State Department Final Rule on Mandatory AES Filing for USML Articles that Require Shippers Export Information, Etc. (Part V - Final)
On October 27, 2003, the State Department published a final rule that amended the International Traffic in Arms Regulations (ITAR) to indicate that exporters that are required to report shippers export information for U.S. Munitions List (USML) hardware must use the Automated Export System (AES).
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The final rule also amended the ITAR to indicate that export information for USML technical data and defense services shall be reported electronically to the State Department's Directorate of Defense Trade Controls (DDTC), regardless of the type of ITAR authorization (e.g., license, agreement, or exemption). For such shipments exported using a U.S. port (e.g. hand-carried exports of technical data), a copy of that notification must be provided to CBP upon request.
This is Part V, the final part of a multi-part series of summaries of this final rule and highlights the final rule's regulatory text in 22 CFR Parts 123.24, 124.3, 125.6, and 125.8.
Shipments by U.S. Postal Service
Exports of defense hardware. The export of any defense hardware using a license or exemption in subchapter M by the U.S. Postal Service (USPS) must be filed with U.S. Customs and Border Protection (CBP) using AES and the license must be filed with CBP before any hardware is actually sent abroad by mail.
The exporter must certify the defense hardware being exported in accordance with subchapter M by clearly marking on the package: "This export is subject to the controls of the ITAR, 22 CFR (identify section for an exemption) or (state license number) and the export has been electronically filed with the Bureau of Customs and Border Protection using the Automated Export System (AES).'' (22 CFR 123.24(a))
Exports of technical data. The export of any technical data using a license in subchapter M by the USPS must be notified electronically directly to the DDTC1. The exporter, using either a license or exemption, must certify, by clearly marking on the package: "This export is subject to the controls of the ITAR, 22 CFR (identify section for an exemption) or (state license number).''
For those exports using a license, the exporter must also state: "The export has been electronically notified directly to DDTC.'' In addition, the license must be returned to DDTC upon completion of the use of the license (see 22 CFR 123.22(c) for details on returning licenses to DDTC). (22 CFR 123.24(b))
1 According to the DDTC Web site, the original target date of January 18, 2004 for the implementation of electronic reporting to DDTC for shipments of technical data and defense services has been postponed. DDTC states that the Federal Register should be consulted for future notices on this matter and that the DDTC Web site (www.pmdtc.org) should be consulted for updates.
Exports of Unclassified Technical Data in Furtherance of an MLA or TAA
CBP or USPS authorities shall permit the export without a license of unclassified technical data if the export is in furtherance of a manufacturing license agreement (MLA) or technical assistance agreement (TAA) that has been approved in writing by DDTC and the technical data does not exceed the scope or limitations of the relevant agreement. The approval of the DDTC must be obtained for the export of any unclassified technical data that may exceed the terms of the agreement. (22 CFR 124.3(a))
Certification Requirements for Exemptions
To claim an exemption for the export of technical data under the provisions of Subchapter M (e.g., 22 CFR 125.4 and 125.5), the exporter must certify that the proposed export is covered by a relevant section of Subchapter M, to include the paragraph and applicable subparagraph.
Certifications consist of clearly marking the package or letter containing the technical data "22 CFR [insert ITAR exemption] applicable." This certification must be made in written form and retained in the exporter's files for a period of 5 years (see 22 CFR 123.22 for details). (22 CFR 125.6(a))
For exports that are oral, visual, or electronic the exporter must also complete a written certification as indicated in 22 CFR 125.6(a) (see above) and retain it for a period of 5 years. (22 CFR 125.6(b))
Section on Licenses for Unclassified Technical Data Exports Removed/Reserved
The State Department's final rule also removes and reserves 22 CFR 125.8 on the filing of licenses for exports of unclassified technical data.
(See ITT's Online Archives or 10/28/03, 11/24/03, 02/02/04, and 02/04/04 news, 03102805, 03112415, 04020220, and 04020420, for Parts I, II, III, and IV respectively.)
- written comments may be submitted
State Department contact - David Trimble (202) 663-2700
State Department final rule (FR Pub 10/27/03, Public Notice 4520) available at http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/pdf/03-27039.pdf.