International Traffic in Arms Regulations

"ITAR" redirects here. For the Russian news agency, see Information Telegraph Agency of Russia.

International Traffic in Arms Regulations (ITAR) control the export and import of defense-related articles and services on the United States Munitions List (USML).[1] These regulations implement the provisions of the Arms Export Control Act (AECA), and are described in Title 22 (Foreign Relations), Chapter I (Department of State), Subchapter M of the Code of Federal Regulations. The Department of State Directorate of Defense Trade Controls (DDTC) interprets and enforces ITAR. Its goal is to safeguard U.S. national security and further U.S. foreign policy objectives.[2] The related Export Administration Regulations (Code of Federal Regulations Title 15 chapter VII, subchapter C) are enforced and interpreted by the Bureau of Industry and Security in the Commerce Department. The Department of Defense is also involved in the review and approval process. Physical enforcement of the ITAR; and all import and export laws of the United States is performed by Homeland Security Investigations Special Agents (formerly U.S. Customs) under Immigration and Customs Enforcement, an agency of the Department of Homeland Security. Additionally, Customs and Border Protection Officers, also under the Department of Homeland Security, inspect imports and exports at U.S. Border Crossings and International Airports and enforce import and export regulations.

For practical purposes, ITAR regulations dictate that information and material pertaining to defense and military related technologies (items listed on the U.S. Munitions List) may only be shared with U.S. Persons unless authorization from the Department of State is received or a special exemption is used.[3] U.S. Persons (including organizations) can face heavy fines if they have, without authorization or the use of an exemption, provided foreign persons with access to ITAR-protected defense articles, services or technical data.[4]

The U.S. Munitions List changes over time. Until 1996–1997, ITAR classified strong cryptography as arms and prohibited their export from the U.S.[5] Another change occurred as a result of Space Systems/Loral's conduct after the February 1996 failed launch of the Intelsat 708 satellite. The Department of State charged Space Systems/Loral with violating the Arms Export Control Act and the ITAR.[6][7] As a result, technology pertaining to satellites and launch vehicles became more carefully protected.

ITAR does not apply to information related to general scientific, mathematical or engineering principles that is commonly taught in schools and colleges or information that is in the public domain.[8]:§ 120.10(5)[8]:§ 120.11 Nor does it apply to general marketing information or basic system descriptions.[8]:§ 120.10(5) Broad interpretations of these exceptions have faced several legal challenges. For example, college professors have been prosecuted for breaches of the AECA as a result of access to USML items by foreign graduate students[9] and companies have been penalized for alleged breaches of the AECA for failing to properly remove USML items from material used to market defense articles.[10] The U.S. Government has also taken action (albeit unsuccessfully) for the export of technical data that was allegedly already publicly available on the Internet.[11][12][13][14]

ITAR applies to items identified under the Invention Secrecy Act.

History

The AECA and ITAR were enacted in 1976 during the Cold War with USSR and were intended to implement unilateral arms export controls that reflected those imposed on Eastern Bloc countries by the multilateral Coordinating Committee for Multilateral Export Controls.[15][16]

U.S. Government enforcement activities have increased dramatically since 1999,[17] when the U.S. Department of State took over export regulations for satellites.[18] The U.S. Department of State has published 29 instances of Consent Agreements (agreements entered into by parties charged with breaches of ITAR) since 1999.[4] This compares to 12 Consent Agreements in the preceding 22 years.[4] ITAR's prominence has also increased as its implications for foreign parties that handle USML items have become better understood (see "Controversy" below).

ITAR's impact of increased regulations also meant America's worldwide market share in satellite technology declined from 83 percent to 50 percent in 2008, states The Economist, which cited a report from Space Review.[18] In early 2013 legislation was passed allowing the removal of satellite technology from ITAR regulation.[19]

Operation

All U.S. manufacturers, exporters, and brokers of defense articles, defense services, or related technical data, as defined on the USML, are required to register with U.S. Department of State. Registration is primarily a means to provide the U.S. Government with necessary information on who is involved in certain manufacturing and exporting activities. Registration does not confer any export rights or privileges, but is a precondition for the issuance of any license or other approval for export.[20] Registration fees start at US$2,250 per year.[21]

Under ITAR, a "US person" who wants to export USML items to a "foreign person" must obtain authorization from the U.S. Department of State before the export can take place.[3]

A "U.S. person" can be

A foreign person is any person who is not a lawful permanent resident of the U.S. and includes foreign governments and organizations.[8]:§ 120.16 This means that, for example a foreign person who is visiting the U.S. will remain a foreign person for the purposes of ITAR and any export of USML items to them inside the U.S. must be subject to an export authorization. This is similar to the concept of "Deemed Exports" used by the Bureau of Industry and Security within the Department of Commerce in administration of the Export Administration Regulations although the Department of State does not use the term "Deemed Export"[22] (see also "Restrictions on Dual and Third Country Nationals below").

The export authorization may take the form of:

Where the export authorization relates to USML items that are classified information or are identified as "Significant Military Equipment"[8]:§ 120.7 on the USML, a DSP-83 Nontransfer and Use Certificate will also be required.[8]:§ 123.10

Collaborative programs (also known as "Armaments Cooperative Projects" ("ACPs")) between the U.S. and foreign Governments (such as the Joint Strike Fighter) may also authorize export of USML items (subject to strict controls).[27]

Restrictions on Retransfer

ITAR also operates to prohibit the "Retransfer" (also called "Re-export") of items on the USML by foreign persons unless the Retransfer is specifically authorized under the relevant export authorization.

ITAR's restrictions on retransfer blocked Venezuela's threatened sale of used F-16 aircraft to Iran in 2006.[28]

The prohibition on Retransfer stems from the requirement for all export authorizations to include the statement that "[t]he technical data or defense service exported from the United States in furtherance of this agreement and any defense article which may be produced or manufactured from such technical data or defense service may not be transferred to a person in a third country or to a national of a third country except as specifically authorized in this agreement unless the prior written approval of the Department of State has been obtained."[29]

This means that if, for example, a foreign person wants to Retransfer a USML item to another foreign person (such as a subcontractor), both foreign persons must be authorized under the relevant export authorization:

Where a foreign person requires access to USML items exported under a specific export authorization, but that foreign person is not authorized under the export authorization, the export authorization must be amended and re-approved by the U.S. Department of State.[27] This can be a time-consuming process.[27]

Restrictions on Retransfer to Dual Nationals and Third Country Nationals

ITAR treats access to USML items by "Dual-National" and "Third Country National" employees of a foreign organization as a Retransfer to the employees' other countries of nationality.[26]:¶ 3.9.b As a result, access to USML items by such employees must be specifically authorized under the relevant export authorization.[26]:¶ 3.9.c If access to USML items by Dual and Third Country National employees of a foreign organization is authorized, it only authorizes transfer to the employee. It does not authorize export to the employee's country of Dual or Third Nationality.[26]

If a U.S. export authorization is silent as to access by Dual and Third Country National employees of a foreign party, the authorization has the effect of limiting access to employees who are nationals only of the country of their employer.[29] This means that, for example, a TAA that includes a UK company as the foreign person, but which does not include clauses authorizing access by Dual and Third Country Nationals will limit access to USML items supplied under the TAA to employees of the UK company who are UK citizens only.

This can cause significant problems for foreign governments and organizations from countries with large first generation immigrant populations (which is discussed in more detail under "Controversy").[32] As a result, the U.S. Government and the Australian Government have drawn attention to the importance for U.S. companies to consult closely with foreign persons who will be subject to a U.S. export authorization before it is submitted to the U.S. Department of State for approval.[26]:31[33]

Clauses approved by the U.S. Department of State must be included in TAAs and MLAs in order to authorize access to USML items by Dual and Third Country National employees of foreign parties to the export authorization.[26] These clauses will generally permit access by Dual and Third Country Nationals from NATO, EU, Japan, Switzerland, New Zealand and Australia (subject to certain conditions).[26] Employees of foreign persons holding Dual or Third Country Nationality from countries proscribed under ITAR 126.1, such as Vietnam, the Peoples Republic of China ("PRC"), North Korea, Syria and Iran, will, as a general rule, not be authorized to have access to USML items.[26]:20 It is less-clear how Dual and Third Country Nationals are addressed in FMS Cases and export licenses such as DSP-5s.

Enforcement

The U.S. Government has substantially increased action against organizations and individuals responsible for breaches of ITAR since 1999. The most notable enforcement action was the $100M penalty applied to ITT as a result of the unauthorized Retransfer of night vision technology to the PRC in 2007.[34] Other major U.S. defense contractors penalized for alleged[35] breaches of ITAR in recent years include (among others) Lockheed Martin,[36] Motorola,[37] Boeing,[38] L-3 Communications,[39] and Northrop Grumman.[40]

In most cases, penalties against corporate entities involve a mandatory compliance component requiring the entity to spend funds on compliance measures, including the appointment of "Internal Special Compliance Officers".[35] Penalties may also require the party to submit to external audit. In serious cases, a party may be debarred from future exporting for a period of time.[34]

U.S. Government policy also imposes a positive obligation on U.S. companies to fully disclose any breaches of ITAR to the U.S. Government.[41] Failure to do so can significantly increase penalties applied by the U.S. Government.[42][43]:2

The U.S. Government:

The unauthorized export of night vision technology has been the subject of several enforcement actions by the U.S. Government.

The U.S. Government will also take action against individuals responsible for breaches of ITAR and such action can involve criminal penalties. Actions are often initiated by U.S. Immigrations and Customs Enforcement and include:

Since 1990, the U.S. Government has also operated the "Blue Lantern" end-use monitoring program.[54] Blue Lantern "monitors the end-use of commercially exported defense articles, defense services, and related technical data subject to licensing or other authorizations under section 38 of the AECA."[54] Blue Lantern checks are conducted following a careful selection process to identify transactions that appear most at risk for diversion or misuse.[54] Unfavorable Blue Lanterns are reviewed by DTCC's Enforcement Division. Where appropriate, parties involved in unfavorable Blue Lantern cases may be subject to civil enforcement actions or referred to law enforcement for criminal investigation.[54]

Compliance

Because failure to implement an effective export compliance program can be an exacerbating factor in the event of a breach of ITAR,[47] the U.S. Government encourages U.S. exporters to implement internal export compliance programs.[55][56] The U.S. Government may also require U.S. exporters that are party to an export authorization to develop a "Technology Transfer Control Plan" specific to that export authorization.[57][58]

Other countries also encourage their nationals who are using USML items to implement internal export compliance programs to address ITAR requirements. It is notable that the failure of overseas companies to implement ITAR compliance programs has been criticized by the U.S. Department of State.[47]

Companies in U.S. and Overseas are increasingly using the ERP software to track the ITAR controlled items through the Supply Chain.

ITAR reform

While political debate over the wisdom of placing all satellite and launch technology on the US Munitions List (USML) has been ongoing since the advent of ITAR regulation in 1999, there has been a shift in political opinion since 2007. In late 2012, the US Congress passed the 2013 defense authorization bill which, if signed into law, will allow U.S. satellite manufacturers to "be more able to collaborate with international partners and [place] U.S. component makers on a more even footing in the global marketplace."[59] The bill "allows the president to remove commercial satellites and components from the U.S. Munitions List (USML) and allows him to decide which satellite technologies are the most important to protect. The bill still restricts the export and transfer of technology to China, Cuba, Iran, North Korea, Sudan and Syria."[59]

The political changes in 2012 came after several years of a gradual shift in thinking. In 2010, the Congress formally requested "an assessment of the national security risks of removing satellites and components from the USML. The study, known as the 1248 report, was completed in April 2012.[59]

While satellite technology had been subjected to ITAR since 1999, the U.S. had seen its share of global satellite manufacturing halved with, according to the Aerospace Industries Association, an estimated loss of $21 billion in revenue from 1999 to 2009.[19]

Controversy

Harm to U.S. commercial and academic interests

There is an open debate between the Department of State and the industries and academia regulated by ITAR concerning how harmful the regulatory restrictions are for U.S. businesses and higher education institutions.

Academic work and the "Fundamental Research Exemption"

Higher education institutions argue that ITAR prevents the best international students from studying and contributing in the United States, and prevents cooperation on certain types of international scientific projects.[60][61]ITAR generally prohibits foreign persons from collaborating with US citizens on projects pertaining to items on the USML without export licensing, as such work can be construed to fall under one of the several enumerated definitions of "export," such as:

Where the definition of "defense service" includes "the furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles." [62]

The ITAR specifies that the products of "fundamental research" are not considered controlled "technical data," so long as they are published freely. Fundamental research is defined as university-based "basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls."[62]

Research that does not meet the criteria of "fundamental research" cannot involve foreign persons without export licenses; however, research activities that are considered fundamental typically can involve foreign persons, even when they involve the design and construction of defense articles, as the US State Department has deemed such research activities to fall outside of the purview of training activities that would constitute the illegal export of a "defense service."[63] The need to make this distinction has led many U.S. research universities to adopt ITAR policies and compliance programs. These measures can vary widely; for example, MIT states that "the intent of the ITAR is that research conducted on campus, without restrictions on publication or participation, is fundamental research from inception to publication as long as the intent is to publish the results,"[64] while Stanford University maintains a more nuanced and restrictive approach to research involving defense articles. [65]

University interpretation and up-to-date understanding of export control regulations and willingness to seek opinions from the U.S. State Department affect the research that can be conducted on their campuses; for example, the University of Michigan successfully obtained an opinion from the Department of State stating that satellite development work on an (at the time) ITAR-controlled satellite being conducted by a student group containing both U.S. and non-U.S. citizens was considered fundamental research and was allowed to proceed.[63] In contrast, as of March 2016, Stanford's Export Control Officer maintains that all satellite systems are controlled defense articles under the ITAR (despite their reclassification under the EAR in 2014) and, based on NASA criteria for automatic designation of a research project as fundamental research,[66] does not consider projects above TRL 4 to be fundamental research, limiting the activities of laboratories and project-based groups on campus.[67] This and similar policies are particularly damaging to international students studying aerospace engineering or related fields at U.S. universities, as opportunities to gain practical experience in their studies through internships are, due to licensing requirements, typically not offered to them at U.S. aerospace companies, and on-campus projects, when allowed, offer an alternate route for developing skills like those obtained through internships and co-op programs.

Effects on the U.S. space industry

The Department of State insists that ITAR has limited effect and provides a security benefit to the nation that outweighs any impact that these sectors must bear. Every year, the Department of State can cite multiple arrests of ITAR violators by U.S. Immigration and Customs Enforcement agents and the FBI.[68] It is apparent that companies and institutions within the affected areas are somewhat stifled by ITAR regulations, in addition to the trade the U.S. economy would receive, and the science technology that it would share, notwithstanding that its restrictions encourage U.S. allies (such as Australia and the UK) to procure defense equipment from other sources that may not be interoperable with U.S. equipment.[69] Companies argue that ITAR is a significant trade barrier that acts as a substantial negative subsidy, weakening U.S. industries' ability to compete.[70] U.S. companies point to announcements in Europe by TAS (Thales Alenia Space) promoting their "ITAR-free" telecommunication satellites.[60][71][72][73] Currently, officials at the Department of State dismiss the burden on industry and educational institutions as minor compared to the contributions to national security provided by ITAR. They also view the announcements of "ITAR-free" items as anecdotal and not systemic.[60]

There is evidence that ITAR considerations have been a factor in decisions by foreign governments to avoid U.S. products and decisions by U.S. companies to remove USML items from their products:

Registration fees

The U.S. Department of State charges back fees to manufacturers who have failed to register previously.[81] Smaller exporters who may not have been aware of the requirement to register can potentially be charged crippling back fees when they first register.[82] Allegations have been put to the U.S. Department of State-industry advisory group, the Defense Trade Advisory Group, that charging back fees discourages some manufacturers from registration.[82]

Restrictions on foreign products

Restrictions on Retransfer of USML items can also cause difficulties where those items have been incorporated into a product manufactured by a foreign person. If the foreign person wants to Retransfer the product to another foreign person, it must obtain authorization from the U.S. Government before the Retransfer can take place.

It is open to the U.S. Government to refuse to authorize Retransfer of a foreign product that includes USML items:

As a consequence of the blocking of these sales, Venezuela has subsequently purchased aircraft and other military hardware from Russia and Belarus.[86]

Restrictions on Dual and Third Country Nationals

The restrictions on access to USML items by Dual and Third Country National employees of a foreign person can cause significant difficulties because the current accepted definitions of Dual and Third Country Nationals do not reflect the definition of "US persons". The Department of State defines Dual and Third Country Nationality as follows:

Although "nationality" is not defined under ITAR, it is accepted that the U.S. Government will take country of origin[26] and continued ties or allegiance to a country into account when determining Dual or Third Country Nationality.[89][90]

This means that a person who was born in the UK but is a U.S. permanent resident working in the U.S. for a U.S. company will be considered a U.S. person only (under the definition of "US person"). If, however, the same person emigrated to Canada, obtained Canadian citizenship and commenced employment with a Canadian company, she would be treated as a Canadian-UK Dual National for the purposes of any U.S. export authorization to which her employer was a party. If she did not obtain Canadian citizenship but instead became a temporary or permanent Canadian resident, she would be treated as a UK Third Country National for the purposes of such U.S. export authorization.[27]

It is also possible for a person who was born in one country to become a Dual National for the purposes of ITAR without necessarily leaving his country of origin, simply by obtaining a foreign passport (thereby "holding nationality" from another country). This is frequently the case where the individual's parent/s were born in a country that grants citizenship to children of its citizens, regardless of where the children were born, for example, a child born in Canada to parents who were born in the UK is able to obtain a UK passport (see British nationality law). Once he has done so, he becomes a Canadian-UK Dual National for the purposes of ITAR.

Restrictions on access to USML items by Dual and Third Country National employees of foreign persons essentially forces foreign persons to discriminate against their employees who do not meet the nationality criteria under an export authorization. Such discrimination may be illegal in some countries under anti-discrimination law (such as in Canada[91][92] and Australia[32]).

In addition, the prohibition on access by Dual and Third Country Nationals from countries proscribed under ITAR 126.1 can cause problems for countries with large immigrant populations from those countries (such as Canada and Australia, which both have large Overseas Chinese and Overseas Vietnamese immigrant populations: see immigration to Canada and immigration to Australia).[32]

The U.S. Government actively enforces restrictions on access to USML items by Dual and Third Country Nationals:

ITAR and information technology

The ease with which USML items can be exported and Retransferred using computer networks and removable media significantly increases the risk of unauthorized Retransfer of USML items. As discussed above, carrying a laptop computer which contains USML items overseas is considered a Retransfer of those items. Likewise, access to USML items on corporate systems, such as intranets, by foreign persons overseas or in the U.S., is considered a Retransfer of the items.[93]

It is important to note that, in both cases, theoretical access to the USML items overseas or by foreign persons is sufficient to constitute a breach of ITAR.[93] Files on a laptop carried overseas do not need to be opened overseas and foreign persons do not need to have actual access to USML items on computer networks for a breach to occur.

Theoretical access to USML items by foreign persons (including Dual and Third Country Nationals) can create difficulties for the engagement of IT professionals from overseas as network administrators or the use of overseas companies to support IT systems.[94]

Exemptions and treaties

Several countries have sought ITAR exemptions or treaties with the U.S. Government in an effort to minimize the impact of ITAR, with varying degrees of success. The U.S. Government remains reluctant to consider broad exemptions from ITAR because of continuing concerns regarding the adverse effect unauthorized release of USML items can have on U.S. national security.[95]

Congressman Henry Hyde repeatedly blocked an ITAR waiver for the UK.

Canada is the recipient of an ITAR exemption related to the 1963 Defense Development Sharing Arrangement with the U.S. Government.[96][97][98][99]

Attempts by the UK Government to obtain a similar exemption were also stymied. The UK Government sought an exemption in the context of the JSF project. The Clinton administration promised the United Kingdom's Ministry of Defence that an ITAR waiver would be given, allowing greater technology transfer associated with the project.[100] Yet, despite the backing of the Bush administration, the waiver was repeatedly blocked by the late U.S. Congressman Henry Hyde because of his security concerns about potential technology transfer to third countries.[101] With his departure, ITAR-related impacts regarding the F-35 / JSF program remain in flux. These difficulties caused the UK to threaten that it would abandon the JSF project and consider alternative aircraft.[102]

The U.S. Government signed bilateral Defense Trade Cooperation Treaties with the UK and Australian Governments in June[103][104] and September 2007[105][106] respectively. The treaties are designed to allow the exchange of technical data, defense articles and defense services (including USML items) without the need for export authorizations such as TAAs and MLAs, subject to restrictions on the type and classification of the technology in question and its intended end-use.[107][108] In return, the UK and Australian Governments will be required to take steps to improve their export control laws (such as the Australian Customs Act).[109] As of September 2008, the U.S. Senate Foreign Relations Committee had deferred consideration of the Treaties on the grounds that it had not had time to properly evaluate proposed amendments to ITAR required in order to implement the Treaties.[110][111]

Satellite reclassification

In May 2014, after 15 years of restrictions and intense scrutiny, the United States Department of State reclassified satellites and several related components so they will no longer be treated as munitions whose export is controlled by ITAR, but will be covered instead under the Export Administration Regulations.[112] These new classifications took effect in November, 2014, six months after the announcement of the reclassification.

See also

References

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