As people become skilled at navigating the International Traffic in Arms Regulation (ITAR), they’re often surprised to learn that it not only places controls on exports, but that it also has something to say about temporary imports.
In one of the more succinct sections of the regulation (ITAR 120.53), temporary imports are defined as:
“…bringing into the United States from a foreign country any defense article that is:
- To be returned to the country from which it was shipped or taken; or
- Any defense article that is in transit to another foreign destination.”
The definition includes “withdrawal of a defense article from a customs bonded warehouse or foreign trade zone for the purpose of returning it to the country of origin or country from which it was shipped or for shipment to another foreign destination.”
A common scenario for classification as a temporary import is something being brought into the United States for service or one-for-one replacement. Other examples include equipment brought for display at trade shows or private demonstration to prospective customers.
Permanent imports, on the other hand, are items brought to the United States for domestic consumption.
For example, importing guided cannon rounds for testing and possible sale to the U.S. government is a permanent import because the rounds are consumed domestically; once fired, they can’t be returned.
So the first question that needs to be resolved is whether an import is temporary or permanent. But it also raises the question: If the ITAR, which is administered under the umbrella of the State Department, controls temporary imports, who controls permanent imports?
Those, as stated in the ITAR 120.53, “are regulated by the Attorney General under the direction of the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives” (ATF).
Companies that work in defense-related areas and are used to navigating the ITAR may not realize that some of their activities may require permission from the ATF.
Both bureaucracies acquired these responsibilities as a result of the Arms Export Control Act of 1976, so while there are two different agencies to oversee potentially related import activities, their regulations have some similarities.
U.S. Munitions List v. U.S. Munitions Import List
ITAR controls over temporary imports apply only to items on the U.S. Munitions List (USML), which is administered by the Directorate of Defense Trade Controls (DDTC).
ATF controls over permanent imports apply to items on the distinct but similarly named U.S. Munitions Import List (USMIL).
If something appears on the USML, you need permission from the DDTC to import it on a temporary basis. That permission may come in the form of a license or an exemption.
If something is on the USMIL, you need ATF permission to import it on a permanent basis by obtaining a permit or an exemption.
Many items can be found on both lists, but they aren’t identical. Some items that appear on the USML don’t show up on the USMIL – allowing the possibility that an item which can’t be brought into the country on a temporary basis without prior approval can, in fact, be imported permanently.
Both lists follow the same structure (see chart), and at one time were more similar. But they’ve diverged over time, and a comparison of their high-level categories shows a clear distinction between the concerns each list addresses.
The ITAR and the USML focus on national security – preventing certain U.S. military goods from being used to benefit hostile powers. They cover not only armaments and ammunition, but also things like body armor, advanced electronics and certain satellite technology.
The ATF and USMIL are more concerned with domestic security and anti-terrorism – placing emphasis on guns and explosives. The ATF list specifies more firearms than does the ITAR, including semi-automatic weapons, which no longer appear on the USML. But it doesn’t bother with things like military electronics, night vision systems, etc.
Comparison of U.S. Munitions List v. Munitions Import List
Category |
USML (ITAR) |
USMIL (ATF) |
| I | Firearms & Related Articles | Firearms |
| II | Guns and Armament | Artillery Projectors |
| III | Ammunition and Ordnance | Ammunition |
| IV | Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, and Mines | Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines |
| V | Explosives and Energetic Materials, Propellants, Incendiary Agents, and Their Constituents | Reserved |
| VI | Surface Vessels of War and Special Naval Equipment | Vessels of War and Special Naval Equipment |
| VII | Ground Vehicles | Tanks and Military Vehicles |
| VIII | Aircraft and Related Articles | Aircraft and Associated Equipment |
| IX | Military Training Equipment and Training | Reserved |
| X | Personal Protective Equipment | Reserved |
| XI | Military Electronics | Reserved |
| XII | Fire Control, Laser, Imaging, and Guidance Equipment | Reserved |
| XIII | Materials and Miscellaneous Articles | Reserved |
| XIV | Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment | Toxicological Agents and Equipment and Radiological Equipment |
| XV | Spacecraft and Related Articles | Reserved |
| XVI | Nuclear Weapons Related Articles | Nuclear Weapons Design and Test Equipment |
| XVII | Classified Articles, Technical Data, and Defense Services Not Otherwise Enumerated | Reserved |
| XVIII | Directed Energy Weapons | Reserved |
| XIX | Gas Turbine Engines and Associated Equipment | Reserved |
| XX | Submersible Vessels and Related Articles | Submersible Vessels, Oceanographic and Associated Equipment |
| XXI | Articles, Technical Data, and Defense Services Not Otherwise Enumerated | Miscellaneous Articles |
Companies that work in explosives are used to these nuances. But companies that work in other defense-related fields may not realize they need permission from ATF for certain import activities.
Registration
The requirements and processes for securing permission to import items under both the ITAR and the ATF are similar – though not identical. Both require entities that import controlled items to register.
Registration for export/import activities subject to the ITAR is administered by the DDTC using Form DS-2032, which must be submitted through the electronic portal of the Defense Export Control and Compliance System (DECCS). As of March 2023, registration fees start at $2,250/year.
Application to register as an importer with the ATF is handled through ATF Form 5330.4. Fees, as of March 2023, start at $250/year.
Both regulations also have record-keeping requirements.
Licenses, permits and exemptions
The process for acquiring a temporary import license under the ITAR (for items on the USML) is different depending on whether an item is classified or unclassified. The application form for unclassified items is Form DSP-61; and DSP-85 for classified items.
Obtaining an import permit through ATF begins with ATF Form 6.
Both regulations allow the possibility of exemptions from the usual license or permit requirements. For example, an ATF import permit isn’t required for items on the USMIL if the activity is conducted under contract with the Department of Defense.
Exemptions for temporary import licenses under the ITAR are provided in Section 123.4 of the ITAR. The ATF provides a list of permit exemptions on its website.
Looking for additional guidance? Check out our latest on-demand webinar: A Primer on Navigating ATF Controls.
Do you have questions about permanent vs. temporary imports? Visit qhi.zb-fc.com to learn about our company, our faculty, our staff and our esteemed Export Compliance Professional (ECoP®) certification program. To find upcoming e-seminars, live seminars and live webinars and browse our catalog of 80-plus on-demand webinars, visit our ECTI Academy. You can also call the Export Compliance Training Institute at 540-433-3977 for more information.
Scott Gearity is President of ECTI, Inc.