22 C.F.R. § 123.1

Requirement for export or temporary import licenses

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(a) Any person who intends to export or to import temporarily a defense article must obtain the approval of the Directorate of Defense Trade Controls prior to the export or temporary import, unless the export or temporary import qualifies for an exemption under the provisions of this subchapter. The applicant must be registered with the Directorate of Defense Trade Controls pursuant to part 122 of this subchapter prior to submitting an application. Applications for unclassified exports and temporary imports must be submitted electronically. Applications for classified exports and classified temporary imports must be submitted via paper. Further guidance is provided on the Internet Web site of the Directorate of Defense Trade Controls. The application forms for export or temporary import are as follows:

(1) Unclassified permanent exports must be made on Form DSP-5;

(2) Unclassified temporary exports must be made on Form DSP-73;

(3) Unclassified temporary imports must be made on Form DSP-61; or

(4) Classified exports or temporary imports must be made on Form DSP-85.

(b) Applications for Department of State export or temporary import licenses for proposed exports or temporary imports of defense articles, including technical data, may include commodities, software, and technical data subject to the EAR if:

(1) The purchase documentation (e.g., purchase order, contract, letter of intent, or other appropriate documentation) includes both defense articles described on the U.S. Munitions List and items on the Commerce Control List;

(2) The commodities, software, and technical data subject to the EAR are for end-use in or with the U.S. Munitions List defense article(s) proposed for export; and

(3) The license application separately enumerates the commodities, software, and technical data subject to the EAR in a U.S. Munitions List “(x)” paragraph entry.

(c) As a condition to the issuance of a license or other approval, the Directorate of Defense Trade Controls may require all pertinent documentation regarding the proposed transaction and proper completion of the application form as follows:

(1) Form DSP-5, DSP-61, DSP-73, and DSP-85 applications must have an entry in each block where space is provided for an entry. All requested information must be provided. Stating “Not Applicable” or “See Attached” is not acceptable. See the Directorate of Defense Trade Controls Internet Web site for additional guidance on the completion of a license application form;

(2) Attachments and supporting technical data or brochures should be submitted with the license application. All freight forwarders and U.S. consignors must be listed in the license application. See the Directorate of Defense Trade Controls Internet Web site for instructions and limitations on attaching documentation;

(3) Certification by an empowered official must accompany all application submissions (see § 126.13 of this subchapter);

(4) An application for a license for the permanent export of defense articles sold commercially must be accompanied by purchase documentation (e.g., purchase order, contract, letter of intent, or other appropriate documentation). In cases involving the Foreign Military Sales program, a copy of the relevant Letter of Offer and Acceptance is required, unless the procedures of § 126.4(c) or § 126.6 of this subchapter are followed;

(5) Form DSP-83, duly executed, must accompany all license applications for the permanent export of significant military equipment, including classified defense articles or classified technical data (see §§ 123.10 and 125.3 of this subchapter); and

(6) A statement concerning the payment of political contributions, fees, and commissions must accompany a permanent export application if the export involves defense articles or defense services valued in an amount of $500,000 or more and is being sold commercially to or for the use of the armed forces of a foreign country or international organization (see part 130 of this subchapter).

(d) Provisions for furnishing the type of defense services described in § 120.32 of this subchapter are contained in part 124 of this subchapter. Provisions for the export or temporary import of technical data and classified defense articles are contained in part 125 of this subchapter.

(e) A request for a license for the export of unclassified technical data (DSP-5) related to a classified defense article should specify any classified technical data or material that subsequently will be required for export in the event of a sale.

[58 FR 39299, July 22, 1993, as amended at 70 FR 50960, Aug. 29, 2005; 71 FR 20540, Apr. 21, 2006; 77 FR 22670, Apr. 17, 2012; 78 FR 22758, Apr. 16, 2013; 79 FR 61230, Oct. 10, 2014; 87 FR 16423, Mar. 23, 2022]

Notes of Decisions

Cited in 12 cases, 1961–2020 · leading case: United States v. Jorge Eduardo Castro-Trevino, 464 F.3d 536 (5th Cir. 2006).

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United States v. Jorge Eduardo Castro-Trevino, 464 F.3d 536 (5th Cir. 2006). “22 C.F.R. § 123.1 (a) provides: "Any person who intends to export or to import temporarily a defense article must obtain the approval of the Directorate of Defense Trade Controls prior to the export or temporary import____" 5 .”

Donald Franco-Casasola v. Eric Holder, Jr., 773 F.3d 33 (5th Cir. 2014). · cites it 2× “22 C.F.R. § 123.1 (a). The final regulation cited in the indictment says it is unlawful “[t]o export or attempt to export from the United States any defense article .”

United States v. Brian Bishop, 740 F.3d 927 (4th Cir. 2014). “§ 2778 (b)(2); 22 C.F.R. § 123.1 (a). A defendant who “willfully violates any provision” of the AECA may be *932 punished with a fíne of up to a million dollars, a prison term of up to 20 years, or both.”

United States v. Heinz Golitschek, 808 F.2d 195 (2d Cir. 1986). “22 C.F.R. § 123.1 (a) (1986). Applications for licenses must be made on Form DSP-5.”

United States v. Evans, 667 F. Supp. 974 (S.D.N.Y. 1987). “, 22 C.F.R. §§ 123.1 , 123.9(a), 123.-10(d).”

Sam Rubin v. United States, 289 F.2d 195 (5th Cir. 1961). · cites it 2× “the Bureau of Customs, Treasury Department; that these planes were munitions and implements of war, as defined in regulations promulgated by the Secretary of State; that at the times and places of the seizures the agents who seized the planes had probable cause to believe that…”

United States v. Schwartz, 924 F.2d 410 (2d Cir. 1991). “22 C.F.R. §§ 123.1 , 123.9 (1990). The Munitions Control Office then decides whether to grant the license based upon the information contained in the application.”

United States v. Obiechie, 825 F. Supp. 1335 (N.D. Ill. 1993). “22 CFR §§ 123.1 , 123.9 (1992). If the State Department grants the license, the individual must present it to the Customs Service at the time of export.”

United States v. Michael Edward Todd, 486 F. App'x 88 (11th Cir. 2012). “§ 2778 , and some of its accompanying regulations, 22 C.F.R. §§ 123.1 and 127.1, as well as the International Emergency Economic Powers Act, 50 U.”

Robert Thorne v. Dos (9th Cir. 2020). “See generally 22 C.F.R. § 123.1 ; 22 U.S.C. § 2778 . Thorne’s license applications for export to the Dave Sheer entities were regularly approved.”

United States v. Castro-Trevino (5th Cir. 2006). “4 22 C.F.R. § 123.1 (a) provides: “Any person who intends to export or to import temporarily a defense article must obtain the approval of the Directorate of Defense Trade Controls prior to the export or temporary import .”

United States v. Peter Tran, 472 F. App'x 629 (9th Cir. 2012). “” 22 C.F.R. § 123.1 . Tran did not obtain such approval, nor does he argue that the weapons parts at issue qualified for any exemption from this requirement.”

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