E9-28875. Policy on Review Time for License Applications

AGENCY:

Department of State.

ACTION:

Notice.

In National Security Presidential Directive-56, Defense Trade Reform, signed January 22, 2008, the Department of State was directed to complete the review and adjudication of license applications within 60 days of receipt, except in cases where national security exceptions apply. The President further directed that these exceptions be published. A Federal Register notice entitled “Policy on Review Time for License Applications” was published on April 15, 2008 (73 FR 20357) stating five national security exceptions.

Experience in the last nineteen months has indicated that a sixth exception is required. It has been noted in reviews that events may require the Department of State to initiate a review of an established export policy relevant to license applications. By the nature of the established deadline, this might result in cases that have been approvable before the review being returned without action to the applicant while the review is ongoing. Enforcement of the deadline without being able to account for these situations might result in another applicant's license, submitted after the first license but that had not reached the 60-day deadline, being approved once the review is complete; inadvertently creating an unlevel playing field. As such, the Directorate of Defense Trade Controls has added a sixth exception to account for this issue. In accordance with NSPD-56, the following six national security exceptions are applicable:

(1) When a Congressional Notification is required: The Arms Export Control Act Section 36 (c) and (d) and the International Traffic in Arms Regulations, 22 CFR 123.15, requires a certification be provided to Congress prior to granting any license or other approval for transactions, if it meets the requirements identified for the sale of major defense equipment, manufacture abroad of significant military equipment, defense articles and services, or the re-transfer to other nations. Notification thresholds differ based on the dollar value, countries concerned and defense articles and services.

(2) Required Government Assurances have not been received. These would include, for example, Missile Technology Control Regime Assurances, and Cluster Munitions assurances.

(3) End-use Checks have not been completed. (Commonly referred to as “Blue Lantern” checks. End-use checks are key to the U.S. Government's prevention of illegal defense exports and technology transfers, and range from simple contacts to verifying the bona fides of a transaction to physical inspection of an export.)

(4) The Department of Defense has not yet completed its review.

(5) A Waiver of Restrictions is required. (For example, a sanctions waiver.)

(6) When a related export policy is under active review and pending final determination by the Department of State.

Dated: November 23, 2009.

Robert S. Kovac,

Acting Deputy Assistant Secretary for Defense Trade, Bureau of Political Military Affairs, Department of State.