State Proposes ITAR License Exemption for Temporary Export of Chemical Protective Gear

In addition, the proposed rule would clarify the licensing exemption for firearms and ammunition in 22 CFR 123.17(c).

Comments are due by May 23, 2011.

Temp Exports Would be Allowed Without License Under Certain Conditions

The proposed rule would revise 22 CFR 123.17(f) to add chemical agent protective gear for personal use to the license exemption for temporary export of body armor . The State Department is proposing to revise 22 CFR 123.17(f) to state as follows (proposed deletions are struck, proposed additions are underlined):

(f) Except as provided in section 126.1 of this subchapter, Port Directors of U.S. Customs and Border Protection (CBP) shall permit U.S. persons to export temporarily from the United States without a license one set of body armor covered by Category X(a)(1) and one set of chemical agent protective gear covered by Category XIV(f)(4) of this subchapter provided that:

(1) A declaration by the U.S. person via the Automated Export System (AES) and an inspection by a customsU.S. CBP officer are made, per section 123.229b);

(2) The body armor or chemical agent protective gear to be exported is with the U.S. person's baggage or effects, whether accompanied or unaccompanied (but not mailed);

(3) The body armor or chemical agent protective gear to be exported is for that person's exclusive use and not for re-export or other transfer of ownership. The individual must declare the body armor or chemical agent protective gear to be exported to a U.S. CBP officer via the AES upon each departure from the U.S. and declare that it is his or her intention to return the article(s) on each return to the United States; and

(4) If the body armor or chemical agent protective gear exported under this exemption are lost or otherwise not returned to the U.S., a detailed report must be submitted to the Office of Defense Trade Controls Compliance in section 127.12(c)(2) of this subchapter entitled “Voluntary disclosures.”

Exemption Would Also be Available for Iraq, Afghanistan Under Certain Conditions

The proposed rule would revise 22 CFR 123.17(g) to add chemical agent protective gear to the license exemption for temporary export of body armor for personal use to Afghanistan and Iraq. The proposed rule would also add new paragraph (g)(3) to 22 CFR 123.17 to state that:

"The exporter claiming this license exemption shall present to a U.S. CBP officer prior to each export a copy of the direct authorization from the Government of Iraq, including an English translation, or a copy of the documentation showing that the travel is on official business for the U.S. government, along with the Internal Transaction Number (ITN) for the AES submission."

Requirement that assistance to Iraq be "humanitarian" would be removed. The proposed rule would remove from 22 CFR 123.17(g)(2) the requirement that assistance to the government of Iraq be “humanitarian” to more accurately match the language of United Nations Security Council restrictions, which do not limit assistance to humanitarian assistance.

Report Would Have to be Submitted If Protective Gear Lost, Used & Disposed

According to the State Department, if the chemical agent protective gear is lost, the report submitted to the Office of Defense Trade Controls Compliance (as provided for in 22 CFR 127.12(c)(2)) would have to describe all attempts to locate the gear and explain the circumstances leading to its loss. In the event the chemical agent protective gear is used and disposed according to HAZMAT guidelines, the report would have to provide a disposal date and location details for the approved HAZMAT facility used, along with a receipt for disposal services. If a HAZMAT facility is not available, the report would have to describe the date, location and method used to dispose of the protective gear.

Existing Licensing Exemption for Firearms and Ammunition Would be Amended

According to the State Department, the proposed rule would also amend 22 CFR 123.17(c)(3) to remove, what is in practice, extraneous language.

(22 CFR 123.17(c) is a licensing exemption for temporary exports of limited quantities of certain nonautomatic firearms and ammunition.)

The State Department states that subject to the requirements of (c)(1) to (c)(3), the exemption would apply to all eligible individuals (with the noted exceptions). Thus, while the proposed rule would revise the text, the meaning of (c)(3) would not be changed.

Section 123.17(c)(3) is proposed to be revised to state as follows (proposed deletions are struck, proposed additions are underlined):

"They must be for that person’s exclusive use and not for reexport or other transfer of ownership. The foregoing exemption is not applicable to a crew-member of a vessel or aircraft unless the crew-memberThe individual must declare the firearm(s) to a U.S. Customs and Border Protection officer upon each departure from the U.S., present the Internal Transaction Number (ITN) from submission of the Electronic Export Information in the Automated Export System per section 123.22(b), and declare that it is his or her intention to return the article(s) on each return to the U.S. It is also The foregoing exemption is not applicable to the personnel referred to in section 123.18."

DOS Contact- Nicholas Memos (202) 663-2804

¹22 CFR 121.1, USML Category XIV(f)(4), on Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment.

²22 CFR 126.1 is on prohibited exports and sales of defense articles and defense services to certain countries.

(See ITT's Online Archives or 08/10/09 news, 09081035, for BP summary of DOS 2009 final rule adding an exemption to ITAR for the temporary export of body armor.)