ITAR 120.11 (c) pertains to the Order of Review and the Integration of controlled items described on the USML and states:
Defense articles described on the USML are controlled and remain subject to the ITAR following incorporation or integration into any item not described on the USML, unless specifically provided otherwise in this subchapter.
DDTC published the following announcement on their website as a notification to the Industry of temporary suspension of ITAR § 120.11(c) with respect to certain high energy storage capacitors
On November 21, 2022, the Deputy Assistant Secretary of State for Defense Trade Controls temporarily suspended for a period of six (6) months the applicability of § 120.11(c) of the International Traffic in Arms Regulations (ITAR) for certain capacitors described in U.S. Munitions List (USML) Category XI(c)(5).
USML XI(c) (5) controls the following types of capacitors.
(5) High-energy storage capacitors with a repetition rate of 6 discharges or more per minute and full energy life greater than or equal to 10,000 discharges, at greater than 0.2 Amps per Joule peak current, that have any of the following:
(i) Volumetric energy density greater than or equal to 1.5 J/cc; or
(ii) Mass energy density greater than or equal to 1.3 kJ/kg;
The Department assessed that it is in the security and foreign policy interests of the United States to facilitate commercial uses of certain capacitors when integrated into any item not described on the USML (for example, certain items used in energy exploration and commercial aviation).
Accordingly, pursuant to ITAR § 126.2, and the Department’s administration of the Arms Export Control Act (AECA), the Deputy Assistant Secretary of State for Defense Trade Controls ordered the temporary suspension of ITAR § 120.11(c) with respect to capacitors described in USML Category XI(c)(5) that have a voltage rating of one hundred twenty-five volts (125 V) or less and have been integrated into, and included as an integral part of, any item not described on the USML. Such articles are licensed by the Department of Commerce when integrated into and included as an integral part of items subject to the EAR.
This temporary suspension is valid for a period of six months, from November 21, 2022, to May 21, 2023, or when terminated by notice, whichever occurs first.
Capacitors described in USML Category XI(c)(5) remain subject to the controls of the ITAR in all other circumstances, including as stand-alone articles. The export, reexport, retransfer, or temporary import of technical data and defense services directly related to all defense articles described in USML Category XI(c)(5) remain subject to the ITAR.
Any violation of the ITAR, including any violation of the terms and conditions of any export license issued by the Department of State prior to the temporary suspension announced herein, remains a violation of the AECA. The Department of State strongly encourages the industry to disclose unauthorized exports, reexports, retransfers, or temporary imports of defense articles, including the subject capacitors, that occurred prior to this temporary suspension.
Industry has seen the ITAR See Through rule overcome before. It’s important to follow DOS issuance of CJs and Consent Agreements to get insight into the regulators thinking on export controls of certain items.
Both Boeing and Goodrich incorporated the QRS-11 chip into commercial items, the 777 aircraft, and a flight standby instrument. DDTC awarded them both hefty civil penalties for this action, thus validating the ITAR See-Through Rule’s existence before it was formally adopted into the ITAR in 2022. In the QRS-11 case, after the fines were assessed to Boeing and Goodrich, the regulators incorporated specific exceptions into the ITAR and EAR pertinent to when the QRS-11 chip is installed/integrated into a civil item.
One has to wonder the cause of this suspension and opine there may be a Commodity Jurisdiction Request in process or a compliance case that is causing the regulators to rethink controls for certain high-energy storage capacitors meeting the technical levels noted. Stay tuned for further updates…
This notice also serves as a reminder of the criticality of reviewing your Bill of Materials when manufacturing commercial items to ensure that you don’t trip over the ITAR See-Through Rule.