What is ITAR?
ITAR is the acronym for the International Traffic in Arms Regulations. This U.S. regulation governs the export of defense related technology transfers, defense services, and the permanent and temporary export and temporary import of defense articles described on the U.S. Munitions List (USML). U.S. companies that deal in defense related products and services listed in the USML are subject to extensive licensing requirements under the ITAR.
Businesses that manufacture, sell, or export these defense-related items are required to register with the State Department’s Directorate of Trade Controls (DDTC). The registration requirement exists for manufacturers of defense articles, even if the company doesn’t export. In addition to registration requirements, the U.S. company must know and abide by the ITAR as it relates to their specific USML items, technical data or defense services. Businesses must understand exactly what is required of them to be compliant with the ITAR and during the registration process they confirm they have a written compliance program. Once an ITAR registration is submitted, processing time is generally 2 – 4 weeks.
Applying for and acquiring ITAR registration from the DDTC and developing compliance plans and programs can be complicated and overwhelming for many businesses but FD Associates is here to help! We have a team of dedicated consultants and lawyers who support our clients with ITAR registration and development of compliance programs. With over 100 combined years of experience we can quickly assist your business with navigating the DDTC DECCS portal and writing a compliance plan that fits your company.
ITAR licensing is required for the export or temporary import of items or the performance of defense services related to the significant strategic items for defense and military intelligence requirements described in the ITAR USML. Any U.S. business that temporarily imports or temporarily or permanently exports defense articles (hardware, technical data or performs defense services associated with these items) will require an ITAR export license or an ITAR license exemption.
Any foreign business in possession of such hardware or technical data or trained in the performance of services for U.S. origin ITAR equipment will require Retransfer/Reexport ITAR licensing before making a transfer to a party not previously included in the ITAR license for the U.S. exporter.
Applying for and acquiring ITAR licenses from the U.S. Government can be complicated and overwhelming for many businesses, but FD Associates is here to help! We have a team of dedicated consultants and lawyers who support our clients with ITAR licensing. We are experienced and qualified to assist your business in applying for any or all of the ITAR export licenses and agreements and Retransfer/Reexport requests issued by the U.S. Department of State Directorate of Defense Trade Controls (DDTC).
Why are ITAR Licenses Needed?
The underpinnings of the ITAR is the Arms Export Control Act of 1976. Section 38 of the Arms Export Control Act (AECA) (22 U.S.C. 2778) gives the President the authority to regulate the manufacture, sale, and distribution of defense, space and military intelligence articles, technical data and defense services. Compliance can be challenging to even the seasoned export professional. The ITAR regulations are regularly updated based on world events and the governments continual review of advancing and emerging technology to identify what should be regulated on the USML. Your company needs to have the proper ITAR licenses to support its international business activities. Failure to comply can expose your company to serious civil and/or criminal repercussions.
What is ITAR Compliant or ITAR Certified?
ITAR Compliant or ITAR Certified is not exactly what you might think. There is no governing body that issues ITAR Certifications. A company that is ITAR Compliant will be registered with DOS, if it is required to, have ITAR export licenses for ITAR export transactions, have a written compliance program that address how ITAR controlled technical data is storage, managed and tagged at the company, describe what constitutes exports, who is responsible, and the licensing and compliance procedures the company has, and address foreign person visits to the company and foreign travel by company employees, among other things.
Types of Businesses that need to be ITAR Compliant
Businesses in a wide range of industries may be subject to the ITAR. It boils down to what the company is manufacturing, distributing, or selling or providing and whether its described on the ITAR USML as defense articles or defense services. It’s important to note, however, that most of these businesses are within Government and Defense, Aerospace and Aviation, and Telecommunications or Technology. If the items or services they deal with are listed on the USML, businesses that are required to be ITAR compliant include manufacturers, distributors, resellers and service providers. This list of companies can include freight forwarders handling the export of ITAR controlled items.
ITAR Penalties for Non-Compliance
ITAR compliance is complex and often misunderstood by some businesses, but the ramifications of violating (intentionally or unintentionally) the ITAR rules can be severe. The U.S. Government invests a significant amount of resources to monitor export control laws, and they partner with other U.S. Government agencies to keep an eye on exporters to ensure they’re following the rules.
Any business found to be non-compliant with the ITAR may face not only civil penalties, but criminal ones as well for intentional willful acts. Civil penalties can be assessed at over a millions dollars per violation, and each transaction in violation may consist of numerous violations. In addition to civil and criminal penalties, the business may face statutory debarment. Debarment results in the loss of ITAR export privileges and the company could lose all government contracts and have a permanent “blackball” on their record. This also impacts business with domestic partners as contracting rules will prevent other contractors from using a debarred company. The penalties in total could spell the end of any business, regardless of size.
ITAR License Types
There are 4 different types of ITAR license forms. The license type used depends on what the transaction. The following are license types for items on the USML:
- DSP-5 Permanent Export License (unclassified hardware, unclassified technical data, foreign person employment in the U.S. and limited Defense Services)
- DSP-61: Temporary Import License
- DSP-73: Temporary Export License
- DSP-85: Classified Export License
DSP 5 Export License
The DSP-5 Export License covers the permanent export of unclassified items that will not be returning to the United States. These include unclassified defense articles (hardware and technical data) described in the USML. The DSP-5 ITAR license may also be used for the export for unclassified technical data for marketing activities, sale of software, offshore procurement of hardware items or for the for employment of a foreign national at your company.
In limited circumstances, the DSP-5 is used for the performance of limited unclassified defense services on an exception basis.
To submit a DSP5 application, your business must be registered with the DDTC and a company executive authorized to sign ITAR licenses (ITAR Empowered Official) must sign the application. Once submitted, it may take a minimum of 2 months to process with one of three outcomes regarding the license application: Approval, Denial, or Return Without Action (RWA).
DSP 61 Temporary Import License
The DSP 61 license is used for the temporary import of defense articles into the United States. The license is not limited to U.S. ITAR goods but to any items described on the USML. U.S. goods that were sold to a foreign owner that are being returned to the United States for an upgrade, enhancement or improvement would require this license. Foreign manufactured defense articles for temporary import into the U.S. for trade shows and demonstrations would also require the DSP 61 license type, as well as transactions involving items described on the USML coming to the U.S. for processing or simply transiting the U.S.
If your company is the importer of record, your business must be registered with the DDTC to file the license application request. The DSP 61 licensing process typically takes 45-60 days once the application is submitted.
DSP 73 Temporary Export License
The DSP 73 license is used for the temporary export of unclassified defense articles. This license can be used for demonstrations of defense articles, material processing of defense articles, form/fit evaluation of defense articles, repairs of defense articles and display at public trade shows. Generally the application is limited to one geographic region of the world and the parties listed on the license are located in that region.
Marketing/demonstration licensed activities typically include a DSP-5 license as well if the marketing information will exceed public domain information.
The government processing time is typically 60-90 days.
DSP 85 Export License
The DSP 85 export license is used for the permanent export, temporary export, or temporary import of classified defense articles and related classified technical data. It is a one size fits all license for classified activities. Once submitted, the DSP 85 license will take between 60-120 days for the government to adjudicate.
Technical Assistance Agreements and Manufacturing License Agreements are used to authorize the performance of defense services related to defense articles (U.S. or foreign origin) described on the USML and the release of technical data associated with the activities. Defense services are any assistance by U.S. persons to a foreign person in any of the engineering concepts associated with the design to demise of defense articles.
Manufacturing License Agreements in addition to the performance of defense services and release of technical data authorize the manufacture abroad of U.S. origin defense articles and permit U.S. companies to provide assistance to the foreign party.
These agreements are more complicated technical filings and require the development of both a DSP-5 license plus an ITAR 124.12 transmittal letter and a proposed agreement document detailing the elements of ITAR 124.7/124.8/124.9. Once submitted, these licenses are processed in 60 – 120 days.
Retransfer Requests (DS6004)
Foreign parties in possession of ITAR regulated defense articles or technical data or have been trained to perform services on U.S. platforms are required to seek ITAR approval before retransferring, reexporting either temporarily or permanently any item or technical data or to perform a defense service for a party not listed in the original ITAR authorization. Generally such requests can be filed by either the U.S. or foreign party and once submitted are processed within 60 – 90 days.
Broker Authorizations (DS4294)
Brokering under the ITAR is not the same as exporting and does not involve the export of technical data or the export of defense articles. It is any action your company may take on behalf of another company that facilitates the manufacture, transfer, export, import of U.S. or foreign origin defense articles described on the USML.
Registration with DOS as a broker is required and some activities require prior approval (DS4294).
Registration with DOS takes 3-4 weeks and licensing when required takes 60 – 120 days.
Contact Us Today
If your company is doing business internationally, you cannot afford to be without the proper ITAR licensing for your products and services. Understanding the regulations and timing for obtaining the correct authorizations can protect your business against mistakes that will delay delivery to your customer. Failure to secure licenses when needed put your business in jeopardy and exposes the company to significant penalties.
Contact the experienced, professional team at FD Associates or call us at 703-847-5801. We will happily work with you, the Trade Compliance Professional; or the Business Development Team, Program Manager and even your Supply Chain representative to ensure the proper authorizations are in place when you’re doing international business.