The opinion of the court was delivered by: BARRINGTON
BARRINGTON D. PARKER, District Judge.
Section 10 of the Export Administration Act of 1979, 50 U.S.C. App. § 2409, provides for a timetable which governs the Department of Commerce's processing of applications for certain export licenses. Plaintiff, Daedalus Enterprises, Inc. ("Daedalus"), brings this suit to enjoin the Department of Commerce's noncompliance with the Export Administration Act's timetable. Defendants are Malcolm Baldrige, the Secretary of Commerce ("the Secretary"); Lionel H. Olmer, the Under Secretary for International Trade, Department of Commerce; and Lawrence J. Brady, Assistant Secretary for Trade Administration, Department of Commerce. Based on the facts as stipulated by the parties, the Court grants plaintiff's motion for summary judgment,
and denies the defendants' motion to dismiss or for summary judgment.
1. The Export Administration Act
Under the authority of the Export Administration Act of 1979 ("the Act"), 50 U.S.C. App. §§ 2401-2420, as amended by the Export Administration Act of 1981, Pub.L. 97-45, the Department of Commerce ("the Department") administers export controls in consultation with other United States agencies and departments. Under Section 10(h), whenever the export license being sought implicates national security, the application for the export license -- after being referred to the other agencies and departments -- is referred by the Secretary for multilateral review to the Coordinating Committee ("COCOM"), which includes representatives of the NATO countries plus Japan, less Iceland. The timetable for the entire application process, including the referral to the United States agencies and COCOM when necessary, is all governed by Section 10 of the Act.
Section 10(b) of the Act provides that, within 10 days of receipt of a properly completed application, the Secretary is required to acknowledge receipt of the application, advise the applicant of the procedures required by Section 10, determine if referral to any other department or agency is necessary, and inform the applicant of any such department or agency to which the application will be referred. Where referral is necessary, Section 10(d) requires the Secretary to refer the application, together with all necessary analysis and recommendations of the Department, concurrently to all such departments or agencies within 30 days after submission of the application. Section 10(e) requires such other departments or agencies to submit to the Secretary, within 30 days after receipt of the application, any information or recommendations requested with respect to the application, unless a 30-day extension is requested. If any such department or agency does not submit its recommendations within the prescribed 30 days (or 60 days if an extension is requested) it "shall be deemed by the Secretary to have no objection to the approval of such application."
Section 10(f) requires the Secretary to formally issue or deny the license within 90 days after receipt of the recommendations of the other departments or agencies, after affording the applicant the opportunity to reply to any negative considerations or recommendations received by the Secretary from those departments or agencies. Thus, when an application is referred to other departments or agencies, the license must be issued or denied within 180 days of the application.
An exception to this 180-day limit is provided for in section 10(h), in instances where multilateral review by COCOM is necessary. In such instances the Secretary approves the issuance of the license within the 180-day period, but then notifies the applicant that the license will be issued only upon approval of the application after multilateral review by COCOM. COCOM's review is provided for to insure that the foreign allies of the United States have no objection to the issuance of the license. If multilateral review has not resulted in a determination within 60 days -- i.e., within 240 days of the filing of the application -- the Secretary's approval of the license shall be final and the license shall be issued, unless the Secretary determines that issuance of the license would prove detrimental to the national security of the United States. If the Secretary makes such a determination, he is required to notify the applicant and Congress of the determination, the reasons for the determination, the reasons for which the multilateral review could not be concluded within the prescribed 60-day period, and the actions planned or being taken by the United States Government to secure conclusion of the multilateral review. Furthermore, at the end of every 60-day period, after such notification to Congress, the Secretary is required to advise the applicant and Congress of the status of the application, and to report to Congress in detail on the reasons for the further delay and any further actions being taken by the United States Government to secure conclusion of the multilateral review.
In short, unless the special extension provisions involving notification of the applicant and Congress are invoked, the entire process must be completed within 180 days in instances of referral to other departments or agencies, and within 240 days in instances of referral to COCOM.
Section 10(j)(2) provides that if any action prescribed in Section 10 is not taken within the time periods established therein, the applicant may petition the Secretary to request compliance with the requirements of Section 10, and "the Secretary shall take immediate steps to correct the situation giving rise to the petition and shall immediately notify the applicant of such steps." If the processing of the application has not been brought into conformity with the requirements of Section 10 within 30 days after the applicant's petition, Section (j)(3) provides that
50 U.S.C. App. § 2409(j)(3).
Daedalus engages in research, development, manufacture and service in the field of remote sensing of the environment. Within this field, Daedalus specializes in airborne infrared and visual line-scanning devices and associated data analysis equipment. Daedalus manufactures infrared equipment, conducts surveys using such equipment, and analyzes data derived therefrom for governmental and ...