ITAR FAQs
Frequently Asked and Answered
General
Answer:
The International Traffic in Arms Regulations (ITAR), established in 1976, controls the export of the most sensitive equipment used by the U.S. military or intelligence community, its technical data and the services provided by U.S. persons related to the products and software enumerated on the ITAR U.S. Munitions List (USML). The services can relate to the equipment described on the USML whether U.S. Origin or Foreign Origin and the scope of services extend from the initial design all the way to the destruction of such equipment or activities such as military planning, training and strategizing.
The ITAR also regulates brokering activities by U.S. persons related to defense articles and items on the U.S. Munitions Import List (USMIL) regulated by the Bureau of Alcohol, Tobacco & Firearms. The goal of ITAR, which is administered by the Department of State, Directorate of Defense Trade Controls (DDTC) is to safeguard U.S. national security and further U.S. foreign policy objectives. Licenses are required in most circumstances.
Answer:
ITAR Compliance is the implementation of a written trade compliance program that addresses key elements of export compliance. The Department of State, Directorate of Defense Trade Controls has a published guideline of what elements should be included in a company written compliance program. The written program will address the following: establishment of a trade compliance group in the organization, senior leadership support, export jurisdiction and classification analysis, registration with the Department of State, notifications of changes to information in registration statements including Merger and Acquisition activities, export licensing, foreign person visits, foreign person employment, foreign travel, tagging of export controlled information, shipping, recordkeeping, IT infrastructure/storage of technical data and protection, training of company personnel, auditing of company export processes and voluntary disclosures of violations of the ITAR.
Answer:
Actually No. The ITAR sets the threshold for who may receive ITAR controlled technical information or defense articles to a lower threshold. The ITAR allows U.S. persons, which includes U.S. Citizens and persons granted permanent resident status or refugee/asylum status. All of these categories of persons may receive export controlled ITAR technical data[1] without an export license.
U.S. Person status is required when a company decides to engages in ITAR regulated activities, which trigger a requirement to register with the Department of State, i.e. manufacturing defense articles in the U.S. or exporting ITAR technical data, defense articles or performing defense services. The ITAR only permits U.S. persons, individuals or entities, to become registered with the Department of State as a manufacturer or exporter. U.S. Companies with foreign ownership may register with the Department of State provided a U.S. person in management/leadership is responsible for the day to day operations and export control processes. Foreign persons including companies and governments may receive ITAR controlled equipment or technical information pursuant to an ITAR license.
[1] Other USG regulations may impose different requirements
A: “DECCS” stands for Defense Export Control and Compliance System. It is DDTC’s cloud-based modernization replacement of the DTRADE and EFS systems.
A: Persons subject to statutory or administrative debarment are generally prohibited from participating directly or indirectly in ITAR-controlled activities, such as the export of technical data and other defense articles and the furnishing of defense services for which a license or other approval is required. Also, pursuant to ITAR § 127.1(d), it is a violation for a person with knowledge that another person is ineligible under ITAR § 120.16(c), which includes debarred parties, to, among other things, apply for, obtain, or use an export control document on behalf of a debarred party, or participate in a transaction subject to the ITAR that will benefit a debarred party, without first obtaining DDTC’s approval.
DDTC has specified the consequences of debarment in the ITAR, and the Federal Register Notices announcing the debarment provide further detail regarding the debarment. DDTC does not impose any restrictions on a debarred party’s eligibility to obtain banking services, engage in real estate transactions, purchase automobiles, or participate in any other activity not controlled under the ITAR.
Licensing
A: While the transmittal letter may re-state information already provided in the application, it will allow the applicant to provide further insight into the transaction as well as provide information not specifically required in the license application, i.e., related voluntary disclosure (VD), customs seizure. More importantly, DDTC is moving away from the "stand-alone" license application where no supporting documentation is provided. The inclusion of a transmittal letter re-stating the application information or providing further clarification of the transaction allows for a more robust license file.
A: This requirement ensures the current validity of the export request. To comply with this requirement it is recommended all purchase documentation must be dated. A letter of explanation must be provided for any purchase documentation not meeting this requirement.
A:
Draft
License request that has not been signed and submitted for a company.
Awaiting Signature
The license request is waiting for the Empowered Official’s review and signature.
Submitted
Empowered Official has signed the license request and is sent to DDTC for review.
In Review
DDTC has received and is reviewing the license request.
The license request status can be found in the Track Status page and the user must be part of an access group containing that license request, in order to see it.
Final
The license request has been fully processed and will be displayed in Track Status.
Rejected
The license request has been rejected by DDTC.
A: No for items physically (mechanically, electronically, etc.) incorporated into the aircraft. This does not include spare parts, components, etc. that are to accompany the aircraft during shipment, as these items must be accounted for separately as their own unique line item(s).
A: No. Both agreements and licenses are valid until their expiration. However, if a license is to be amended for reasons unrelated to Export Control Reform, then the category designations must be updated as well. For agreements, if a major amendment to an agreement is submitted, category designations must be updated; but if a minor amendment is submitted, category designations do not necessarily need to be updated. Furthermore, during the transition period, when information on an In Furtherance Of license does not match that which was presented in its parent agreement, the applicant should note the disparities on the cover letter (15.1) for that license. For example: “Gas turbine engines formerly designated USML Category VIII(b) here designated as Cat XIX(a).”
A: The parent company who is the holder of the registration code must be identified in the applicant section of the license application. If the supporting documentation is issued to or identifies a subsidiary of the parent, the subsidiary’s information must be provided in the subsidiary section of the applicant block.
A: Yes. Any export of U.S software source code, operating algorithms, signal processing algorithms, and/or program maintenance documentation must be compliant with DoD Guidelines for International Transfers of Software Documentation (including source code), dated 8 April 1997. The request MUST include a full description and explanation of all relevant software modules. Be sure to identify the modules proposed for release, as well as those that will NOT be released. Contact DTSA for a copy of the guidelines or answers to any questions you may have.
A: No. As ITAR § 120.60 makes clear, Puerto Rico is part of the United States, as are other locations including American Samoa, Guam and the U.S. Virgin Islands. No export occurs when a defense article is shipped to Puerto Rico. Therefore, no export license or other approval from DDTC is required.
Brokering
A: No. In most cases, an agreement does not provide the full authorization for brokering activities. Parties must ensure broker registration and any required approval of brokering activities is obtained prior to brokering activities occurring.
Defense Services
A: When a U.S. person is providing technical data/defense services to a foreign person, they may need a translator/interpreter to facilitate the communication. If a translator/interpreter is merely facilitating communication between a U.S. person and a foreign person, DDTC does not consider the translator/interpreter to be furnishing a defense service. If any defense articles, including technical data, are disclosed to the translator/interpreter, and that translator/interpreter is a foreign person, such a disclosure constitutes an export or reexport in accordance with ITAR §§ 120.50 or 120.51, respectively. The medium does not change this analysis: such a disclosure can be spoken or written.
Commodity Jurisdiction
A: If you are unable to determine the classification of an item after reviewing the USML and Commerce Control List per the Order of Review (see ITAR §120.11), you may submit a commodity jurisdiction determination to DDTC.
Manufacturing License Agreements
A: The continued use and exchange of the technical data previously authorized for export among the same foreign signatories, sub-licensees and end-users is generally permitted even after the agreement has terminated or expired. However, the foreign parties may not continue to use the technical data to manufacture absent separate authority. The foreign parties must seek approval from DDTC via a General Correspondence request to continue manufacturing using ITAR-controlled technical data after the expiration of an MLA. If the continued manufacturing activity requires the furnishing of a defense service by a U.S. person, then separate DDTC authorization would be required.
A: Yes. ITAR § 120.57(d) provides that an MLA is an agreement “whereby a U.S. person grants a foreign person an authorization to manufacture defense articles abroad” and involves either (1) exports of defense articles, including technical data, or the performance of a defense service, or (2) the use by the foreign person of technical data or defense articles previously exported by the U.S. person. Thus, an MLA would be appropriate even if no manufacturing know-how is transferred. DDTC may authorize a manufacturing activity under a TAA when it meets all the conditions of ITAR § 124.13 and only limited defense services are furnished (e.g., quality control). Alternatively, if no defense services will be furnished and all the conditions of ITAR § 124.13 are met, an offshore procurement license may be appropriate.
What is Not an Export
A: In the case of section 120.56(b) that would be where a regulated person provided access information to a foreign person, such that the foreign person could access, view, or possess encrypted technical data in an unencrypted form through the use of that access information and the foreign person is not authorized to have the technical data.
AUKUS Exemption
A: The foreign person, in their capacity as a natural person, must become an Authorized User to avail themselves of the exemption. A DDTC authorization (e.g., DSP-5 FPE license) would be required for the transfer of any technical data beyond the scope and limitations of the ITAR § 126.7 exemption. This would include, for example, transfers of defense articles described on the ETL.
A: Exporters of defense articles must electronically file Electronic Export Information (EEI) using the AES citing code “126.7” in the appropriate field in the EEI for each shipment. This new code appears in the existing AES drop-down menu.
A: The Authorized User list in DECCS is the official, up-to-date record of Australian and United Kingdom Authorized Users. DDTC will update the Authorized User list as needed.
A: No. Legal entities incorporated in Australia or the United Kingdom are foreign persons, considered to be entities of those countries, and must enroll as Authorized Users through their governments to participate in transfers or activities pursuant to the ITAR § 126.7 exemption.
A: The list of Authorized Users of Australia and the United Kingdom is available in the Defense Export Control and Compliance System (DECCS). To access the list, you must enroll in DECCS, log-in, and navigate to the Authorized User list.
A: DDTC does not develop or support such third-party screening software and cannot speak to its integration with the Authorized User list.
A: The ETL that is applicable to ITAR § 126.7 is codified in Supplement No. 2 to Part 126 of the International Traffic in Arms Regulations (ITAR).
A: The International Traffic in Arms Regulations (ITAR) § 126.7 exemption simplifies the transfer of ITAR-controlled defense articles, including technical data, the performance of defense services, and engaging in brokering activities between and among Australia, the United Kingdom, and the United States within an approved Authorized User group of government, private sector, and research and academic entities. When all requirements are met, parties may engage in such activities without the need for additional Directorate of Defense Trade Controls (DDTC) authorization. More information on who is an Authorized User is available in a corresponding FAQ.
A. No. If an item is described on the ETL, it is ineligible for transfer under the ITAR § 126.7 exemption.
Expedited License Processing for United Kingdom and Australia
A: No. The expedited procedures described in ITAR § 126.15 are available only when the export application would authorize the export of defense articles or defense services to only Australia, the United Kingdom, or Canada. Any application that would authorize exports to parties in any other country will be subject to routine DDTC adjudication processes.
A: DDTC will apply the expedited licensing procedures to export license applications that qualify for expedited treatment under ITAR § 126.15 automatically. There is no need to request expedited treatment specifically. However, applicants always are encouraged to submit any information that they believe would help facilitate an expeditious and streamlined review by the Department.
ITAR Registration
- DDTC views joint ventures as separate legal entities, rather than as a subsidiary or affiliate of the parties to the joint venture agreement. If the entity formed from a joint venture will be engaging in military or defense related activities that are subject to the ITAR, the joint venture entity must separately incorporate and register with DDTC.
- If a DDTC registered entity enters into a joint venture that results in 50% or more ownership of the new entity, the joint venture must be added to the registrant’s existing DDTC registration as a subsidiary. The same rule applies even if it is a foreign incorporated joint venture. Alternatively, if the DDTC registered entity owns less than 50% of the joint venture but is responsible for managing the day-to-day operations of the joint venture, then the joint venture entity would still be added to the existing DDTC registration and listed as a controlled affiliate.
- If a joint venture entity is equally owned (50/50) by two DDTC registered companies and control of business operations is also equally shared, then DDTC will consider other factors in deciding under which entity the joint venture will be registered, such as which of the registered entities is engaging in more ITAR specific activities or projects. If the joint venture is independently managed, then the joint venture entity must register with DDTC independently.
- If a U.S. incorporated joint venture is managed by foreign persons but will be engaging in ITAR-controlled activities, a U.S. person must be appointed as a senior officer for the U.S. joint venture and the joint venture can then apply for independent DDTC registration. If no U.S. person is acting as a senior officer of the joint venture, then it cannot register with DDTC and cannot conduct ITAR-controlled activities.
A: Yes, but only if an applicant includes administrative, material, and Mergers, Acquisitions and Divestitures (MAD) changes within the annual renewal submission. However, if the amendment is executed more than 60 days prior to the registration expiration date, then an applicant must submit a standalone amendment via the ‘Amend’ option in DECCS Registration Dashboard.
A: The Directorate of Defense Trade Controls (DDTC) conducted a multi-year assessment to calculate the new registration fees. The new registration fees are based on several factors, including the last 15 years of inflation, technological advancements, and advancements in support services.
A: Registrants whose fees are greater than $4000 may appeal to the Department for consideration of an alternate payment schedule. To be considered, registrants must provide proof that the registration fee is greater than 1 percent of the total sales in the given year. "Total sales" includes domestic and international sales and is not limited to sales of items controlled on the USML. Applicants must submit a request for special consideration to DDTC not less than 30 days prior to registration expiration. Any request received within the 30-day window will be automatically disapproved.
A: A favorable determination is an approval, an approval with provisos (sometimes also referred to as an approval with conditions), or written authorization from the Directorate of Defense Trade Controls (DDTC) to conduct an activity regulated by the International Traffic in Arms Regulations (ITAR). An application that is returned without action or denied is not a type of favorable determination.
A: The fee for first time registrants is set at $3,000 (manufacturers/exporters and brokers). However, persons registering as a manufacturer/exporter may also simultaneously register as a broker with a consolidated DS-2032 Statement of Registration and not be charged a separate broker registration fee.
A: The review time of a 5-Day MAD Change may vary significantly based on several factors, primarily for the following reasons:
- A party to the transaction submits a 5-Day MAD Change that DDTC finds to be deficient, requiring the submission to be Returned Without Action (RWA).
- A party to the transaction submits a 5-Day MAD Change within a registration renewal that DDTC finds to be deficient, requiring the submission to be RWA’d.
- A party submits supporting documents that omit required information, such as ITAR Registration Code, or misidentifies the parties to the transaction.
- A party fails to submit a required ITAR 122.4(a) 5-day notice.
- A party fails to submit a required ITAR 122.4(b) 60-day pre-notification.
- A party’s 5-Day notice does not adequately explain the transaction, fails to identify the surviving and/or expiring ITAR Registration Code, is not on company letterhead signed by a senior official identified in the DS-2032, or lacks other required information.
- The size and scope of a transaction (e.g., multiple parties.) may impact review time.
To ensure your 5-Day MAD Change is processed in a timely manner, please review the Sample 5-Day Notice for examples of the required documentation prior to submitting your amendment via DECCS Registration Dashboard.
A: Yes, but only if an applicant includes administrative, material, and Mergers, Acquisitions and Divestitures (MAD) changes within the annual renewal submission.
However, if the amendment is executed more than 60 days prior to the registration expiration date, then an applicant must submit a standalone amendment via the ‘Amend’ option in DECCS Registration Dashboard.
ITAR Canadian Exemption
A: It depends, a Canadian citizen residing in Canada, registered with the Canadian Controlled Goods Program, or employed by a Canadian company registered with the Canadian Controlled Goods Program might be eligible for the ITAR Canadian Exemption dependent on the purpose for the transfer of the ITAR technical data, refer to the DDTC article.
A Canadian citizen living and working in the US under visa, working for a US company, would require an ITAR license to look at an ITAR technical data.
A Canadian citizen crossing the border and working in the US under visa, working for a US company, would require an ITAR license to look at the ITAR technical data.
U.S. Persons Working Abroad
A: It will depend on the individual circumstances and what your role is in the entity. The ITAR
regulates the furnishing of defense services. You would be furnishing a defense service as defined in
ITAR §120.32(a) if you, as a U.S. person, provide assistance to a foreign entity in a foreign country
and that assistance relates to the design, development, engineering, manufacture, production,
assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction,
processing or use of a defense article; furnish technical data; or provide military training to foreign
units and forces.
A: That will depend on whether you are permanently residing in the United States or abroad.
Registration is not required if you both physically reside and provide the defense service outside the
United States. Under ITAR §122.1(a), registration is required only for persons who engage in the
United States in the business of furnishing defense services or manufacturing, exporting, or
temporarily importing defense articles. If at any point you engage in the United States in the business
of furnishing defense services (to include remote work/telework), you would be required to register
with the Department unless otherwise exempted from the registration requirement as described in
ITAR §122.1(b).
A: Yes, a U.S. person who wishes to furnish a defense service is required to seek authorization from
DDTC pursuant to ITAR §124.1(a) prior to furnishing such a service, regardless of whether that
service is to be furnished within or outside the United States.
A: Although ITAR §124.1 provides for authorization by “manufacturing license agreement” or
“technical assistance agreement,” DDTC may at its discretion approve the furnishing of defense
services described in ITAR §120.32(a) by granting an authorization under ITAR §120.22(b) for
individuals located outside the United States. In most cases, DDTC will authorize defense services
furnished by U.S. persons to foreign employers via general correspondence and pursuant to
§120.22(b).
A: A USPAB authorization request consists of the following elements:
- Form DS-6004
- Submission letter
- Resume
- Detailed job description
- ITAR §126.13(a) certification
- Other supporting documentation
For more detailed information, refer to the “Guidance for USPAB Authorization Requests” document
located on the DDTC website at https://www.pmddtc.state.gov/ddtc_public?id=ddtc_kb_article_page
&sys_id=f9ccfe96dbb4130044f9ff621f961929.
A: In order to facilitate the most expeditious review of a USPAB authorization request, submit the Form
DS-6004 via the Defense Export Control and Compliance System (DECCS) website
(https://deccs.pmddtc.state.gov/deccs). Applicants do not need to be registered with DDTC in order
to use DECCS to submit a DS-6004.
For instructions on completing a DS-6004 for USPAB requests specifically, refer to Part 4 of the
“Guidance for USPAB Authorization Requests” document located on the DDTC website at
https://www.pmddtc.state.gov/ddtc_public?id=ddtc_kb_article_page&sys_id=f9ccfe96dbb4130044f9
ff621f961929.
A: Third parties may help facilitate the submission of ITAR §120.22(b) requests. However, third parties
may not submit “on behalf of” a USPAB. The applicant of a USPAB authorization request is the U.S.
PERSON. DDTC grants authorization for the U.S. person to furnish defense services, NOT for a
foreign employer to hire a U.S. person.
Furthermore, authorizations are issued to the individual U.S. person seeking to furnish defense
services, not to the prospective employer. The U.S. person is responsible for ensuring compliance
with the ITAR as the exporter of a defense service.
A: No. Each U.S. person is an individual applicant and requires an individual authorization.
A: Four years unless otherwise described in the authorization.
If there is any change in the scope of the defense services to be furnished by the U.S. person,
including the technical scope of work, the addition of defense articles, a change in the intended enduse platforms, or a change in recipients of defense services, a new authorization under §120.22(b)
will be required.
A: No. Adjudication decisions are based on the entirety of the applicant’s submission. A change in
employer will require a new authorization even if the job description and defense services to be
provided do not change.
The nationalities of the prospective foreign employer’s customers do not affect the registration or
authorization requirements applicable to a U.S. person. However, such factors may be assessed by
DDTC in determining whether to issue an authorization.
The mere presence or involvement of a U.S. person during the design, development, etc. of a foreign-origin defense article, or the provision of defense services that are authorized via a mechanism other
than a TAA or MLA, does not subject the resultant foreign-origin defense article to the ITAR or its
reexport/retransfer requirements. However, consistent with ITAR §124.8(a)(5), defense articles
“produced or manufactured from” technical data or defense services provided pursuant to a TAA or
MLA cannot be transferred to a foreign person, except pursuant to ITAR §126.18, as specifically
authorized, or with the prior written approval of the Department of State.
A: Foreign regulatory compliance requirements, including the GDPR, arise independently from the
ITAR and do not modify its requirements.
A: U.S. persons who believe they may have furnished or may be furnishing defense services without
authorization may submit a voluntarily disclosure to the Office of Defense Trade Controls
Compliance (DTCC) pursuant to ITAR §127.12(c). Such disclosures should contain all the
information requested in ITAR §127.12(c). Persons may still apply for a USPAB authorization while
their disclosure remains under DTCC review.
A: No. Pursuant to ITAR §122.1(a), any person who engages in the United States in the business of
furnishing defense services is required to register with the Directorate of Defense Trade Controls. If you furnish a defense service to a foreign person in the United States, you are required to register with the Directorate of Defense Trade Controls and obtain a separate authorization.
A: It depends on your residency status and your physical location while you are teleworking. An
authorization granted pursuant to ITAR §120.22(b) is intended for individuals who permanently
reside and work overseas. It does not authorize you to provide defense services while either
physically located in the United States or while permanently residing in the United States.
For further information, see the following FAQs:
- If I am a U.S. person providing a defense service to a foreign entity, do I need to register with DDTC?
- I have an existing USPAB authorization. If I travel to the United States for a technical
meeting or a trade show as part of my employment, is it covered by my authorization?
A: Your USPAB authorization is separate and distinct from the TAA. The TAA authorizes the applicant
on the TAA to export technical data or furnish defense services to your foreign employer under the
conditions of the TAA. It does NOT authorize you to furnish defense services to your employer or
any other foreign party unless you are a signatory to the TAA. If you are not a signatory, you will
need a USPAB authorization in order to provide defense services to your foreign employer.
A: It depends on whether the amendment affects the scope of your USPAB authorization. Any change to
the scope of your authorization, to include a change in the defense services to be furnished by you,
the technical scope of work you perform, or the addition of defense articles or recipients of defense
services, will require a new USPAB authorization.
A: Yes. You may request authorization for actual or potential recipients of defense services. However, it
is your responsibility to communicate with your employer to ensure that you are working within the
bounds of both your USPAB authorization and any applicable TAA. If the TAA amendment is not
executed, your employer may not be authorized to transfer defense articles, including technical data,
to the potential parties, even if they are authorized to receive defense services from you personally in
your USPAB authorization.
A: Authorization letters are electronically sent to the to the applicant’s email address as provided in the
application. If it has been more than a week since the case closed in DECCS, check your junk mail
folder. Authorization letters will come from DDTCPaperCase@state.gov. If after checking your
spam folder you find that you still have not received the authorization, email the USPAB Case Status
Orgbox at PM-DTCL-USPAB-Status@state.gov.
A: It depends on whether you will be furnishing a defense service to these parties. Defense
services furnished to any foreign third parties to include vendors, subcontractors, actual and
potential customers, or other foreign entities with whom you may work directly, even when
done on behalf of your foreign employer, are considered defense services to those parties
and require authorization. For instance, engaging in technical discussions with a customer or
subcontractor in which you furnish assistance in the development of a defense article would
be considered the furnishing of a defense service to both your foreign employer and the
customer/subcontractor. Authorization for third parties may be requested by specifically
identifying these parties in your application as recipients of defense services.
If you are unsure whether the activities in which you will engage constitute a defense
service, you may submit a commodity jurisdiction request.
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