International Traffic in Arms Regulations

International Traffic in Arms Regulations (ITAR) is a set of United States government regulations that control the export and import of defense-related articles and services on the United States Munitions List (USML). 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 interprets and enforces ITAR. Its goal is to safeguard US national security and further US foreign policy objectives.

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

The list of ITAR-controlled defense articles, services and technology (collectively “USML items”) changes. 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. 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 (legitimately) in the public domain. Nor does it apply to general marketing information or basic system descriptions. These exceptions must, however, be treated with extreme caution: 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 where they allegedly failed to properly remove USML items from material used to market defense articles. The US 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 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.

US Government enforcement activities have increased dramatically since 1999. The US 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).

Operation
All US manufacturers, exporters, and brokers of defense articles, defense services, or related technical data, as defined on the USML, are required to register with US Department of State. Registration is primarily a means to provide the US 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 USD$2,250 per year.

Under ITAR, a “US person” who wants to export USML items to a “foreign person” must obtain authorization from the US 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 US and includes foreign governments and organizations. This means that, for example a foreign person who is visiting the US will remain a foreign person for the purposes of ITAR and any export of USML items to them inside the US must be subject to an export authorization (this is similar to the concept of “Deemed Exports” used by the 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 US 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 US manufacturer/service provider to supply defense services to a foreign person (which could involve training or technical discussions regarding US technology); or
 * a Manufacturing License Agreement (“MLA”) which authorises a US 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 US 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. 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."

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 US 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 US 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 US 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 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”). As a result, the US Government and the Australian Government have drawn attention to the importance for US companies to consult closely with foreign persons who will be subject to a US export authorization before it is submitted to the US Department of State for approval.

Clauses approved by the US 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, 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 Peoples Republic of China (“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 US 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. Other major US defense contractors penalized for alleged breaches of ITAR in recent years include (among others) Lockheed Martin, Motorola, Boeing, L-3 Communications, and Northrop Grumman.

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.

US Government policy also imposes a positive obligation on US companies to fully disclose any breaches of ITAR to the US Government. Failure to do so can significantly increase penalties applied by the US Government.

The US Government:

The US Government will also take action against individuals responsible for breaches of ITAR and such action can involve criminal penalties. Actions are often initiated by US Immigrations and Customs Enforcement and include:
 * will also penalize US 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 offence and will penalize a successor or purchaser of a company that has breached ITAR as though it was responsible for the breaches.


 * 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 US in 2008 for breaches of ITAR as a result of attempts to export night vision technology and laser sights without the appropriate export authorizations;
 * the indictment of 3 men, 2 US nationals and a Vietnamese national, in 2008 on charges of illegally exporting night vision technology to Vietnam; and
 * the prosecution of Chi Mak 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 US 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 US Government encourages US exporters to implement internal export compliance programs. The US Government may also require US 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 US Department of State.

Harm to US commercial 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. 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. However, many companies and institutions within the affected areas argue that ITAR is stifling U.S. trade and science and that its restrictions encourage US allies (such as Australia and the UK) to procure defense equipment from other sources that may not be interoperable with US equipment. Companies argue that ITAR is a significant trade barrier that acts as a substantial negative subsidy, weakening U.S. industries' ability to compete. US companies point to announcements in Europe by TAS (Thales Alenia Space) promoting their "ITAR-free" telecommunication satellites. 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.

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.

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


 * In April 2006, the Australian Government 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 codes than the Sikorsky bid”.
 * ITAR controls, as well as separate policy concerns, have hampered international cooperation in development of the F-35 Lightning II, also known as the Joint Strike Fighter (JSF). Both the UK 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.
 * Concerns over connections between the Boeing 787 and the B-2 Spirit stealth bomber prompted Boeing 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 a commercial source.
 * For the F-X2 program, the Brazilian government have chosen the French Rafale over the Boeing F/A-18E/F Super Hornet due to concerns over technology transfer barriers and ITAR regulations, regardless that the Brazilian air force 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 is for 36 aircraft and will be extended to over 100 units in the next decade. The contract will be sign after the 2010 Brazilian elections.

Registration fees
The US 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 US 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 US Government before the Retransfer can take place.

It is open to the US 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.
 * in 2006, the US Government refused to authorize the sale of C-295 transport and maritime patrol aircraft manufactured by the Spanish aircraft manufacturer, EADS-CASA, 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 €500M contract with Venezuela; and
 * in 2006, Embraer of Brazil was also prevented from selling Super Tucano aircraft to Venezuela by the US.
 * In 2010 the Halifax Class will using as much non-American equipment as possible, including technology from Canada, Sweden, Germany, Netherlands and Israel. The International Traffic in Arms Regulations have also been blamed for the delay of the CH-148 Cyclone which is currently two years behind the original schedule.
 * In 2010 the CH-148 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 US 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 US permanent resident working in the US for a US company will be considered a US 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, they would be treated as a Canadian-UK Dual National for the purposes of any US export authorization to which their employer was a party. If that person did not obtain Canadian citizenship but instead became a temporary or permanent Canadian resident, they would be treated as a UK Third Country National for the purposes of any US export authorization to which their employer was a party.

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 their 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 they have done so, they become an 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 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 and Overseas Vietnamese immigrant populations: see immigration to Canada and immigration to Australia).

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


 * General Dynamics Land Systems was fined USD$20M in 2004 for breaches of the AECA by its predecessor, GM Defense, 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, the carriage of a laptop computer on which USML items are stored 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 US is considered a Retransfer of the items.

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.

Exemptions and Treaties
Several countries have sought ITAR exemptions or treaties with the US Government in an effort to minimize the impact of ITAR, with varying degrees of success. The US 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 US national security. Canada is the recipient of an ITAR exemption related to the 1963 Defense Development Sharing Arrangement with the US Government. This exemption was effectively suspended by the US Government in 1999 over concerns related to the employment of Dual and Third Country Nationals by Canada and Canada’s refusal to ban defense exports to countries proscribed by the US (among other factors). The exemption was only regained, after considerable effort by the Canadian Government, in 2001.

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. 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. Congressman Hyde retired from Congress in January 2007 and he subsequently died from complications following open heart surgery in November 2007. 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.

The US Government signed bilateral Defense Trade Cooperation Treaties with the UK and Australian Governments in June and September 2007 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. 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). As of September 2008, the US 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.