NOAA Export ComplianceProgramOverview of theInternationalTraffic in ArmsRegulations
Hugh SchratwieserWeather, Satellites, and Research SectionNOAA Office of GeneralCounselNOAA Inouye RegionalCenterApril 25, 2018
ArmsExport ControlAct (AECA)22U.S.C. Chapter 39
Departmentof State is responsible for the export and temporary import of defense articles andservices22U.S.C.§ 2778of the AECAprovides the authority to control the export of defense articles andservicescharges the President to exercise thisauthorityExecutive Order No. 13637 (March 8, 2013), Administration of Reformed Export Controls, 78 Fed. Reg. 16129 (March13, 2013)delegates functions ofAECA
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InternationalTraffic inArmsRegulations(ITAR)
22C.F.R. Ch.1,SubchapterM, Parts 120 –130ImplementstheAECARegulationscontrolthe export and import of defense-related articles and services on the United States Munitions List (USML)Directorate of Defense Trade Controls (DDTC) chargedwith controlling the export and temporary import of defense articles and defense services covered by the USML
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Export
“Export”defined broadly -- 22 C.F.R. §120.4appliesnot only to exports of tangible items from the U.S., but also to transfers of intangibles, such as technology orinformationdefinesas an “export” the passing of information or technology to foreign nationals even in theU.S.ExamplesShippingor taking a defense article out of the United States by any means.Disclosingtechnical data to a foreign person, whether in the United States or abroad, through oral, visual, or other means (including electronic means, such as e-mail).
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DefenseArticle
Anyitem or technical data designated in the ITAR'sUSML,including any technical data recorded or stored in any physical form, models, mock-ups, or other items that reveal technical data directly relating to a “defense article” listed in theUSML“Defense article” does not include basic marketing information on function, purpose, or general system descriptions.-- 22 C.F.R. §120.6
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DefenseService
Furnishingassistance (including training) anywhere (inside the United States or abroad) to foreign nationals in connection with the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles; or furnishing ITAR-controlled “technical data” to non-US persons anywhere, requires authorization from the StateDepartment. -- 22 C.F.R. § 120.9
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FutureDesignation
Any article or service may be designated or determined in the future to be a defense article or defense service if it:Isspecifically designed, developed, configured, adapted, or modified for a military application, andDoes not have predominate civil applications, andDoes not have performance equivalent to those of an article or service used for civil applications; orIs specifically designed, developed configured, adapted, or modified for a military application, and has significant military or intelligence applicability such that control under ITAR is necessary.
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LicenseRequirements
Alicense is required for the export ofnearlyall items on theUSMLCanadahas a limited exemption, as it is considered part of the U.S. defenseindustrialbaseRecent treatieswith the UnitedKingdomand Australiaexemptcertain defense articles from licensing obligations to approvedend-usersin thosecountries
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Exceptions
Doesnot 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 publicdomainExceptions must betreated with extremecaution --college professors have been prosecuted for breaches of the AECA as a result of access to USML items by foreign graduate students
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Prohibited Exports,Imports, andSalesto or fromCertain Countries
U.S. policy is todeny licenses and other approvals for exports and imports of defense articles and defenseservicesdestinedfor,or originatingin,certaincountries -- 22 C.F.R. §126.1Derived from U.N. sanctions, terrorism, arms embargos andsanctionsPolicy of denial: Belarus, Burma, China, Cuba, Iran, North Korea, Syria,Venezuela -- 22 C.F.R. §126.1(d)(1)Policy of denialwithsome exceptions forIrag, Afghanistan, Libya, Somalia, and others -- 22 C.F.R. § 126.1(d)(2)May not be shipped on a vessel, aircraft, spacecraft, or other means of conveyance that is owned by, operated by, leased to, or leased from any of the proscribed countries, areas, or other persons referred to in this section
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Embargos
Officeof Foreign Assets Control(OFAC), U.S.Department of theTreasury,administers and enforces economic and trade sanctions based onU.S.foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the UnitedStatesA specific license is a written document issued by OFAC to a particular person or entity, authorizing a particular transaction in response to a written license application.Personsengaging in transactions pursuant to general or specific licenses must make sure that all conditions of the licenses are strictly observed.
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Registrationwith DDTC
Required ofall U.S. persons that manufacture or export defensearticles or furnishdefenseservices[Required for U.S. and foreign persons engaged in armsbrokering]Doesnot confer any export privileges, but is a prerequisite toexportlicensingapproval
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RegistrationProcess GOALS
Informsthe U.S. Government about the U.S. defense industrylegal status, export eligibility, foreign ownership/affiliations, legallyresponsiblepersonnel, areas ofactivityServesas a channel to provideinformationabout exportregulationsand GovernmentconcernsHelpsvalidate the bona fides of U.S. firms engaged in defense trade,especiallyduring the review of export license applications.
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Enforcementand Penalties
AECAprovidescriminalpenalties of up to$1millionor 20 years of imprisonment, orboth, for eachviolationAECAalso authorizes civil penalties of up to $500,000 anddebarmentfrom futureexportsDDTC enforcementstaffare inthe Office of DefenseTrade ComplianceWorks with: DefenseSecurityService; Customsand BorderProtection(CBP); and Immigrationand Customs Enforcement (ICE)
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ITARViolation Example
JohnReece Roth, a former professor of Electrical Engineering at the University of TennesseeinKnoxville, began serving a four-year prisonsentence onJanuary 18,2012, forhis September 2008 convictions. Roth received this sentence for illegally exporting military technology (plasma actuatorfor reducingdrag on the wings ofdrones),in large part due to his work with graduate students from Iran and China.Rothclaimed he was ignorant of theregulations but theprosecution pointed out that he was warned on a number of occasions, including by university counsel, that the technology may have been controlled.
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DefenseTechnologySecurityAdministration(DTSA)
Locatedin the Department of Defense, Office of the Under Secretary of Defense forPolicyCoordinates thetechnical and national security review of direct commercial sales export licenses andcommodityjurisdiction requests received from the Departments of Commerce andStateNot all licenses from DDTC or BISarereferred toDTSA.
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DualNational
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 ofnationality.Asa result, access to USML items by suchemployeesmust be specifically authorized under the relevant exportauthorization.Ifaccess 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.
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ExportControl Reform
Broad-basedinteragency review of the U.S. export control system with the goal of strengthening national security and the competitiveness of key U.S. manufacturing and technology sectors by focusing on current threats and adapting to the changing economic and technological landscape.(August 2009)The Departments of Commerce and State are actively working to reform the U.S. satellite export control regime with the goal of improving the competitiveness of the domestic space industry.
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UltimateGoals of Reform
Singleexport control licensing agency for both dual-use,munitions,and exportslicensedto embargoeddestinationsUnifiedcontrollistSingleenforcement coordinationagencySingleintegrated information technology system, which would include a singledatabase of sanctioned and deniedpartiesThis is a work in progress
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