International Traffic in Arms Regulations (ITAR) is a
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
regulatory regime to restrict and control the
export
An export in international trade is a good produced in one country that is sold into another country or a service provided in one country for a national or resident of another country. The seller of such goods or the service provider is an ...
of defense and military related
technologies
Technology is the application of knowledge to reach practical goals in a specifiable and reproducible way. The word ''technology'' may also mean the product of such an endeavor. The use of technology is widely prevalent in medicine, science, ...
to safeguard
U.S. national security and further
U.S. foreign policy
The officially stated goals of the foreign policy of the United States of America, including all the bureaus and offices in the United States Department of State, as mentioned in the ''Foreign Policy Agenda'' of the Department of State, are ...
objectives.
Overview
The
United States government
The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a fede ...
has put two types of regulations in place to control exports of military-relevant items: ITAR, which cover weapons and defense articles specifically (such as
missiles
In military terminology, a missile is a guided airborne ranged weapon capable of self-propelled flight usually by a jet engine or rocket motor. Missiles are thus also called guided missiles or guided rockets (when a previously unguided rocket i ...
); and the
Export Administration Regulations
The Export Administration Regulations (EAR) are a set of regulations found a15 C.F.R. § 730 ''et seq'' They are administered by the Bureau of Industry and Security, which is part of the US Commerce Department. The EAR regulates export and expor ...
, which cover items that may have uses in defense articles (such as a radar component used in a certain missile). The U.S. government has to give specific permission for equipment (and information, referred to in ITAR as ''technical data'') before those items can be handed over to a non-US citizen, company, or government.
Defense-related articles and services on the
United States Munitions List
The United States Munitions List (USML) is a list of articles, services, and related technology designated as Military, defense and space-related by the Federal government of the United States, United States federal government. This designation ...
(USML) are covered by the ITAR, which implement the provisions of the
Arms Export Control Act
The Arms Export Control Act of 1976 (Title II of , codified at ) gives the President of the United States the authority to control the import and export of defense articles and defense services. The H.R. 13680 legislation was passed by the 94th ...
(AECA), and are described in Title 22 (Foreign Relations), Chapter I (
Department of State), Subchapter M of the
Code of Federal Regulations
In the law of the United States, the ''Code of Federal Regulations'' (''CFR'') is the codification of the general and permanent regulations promulgated by the executive departments and agencies of the federal government of the United States. ...
. The Department of State
Directorate of Defense Trade Controls The Bureau of Political-Military Affairs' Directorate of Defense Trade Controls (DDTC) is the organization within the U.S. Department of State responsible for enforcing the International Traffic in Arms Regulations (ITAR). In accordance with 22. U. ...
(DDTC) interprets and enforces ITAR. The related
Export Administration Regulations
The Export Administration Regulations (EAR) are a set of regulations found a15 C.F.R. § 730 ''et seq'' They are administered by the Bureau of Industry and Security, which is part of the US Commerce Department. The EAR regulates export and expor ...
(Code of Federal Regulations Title 15 chapter VII, subchapter C) are enforced and interpreted by the
Bureau of Industry and Security
The Bureau of Industry and Security (BIS) is an agency of the United States Department of Commerce that deals with issues involving national security and high technology. A principal goal for the bureau is helping stop the proliferation of weapo ...
in the Commerce Department. The
Department of Defense Department of Defence or Department of Defense may refer to:
Current departments of defence
* Department of Defence (Australia)
* Department of National Defence (Canada)
* Department of Defence (Ireland)
* Department of National Defense (Philipp ...
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
Homeland security is an American national security term for "the national effort to ensure a homeland that is safe, secure, and resilient against terrorism and other hazards where American interests, aspirations, and ways of life can thrive" t ...
Investigations Special Agents (formerly U.S. Customs) under
Immigration and Customs Enforcement
The U.S. Immigration and Customs Enforcement (ICE) is a federal law enforcement agency under the U.S. Department of Homeland Security. ICE's stated mission is to protect the United States from the cross-border crime and illegal immigration tha ...
, an agency of the
Department of Homeland Security
The United States Department of Homeland Security (DHS) is the U.S. federal executive department responsible for public security, roughly comparable to the interior or home ministries of other countries. Its stated missions involve anti-terr ...
. 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
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
Legal capacity is a quality denoting either the legal aptitude of a person to have rights and liabilities (in this sense also called transaction capacity), or altogether the personhood itself in regard to an entity other than a natural person ( ...
) 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
Cryptography, or cryptology (from grc, , translit=kryptós "hidden, secret"; and ''graphein'', "to write", or ''-logia'', "study", respectively), is the practice and study of techniques for secure communication in the presence of adver ...
as arms and prohibited their export from the U.S. Another change occurred as a result of
Space Systems/Loral
SSL, formerly Space Systems/Loral, LLC (SS/L), of Palo Alto, California, is a wholly owned manufacturing subsidiary of Maxar Technologies.
SSL designs and builds satellites and space systems for a wide variety of government and commercial cust ...
's conduct after the February 1996 failed launch of the
Intelsat 708
Intelsat 708 was a telecommunications satellite built by the American company Space Systems/Loral for Intelsat. It was destroyed on February 15, 1996 when the Long March 3B launch vehicle failed while being launched from the Xichang Satellite ...
satellite. The Department of State charged
Space Systems/Loral
SSL, formerly Space Systems/Loral, LLC (SS/L), of Palo Alto, California, is a wholly owned manufacturing subsidiary of Maxar Technologies.
SSL designs and builds satellites and space systems for a wide variety of government and commercial cust ...
with violating the
Arms Export Control Act
The Arms Export Control Act of 1976 (Title II of , codified at ) gives the President of the United States the authority to control the import and export of defense articles and defense services. The H.R. 13680 legislation was passed by the 94th ...
and the ITAR. As a result, technology pertaining to
satellites and
launch vehicle
A launch vehicle or carrier rocket is a rocket designed to carry a payload (spacecraft or satellites) from the Earth's surface to outer space. Most launch vehicles operate from a launch pad, launch pads, supported by a missile launch contro ...
s became more carefully protected.
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](_blank)
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.
ITAR applies to items identified under the
Invention Secrecy Act
The Invention Secrecy Act of 1951 (, codified at ) is a body of United States federal law designed to prevent disclosure of new inventions and technologies that, in the opinion of selected federal agencies, present a possible threat to the n ...
.
History
The AECA and ITAR were enacted in 1976 during the
Cold War
The Cold War is a term commonly used to refer to a period of geopolitical tension between the United States and the Soviet Union and their respective allies, the Western Bloc and the Eastern Bloc. The term '' cold war'' is used because the ...
with USSR and were intended to implement unilateral arms export controls that reflected those imposed on
Eastern Bloc
The Eastern Bloc, also known as the Communist Bloc and the Soviet Bloc, was the group of socialist states of Central and Eastern Europe, East Asia, Southeast Asia, Africa, and Latin America under the influence of the Soviet Union that existed du ...
countries by the multilateral
Coordinating Committee for Multilateral Export Controls
The Coordinating Committee for Multilateral Export Controls (CoCom) was established by the Western Bloc in the first five years after the end of World War II, during the Cold War, to put an embargo on Comecon countries. CoCom ceased to functio ...
.
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
''The Economist'' is a British weekly newspaper printed in demitab format and published digitally. It focuses on current affairs, international business, politics, technology, and culture. Based in London, the newspaper is owned by The Econo ...
, 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
''The Economist'' is a British weekly newspaper printed in demitab format and published digitally. It focuses on current affairs, international business, politics, technology, and culture. Based in London, the newspaper is owned by The Econo ...
, which cited a report from
Space Review
''The Space Review'' is a free online publication, published weekly with in-depth articles, essays, commentary and reviews on space exploration and development. It was founded in February 2003 by Jeff Foust, the current editor, publisher and re ...
.
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 a
22 CFR §121.1 The USML is broken down into the following categories:
I: Firearms
A firearm is any type of gun designed to be readily carried and used by an individual. The term is legally defined further in different countries (see Legal definitions).
The first firearms originated in 10th-century China, when bamboo tubes c ...
, Close Assault Weapons and Combat Shotguns
II: Guns and Armament
III: Ammunition
Ammunition (informally ammo) is the material fired, scattered, dropped, or detonated from any weapon or weapon system. Ammunition is both expendable weapons (e.g., bombs, missiles, grenades, land mines) and the component parts of other weap ...
/Ordnance
IV: Launch Vehicles
A launch vehicle or carrier rocket is a rocket designed to carry a payload (spacecraft or satellites) from the Earth's surface to outer space. Most launch vehicles operate from a launch pads, supported by a launch control center and syste ...
, Guided Missiles
In military terminology, a missile is a guided airborne ranged weapon capable of self-propelled flight usually by a jet engine or rocket motor. Missiles are thus also called guided missiles or guided rockets (when a previously unguided rocket i ...
, Ballistic Missiles, Rockets
A rocket (from it, rocchetto, , bobbin/spool) is a vehicle that uses jet propulsion to accelerate without using the surrounding air. A rocket engine produces thrust by reaction to exhaust expelled at high speed. Rocket engines work entirely ...
, Torpedoes
A modern torpedo is an underwater ranged weapon launched above or below the water surface, self-propelled towards a target, and with an explosive warhead designed to detonate either on contact with or in proximity to the target. Historically, su ...
, Bombs
A bomb is an explosive weapon that uses the exothermic reaction of an explosive material to provide an extremely sudden and violent release of energy. Detonations inflict damage principally through ground- and atmosphere-transmitted mechanic ...
and Mines
V: Explosives
An explosive (or explosive material) is a reactive substance that contains a great amount of potential energy that can produce an explosion if released suddenly, usually accompanied by the production of light, heat, sound, and pressure. An expl ...
and Energetic Materials, Propellants
A propellant (or propellent) is a mass that is expelled or expanded in such a way as to create a thrust or other motive force in accordance with Newton's third law of motion, and "propel" a vehicle, projectile, or fluid payload. In vehicles, the e ...
, Incendiary Agents and Their Constituents
VI: Surface Vessels of War and Special Naval Equipment
VII: Tanks
A tank is an armoured fighting vehicle intended as a primary offensive weapon in front-line ground combat. Tank designs are a balance of heavy firepower, strong armour, and good battlefield mobility provided by tracks and a powerful engine ...
and Military Vehicles
A military vehicle is any vehicle for land-based military transport and activity, including combat vehicles; both specifically designed for, or significantly used by military and armed forces. Most military vehicles require off-road capabilit ...
VIII: Aircraft
An aircraft is a vehicle that is able to fly by gaining support from the air. It counters the force of gravity by using either static lift or by using the dynamic lift of an airfoil, or in a few cases the downward thrust from jet engines ...
and Associated Equipment
IX: Military Training Equipment
X: Protective Personnel Equipment
XI: Military Electronics
XII: Fire Control
Fire control is the practice of reducing the heat output of a fire, reducing the area over which the fire exists, or suppressing or extinguishing the fire by depriving it of fuel, oxygen, or heat (see fire triangle). Fire prevention and control i ...
, Range Finder
A rangefinder (also rangefinding telemeter, depending on the context) is a device used to measure distances to remote objects. Originally optical devices used in surveying, they soon found applications in other fields, such as photography an ...
, Optical and Guidance and Control Equipment
XIII: Materials and Miscellaneous Equipment
XIV: Toxicological Agents, Including Chemical Agents
A chemical weapon (CW) is a specialized munition that uses chemicals formulated to inflict death or harm on humans. According to the Organisation for the Prohibition of Chemical Weapons (OPCW), this can be any chemical compound intended as ...
, Biological Agents
A biological agent (also called bio-agent, biological threat agent, biological warfare agent, biological weapon, or bioweapon) is a bacterium, virus, protozoan, parasite, fungus, or toxin that can be used purposefully as a weapon in bioterrorism ...
, and Associated Equipment
XV: Spacecraft
A spacecraft is a vehicle or machine designed to fly in outer space. A type of artificial satellite, spacecraft are used for a variety of purposes, including communications, Earth observation, meteorology, navigation, space colonization, p ...
and Associated Equipment
XVI: Nuclear Weapons
A nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either fission (fission bomb) or a combination of fission and fusion reactions (thermonuclear bomb), producing a nuclear explosion. Both bomb ...
Related Articles
XVII: Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
XVIII: Directed Energy Weapons
A directed-energy weapon (DEW) is a ranged weapon that damages its target with highly focused energy without a solid projectile, including lasers, microwaves, particle beams, and sound beams. Potential applications of this technology include w ...
XIX: Gas Turbine Engines
A gas turbine, also called a combustion turbine, is a type of continuous flow internal combustion engine. The main parts common to all gas turbine engines form the power-producing part (known as the gas generator or core) and are, in the directi ...
and associated Equipment
XX: Submersible Vessels, Oceanographic and Related Articles
XXI: Articles, Technical Data, and Defense Services Not Otherwise Enumerated
For example, an
M4 carbine
The M4 carbine (officially Carbine, Caliber 5.56 mm, M4) is a 5.56×45mm NATO, gas-operated, magazine-fed carbine developed in the United States during the 1980s. It is a shortened version of the M16A2 assault rifle.
The M4 is extensively ...
, 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
A flash suppressor, also known as a flash guard, flash eliminator, flash hider, or flash cone, is a muzzle device attached to the muzzle of a rifle that reduces its visible signature while firing by cooling or dispersing the burning gases that ...
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 a
22 CFR §120.33as:
(1) Information, other than software as defined i
''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 (''se
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
Citizenship of the United States is a legal status that entails Americans with specific rights, duties, protections, and benefits in the United States. It serves as a foundation of fundamental rights derived from and protected by the Constituti ...
;
* a
permanent resident
Permanent residency is a person's legal resident status in a country or territory of which such person is not a citizen but where they have the right to reside on a permanent basis. This is usually for a permanent period; a person with suc ...
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
The Bureau of Industry and Security (BIS) is an agency of the United States Department of Commerce that deals with issues involving national security and high technology. A principal goal for the bureau is helping stop the proliferation of weapo ...
within the
Department of Commerce
The United States Department of Commerce is an executive department of the U.S. federal government concerned with creating the conditions for economic growth and opportunity. Among its tasks are gathering economic and demographic data for bu ...
in administration of the
Export Administration Regulations
The Export Administration Regulations (EAR) are a set of regulations found a15 C.F.R. § 730 ''et seq'' They are administered by the Bureau of Industry and Security, which is part of the US Commerce Department. The EAR regulates export and expor ...
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
The United States Department of Defense's Foreign Military Sales (FMS) program facilitates sales of U.S. arms, defense equipment, defense services, and military training to foreign governments. The purchaser does not deal directly with the defens ...
("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
Classified information is material that a government body deems to be sensitive information that must be protected. Access is restricted by law or regulation to particular groups of people with the necessary security clearance and need to know, ...
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
Joint Strike Fighter (JSF) is a development and acquisition program intended to replace a wide range of existing fighter, strike, and ground attack aircraft for the United States, the United Kingdom, Italy, Canada, Australia, the Netherlands ...
) 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.
![F-16 June 2008](https://upload.wikimedia.org/wikipedia/commons/c/c9/F-16_June_2008.jpg)
The prohibition on Retransfer stems from the requirement for all export authorizations to include the statement that "
e 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."
[ITAR § 124.8(5)](_blank)
– PART 124—AGREEMENTS, OFF-
SHORE PROCUREMENT AND OTHER DEFENSE SERVICES, US State Department, 22 CFR Ch. I (4–1–13 Edition)
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 the export authorization is a FMS Case, the foreign government must have "Third Party Transfer Approval" from the U.S. Government;
* if the export authorization is an export license such as a DSP-5, all foreign parties must be named on the license (for example, some may be "intermediate consignees"); and
* where the export authorization is a TAA or MLA, all foreign recipients must be named as parties to (or as "authorized sublicensees" under) the agreement.
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.
This can be a time-consuming process.
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.
As a result, access to USML items by such employees must be specifically authorized under the relevant export authorization.
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.
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.
This means that, for example, a TAA that includes a British 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 British company who are British citizens only.
This can cause significant problems for foreign governments and organizations from countries with large
first generation immigrant
In sociology, people who permanently resettle to a new country are considered immigrants, regardless of the legal status of their citizenship or residency. The United States Census Bureau (USCB) uses the term "generational status" to refer to t ...
populations (which is discussed in more detail under "Controversy").
As a result, the U.S. Government and the
Australian Government
The Australian Government, also known as the Commonwealth Government, is the national government of Australia, a federal parliamentary constitutional monarchy. Like other Westminster-style systems of government, the Australian Government i ...
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.
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.
These clauses will generally permit access by Dual and Third Country Nationals from
NATO
The North Atlantic Treaty Organization (NATO, ; french: Organisation du traité de l'Atlantique nord, ), also called the North Atlantic Alliance, is an intergovernmental military alliance between 30 member states – 28 European and two No ...
, EU, Japan, Switzerland, New Zealand and Australia (subject to certain conditions).
Employees of foreign persons holding Dual or Third Country Nationality from countries proscribed under ITAR 126.1, such as Vietnam,
The People's Republic of China
China, officially the People's Republic of China (PRC), is a country in East Asia. It is the world's List of countries and dependencies by population, most populous country, with a Population of China, population exceeding 1.4 billion, slig ...
("PRC"), North Korea, Syria and Iran, will, as a general rule, not be authorized to have access to USML items.
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
Night vision is the ability to see in low-light conditions, either naturally with scotopic vision or through a night-vision device. Night vision requires both sufficient spectral range and sufficient intensity range. Humans have poor night vi ...
technology to the PRC in 2007.
Other major U.S. defense contractors penalized for alleged
breaches of ITAR in recent years include (among others)
Lockheed Martin
The Lockheed Martin Corporation is an American aerospace, arms, defense, information security, and technology corporation with worldwide interests. It was formed by the merger of Lockheed Corporation with Martin Marietta in March 1995. It ...
,
Motorola
Motorola, Inc. () was an American Multinational corporation, multinational telecommunications company based in Schaumburg, Illinois, United States. After having lost $4.3 billion from 2007 to 2009, the company split into two independent p ...
,
Boeing
The Boeing Company () is an American multinational corporation that designs, manufactures, and sells airplanes, rotorcraft, rockets, satellites, telecommunications equipment, and missiles worldwide. The company also provides leasing and product ...
,
L-3 Communications
L3 Technologies, formerly L-3 Communications Holdings, was an American company that supplied command and control, communications, intelligence, surveillance and reconnaissance ( C3ISR) systems and products, avionics, ocean products, training d ...
, and
Northrop Grumman
Northrop Grumman Corporation is an American multinational aerospace and defense technology company. With 90,000 employees and an annual revenue in excess of $30 billion, it is one of the world's largest weapons manufacturers and military techn ...
.
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".
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.
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. Failure to do so can significantly increase penalties applied by the U.S. Government.
The U.S. Government:
* will also penalize U.S. companies for breaches of ITAR caused by their overseas subsidiaries;
* is critical of companies that have not implemented effective export compliance programs;
and
* treats breaches of ITAR as a
strict liability
In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.
...
offence and will penalize a successor or purchaser of a company that has breached ITAR as though it was responsible for the breaches.
![PEO ANAVS-6 NVG](https://upload.wikimedia.org/wikipedia/commons/8/83/PEO_ANAVS-6_NVG.jpg)
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:
* the prosecution of Dr J Reece Roth of the University of Tennessee in 2008 for breaches of ITAR as a result of access to USML items by a PRC graduate student;
* the prosecution of Yen Ching Peng, a Taiwanese national, in the U.S. in 2008 for breaches of ITAR as a result of attempts to export
night vision
Night vision is the ability to see in low-light conditions, either naturally with scotopic vision or through a night-vision device. Night vision requires both sufficient spectral range and sufficient intensity range. Humans have poor night vi ...
technology and
laser sights
Many scientific, military, medical and commercial laser applications have been developed since the invention of the laser in 1958. The coherency, high monochromaticity, and ability to reach extremely high powers are all properties which allow ...
without the appropriate export authorizations;
* the indictment of 3 men, 2 U.S. nationals and a Vietnamese national, in 2008 on charges of illegally exporting
night vision
Night vision is the ability to see in low-light conditions, either naturally with scotopic vision or through a night-vision device. Night vision requires both sufficient spectral range and sufficient intensity range. Humans have poor night vi ...
technology to Vietnam; and
* the prosecution of
Chi Mak Chi Mak (; born 28 September 1940) was a Chinese-born naturalized American citizen who worked as an engineer for California-based defense contractor Power Paragon, a part of L-3 Communications. In 2007, Mak was found guilty of conspiring to export ...
in 2007 as a result of (among other things) the attempted export of USML items to the PRC (Chi Mak was subsequently sentenced to 24 ½ years in federal prison).
Since 1990, the U.S. Government has also operated the "Blue Lantern" end-use monitoring program.
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."
Blue Lantern checks are conducted following a careful selection process to identify transactions that appear most at risk for diversion or misuse.
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.
Compliance
Because failure to implement an effective export compliance program can be an exacerbating factor in the event of a breach of ITAR,
the U.S. Government encourages U.S. exporters to implement internal export compliance programs. 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.
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.
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
A satellite or artificial satellite is an object intentionally placed into orbit in outer space. Except for passive satellites, most satellites have an electricity generation system for equipment on board, such as solar panels or radioisotope ...
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
The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washin ...
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
lace
Lace is a delicate fabric made of yarn or thread in an open weblike pattern, made by machine or by hand. Generally, lace is divided into two main categories, needlelace and bobbin lace, although there are other types of lace, such as knitted o ...
U.S. component makers on a more even footing in the global marketplace."
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."
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.
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
The Aerospace Industries Association (AIA) is an American trade association representing manufacturers and suppliers of civil, military, and business aircraft, helicopters, UAVs, space systems, aircraft engines, missiles, material, and related ...
, an estimated loss of $21 billion in revenue from 1999 to 2009.
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.
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
-
domiciled 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.
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:
* ''"Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person"''
* ''"Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad"''
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."''
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."''
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."
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
The Massachusetts Institute of Technology (MIT) is a private land-grant research university in Cambridge, Massachusetts. Established in 1861, MIT has played a key role in the development of modern technology and science, and is one of the m ...
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,"
while
Stanford University
Stanford University, officially Leland Stanford Junior University, is a private research university in Stanford, California. The campus occupies , among the largest in the United States, and enrolls over 17,000 students. Stanford is consider ...
maintains a more nuanced and restrictive approach to research involving defense articles.
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.
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,
does not consider projects above
TRL TRL or trl may refer to:
Arts
* Temporary Residence Limited, a record label
* ''Total Request Live'', a former MTV show
* TRL Awards (''Total Request Live''), an Italian music award
Libraries
* Tampines Regional Library, a regional library in Ta ...
4 to be fundamental research, limiting the activities of laboratories and project-based groups on campus.
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
The Federal Bureau of Investigation (FBI) is the domestic Intelligence agency, intelligence and Security agency, security service of the United States and its principal Federal law enforcement in the United States, federal law enforcement age ...
. 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. Companies argue that ITAR is a significant trade barrier that acts as a substantial negative subsidy, weakening U.S. industries' ability to compete.
[Sharon Weinberger, "Here We Go Again: Industry and Government Revisit U.S. Export Controls", ''Aviation Week & Space Technology'', July 17, 2006, page 82.] U.S. companies point to announcements in Europe by TAS (
Thales Alenia Space
Thales Alenia Space () is a Franco-Italian aerospace manufacturer. A joint venture between the French technology corporation Thales Group (67%) and Italian defense conglomerate Leonardo (33%), the company is the largest satellite manufactur ...
) promoting their "ITAR-free" telecommunication satellites.
In 2008, officials at the Department of State dismissed 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.
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:
* In April 2006, the
Australian Government
The Australian Government, also known as the Commonwealth Government, is the national government of Australia, a federal parliamentary constitutional monarchy. Like other Westminster-style systems of government, the Australian Government i ...
was reported to have chosen
EADS MRH-90 troop-lift helicopters in preference to U.S.
Sikorsky models because "the European bid offered the ADF better access to crucial computer source code than the Sikorsky bid".
[Geoffrey Barker, "Australian Aerospace wins $1.5bn bid", ''Australian Financial Review'', April 27, 2006, page 6.]
* ITAR controls, as well as separate policy concerns, have hampered international cooperation in development of the
F-35 Lightning II
The Lockheed Martin F-35 Lightning II is an American family of single-seat, single-engine, all-weather stealth multirole combat aircraft that is intended to perform both air superiority and strike missions. It is also able to provide elect ...
multirole fighter aircraft. Both the British and the Australian governments demanded a guarantee that the U.S. will fully disclose technology needed for the JSF project before they would commit to further involvement in the project.
[Max Blenkin, "Fighter Deal Stalls on Secret Technology", ''The Australian'', March 15, 2006.]
* Concerns over connections between the
Boeing 787
The Boeing 787 Dreamliner is an American wide-body jet airliner developed and manufactured by Boeing Commercial Airplanes.
After dropping its unconventional Sonic Cruiser project, Boeing announced the conventional 7E7 on January 29, 2003, ...
and the
B-2 Spirit
The Northrop (later Northrop Grumman) B-2 Spirit, also known as the Stealth Bomber, is an American heavy strategic bomber, featuring low-observable stealth technology designed to penetrate dense anti-aircraft defenses. A subsonic flying ...
stealth bomber prompted
Boeing
The Boeing Company () is an American multinational corporation that designs, manufactures, and sells airplanes, rotorcraft, rockets, satellites, telecommunications equipment, and missiles worldwide. The company also provides leasing and product ...
to take elaborate steps cleansing the commercial jet of any military technology. The issue arose when Boeing engineers, fearing indictment and penalties, refused to sign forms declaring that the 787 was "ITAR-free." As a result, Boeing conducted extensive research on the source of technology implemented on the 787. They removed all military technology and either found a commercial source for the same technology or replaced it with technology derived from non-military sources.
* For the F-X2 program, the Brazilian government have chosen the French
Dassault Rafale
The Dassault Rafale (, literally meaning "gust of wind", and "burst of fire" in a more military sense) is a French twin-engine, canard delta wing, multirole fighter aircraft designed and built by Dassault Aviation. Equipped with a wide ran ...
over the
Boeing F/A-18E/F Super Hornet
The Boeing F/A-18E and F/A-18F Super Hornet are twin-engine, carrier-capable, multirole fighter aircraft variants based on the McDonnell Douglas F/A-18 Hornet. The F/A-18E single-seat and F/A-18F tandem-seat variants are larger and more adv ...
due to concerns over technology transfer barriers and ITAR regulations, regardless that the
Brazilian Air Force
"Wings that protect the country"
, colours =
, colours_label =
, march = Hino dos Aviadores
, mascot =
, anniversaries = 22 May (anniver ...
and the majority of their pilots preferred the Super Hornet over other bidders. Nelson Jobim, Defense minister of Brazil, said: "the U.S. government could give no upfront guarantee and Brazil had seen a series of U.S. technology embargoes." The lucrative contract, which will be signed after the 2010 Brazilian elections, is for 36 aircraft and will be extended to over 100 units in the next decade.
Registration fees
The U.S. Department of State charges back fees to manufacturers who have failed to register previously.
Smaller exporters who may not have been aware of the requirement to register can potentially be charged crippling back fees when they first register.
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.
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:
* in 2006, the U.S. Government refused to authorize the sale of
C-295
The CASA C-295 (now Airbus C295) is a medium tactical transport aircraft that was designed and initially manufactured by the Spanish aerospace company CASA.
Work on what would become the C-295 was started during the 1990s as a derivative of ...
transport and maritime patrol aircraft manufactured by the Spanish aircraft manufacturer,
EADS-CASA
Construcciones Aeronáuticas SA (CASA) was a Spanish aircraft manufacturer that was founded in 1923 and began manufacturing aircraft the following year. In 1999 it became a subsidiary of the EADS (European Aeronautic Defence and Space Company) ...
, to Venezuela because the aircraft included US-origin avionics and engine components controlled under the USML. As a consequence, EADS-CASA was forced to cancel a €500 million contract with Venezuela; and
* in 2006,
Embraer
Embraer S.A. () is a Brazilian multinational aerospace manufacturer that produces commercial, military, executive and agricultural aircraft, and provides aeronautical services. It was founded in 1969 in São José dos Campos, São Paulo, where i ...
of Brazil was also prevented from selling
Super Tucano aircraft to Venezuela by the U.S.
As a consequence of the blocking of these sales, Venezuela has subsequently purchased aircraft and other military hardware from Russia and Belarus.
* In 2010 the will be using as much non-American equipment as possible, including technology from Canada, Sweden, Germany, the Netherlands and Israel. The ITAR have also been blamed for the delay of the
CH-148 Cyclone
The Sikorsky CH-148 Cyclone is a twin-engine, multi-role shipboard helicopter developed by the Sikorsky Aircraft Corporation for the Canadian Armed Forces. A military variant of the Sikorsky S-92, the CH-148 is designed for shipboard operation ...
which is currently two years behind the original schedule.
* In 2010 the
Sikorsky CH-148 Cyclone
The Sikorsky CH-148 Cyclone is a twin-engine, multi-role shipboard helicopter developed by the Sikorsky Aircraft Corporation for the Canadian Armed Forces. A military variant of the Sikorsky S-92, the CH-148 is designed for shipboard operations ...
helicopter was faced with delays and restrictions. The first 19 of the 28 CH-148 Cyclones will be delivered in an interim standard which does not meet the original contract requirements.
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:
* Third Country National: An individual holding nationality from a country or countries other than the country of the foreign signatory to the agreement; and
* Dual National: Holds nationality from the country of a foreign signatory and one or more additional foreign countries.
Although "nationality" is not defined under ITAR, it is accepted that the U.S. Government will take country of origin
and continued ties or allegiance to a country into account when determining Dual or Third Country Nationality.
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
Canadian nationality law details the conditions in which a person is a national of Canada. With few exceptions, almost all individuals born in the country are automatically citizens at birth. Foreign nationals may naturalize after living in Ca ...
and commenced employment with a Canadian company, she would be treated as a Canadian-British 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 British third country national for the purposes of such U.S. export authorization.
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
British passport
A British passport is a travel document issued by the United Kingdom or other British dependencies and territories to individuals holding any form of British nationality. It grants the bearer international passage in accordance with visa requ ...
(see
British nationality law
British nationality law prescribes the conditions under which a person is recognised as being a national of the United Kingdom. The six different classes of British nationality each have varying degrees of civil and political rights, due to the ...
). Once he has done so, he becomes a Canadian-British 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 and Australia).
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
Overseas Chinese () refers to people of Chinese birth or ethnicity who reside outside Mainland China, Hong Kong, Macau, and Taiwan. As of 2011, there were over 40.3 million overseas Chinese.
Terminology
() or ''Hoan-kheh'' () in Hokkien, refe ...
and
Overseas Vietnamese
Overseas Vietnamese ( vi, người Việt hải ngoại, or ) refers to Vietnamese people who live outside Vietnam. There are approximately 5 million overseas Vietnamese, the largest community of whom live in the Vietnamese Americans, Unite ...
immigrant populations: see
immigration to Canada
According to the 2021 Canadian census, immigrants in Canada number 8.3 million persons and make up approximately 23 percent of Canada's total population. This represents the eighth-largest immigrant population in the world, while the proport ...
and
immigration to Australia
The Australian continent was first settled when ancestors of Indigenous Australians arrived via the islands of Maritime Southeast Asia and New Guinea over 50,000 years ago.
European colonisation began in 1788 with the establishment of a B ...
).
The U.S. Government actively enforces restrictions on access to USML items by Dual and Third Country Nationals. Example:
General Dynamics Land Systems
General Dynamics Land Systems (GDLS) is a manufacturer of military vehicles such as tanks and lighter armored fighting vehicles.
History
In February 1982 Chrysler announced the sale of Chrysler Defense, its profitable defense subsidiary, to ...
was fined US$20m in 2004 for breaches of the AECA by its predecessor,
GM Defense
GM Defense is the military product subsidiary of General Motors headquartered in Concord, North Carolina; focusing on the defense industry needs with hydrogen fuel cell and other advanced mobility technologies. GM Defense projects include SURUS (S ...
, that included access to USML items by unauthorized Dual Nationals. The unauthorized access had included direct access to USML items and access to international computer systems on which USML items were stored by Dual Nationals from countries including Syria and the PRC.
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.
Foreign employees working in the US cannot have access to the same network where ITAR data may be stored, nor may they have access to rooms or facilities where ITAR work is being done.
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.
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. This also creates significant challenges for manufacturers of ITAR-related items with respect to hiring practices. Avoiding discrimination while screening applicants for their ability to access ITAR materials can often be an HR nightmare.
Satellite components
Before 1992, satellite components were classified as munitions, and ITAR export compliance was controlled by the State Department.
After the
Space Shuttle Challenger disaster
On January 28, 1986, the broke apart 73 seconds into its flight, killing all seven crew members aboard. The spacecraft disintegrated above the Atlantic Ocean, off the coast of Cape Canaveral, Florida, at 11:39a.m. Eastern Time Zone, EST (1 ...
resulted in a growing backlog of commercial satellite launches, ITAR kept the Soviet Union out of the market. In September 1988, U.S. President
Ronald Reagan
Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
agreed to allow U.S satellites to be launched on Chinese rockets. Communications satellites were gradually transferred from the State Department to the Commerce Department in 1992–1996, falling under the
Export Administration Regulations
The Export Administration Regulations (EAR) are a set of regulations found a15 C.F.R. § 730 ''et seq'' They are administered by the Bureau of Industry and Security, which is part of the US Commerce Department. The EAR regulates export and expor ...
.
After the failed launches of
Apstar 2 (1995) and
Intelsat 708
Intelsat 708 was a telecommunications satellite built by the American company Space Systems/Loral for Intelsat. It was destroyed on February 15, 1996 when the Long March 3B launch vehicle failed while being launched from the Xichang Satellite ...
(1996), both on Chinese rockets, the
satellite insurance
Satellite insurance is a specialized branch of aviation insurance in which, as of 2000, about 20 insurers worldwide participate directly. Others participate through reinsurance contracts with direct providers. It covers three risks: relaunching th ...
companies required the satellite manufacturers to work with China to investigate the failures. The Commerce Department determined that the "export" of information as part of the failure analysis complied with the export license.
However, the Justice Department maintained that a separate export license was required in addition to the original launch license. In 1998, Congress reclassified satellite technology as a munition and returned it to the control of the State Department under ITAR.
Space Systems/Loral
SSL, formerly Space Systems/Loral, LLC (SS/L), of Palo Alto, California, is a wholly owned manufacturing subsidiary of Maxar Technologies.
SSL designs and builds satellites and space systems for a wide variety of government and commercial cust ...
paid a $20 million fine in 2002 for Intelsat 708, and Hughes paid a $32 million fine in 2003 for Apstar 2. The
ChinaSat 8 satellite, which had been scheduled for launch in April 1999 on a
Long March 3B
The Long March 3B (, ''Chang Zheng 3B''), also known as the CZ-3B and LM-3B, is a Chinese orbital launch vehicle. Introduced in 1996, it is launched from Launch Area 2 and 3 at the Xichang Satellite Launch Center in Sichuan. A three-stage rocke ...
rocket, was placed in storage for a decade and finally launched on an
Ariane 5
Ariane 5 is a European heavy-lift space launch vehicle developed and operated by Arianespace for the European Space Agency (ESA). It is launched from the Centre Spatial Guyanais (CSG) in French Guiana. It has been used to deliver payloads int ...
rocket in 2008.
China used the results of the insurance investigation to improve the reliability of its
Long March rockets, which would not experience another mission failure until 2011. ITAR has been blamed for "destroy
ngan industry," reducing the market share of U.S. satellite makers by almost 25% from 1997 to 2007.
The European company
Thales Alenia Space
Thales Alenia Space () is a Franco-Italian aerospace manufacturer. A joint venture between the French technology corporation Thales Group (67%) and Italian defense conglomerate Leonardo (33%), the company is the largest satellite manufactur ...
developed a line of ITAR-free satellites that used no restricted U.S. components, allowing them to be launched on Chinese rockets between 2005 and 2012. However, the U.S. Department of State did not accept the ITAR-free status of these satellites and fined the US company Aeroflex $8 million for selling ITAR components. Thales Alenia was forced to discontinue its ITAR-free satellite line in 2013.
In May 2014, 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
The Export Administration Regulations (EAR) are a set of regulations found a15 C.F.R. § 730 ''et seq'' They are administered by the Bureau of Industry and Security, which is part of the US Commerce Department. The EAR regulates export and expor ...
. These new classifications took effect in November 2014, six months after the announcement of the reclassification. Restrictions were loosened on 36 countries, strict controls remained on another 150 countries, and exports remained prohibited to 20 countries. An official at the
Bureau of Industry and Security
The Bureau of Industry and Security (BIS) is an agency of the United States Department of Commerce that deals with issues involving national security and high technology. A principal goal for the bureau is helping stop the proliferation of weapo ...
emphasized that "no U.S.-origin content, regardless of significance, regardless of whether it’s incorporated into a foreign-made item, can go to China."
Thales Alenia had long complained that "every satellite nut and bolt" was being classified as ITAR-restricted, and the
European Space Agency
, owners =
, headquarters = Paris, Île-de-France, France
, coordinates =
, spaceport = Guiana Space Centre
, seal = File:ESA emblem seal.png
, seal_size = 130px
, image = Views in the Main Control Room (1205 ...
accused the United States of having no real interest in protecting U.S. satellite technology.
ITAR remains a major concern in the European aerospace industry as of 2016. The
European Space Agency
, owners =
, headquarters = Paris, Île-de-France, France
, coordinates =
, spaceport = Guiana Space Centre
, seal = File:ESA emblem seal.png
, seal_size = 130px
, image = Views in the Main Control Room (1205 ...
and the
Japanese Aerospace Exploration Agency
The is the Japanese national air and space agency. Through the merger of three previously independent organizations, JAXA was formed on 1 October 2003. JAXA is responsible for research, technology development and launch of satellites into orb ...
have supplied components that were launched on Chinese rockets. European manufacturers of satellite components report that ITAR-free status is the first question they are asked by potential customers. Even U.S. companies have expressed interest in ITAR-free technology.
The Chinese space industry has been able to sell in the global market by
bundling Chinese satellites with Chinese rockets, avoiding ITAR.
See also
*
Arms Export Control Act
The Arms Export Control Act of 1976 (Title II of , codified at ) gives the President of the United States the authority to control the import and export of defense articles and defense services. The H.R. 13680 legislation was passed by the 94th ...
*
CoCom
The Cocom or Cocomes were a Maya family or dynasty who controlled the Yucatán Peninsula in the late Postclassic period. Their capital was at Mayapan. The dynasty was founded by Hunac Ceel
Hunac Ceel Cauich (fl. late 12th and early 13th centu ...
*
Defense Security Cooperation Agency
The Defense Security Cooperation Agency (DSCA), as part of the United States Department of Defense (DoD), provides financial and technical assistance, transfer of defense matériel, training and services to allies, and promotes military-to-milit ...
*
Under Secretary for Arms Control and International Security
*
Export Control Classification Number
The Export Administration Regulations (EAR) are a set of regulations found a15 C.F.R. § 730 ''et seq'' They are administered by the Bureau of Industry and Security, which is part of the US Commerce Department. The EAR regulates export and expor ...
References
External links
Details from the Bureau of Industry and Security, part of the Department of CommerceThe Directorate of Defense Trade Controls (DDTC), U.S. Department of StateThe DDTC is charged with controlling the defense articles and defense services covered by the United States Munitions List (USML), which is contained in the ITAR.
The Federation of American Scientists has compiled an extensive collection of resources chronicling the documents and reforms that the U.S. government has made in its export control policy.
A Short History of Export Control PolicyThis article prepared by Ryan Zelnio for ''The Space Review'' gives a concise view of ITAR history.
The Effects of Export Control on the Space IndustryThis article prepared by Ryan Zelnio for ''The Space Review'' gives an industry view of the effects of ITAR on the U.S.
The Space Show interviews Ann Ganzer, Director of the Office of Defense Trade Controls Policy (DTCP) for the State DepartmentThis mp3 interview, conducted by Dr. David Livingston of the Space Show, examines the impact of ITAR on higher education and space programs. It includes the "ITAR is Three Types of Stupid" quote.
eCustoms Export Compliance SolutionsExport Law BlogInternational Trade Law NewsSpace Tourists and Deemed Exports?Global Trade Expertise Hot Topics/News*
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