Question: I know what to do if it becomes necessary to amend a State/DDTC authorization for exports under the ITAR. But what if I need to make a change to a Commerce/BIS export license? Can I even do that?
The short answer to your question is, Yes, you can – but there’s a very good chance you won’t need to.
Here’s the skinny on correcting a BIS-748P application form or modifying a previously approved export license through the Commerce Department’s SNAP-R system:
You’ve determined that your export falls under the jurisdiction of Commerce and that the transaction requires a license from BIS. You’ve done your research, put together all the information and documentation you need, and have just successfully submitted a SNAP-R BIS-748P license application online. Not long afterwards, before you have even finished congratulating yourself on another job well done, you suddenly realize—to your embarrassment and disgust—that you entered some incorrect information in one of the data fields in your submission, or that you completely forgot to attach the required documents. You quickly log on again to your SNAP-R account and hunt around frantically for an “Undo” or “Recall” button, but fail to find one. Zero, zilch, zip, nada, nothing. What are you supposed to do? Visions of denied licenses, lost time, angry customers, and potential export violations swim before your eyes. Is this going to be a big problem?
Not to worry. Rest assured that you aren’t the first exporter to mess up a license application form. While it’s true that there isn’t any way to undo or recall your Form BIS-748P online once it’s been submitted, all you need to do is phone the BIS’s Office of Export Services and let them know about the mistake. The licensing officer will then simply mark your application “Returned Without Action” (RWA), which means in essence that your application has been rejected, but without any prejudice to future resubmissions. Once that’s done, you can breathe a sigh of relief, copy your original application, fix the mistakes or omissions, and re-submit it to BIS—correctly, this time!—through SNAP-R. Or, if your only mistake was failing to attach the documentation, the licensing officer will just send you an e-mail requesting those documents, to which you can reply directly and rectify the omission.
But what if your export license has already been approved by Commerce, but now you realize you’re going to have to modify it because some things have changed since then? What should you do?
Well, the good news is that you might not have to do anything at all, if:
(1) your modifications are considered “non-material changes,” according to the detailed description in EAR Section 750.7(c);
(2) your modifications are covered by the “shipping tolerances” provision of EAR Section 750.11.
The list of “non-material changes” includes such alterations as a change in unit price or total value, a change in intermediate consignee (if the new intermediate consignee is located in the country of ultimate destination), and a change in the address of purchaser or ultimate consignee (if the new address is located within the same country shown on the license). For the details, read through §750.7(c) carefully; there’s a very good chance you’ll find your change listed there. (And, while you’re doing that, take a couple of minutes more to familiarize yourself with the shipping tolerance exceptions in §750.11 as well; it’s practical knowledge that may prove handy!)
Even in the case of a minor change to your company’s name—assuming that the name change is not the result of a change of ownership, a merger, or an acquisition—you may find that all you really need to do is have the administrator for your SNAP-R account update the name online in the Administration Module. A word of caution, though: a company’s name change may or may not be considered a “non-material change” by the BIS; you’ll need to write to them on company letterhead and request an Advisory Opinion about that before proceeding.
Finally, what if you’ve carefully scrutinized Section 750.7(c) of the EAR and determined that the modification you need to make is unfortunately not among numerous exceptions designated there as “non-material changes”? If that is the case — assuming that you are still shipping the identical items to the identical ultimate consignee — you will need to notify BIS of the change, and it’s up to them to approve or not approve the modification.
You’ll be glad to know that you can deal with this situation online by applying for a “Replacement License” number from BIS. Simply make your request via a SNAP-R Form BIS-748P, using Block 11, “Replacement License Number,” stating concisely what change you are making to the original export license.
In the event that BIS does not approve your “Replacement License” request—they will give you their response in writing— a new export license application will need to be submitted, and approved by BIS, before you can make any further shipments.
Sound easier than you thought it would be? Well, many companies who have entered the regulatory jurisdiction of BIS for the first time recently, thanks to the Export Control Reform Initiative (ECR), have said they were surprised and relieved to discover that Commerce’s controls and licensing regime are often simpler and less restrictive than State’s. Export Licensing Officers have generally found Commerce’s SNAP-R electronic application portal to be more user-friendly than the State Department’s D-Trade system.
There are other significant differences between the two export regimes as well. For example, you do not need to “return” your Commerce export license to BIS once it is no longer valid, as you are required to do with a DSP license from State/DDTC after expiration or exhaustion when it has not been decremented entirely electronically through AES. In future posts, we’ll be spotlighting some other similarities and differences between EAR and ITAR licensing, in addition to providing you with practical information you’ll need when applying for and using Commerce licenses for “600 series” items, which were formerly subject to the ITAR.
Even though the BIS application process is simpler in many ways, be aware that Commerce export licenses typically have more conditions attached than State/DDTC licenses or agreements. And remember this, too: whether you’re exporting your product under a Commerce or a State export license, you and your company are responsible and legally accountable to stay within authorized scope of the export authorization and strictly observe all its provisos and conditions.
Commerce and State have been increasingly active in export enforcement lately. Civil and criminal penalties for export violations in recent cases have been extremely heavy. Even “minor” export violations of the ITAR and EAR can have very serious consequences for companies and individuals.
Achieving and maintaining corporate ITAR and EAR compliance can be a daunting challenge for U.S. exporters, but we’re here to help. Export Compliance Solutions (ECS) has built a distinguished record based on many years of experience in the field of U.S. export controls. As the nation’s premier export compliance consultants and educators, we offer a wide variety of training, auditing, and advisory services, including live regional and on-site seminars, webinars, export compliance awareness video courses for employees, and other products to support our clients. Give us a call or send us an e-mail today. The ITAR and EAR compliance experts at ECS can help you successfully navigate the sometimes rough regulatory seas of U.S. export controls.
(None of the information is intended to be authoritative official or professional legal advice. Consult your own legal counsel or compliance specialists before taking actions based upon this blog or other unofficial sources.)