Materials herein are compiled from the official web site and regulations of the U.S. Department of State – Directorate of Defense Trade Controls (DDTC)
The U.S. Government views the sale, export, and re-transfer of defense articles and defense services as an integral part of safeguarding U.S. national security and furthering U.S. foreign policy objectives. Authorizations to transfer defense articles and provide defense services, if applied judiciously, can help meet the legitimate needs of friendly countries, deter aggression, foster regional stability, and promote the peaceful resolution of disputes. The U.S., however, is cognizant of the potentially adverse consequences of indiscriminate arms transfers and, therefore, strictly regulates exports and re-exports of defense items and technologies to protect its national interests and those interests in peace and security of the broader international community.
The Directorate of Defense Trade Controls (DDTC), Bureau of Political-Military Affairs, in accordance with 22 U.S.C. 2778-2780 of the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), is charged with controlling the export and temporary import of defense articles and defense services covered by the United States Munitions List (USML).
For the U.S., licensing and compliance are key to compliance with the ITAR regulations
Registration
In accordance with the AECA, registration with the State Department (via DDTC) of all U.S. persons that manufacture or export defense articles, furnish defense services, or U.S. and foreign persons engaged in arms brokering, is required. The information submitted by registrants is reviewed by the Treasury Department to ensure there are no outstanding law enforcement concerns.
Registration does not confer any export privileges, but is a prerequisite to export licensing approval.
The registration process:
- Informs the U.S. Government about the U.S. defense industry (legal status, export eligibility, foreign ownership/affiliations, legally responsible personnel, areas of activity);
- Serves as a channel to provide industry with information about export regulations and Government concerns; and
- Helps validate the bona fides of U.S. firms engaged in defense trade, especially during the review of export license applications.
Licensing
Department of State approval of a license application is required prior to the export of defense articles or defense services. Licenses will be required for items covered by the United States Munitions List (USML) which encompasses the following categories:
I - Firearms, Close Assault Weapons and Combat Shotguns
II - Guns and Armament
III - Ammunition/Ordnance
IV - Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs & Mines
V - Explosives, Energetic Materials, Propellants, Incendiary Agents and Their Constituents
VI - Vessels of War and Special Naval Equipment
VII - Tanks and Military Vehicles
VIII - Aircraft and Associated Equipment
IX - Military Training Equipment and Training
X - Protective Personnel Equipment and Shelters
XI - Military Electronics
XII - Fire Control, Range Finder, Optical and Guidance and Control Equipment
XIII - Auxiliary Military Equipment
XIV - Toxicological Agents, including Chemical Agents, Biological Agents, and Associated Equipment
XV - Spacecraft Systems and Associated Equipment
XVI - Nuclear Weapons, Design and Testing Related Items
XVII - Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
XVIII - Directed Energy Weapons
XIX - (Reserved)
XX - Submersible Vessels, Oceanographic and Associated Equipment
XXI - Miscellaneous Articles
About 30 percent of the applications processed by the State Department are referred to other offices and agencies (e.g., the Department of Defense) for comment and recommendations. This is what is referred to as “staffing” the case.
In addition to sorting through detailed technical specifications, the license application review process clarifies the ultimate end-use and end-user of the defense export, as well as facts related to intermediate handling. From the enforcement point of view, the review process provides an avenue to prevent or eliminate diversions, and to assist the U.S. Government in investigations and prosecutions should an export violation be suspected or reported.
In submitting license applications, companies must certify eligibility to export and an understanding of the laws governing such exports. Moreover, in carrying out the physical act of exporting, they must meet certain conditions in terms of documentation (electronic reporting of export information using the Automated Export System, “AES”) and handling (particularly of classified material).
Exporters must make clear on shipping documents that the defense export cannot be resold or retransferred without prior U.S. Government authorization – a licensing requirement that also involves compliance issues.
Commodity Jurisdiction
The purpose of a commodity jurisdiction (CJ) request is to determine whether an item or service is covered by the U.S. Munitions List (USML) and therefore subject to export controls administered by DDTC. If after reviewing the USML and other relevant parts of the ITAR, in particular ITAR §120.3 and §120.4, you are unsure of the export jurisdiction of an item or service, you should request a CJ determination.
What is a Defense Article or Defense Service?
An article or service may be designated or determined in the future to be a defense article (see §120.6) or defense service (see §120.9) if it:
(a) Is specifically designed, developed, configured, adapted, or modified for a military application, and
(i) Does not have predominant civil applications, and
(ii) Does not have performance equivalent (defined by form, fit and function) to those of an article or service used for civil applications; or
(b) Is specifically designed, developed, configured, adapted, or modified for a military application, and has significant military or intelligence applicability such that control under this subchapter is necessary.
The intended use of the article or service after its export ( i.e. , for a military or civilian purpose) is not relevant in determining whether the article or service is subject to the controls of this subchapter. Any item covered by the U.S. Munitions List must be within the categories of the U.S. Munitions List. The scope of the U.S. Munitions List shall be changed only by amendments made pursuant to section 38 of the Arms Export Control Act.
The term “defense service” means:
(1) 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;
(2) The furnishing to foreign persons of any technical data controlled under the ITAR, whether in the United States or abroad; or
(3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.
What is Technical Data?
Technical data means:
(1) Information, other than certain specific software defined in the ITAR, 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;
(3) Information covered by an invention secrecy order;
(4) Certain software directly related to defense articles;
(5) This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information widely known to be in the public domain. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
What is an Export under the ITAR?
An export can be any one of the following situations:
(1) Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data; or
(2) Transferring registration, control or ownership to a foreign person of any aircraft, vessel, or satellite covered by the U.S. Munitions List, whether in the United States or abroad; or
(3) Disclosing (including oral or visual disclosure) or transferring in the United States any defense article to an embassy, any agency or subdivision of a foreign government (e.g., diplomatic missions); or
(4) Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad; or
(5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad.
A reexport or retransfer means the transfer of defense articles or defense services to an end use, end user or destination not previously authorized by DDTC and which is beyond the scope of any ITAR license.
Do the Defense Export Controls Apply to You?
- Find out if what you want to export (hardware, technical data, and/or defense services) is covered in the U.S. Munitions List (USML), found in Part 121 of the ITAR.
- Not sure if your desired export is covered by the USML? File a Commodity Jurisdiction request.
- If what you want to export is on the USML, you must be registered with DDTC.
- After you are registered, you must apply for an export license.
- Have basic questions you need answered about a potential export? Call the DDTC Response Team.
Country Policies and Arms Embargoes
DDTC maintains specific policies toward certain foreign countries for the export of defense articles and defense services. Currently, policies and specific licensing authorization may be necessary for:
Afghanistan, Belarus, Burma, China, Côte d’Ivoire, Cuba, Democratic Republic of the Congo, Eritrea, Haiti, Iran, Iraq, Lebanon, Liberia, Libya, North Korea, Rwanda, Sierra Leone, Somalia, Sri Lanka, Sudan, Syria, Venezuela, Vietnam, Yemen, Zimbabwe.
For most instances, DDTC’s policy is to deny licenses and other approvals for exports and imports of defense articles and defense services, destined for or originating in these countries.