Export Control Reform (ECR) has brought many changes over
the last few years regarding the US Munitions List (USML), the International
Traffic in Arms Regulations (ITAR), Commerce Control List (CCL) and Export
Administration Regulations (EAR). Along with the need to understand the new
categories and the Export Control Classification Numbers (ECCNs) within the CCL,
the CCL contains exceptions to the new rules and categories. For a complete
list of EAR license exceptions click here.
To most, the addition of “Contract support personnel” buried deep in an EAR license
exception ruling is not a “game-changer”, but to those Contractors working in
the capacity of what is commonly referred to as “CSS” or Contract Support
Services the addition could be quite helpful.
The final rule that warrants discussion is §740.11(b),
within the license exception GOV, which authorizes ‘export, reexports, and transfers (in-country) to personnel and agencies
of the U.S. Government and certain exports by the Department of Defense.’ The
rule goes on to further define ‘Contractor support personnel’ and their eligibility
in §740.11(b)(ii): ‘Contractor support
personnel of a department or agency of the U.S. Government are eligible for
this authorization when in performance of their duties pursuant to the applicable
contract or other official duties. ‘Contractor support personnel’ for the
purpose of this provision means those persons who provide administrative,
managerial, scientific or technical support under contract to a U.S. Government
department or agency…’.
In the vast land of Department of Defense (DoD) contracting
there are companies who provide direct support to the agencies in the areas of administration,
managerial, scientific or general technical competencies. Said Contractors, or CSS,
are different from Original Equipment Manufacturers (OEMs) insomuch that they
do not make, develop or produce any defense articles. Because of the unique
relationship between CSS and an agency, it is often complicated to identify the
exact role CSS takes in the case of exporting technical data as defined by the USML
within the ITAR and recently due to ECR, the CCL within the EAR. The support that
CSS provides does not greatly differentiate from that of Government employees
and should be treated as such. This complication however does not preclude CSS
from complying with the ITAR and the EAR. Technology Security Associates, Inc.
(TSA) is one such CSS and having worked in the capacity as CSS for the past 9+
years, the newly revised EAR exception which includes a definition of CSS
caught my attention.
TSA for example is on contract to provide foreign
disclosure, international program and basic security support to a US Navy (USN)
program that has multiple Foreign Military Sales (FMS) customers for aircraft
and parts which span the USML and CCL. In this capacity TSA supports the
Government Program Foreign Disclosure Officer (FDO) and Program Security
Manager (PSM). There is no requirement for TSA to interact with or provide (export)
any technical data to Foreign Nationals (FNs) or FMS customers therefore TSA is
not required to obtain any export licenses in compliance with the ITAR or
EAR.
Separately, TSA is on contract to provide foreign
disclosure, international program and basic security support to a USN program
that is a Cooperative program with two (2) additional foreign partners for
aircraft and parts which span the USML and CCL. TSA supports the Joint Program
Office (JPO) Director as well as each partner country and provides (exports) US
technical data directly to the foreign partners. In this case TSA is required
to obtain the appropriate export licenses or Technical Assistance Agreements
(TAAs) in order to support the contract requirements as well as maintain
compliance with the ITAR and the EAR.
Going forward TSA could be eligible to execute the GOV
exception when in the capacity of CSS if the ECCN allows it and all other
conditions of the exception are met.
Does your company provide Contract support services to the
U.S. Government?
Does your company export a commodity or technical data
pursuant to a contract with the DoD?
Is your company eligible to use the GOV exception? TSA can help!
Heidi France is a Lead
International Trade Specialist, Technology Security Associates, Inc. Email:
heidi_france@theTSAteam.com
Contributor: Jackie
Sudore-Flood, Director of International Programs, Technology Security
Associates, Inc., Email: jackie_sudore-flood@theTSAteam.com
