For exporters of United States Munitions List (USML) goods, technologies, and services, the License Exemptions in the International Traffic in Arms Regulations (ITAR) are engrained, a way of life.
One of the disruptions to familiar procedures for defense-related companies with items reclassified to the Commerce Control List (CCL) under Export Control Reform (ECR) is the corresponding switch to using (and therefore learning) the Export Administration Regulations (EAR) License Exceptions that might apply. For CCL 600 Series and 9X515, ITAR Exemptions are no longer in the picture.
This article highlights some of the commonly-used EAR Exceptions for 600 Series and 9X515—these being TMP (740.9), RPL (740.10), GOV (740.11), and STA (740.20).
Temporary Imports, Exports, Reexports, and Transfers (In-Country) Exception
Temporary Imports, Exports, Reexports, and Transfers (In-Country) Exception (TMP) authorizes various temporary exports and reexports, including ‘tools of the trade’ and items for exhibition or demonstration; exports and reexports of items temporarily in the United States, including personal protective equipment; and exports and reexports of beta test software. Related to TMP, the Servicing and Replacement of Parts and Equipment Exceptions (RPL) specifically authorizes “exports and reexports associated with one-for-one replacement of parts, components, accessories, and attachments.”
RPL also authorizes exports and reexports of certain items currently subject to the EAR “to or for, or to replace, a defense article described in an [ITAR] export or reexport authorization” (although does not authorize the export or reexport of defense articles subject to the ITAR). The main change from the ITAR with the use of these is that the EAR does not control temporary imports into the United States, therefore an authorization or license exception is not required for 600 Series and 9X515 items coming into the U.S. for repair or for trade shows. [i]
Governments, International Organizations, International Inspections Under the Chemical Weapons Convention, and the International Space Station
Exception GOV represents Governments, International Organizations, International Inspections Under the Chemical Weapons Convention, and the International Space Station, and authorizes exports and reexports for international nuclear safeguards; U.S. government agencies or personnel; agencies of cooperating governments; international inspections under the Chemical Weapons Convention; and the International Space Station. In effect, GOV authorizes exports for the agencies and the personnel of the U.S. government, including contractor support personnel, and also certain exports for cooperating governments, which are not found in ITAR Exemptions.
License Exception Strategic Trade Authorization
STA is the License Exception Strategic Trade Authorization, created under Export Control Reform. STA authorizes “exports, reexports, and transfers (in-country), including releases within a single country of software source code and technology to foreign nationals, in lieu of a license that would otherwise be required pursuant to part 742 of the EAR.” Therefor this exception is, in practice, an alternative to a license for applicable 600 Series and 9X515 items. STA eligibility is limited to the thirty-six Country Group A:5 countries and U.S. government end-use. There are a number of requirements to meet, and as well each STA-eligible ECCN contains a statement of “Special Conditions for STA” in the License Exceptions section. Similar to Commerce license requirements, a Prior Consignee Statement (PCS) is needed for prior authorization, with notifications to BIS of ECCNs and ultimate end-user and shipment information, also written notifications to the consignee of STA shipments. Which means that STA entails similar up-front work to a license, but with the benefits of faster approvals, that it covers technology, permits retransfers and reexports, and a single PCS can be used for multiple shipments.
As with a license, the key to smooth passage is ensuring that complete and full documentation is provided to the agency when submitting for review, including a statement of how the prior verification check was performed, and if any 600 series items are for Major Defense Equipment. BIS offers an online STA tool to help you at https://www.bis.doc.gov/index.php/statool.
Best practice for the use of BIS License Exceptions is to study and keep informed of the EAR regulations, the same expertise that you have with ITAR. For STA especially, consult with a BIS field office to create a checklist of requirements, then document your steps, be thorough, reply to questions from the agency promptly, and don’t use an Exception if you don’t have a license requirement for the item.
[i] More information about the Licenses and related-regulations referenced in this article can be found on https://www.bis.doc.gov/.