By: James E. Bartlett III, Esq., JEBartlett@JEBartlett.com, 1-202-802-0646; Full Circle Trade Law, PLLC, Washington DC; Full Circle Advisory, BV, The Netherlands; and Alpha Omega Consulting Group LLC, Scotsdale, AZ
The word “temporary” occurs in twenty-three separate sections of the International Traffic in Arms Regulations (ITAR) (see a list of all sections in the Index of the BITAR.) However, only two ITAR sections, 123.4(a): “Port Directors of U.S. Customs and Border Protection shall permit the temporary import (and subsequent export) without a license, for a period of up to 4 years,” and 123.5(a): “The Directorate of Defense Trade Controls may issue a license for the temporary export of unclassified defense articles (DSP-73). Such licenses are valid only if the article will be exported for a period of less than 4 years,” expressly limit temporary imports and exports to a period of less than four years. Many ITAR practitioners therefore erroneously assume that all uses of the word “temporary” in the ITAR means a limit of four years. Under the legal principle of statutory construction, expressio unius est exclusio alterius, when one or more things of a class are expressly mentioned, others of the same class may be excluded. It is therefore reasonable to conclude that absent a specifically stated time limit in the section, all uses of the word “temporary” in the ITAR impose no time limit other than that it will not be permanent, which is the common definition of the word.
Learn more about the BITAR at: https://fullcirclecompliance.eu/shop/bartletts-annotated-itar-bitar-including-latest-ecr-changes-yearly-subscription/