International Traffic in Arms Regulations (ITAR) is a set of U.S. Department of State regulations that control the export of defense and military technologies to safeguard national security and further its foreign policy objectives.
Overview
The United States government has adopted two types of regulations to control exports of military-relevant items: ITAR, which cover weapons and defense articles specifically (such as missiles); and the Export Administration Regulations, which cover items that may have uses in defense articles (such as a radar component used in a certain missile).
Defense-related articles and services on the United States Munitions List (USML) are covered by the ITAR, which 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. 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 (as well as 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.
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 US persons unless authorization from the Department of State is received to export the material or information to a foreign person. US persons (including organizations; see legal personality) 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.
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. 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.
ITAR does not apply to information related to general scientific, mathematical or engineering principles that are commonly taught in schools and colleges or information that is in the public domain.SUBCHAPTER M—INTERNATIONAL TRAFFIC IN ARMS REGULATIONS, PART 120—PURPOSE AND DEFINITIONS , SOURCE: 58 FR 39283, US State Department, July 22, 1993 Nor does it apply to general marketing information or basic system descriptions. 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 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. 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.
History The AECA and ITAR were enacted in 1976 during the Cold War with the 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.
U.S. Government enforcement activities have increased dramatically since 1999, when the U.S. Department of State took over export regulations for satellites.The Economist, August 23, 2008 edition. U.S. Edition. Page 66. "Earthbound" 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. This compares to 12 Consent Agreements in the preceding 22 years. 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. In early 2013 legislation was passed allowing the removal of satellite technology from ITAR regulation.
Operation
Classification of defense articles The ITAR regulate defense articles and defense services.
Defense articles can be broken down into two categories: (a) physical items (often referred to as "commodities") and (b) technical data. The ITAR contain a list of defense articles called the US Munitions List ("USML"), which can be found at 22 CFR §121.1. The USML is broken down into the following categories: Firearms, close assault weapons and combat shotguns Guns and armament Ammunition/ordnance Launch vehicles, Guided missiles, ballistic missiles, rockets, torpedoes, bombs and mines Explosives and energetic materials, propellants, incendiary agents and their constituents Surface vessels of war and special naval equipment Tanks and military vehicles Aircraft and associated equipment Military training equipment Personal Protective Equipment Military electronics Fire control, range finders, optical and guidance and control equipment Materials and miscellaneous equipment Toxicological agents, including chemical agents, biological agents, and associated equipment Spacecraft and associated equipment Nuclear weapons related articles Classified articles, technical data and defense services not otherwise enumerated Directed energy weapons Gas turbine engines and associated equipment Submersible vessels, oceanographic and related articles Articles, technical data, and defense services not otherwise enumeratedFor example, an M4 carbine, which is an assault rifle used by the U.S. military, would be identified under Category I paragraph (b):*(b) Fully automatic firearms to .50 caliber inclusive (12.7 mm).A flash suppressor for the M4 rifle then follows in paragraph (e):*(e) Silencers, mufflers, sound and flash suppressors for the articles in (a) through (d) of this category and their specifically designed, modified or adapted components and parts.Components, parts, and accessories for the M4 are in paragraph (h):(h) Components, parts, accessories and attachments for the articles in paragraphs (a) through (g) of this category.Finally, technical data and defense services relating to the M4 are in paragraph (i):(i) Technical data (as defined in §120.33 of this subchapter) and defense services (as defined in §120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (h) of this category. Technical data directly related to the manufacture or production of any defense articles described elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.Technical data is defined in the ITAR at 22 CFR §120.33 as:(1) Information, other than software as defined in 22 CFR §120.40(g), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.
(2) Classified information relating to defense articles and defense services on the U.S. Munitions List and 600-series items controlled by the Commerce Control List;
(3) Information covered by an invention secrecy order; or
(4) Software (see 22 CFR §120.40(g)) directly related to defense articles.
Registration 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. Registration fees start at US$2,250 per year.
Exporting defense articles 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.
A "U.S. person" can be a U.S. citizen; a permanent resident who does not work for a foreign company, a foreign government, or a foreign governmental agency/organization; a political asylee; a part of the U.S. government, or a corporation, business, organization, or group that is incorporated in the United States under U.S. law.
A foreign person is any person who is not a lawful permanent resident of the U.S. and includes foreign governments and organizations. 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 United States Department of Commerce in administration of the Export Administration Regulations although the Department of State does not use the term "Deemed Export" (see also "Restrictions on Dual and Third Country Nationals below").
The export authorization may take the form of: a Foreign Military Sales ("FMS") Case whereby the U.S. Government sells the USML items directly to a foreign government; an export license, such as a DSP-5 (Department of State Publication No. 5), which authorizes the temporary or permanent export of defense articles and/or technical data to a foreign person (but not technical assistance or defense services); a Warehouse and Distribution Agreement which is an agreement to establish a warehouse or distribution point abroad for defense articles to be exported from the United States for subsequent distribution to entities in an approved sales territory; a Technical Assistance Agreement ("TAA") which authorizes a U.S. manufacturer/service provider to supply defense services to a foreign person (which could involve training or technical discussions regarding U.S. technology); or a Manufacturing License Agreement ("MLA") which authorises a U.S. manufacturer to supply manufacturing know-how related to defense articles to a foreign person.
Where the export authorization relates to USML items that are classified information or are identified as "Significant Military Equipment" on the USML, a DSP-83 Nontransfer and Use Certificate will also be required.
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).
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.