the new functions vested in the
President by the International Security Assistance and
Arms Export Control Act of 1976 (Public Law 94-329),
and the Foreign Assistance Acts of 1973 (Public Law 93-
189) and 1974 (Public Law 93-559), and the International
Development and Food Assistance Act of 1975 (Public Law
94-161)
The delegations of Presidential authority in the proposed
orders are consistent with existing delegations. Some
substantive changes have been made in the proposed order.
Those changes and relevant agency comments are discussed
below.
LIBRARY GERALD R. FORD
2
A very thorough discussion of the proposed orders is
contained in the enclosed transmittal letter from the
Department of State. The following discussion will track
the State letter and, except as noted, the proposed
orders also track the format of the State draft, thus
making it easy to read the State letter, this letter,
and the proposed orders together.
Part I of the State draft - now a separate proposed order
entitled "Administration of Foreign Assistance and Related
Functions."
Section 1 was changed to add Section 413 (b) of Public
Law 94-329 to the functions delegated to the Secretary
of State, as suggested by the Agency for International
Development (AID), Department of State. This would allow
AID to settle claims arising out of the collapse of pro-
western governments in Indochina.
Section 2 was changed by adding a new Section 105 to
Executive Order No. 10973, as amended. This provision
provides that with respect to determining the alloca-
tion of assistance funds, the Secretary of State will
consult with the Director of the Office of Management
and Budget.
Section 6 was changed, at the request of the Department
of the Treasury, to reflect that the Secretary of the
Treasury would continue to administer the still active
special foreign country accounts established under prior
provisions of law. We have not used the proposed dele-
gatory language, only because there no longer exists
any statutory authority to delegate.
There were a few other minor editorial changes, which
were made for reasons of clarity, style, or form. For
example, the last citation in Section 1 was changed from
"22 U.S.C. 239a" to "22 U.S.C. 2394a".
Part III of the State draft - now a separate proposed
order entitled "Administration of Arms Export Controls."
Section 1 (a) was modified by changing # (c) (4) (A)" to read
(c) (4) See Section 304(b) of Public Law 94-329 for
FORD
GERALD
LIBRARY
3
the latest amendments to Section 3 (c) of the Foreign
Military Sales Act, now the Arms Export Control Act
(AECA).
Sections 1(j) and (k) were changed, at the request of
a representative of the Department of State, by deleting
references to subsections (a) (4), (a) (7), and (a) (8)
of Section 36 of the AECA. The references would have
had the effect of withholding certain reporting require-
ments from the Department of Defense and vesting them
in the Department of State. These items in the required
report to the Congress should logically all be made by
one department head - the Secretary of Defense.
Section 1 (j) was also modified to provide that the Secre-
tary of Defense would consult with the Director of the
Office of Management and Budget on the report of pro-
jected foreign sales transactions.
Section 1 (1) has additionally been modified at the re-
quest of the Department of Defense to reflect that appro-
priate consultation with the Director of the Arms Control
and Disarmament Agency shall be performed by the Secretary
of State. According to the Department of Defense, this
is consistent with established procedures between the
Departments of State and Defense.
In Section 1 (1) (3) we have deleted the unnecessary
reference to a designee of the Secretary of Commerce.
Section 2 (b) has been modified to more accurately reflect
the statutory language.
Section 2 (c) has been deleted as unnecessary. To the
extent that the Coordinator for Human Rights and Humani-
tarian Affairs is to participate in functions under the
AECA, such participation is already required by statute
(see Section 301 of Public Law 94-329, adding Section
502B to the Foreign Assistance Act of 1961, as amended,
especially Section 502B (f) (1) and (a) (2) and (d) (2)).
Section 3 has been deleted as unnecessary, since functions
not delegated remain vested in the President.
Section 4, concerning allocation of funds, has become
Section 3.
is
FORD
GERALD
LIBRARY
r
4
Part II of the State draft order has been added as Section 4
of this proposed order.
There were a few other minor editorial changes, which
were made for reasons of clarity, style, or form. For
example, the second sentence in Section 1(c) was changed
from "exception of subsections (d) (final sentence) and
(b)" to "exception of the last sentence of subsection
(d) and all of subsection (b)".
It is urged that these proposed Executive orders be expedi-
tiously presented for the President's consideration 50
that they may be issued during the first two weeks of
January 1977.
These proposed Executive orders have the approval of
the Director of the Office of Management and Budget.
Sincerely,
(Signed) William M. Fichols
William M. Nichols
General Counsel
11 Enclosures
2 Executive orders
State transmittal
Comments from:
Commerce
DOD
Treasury
CIA
NSC
USIA
AID
ACDA
LIBRARY GERALD R. FORD
Office of the Attorney General
SEQUITUR
Washington, D. C. 20530
DOMINA JUSTITIA
DEC 3 0 1976
The President,
The White House.
Dear Mr. President:
I am transmitting herewith, in accordance with the provi-
sions of Executive Order No. 11030, as amended, a proposed
Executive order entitled "Administration of Arms Export
Controls."
The proposed order was submitted to the Office of Manage-
ment and Budget by the Department of State. It was revised
in the Office of Management and Budget on the basis of comments
by the Departments of the Treasury, Defense, Justice, and
Commerce, and the Agency for International Development.
The order, as revised, was forwarded by the Office of
Management and Budget, with the approval of its Director, to
the Department of Justice for consideration as to form and
legality.
The proposed order is approved as to form and legality.
Respectfully
Antonin Scalia
Assistant Attorney General
FRED & GERALD LIBRANY
Office of Legal Counsel
DEC 3 0 1976
MEMORANDUM
Re: Proposed Executive orders entitled:
"Administration of Foreign Assistance
and Related Functions"
and
"Administration of Arms Export Controls."
The proposed two orders were originally presented by
the Department of State to the Office of Management and Budget
(OMB) as a single order entitled: "Amending Executive Order
No. 10973, Relating to Administration of Foreign Assistance
and Related Functions; Revoking Executive Order 11501, Relat-
ing to Foreign Military Sales; and Providing for the Adminis-
tration of Arms Export Controls." That proposal was revised
in OMB on the basis of comments from the Departments of the
Treasury, Defense, Justice, and Commerce, and the Agency for
International Development and divided into the two above-
entitled proposed orders. The orders, as revised, were
forwarded by OMB, with the approval of its Director, to the
Department of Justice for consideration as to form and
legality.
The proposed orders were occasioned by legislation of
the last two Congresses, especially the International Security
Assistance and Arms Export Control Act of 1976, Public Law
94-329, which made substantial changes in the Foreign Assist-
ance Act of 1961 and the Foreign Military Sales Act, changing
the title of the latter to Arms Export Control Act. This
required corresponding amendments in the Executive orders
providing for the delegation of the authority vested in the
President by those statutes.
The purposes of those orders and the reasons for their
formulation are set forth in detail in the letter of submis-
sion from the Assistant Secretary of State for Congressional
Relations to the Director, OMB, dated August 19, 1976, and
ORD
the letters of transmittal from the General Counsel, OMB, to
the Attorney General, dated December 16 and 21, 1976, copies
LIBRARY
of which are attached.
The proposed orders are acceptable as to form and
legality. OMB requests that the proposed Executive orders
be expeditiously presented for the President's considera-
tion so that they may be issued during the first two weeks
of January 1977.
Antonin Scalia
Assistant Attorney General
Office of Legal Counsel
Attachments
- 2 -
EXECUTIVE ORDER
ADMINISTRATION OF ARMS EXPORT CONTROLS
By virtue of the authority vested in me by the
Constitution and statutes of the United States of
America, including the Arms Export Control Act, as
amended (22 U.S.C. 2751 et seq.), and Section 301 of
Title 3 of the United States Code, and as President
of the United States of America, it is hereby ordered
as follows:
Section 1. Delegation of Functions. The follow-
ing functions conferred upon the President by the Arms
Export Control Act (22 U.S.C. 2751 et seq.), herein-
after referred to as the Act, are delegated as follows:
(a) Those under Section 3 of the Act, with the
exception of subsections (a) (1), (b), (c) (3) and (c)
(4), to the Secretary of State: Provided, That the
Secretary of State, in the implementation of the functions
delegated to him under Sections 3 (a) and (d) of the
Act, is authorized to find, in the case of a proposed
transfer of a defense article or related training or
other defense service by a foreign country or inter-
national organization not otherwise eligible under
Section 3 (a) (1) of the Act, whether the proposed trans-
fer will strengthen the security of the United States
and promote world peace.
(b) Those under Section 5 to the Secretary of
State.
(c) Those under Section 21 of the Act, with the
exception of the last sentence of subsection (d) and
all of subsection (h), to the Secretary of Defense.
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2
(d) Those under Section 22 (a) of the Act to the
Secretary of Defense.
(e) Those under Section 23 of the Act, with the
exception of the function of certifying a rate of
interest to the Congress as provided by paragraph (2)
of that Section, to the Secretary of Defense.
(f) Those under Section 24 of the Act to the
Secretary of Defense.
(g) Those under Section 25 of the Act to the
Secretary of State. The Secretary of Defense and the
Director of the Arms Control and Disarmament Agency,
within their respective areas of responsibility, shall
assist the Secretary of State in the preparation of
materials for presentation to the Congress under that
Section.
(h) Those under Section 34 of the Act to the
Secretary of State. To the. extent the standards and
criteria for credit and guaranty transactions are based
upon national security and financial policies, the
Secretary of State shall obtain the prior concurrence
of the Secretary of Defense and the Secretary of the
Treasury, respectively.
(i) Those under Section 35 (a) of the Act to the
Secretary of State.
(j) Those under Sections 36 (a) and 36(b) (1) of
the Act, except with respect to the certification of
an emergency as provided by subsection (b) (1), to the
Secretary of Defense. The Secretary of Defense, in the
implementation of the functions delegated to him under
Sections 36(a) and (b) (1) shall consult with the Secre-
tary of State, who shall, with respect to matters related
BERALD FORD LIBRARY
3
to subparagraphs (D) and (I) of Section 36 (b) (1), con-
sult with the Director of the Arms Control and Dis-
armament Agency. With respect to those functions under
Sections 36 (a) (5) and (6), the Secretary of Defense
shall consult with the Director of the Office of Manage-
ment and Budget.
(k) Those under Sections 36 (c) and (d) of the
Act to the Secretary of State.
(1) Those under Section 38 of the Act:
(1) to the Secretary of State, except as other-
wise provided in this subsection. Designations,
including changes in designations, by the Secretary
of State of items or categories of items which shall
be considered as defense articles and defense services
subject to export control under Section 38 shall have
the concurrence of the Secretary of Defense;
(2) to the Secretary of the Treasury, to the
extent they relate to the control of the import of
defense articles and defense services. In carrying
out such functions, the Secretary of the Treasury shall
be guided by the views of the Secretary of State on
matters affecting world peace, and the external security
and foreign policy of the United States. Designations
including changes in designations, by the Secretary
of the Treasury of items or categories of items which
shall be considered as defense articles and defense
services subject to import control under Section 38
of the Act shall have the concurrence of the Secretary
of State and the Secretary of Defense;
(3) to the Secretary of Commerce, to carry out
on behalf of the Secretary of State, to the extent
:-
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4
such functions involve Section 38 (e) of the Act and
are agreed to by the Secretary of State and the Secre-
tary of Commerce.
(m) Those under Section 39 (b) of the Act to the
Secretary of State. In carrying out such functions,
the Secretary of State shall consult with the Secretary
of Defense as may be necessary to avoid interference
in the application of Department of Defense regulations
to sales made under Section 22 of the Act.
(n) Those under Sections 42 (c) and (f) of the
Act to the Secretary of Defense.
Sec. 2. Coordination. (a) In addition to the
specific provisions of Section 1 of this Order, the
Secretary of State and the Secretary of Defense, in
carrying out the functions delegated to them under
this Order, shall consult with each other and with
the heads of other departments and agencies, including
the Secretary of the Treasury, the Administrator of
the Agency for International Development, and the
Director of the Arms Control and Disarmament Agency,
on matters pertaining to their responsibilities.
(b) In accordance with Section 2(b) of the Act
and under the directions of the President, the
Secretary of State, taking into account other United
States activities abroad, shall be responsible for
the continuous supervision and general direction of
sales and exports under the Act, including but not
limited to, the negotiation, conclusion, and termin-
ation of international agreements, and determining
whether there shall be a sale to a country and the
GERALB R. FORD U LIBRARA
5
amount thereof, and whether there shall be delivery
or other performance under such sale or export, to
the end that sales and exports are integrated with
other United States activities and the foreign policy
of the United States is best served thereby.
Sec. 3. Allocation of Funds. Funds appropriated
to the President for carrying out the Act shall be
deemed to be allocated to the Secretary of Defense
without any further action of the President.
Sec. 4. Revocation. Executive Order No. 11501,
as amended, is revoked; except that, to the extent
consistent with this Order, all determinations,
authorizations, regulations, rulings, certificates,
orders, directives, contracts, agreements, and other
actions made, issued, taken or entered into under the
provisions of Executive Or No. 11501, as amended,
and not revoked, superseded or otherwise made inapplic-
able, shall continue in full force and effect until
amended, modified or terminated by appropriate authority.
THE WHITE HOUSE
1977
GERATE FORD
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
GENERAL COUNSEL
DEC 16 1976
Honorable Edward H. Levi
Attorney General
Washington, D. C. 20530
Dear Mr. Attorney General:
Herewith, in accordance with the provisions of Executive
Order No. 11030, as amended, are two proposed Executive
orders entitled "Administration of Arms Export Controls"
and "Administration of Foreign Assistance and Related
Functions" respectively.
These two orders were submitted by the Department of
State, along with the enclosed transmittal letter. The
submission by the Department of State was in the form
of a single Executive order. For reasons of form and
administrative convenience, it was revised in this office
into two proposed orders. Part I of the State draft
is now a proposed order entitled "Administration of
Foreign Assistance and Related Functions", and Part III
is now a proposed order entitled "Administration of Arms
Export Controls." Part II of the State draft order has
become Section 4 of the proposed order on arms export
controls.
The purpose of these two proposed Executive orders is
to delegate some of the new functions vested in the
President by the International Security Assistance and
Arms Export Control Act of 1976 (Public Law 94-329),
and the Foreign Assistance Acts of 1973 (Public Law 93-
189) and 1974 (Public Law 93-559) and the International
Development and Food Assistance Act of 1975 (Public Law
94-161)
The delegations of Presidential authority in the proposed
orders are consistent with existing delegations. Some
substantive changes have been made in the proposed order.
Those changes and relevant agency comments are discussed
below.
FORD
LIBR
2
A very thorough discussion of the proposed orders is
contained in the enclosed transmittal letter from the
Department of State. The following discussion will track
the State letter and, except as noted, the proposed
orders also track the format of the State draft, thus
making it easy to read the State letter, this letter,
and the proposed orders together.
Part I of the State draft - now a separate proposed order
entitled "Administration of Foreign Assistance and Related
Functions.
Section 1 was changed to add Section 413 (b) of Public
Law 94-329 to the functions delegated to the Secretary
of State, as suggested by the Agency for International
Development (AID), Department of State. This would allow
AID to settle claims arising out of the collapse of pro-
western governments in Indochina.
Section 2 was changed by adding a new Section 105 to
Executive Order No. 10973, as amended. This provision
provides that with respect to determining the alloca-
tion of assistance funds, the Secretary of State will
consult with the Director of the Office of Management
and Budget.
Section 6 was changed, at the request of the Department
of the Treasury, to reflect that the Secretary of the
Treasury would continue to administer the still active
special foreign country accounts established under prior
provisions of law. We have not used the proposed dele-
gatory language, only because there no longer exists
any statutory authority to delegate.
There were a few other minor editorial changes, which
were made for reasons of clarity, style, or form. For
example, the last citation in Section 1 was changed from
"22 U.S.C. 239a" to "22 U.S.C. 2394a".
Part III of the State draft - now a separate proposed
order entitled "Administration of Arms Export Controls."
Section 1 (a) was modified by changing # (c) (4) (A)" to read
(c) (4) See Section 304 (b) of Public Law 94-329 for
is
FORD
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3
the latest amendments to Section 3 (c) of the Foreign
Military Sales Act, now the Arms Export Control Act
(AECA).
Sections. (j) and (k) were changed, at the request of
a representative of the Department of State, by deleting
references to subsections (a) (4), (a) (7), and (a) (3)
of Section 36 of the AECA. The references would have
had the effect of withholding certain reporting require-
ments from the Department of Defense and vesting them
in the Department of State. These items in the required
report to the Congress should logically all be made by
one department head - the Secretary of Defense.
Section 1 (j) was also modified to provide that the Secre-
tary of Defense would consult with the Director of the
Office of Management and Budget on the report of pro-
jected foreign sales transactions.
Section 1 (1) has additionally been modified at the re-
quest of the Department of Defense to reflect that appro-
priate consultation with the Director of the Arms Control
and Disarmament Agency shall be performed by the Secretary
of State. According to the Department of Defense, this
is consistent with established procedures between the
Departments of State and Defense.
In Section 1 (1) (3) we have deleted the unnecessary
reference to a designee of the Secretary of Commerce.
Section 2 (b) has been modified to more accurately reflect
the statutory language.
Section 2 (c) has been deleted as unnecessary. To the
extent that the Coordinator for Human Rights and Humani-
tarian Affairs is to participate in functions under the
AECA, such participation is already required by statute
(see Section 301 of Public Law 94-329, adding Section
502B to the Foreign Assistance Act of 1961, as amended,
especially Section 502B (f) (1) and (a) (2) and (d) (2)
Section 3 has been deleted as unnecessary, since functions
not delegated remain vested in the President.
Section 4, concerning allocation of funds, has become
Section 3.
FORD & UERMLO LIBRARY
4
Part II of the State draft order has been added as Section 4
of this proposed order.
There were a few other minor editorial changes, which
were made for reasons of clarity, style, or form. For
example, the second sentence in Section 1 (c) was changed
from "exception of subsections (d) (final sentence) and
(h) to "exception of the last sentence of subsection
(d) and all of subsection (h)
It is urged that these proposed Executive orders be expedi-
tiously presented for the President's consideration so
that they may be issued during the first two weeks of
January 1977.
These proposed Executive orders have the approval of
the Director of the Office of Management and Budget.
Sincerely,
(Signed) William M. Nichols
William M. Nichols
General Counsel
11 Enclosures
2 Executive orders
State transmittal
Comments from:
Commerce
DOD
Treasury
CIA
NSC
USIA
AID
ACDA
FORD
DEPARTMENT OF COMMERCE
GENERAL COUNSEL OF THE
UNITED STATES DEPARTMENT OF COMMERCE
UNITED STATES OF AMERICA
Washington, D.C. 20230
OCT 22 1976
Mr. William M. Nichols
General Counsel
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Nichols:
This is in response to your letter of August 23, 1976, in
which you request comments on a proposed Executive Order entitled:
"Amending Executive Order No. 10973, Relating to
Administration of Foreign Assistance and Related
Functions; Revoking Executive Order 11501,
Relating to Foreign Military Sales; and Providing
for the Administration of Arms Export Controls."
The proposed Executive Order delegates functions vested in the
President by the International Security Assistance and Arms Export
Control Act of 1976 (P.L. 94-329). It also includes provisions
implementing legislative changes enacted by the Foreign Assistance
Acts of 1973 (P.L. 93-189) and 1974 (P.L. 93-559) and by the
International Development and Food Assistance Act of 1975 (P.L. 94-161).
The Department of Commerce poses no objections to the issuance
of the proposed Executive Order. We address comments to one provision
of the order that relates to this Department.
Subparagraph (1) (3) of Part III (Arms Export Controls) of the
Executive Order delegates to the Secretary of Commerce, or his designee,
the functions provided for under Section 38 (e) of the Arms Export Control
Act (22 USC 2778) to carryout on behalf of the Secretary of State such
functions thereunder as may be agreed to by both Secretaries.
Section 38(e) provides, inter alia, the basis in part for the
adoption by the State Department of administrative remedial sanctions
(debarment, suspension and civil penalties) for violations of the
munitions control regulations. The Department of State proposes
to establish procedures for administrative sanctions modeled after
those of the Commerce Department's export control regulations under
the Export Administration Act. Such procedures will require provisions
for hearings and appeals for persons against whom an administrative
sanction is proposed. Since State does not have the present capability
is
FORD
GERALD
REVOLUTION
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BICENTE
2
to conduct such proceedings, it proposes to utilize on a cost
reimbursement basis the existing administrative machinery of the
Department of Commerce. This proposal contemplates that hearings
for administrative sanctions would be conducted by the Department's
Hearing Commissioner and that appeals be brought to the Department's
Appeals Board.
The Department of Commerce is amenable to undertaking these
functions on behalf of the Department of State and discussions
are now in process to work out final arrangements.
Sincerely,
General Counsel
FORD is 076889 LIBRA
E
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
WASHINGTON, D. C. 20301
12 October 1976
Mr. William M. Nichols
General Counsel
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Nichols:
Reference is made to your request for the views of the Department of
Defense on a proposed Executive order submitted by the Department of
State entitled "Amending Executive Order No. 10973, Relating to Admin-
istration of Foreign Assistance and Related Functions; Revoking Executive
Order 115-1, Relating to Foreign Military Sales; and Providing for the
Administration of Arms Export Controls."
The Department of Defense concurs in the proposed order except as follows:
Part III, Section 1(j): Delete the second sentence and substitute
"The Secretary of Defense, in the implementation of the functions
delegated to him under Sections 36(a) and (b) (1), shall consult with the
Secretary of State. Insofar as this involves matters related to sub-
paragraphs (D) and (I) of Section 36(b)(1), the Secretary of State shall
also consult with the Director of the Arms Control and Disarmament
Agency
"
Reason: The Department of Defense has established procedures to inter-
face with the Arms Control and Disarmament Agency through the Bureau of
Politico-Military Affairs, Department of State. By continuing a single
point of contact by Department of Defense with State, the Department of
Defense will avoid involvement in possible differences within the Depart-
ment of State. The recommended change to the Executive order is consistent
with established procedures.
With respect to Part III, subsection 1(m), the Department of Defense is
of the opinion that neither that subsection nor section 39(b) of the
Arms Export Control Act (to which the subsection relates) is considered
as legally precluding the Secretary of Defense, acting under 10 USC 2202,
without prior consultation with the Secretary of State, from revising
the ASPR to prohibit, limit, or prescribe conditions with respect to
such contributions, gifts, commissions, and fees which may be paid, or
offered or agreed to be paid by any person in connection with sales of
defense articles or defense services under section 22 of the Arms Exportions
LAVOON GERALD
2
Control Act to or for the armed forces of a foreign country or inter-
national organization in order to solicit, promote, or otherwise to
secure the conclusion of such sales.
Sincerely,
(Thibul Richard Libul A. a. Wiley
NOTT GERALD ? FORD
DEPARTMENT OF THE
TREASURY THE 1767
THE GENERAL COUNSEL OF THE TREASURY
WASHINGTON. D.C. 20220
SEP 23 1976
Dear Mr. Nichols:
Reference is made to your request for the views of this Department
on proposed Executive order entitled, "Amending Executive Order No. 10973,
Relating to Administration of Foreign Assistance and Related Functions;
Revoking Executive Order 11501, Relating to Foreign Military Sales; and
Providing for the Administration of Arms Export Controls".
The draft Order implements the provisions of the International
Security Assistance and Arms Export Control Act of 1976 (Public Law
94-329). That act amended the Foreign Assistance Act of 1961, as amended
(the "FAA") with respect to security assistance and also modified the
Foreign Military Sales Act, which it renamed the Arms Export Control
Act (the "AECA"), incorporating therein provisions pertaining to the
import and export of munitions, which provisions supercede section 414
of the Munitions Security Act of 1954.
The draft Order amends Executive Order 10973 which delegates functions
vested in the President under the FAA and revokes Executive Order 11501,
which delegates functions under the former Foreign Military Sales Act,
replacing it with new delegations under the AECA.
The Department has serious objections to the draft Order as currently
written.
First, reference to Section 514 of the Foreign Assistance Act is
deleted in Paragraph 6 of Part I of the Order since the former Section
514 was repealed by P.L. 93-189. The former Section 514, entitled
"Special Foreign Country Accounts", prohibited the granting of military
assistance to a foreign country until a specified percentage of the cost
of such assistance was paid, in the country's currency, into a special
account. The Secretary of the Treasury, in consultation with the
Secretary of State, was delegated the President's functions under sub-
sections (a)(2) and (b) of Section 514 and an account was established at
the Department of the Treasury to handle the currencies. Some countries
are still liable for amounts they failed to pay into the account before
Section 514 was repealed. As long as foreign countries still owe amounts
under this Section, the Secretary of the Treasury should retain the delega.
FORTH
tion of authority under former Section 514 to receive, authorize the use of
or waive deposit of such funds.
The transmittal letter from the Department of State to OMB accompanying
the draft Order contained the statement on page 4 that:
- 2 -
"The deletion of reference to the former Section 514 of the
FAA is not intended to affect responsibilities of the Secretary
of the Treasury with respect to foreign currencies owned by the
United States which were obtained pursuant to this repealed
provision of law. "
This statement is merely explanatory and is of no legal consequence.
We therefore recommend that Paragraph 6 of Part I of the draft Order
be amended to read as follows:
"SEC. 301. DEPARTMENT OF THE TREASURY
There are delegated to the Secretary of the Treasury the
functions conferred upon the President by Sections 102 (d)
(third sentence, as it relates to international development
organizations in which the United States is represented by
the Secretary of the Treasury), 301 (e) (3) (as it relates to
organizations referred to in Section 301 (e) (2)), former Sections
514(a)( (2) and 514(b) enacted by Section 201(f) of P.L. 92-226
and repealed by Section 12(b)(5) of P.L. 93-189 (to the extent
that any accounts created pursuant to said former Section 514
(a) remain open) and in consultation with the Secretary of
State, Sections 612(a) (second sentence), 634(f), and 634
(g) of the Act."
Second, the transmittal letter notes on page 5 that Paragraph 6
of Part I delegates to the Secretary of the Treasury the function of
implementing Section 102(d) of the FAA with respect to international
development organizations in which the United States is represented
by the Secretary of the Treasury. Section 102(d) directs the President
to endeavor to bring about in international development organizations
the adoption of criteria similar to those adopted for bilateral
assistance for the purpose of ensuring that assistance is effectively
utilized. The transmittal letter then states that, "These criteria
are to be developed by AID pursuant to other provisions of Section 102(d) "
The Department believes that this latter statement is incorrect insofar
as the criteria to be applied to international development organizations
in accordance with the statute may differ somewhat from those applied to
country recipients of bilateral assistance. For that reason it will be
necessary for Treasury to adapt as necessary, criteria developed by
AID for bilateral aid, to the characteristics of international develop-
ment organizations which meet the standards set forth in Section 102(d).
Third, the Department feels that Paragraph (b) of Section 2 of Part III of
the draft Order is too broadly drafted. It states that:
FORD
FURNED
- 3 -
"In accordance with Section 2(b) of the Act, the performance
of functions under the Act shall be under the continuous
supervision and general direction of the Secretary of State,
whose responsibilities shall include, but not be limited to,
determining whether a sale or export shall be made or performed,
and the amount thereof. International agreements under the
Act shall be negotiated, entered into and terminated by or
under the authority of the Secretary of State."
Section 2(b) of the Act states, in part, that the Secretary of
State
"* * shall be responsible for the continuous supervision and
general direction of sales under this Act, including, but not limited
to, determining whether there shall be a sale to a country and the
amount thereof * * *." (Emphasis added.) Likewise, the existing
delegation of authority to the Secretary of State under Section 2 of
Executive Order 11501, as amended, states that:
"Nothing in this order shall be construed as modifying
in any way the responsibility conferred upon the Secretary
of State by Section 2(b) of the Act for the continuous
supervision and general direction of sales under the Act,
including, but not limited to, determining whether a sale
should be negotiated, concluded, or terminated and the amount
thereof." (Emphasis added.)
Both the statute and the existing delegation of authority indicate
that the supervisory and general directive authority of the Secretary of
State is limited to sales made under the Act and should not be expanded
to include the "performance of functions" - a vague term that could
encompass more than sales. Moreover, Section 2(b) of the Act does not
grant statutory authority for the inclusion of the last sentence of
Section 2(b) of the draft Order. That sentence purports to delegate to
the Secretary of State exclusive authority under the Act to negotiate,
enter into and terminate international agreements. Accordingly, we
recommend that Section 2(b) be revised to read as follows:
"In accordance with Section 2(b) of the Act, the Secretary
of State shall be responsible for the continuous super-
vision and general direction of sales under the Act,
which responsibilities shall include, but shall not be
limited to, determining whether a sale or export shall be
made or performed, and the amount thereof."
Sincerely yours,
Richard
R.Whburlet
FORD
General Counsel
s
Richard F. Allrecht
LIBRARY
The Honorable
William M. Nichols, General Counsel
Executive Office of the President
September 15, 1976
MEMORANDUM FOR THE RECORD
Subject: Proposed Executive order entitled "Amending Executive
Order No. 10973, Relating to Administration of Foreign
Assistance and Related Functions; Revoking Executive
Order No. 11501, Relating to Foreign Military Sales;
and Providing for the Administration of Arms Export
Controls"
Mr. Bill Barr, Office of Legislative Counsel, CIA (351-6136)
advised they have no objection to the issuance of this proposed
Executive order.
Parali G. Kienlen
Ronald A. Kienlen
Assistant General Counsel
it FORD LIBOA,
September 8, 1976
MEMORANDUM FOR THE RECORD
Subject: Proposed Executive Order Entitled "Amending Execu-
tive Order No. 10973, Relating to Administration: of
Foreign Assistance and Related Functions; Revoking
Executive Order 11501, Relating to Foreign Military
Sales; and Providing for the Administration of Arms
Export Controls"
Ms. Barbara Diering, National Security Council (Ext. 4996),
advised they had no objection to the issuance of this pro-
posed Executive order.
Pela Kienlen Kinden
Assistant General Counsel
GERALD ? FORD
September 7, 1976
MEMORANDUM FOR THE RECORD
Subject: Proposed Executive Order Entitled "Amending
Executive Order No. 10973, Relating to Admini-
stration of Foreign Assistance and Related
Functions; Revoking Executive Order 11501,
Relating to Foreign Military Sales; and Pro-
viding for the Administration of Arms Export
Controls"
Ms. Marilyn Dexheimer, United States Information Agency
(632-5133), advised they had no objections to the
issuance of this proposed Executive order.
Ronald a. Kienlen Kinden
Assistant General Counsel
FORD & GREATE LIDRAND
DEPARTMENT OF STATE
AGENCY FOR INTERNATIONAL DEVELOPMENT
WASHINGTON. D.C. 20523
7 SEP 1976
Mr. William M. Nichols
General Counsel
Office of Management
and Budget
Washington, D.C. 20503
Dear Mr. Nichols:
This is in response to your August 23, 1976, request for
comments on a proposed Executive Order, one of whose pur-
poses is to implement the provisions of the International
Security Assistance and Arms Export Control Act of 1976
(Public Law 94-329).
We believe the proposed Executive Order should be amended in
three respects.
1) Section 413 (b) of P.L. 94-329 authorizes the President:
"to adopt as a contract of the United States Govern-
ment, and assume any liabilities arising thereunder (in
whole or in part), any contract which had been funded
or approved for funding by the Agency for International
Development prior to June 30, 1975, for financing with
funds made available under the Foreign Assistance Act
of 1961 or the Foreign Assistance Act of 1974, or any
equitable claim based upon a letter of intent issued
prior to April 30, 1975, in which the Agency had
expressed its intention to finance a transaction
subject to the availability of funds, between the
former Governments of Vietnam or Cambodia (including
any of their agencies) or the Government of Laos (or
any of its agencies) and any person and to apply with
respect to any such contract the authorities of the
Foreign Assistance Act of 1961."
This authority was requested by the Executive Branch to
-
FORD
permit the Agency for International Development to provi
compensation to certain categories of contractors who ha
rendered performance or who have incurred costs in carry
LIBRARY
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1961, as amended, or under the Foreign Assistance Act of
1974, but who have not been paid because of the collapse of
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GERALD 17917 R. FORD
EXECUTIVE ORDER
AMENDING EXECUTIVE ORDER NO. 10973, RELATING TO
ADMINISTRATION OF FOREIGN ASSISTANCE AND RELATED
FUNCTIONS; REVOKING EXECUTIVE ORDER 11501, RELATING
TO FOREIGN MILITARY SALES; AND PROVIDING FOR THE
ADMINISTRATION OF ARMS EXPORT CONTROLS
By virtue of the authority vested in me by section
621 of the Foreign Assistance Act of 1961, as amended
(22 U.S.C. 2381), and section 301 of title 3, United
States Code, and as President of the United States,
it is hereby ordered as follows:
PART I. FOREIGN ASSISTANCE
Executive Order No. 10973 of November 3, 1961 (26 F.R.
10469), as heretofore amended, is hereby further
amended as follows:
1. Section 101 is amended by striking out "and
(6)" and inserting in lieu thereof "(6) section 607 of
the International Security Assistance and Arms Export
Control Act of 1976 (90 Stat. 768; 22 U.S.C. 239a),
and (7)
2. Section 105 is revoked.
3. Paragraph (c) of section 201 is revoked.
4. Section 202 is amended to read as follows:
"SEC. 202. REPORTS AND INFORMATION. In
carrying out the functions under sections 514 (e)
and 634 (b) of the Act delegated to him by sec-
tion 201 of this order, the Secretary of Defense
shall consult with the Secretary of State.".
Advan
- 2 -
5. Section 203 is revised to read as follows:
"SEC. 203. EXCLUSIONS FROM DELEGATION TO
SECRETARY OF DEFENSE. The following described
functions conferred upon the President by the
Act are excluded from the functions delegated
by the provisions of section 201 (a) of this
order:
" (a) Those under section 502B (a) (3)
of the Act, except to the extent they relate
to functions under the Act administered by the
Department of Defense.
# (b) Those under sections 504 (a),
505 (a) (introductory clause), and 505 (d) # (e),
and (g) of the Act.
"(c) Those relating to consent under
sections 505 (a) (1) and (4) of the Act.
30 (d) Those under sections 505 (b) (1),
(2) and (3) of the Act to the extent that they
pertain to countries which agree to the condi-
tions set forth therein.
" (e) Those of negotiating, concluding
and terminating international agreements.
6. Section 301 is amended to read as follows:
"SEC. 301. DEPARTMENT OF THE TREASURY.
There are delegated to the Secretary of the
Treasury the functions conferred upon the Presi-
dent by sections 102 (d) (third sentence, as it
relates to international development organiza-
tions in which the United States is represented
=
GERALD
- 3 -
by the Secretary of the Treasury), 301 (e) (3)
(as it relates to organizations referred to in
section 301 (e) (2)), 612 (a) (second sentence),
634 (f), and 634 (g) of the Act."
7. Section 401 is amended as follows:
(a) Paragraph (a) is amended --
(1) by inserting "505(c)" immediately
after "504 (b)
(2) by inserting "620(x), 620A" im-
mediately after "620 (d) - .".
(3) by striking out "and 633 (b) and
inserting in lieu thereof "633(b),
662(a), and 663 (b)
(b) Paragraph (c) is amended --
(1) by striking out "481" and inserting
in lieu thereof "481 (a), 504 (a) (6)
(2) by inserting "505 (d) (2) (A), 505 (d) (3)
(A)" immediately after "505 (b) (4),";
and
(3) by striking out "and 634 (c) and
inserting in lieu thereof "634(c),
663 (a) and 669 (b) (1)
(c) Subparagraph (d) (1) is amended to read
as follows:
" (d) (1) Those under section 503 (a) with
respect to findings: Provided, That the
Secretary of State, in the implementation
of the function delegated to him under
GERALD R. FORD
- 4 -
section 505 (a) (1), (a) (4) and (e) of
the Act, is authorized to find, in the case
of a proposed transfer of a defense
article or related training or a related
defense service by a foreign country or
international organization to a foreign
country or international organization not
otherwise eligible under section 503 (a)
of the Act, whether the proposed transfer
will strengthen the security of the United
States and promote world peace."
PART II. FOREIGN MILITARY SALES
Executive Order No. 11501 of December 22, 1969 (34 F.R.
20169), as amended, is revoked. Except to the extent they
may be inconsistent with this order, all determinations,
authorizations, regulations, rulings, certificates, orders,
directives, contracts, agreements, and other actions made,
issued or entered into with respect to any function affected
by this order and not revoked, superseded or otherwise made
inapplicable before the date of this order, shall continue
in full force and effect until amended, modified or
terminated by appropriate authority.
PART III. ARMS EXPORT CONTROLS
Section 1. DELEGATION OF FUNCTIONS. The following
functions conferred upon the President by the Arms Export
Control Act (22 U.S.C. 2751-2793), hereinafter referred
to as "the Act", are hereby delegated as follows:
is
FORD
GERALD
- 5 -
(a) Those under section 3 of the Act, with the
exception of subsections (a) (1), (b), (c) (3) and
(c) (4) (A), to the Secretary of State: Provided, That
the Secretary of State, in the implementation of the
functions delegated to him under sections 3 (a) and
(d) of the Act, is authorized to find, in the case of
a proposed transfer of a defense article or related
training or other defense service by a foreign country
or international organization to a foreign country or
international organization not otherwise eligible
under section 3 (a) (1) of the Act, whether the proposed
transfer will strengthen the security of the United
States and promote world peace.
(b) Those under section 5 to the Secretary of
State.
(c) Those under section 21 of the Act, with the
exception of subsections (a) (final sentence) and (h),
to the Secretary of Defense.
(d) Those under section 22 (a) of the Act to the
Secretary of Defense.
(e) Those under section 23 of the Act, with the
exception of paragraph (2) of that section, to the
Secretary of Defense.
(f) Those under section 24 of the Act to the
Secretary of Defense.
(g) Those under section 25 of the Act to the
Secretary of State. The Secretary of Defense and the
Director of the Arms Control and Disarmament Agency,
within their respective areas of responsibility, shall
R.
GROAT
- 6 -
assist the Secretary of State in the preparation of
materials for presentation to the Congress under that
section.
(h) Those under section 34 of the Act to the
Secretary of State. To the extent the standards and
criteria for credit and guaranty transactions are
based upon national security and financial policies,
the Secretary of State shall obtain the prior con-
currence of the Secretary of Defense and the Secretary
of the Treasury, respectively.
(i) Those under section 35 (a) of the Act to the
Secretary of State.
(j) Those under sections 36 (a) and 36 (b) (1) of the
Act, except subsections (a) (4), (a) (7) (as it relates
to commercial exports), (a) (8) and (b) (1) (with respect
to certification of an emergency), to the Secretary of
Defense. The Secretary of Defense, in the implementation
of the functions delegated to him under sections 36 (a)
and (b) (1) shall consult with the Secretary of State,
and in the implementation of the functions delegated
to him by subparagraphs (D) and (I) of section 36 (b) (1)
shall also consult with the Director of the Arms Control
and Disarmament Agency.
(k) Those under sections 36 (a) (4), 36 (a) (7) (as
it relates to commercial exports), 36 (a) (8), 36 (c) and
36 (d) of the Act to the Secretary of State.
(1) Those under section 38 of the Act --
GIEALD B. FORD
- 7 -
(1) to the Secretary of State, except as
otherwise provided in this paragraph. Designa-
tions, including changes in designations, by
the Secretary of State of items or categories
of items which shall be considered as defense
articles and defense services subject to export
control under section 38 shall have the con-
currence of the Secretary of Defense.
(2) to the Secretary of the Treasury, to
the extent they relate to the control of the
import of defense articles and defense services.
In carrying out such functions, the Secretary of
the Treasury shall be guided by the views of the
Secretary of State on matters affecting world peace,
and the external security and foreign policy of
the United States. Designations, including changes
in designations, by the Secretary of the Treasury
of items or categories of items which shall be
considered as defense articles and defense services
subject to import control under section 38 shall
have the concurrence of the Secretary of State
and the Secretary of Defense.
(3) to the Secretary of Commerce, or his
designee, to carry out on behalf of the Secretary
of State, to the extent such functions involve
section 38 (e) and are agreed to by the Secretary
of State and the Secretary of Commerce.
R.
FORD
- 8 -
(m) Those under section 39 (b) of the Act to the
Secretary of State. In carrying out such functions,
the Secretary of State shall consult with the Secre-
tary of Defense as may be necessary to avoid inter-
ference in the application of Department of Defense
regulations to sales made under section 22 of the Act.
(n) Those under sections 42 (c) and 42 (f) of the
Act to the Secretary of Defense.
SEC. 2. COORDINATION. (a) In addition to the
specific provisions of section 1 of this order regard-
ing consultation and concurrence requirements, the
Secretaries of State and Defense, in carrying out the
functions delegated to them under this order, shall
consult with each other and with the heads of other
agencies of the United States Government, including
the Secretary of the Treasury, the Administrator of the
Agency for International Development, and the Director
of the Arms Control and Disarmament Agency on matters
pertaining to their responsibilities.
(b) In accordance with section 2 (b) of the Act,
the performance of functions under the Act shall be
under the continuous supervision and general direction
of the Secretary of State, whose responsibilities
shall include, but not be limited to, determining
whether a sale or export shall be made or performed,
and the amount thereof.* International agreements under
the Act shall be negotiated, entered into and terminated
by or under the authority of the Secretary of State.
GEARED
FORD
- 9 -
(c) The Secretary of State shall ensure that the
Coordinator for Human Rights and Humanitarian Affairs
participates in the carrying out of functions under
the Act and under the Foreign Assistance Act of 1961,
by assisting in the formulation and conduct of security
assistance and arms export control policies, programs
and activities which will promote and advance human
rights and fundamental freedoms, and the avoidance of
United States identification, through such policies,
programs and activities, with governments which deny
to their people internationally recognized human rights
and fundamental freedoms.
SEC. 3. RESERVATION OF FUNCTIONS. All functions
conferred upon the President by the Act that are not
delegated by the provisions of this order are hereby
reserved to the President.
SEC. 4. ALLOCATION OF FUNDS. Funds appropriated
to the President for carrying out the Act shall be deemed
to be allocated to the Secretary of Defense without any
further action of the President.
SEC. 5. GENERAL PROVISIONS. References in this
order to the provisions of the Act shall be deemed to
include references thereto, respectively, as amended
from time to time.
The White House,
1976
FORD
way
THE WHITE HOUSE
WASHINGTON
January 3, 1977
Dear Judge MacKinnon:
Your communication to the President regarding the
sentencing of Ms. Patricia Campbell Hearst has been
referred to me for response. I know the President
greatly appreciates your suggestion and the interest
you have expressed in this matter.
I have been advised by Assistant Attorney General
Richard L. Thornburgh of the Department of Justice's
Criminal Division, that while Ms. Hearst was ineligible
due to her age at the time of conviction and sentencing
to be sentenced as a "youth offender" under the Youth
Corrections Act, Title 18, United States Code, Section
5001 et seq., she was eligible to be considered for
sentencing under the provisions of that Act as a "young
adult offender" under Title 18, United States Code,
Section 4209 (now Title 18, United States Code, Section
4216). United States District Court Judge William H.
Orrick, Jr., however, made a specific finding at the
time of sentencing, that Ms. Hearst would not benefit
from treatment under the Youth Corrections Act and
accordingly sentenced her as an adult.
As you know, Ms. Hearst's conviction has been appealed
to the Ninth Circuit Court of Appeals and thus is still
within the jurisdiction of the Courts. Under these
circumstances, it is believed that it would be inappro-
priate for the President to intercede in the case at
this time.
Sincerely,
Philip W.Buckan Philip
Counsel to the President
The Honorable George E. MacKinnon
TORD -
United States Circuit Judge
United States Court of Appeals
District of Columbia Circuit
Washington, D. C. 20001
THE WHITE HOUSE
WASHINGTON
November 24, 1976
MEMORANDUM FOR
THE HONORABLE EDWARD H. LEVI
Attached is a copy of a letter to the President
from The Honorable George E. MacKinnon regarding
the Patricia Hearst case.
I would appreciate suggestions from your office
as to a proper response which I could send in
behalf of the President.
T.W.B.
Philip W. Buchen
Counsel to the President
Attachment
FORD & OTHERD
pent the
1
original to
Boffie
IF
December 23, 1976
MEMORANDUM FOR: Mr. Philip W. Buchen
Counsel to the President
The White House
FROM: Richard L. Thornburgh
Assistant Attorney General
Criminal Division
Pursuant to your request of November 24, 1976,
regarding an inquiry from The Honorable George E. MacKinnon
for information concerning the sentencing of Ms. Patricia
Campbell Hearst, enclosed herewith is a draft reply.
Also enclosed is the original correspondence which
you forwarded to us.
Enclosures
FORD or LIBRARY
Honorable George E. MacKinnon
United States Circuit Judge
United States Court of Appeals
District of Columbia Circuit
Washington, D. C. 20001
Dear Judge Mackinnon:
Your communication to the President regarding the
sentencing of Ms. Patricia Campbell Hearst has been
referred to me for response. I know the President greatly
appreciates your suggestion and the interest you have
expressed in this matter.
I have been advised by Assistant Attorney General
Richard L. Thornburgh of the Department of Justice's
Criminal Division, that while Ms. Hearst was ineligible
due to her age at the time of conviction and sentencing to
be sentenced as a "youth offender" under the Youth
Corrections Act, Title 18, United States Code, Section
5001 et seq., she was eligible to be considered for
sentencing under the provisions of that Act as a "young
adult offender" under Title 18, United States Code,
Section 4209 (now Title 18, United States Code, Section
4216). United States District Court Judge William H.
Orrick, Jr., however, made a specific finding at the time
of sentencing, that Ms. Hearst would not benefit from
treatment under the Youth Corrections Act and accordingly
FORD
sentenced her as an adult.
GERALD
LIBRARY
-2-
As you know, Ms. Hearst's conviction has been
appealed to the Ninth Circuit Court of Appeals and
thus is still within the jurisdiction of the Courts.
Under these circumstances, it is believed that it would
be inappropriate for the President to intercede in the
case at this time.
Sincerely,
FORD is 078830 LIBRARY
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
WASHINGTON, D. C. 20001
GEORGE E. MACKINNON
UNITED STATES CIRCUIT JUDGE
November 22, 1976
President Gerald R. Ford
The White House
Washington, D. C.
Re: Miss Patricia Hearst
Dear Mr. President:
You may want to consider whether the sentence of Miss Hearst should be
commuted to a sentence under the Youth Corrections Act, 18 U.S.C.
§ 5001 et seq.
She was born on February 20, 1954 and reached her 22nd birthday on
February 20, 1976. Thus she did not meet the definition of being a
youth offender as "a person under the age of 22 years at the time of
conviction. " 18 U.S.C. § 5006 (e) (emphasis added). The timing of
her trial, since it finished after her 22nd birthday, moved her out-
side of the Act though all of her offenses were committed at such an
age that she could have been sentenced as a youth offender if the
trial had terminated more promptly.
The statute in this respect works a hardship on a person in her
position. Had her trial been conducted more promptly and her sentence
been imposed prior to her 22nd birthday, she could have been sentenced
under the Youth Corrections Act and, by her good conduct and
rehabilitation during confinement, she could have possibly eventually
earned a certificate whereby "the conviction [would] be automatically
set aside
" 18 U.S.C. § 5021(a).
A case closely in point was that of Heidi Fletcher who, a short while
back, participated in a bank robbery in the District of Columbia in
which one policeman was killed. She was close to her 22nd birthday at
the time and standing trial would have brought her beyond her 22nd
birthday Under such circumstances she quickly entered a guilty plea,
received a Youth Corrections sentence and, I understand, is presently
released.
Because Miss Hearst lost her eligibility for a Youth Corrections sentence
by such a close margin, you might want to consider the possibility of
issuing a commutation to a Youth Corrections sentence. I make this
suggestion to you from some considerable experience with the workings of
the Act and because this possibility may not have been presented to you.
With very best personal regards,
Sincerely yours,
CC: Philip W. Buchen, Esq.
Counsel to the President
George E. MacKinnon