Myths and Facts about U.S. Defense Export Controls

July 24, 2023
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Navigating the world of trade compliance, particularly in the realm of defense exports, can be a complex and challenging endeavor. It is critical to remain well-informed and up-to-date on the regulations and laws that govern these activities. Today, we bring you an insightful piece directly from the US government website that delves into the intricacies of the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR).

Understanding these regulatory frameworks is key to ensuring seamless operations within the defense industry and maintaining compliance in the realm of customs and trade. Read on for an in-depth exploration of the subject, and let us help you navigate the complexities of the AECA and ITAR.

Understanding AECA and ITAR

Under the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR), defense export controls are a key tool to safeguard technologies that provide a critical military or intelligence advantage to the United States. US system of export controls was designed to protect U.S. national security and further its foreign policy goals, as well as meet legislative requirements such as congressional notification and reporting. Properly implemented export controls mitigate diversion and proliferation risks, which both bolsters U.S. national security and contributes to regional and international security and stability.

Myths and Facts

Myth: It takes too long under the ITAR to get authorization to transfer defense articles acquired via the Foreign Military Sales (FMS) process.

Fact: Transfers of defense articles acquired via the FMS process are not subject to the ITAR’s authorization requirements per ITAR 126.6(c).

Myth: Obtaining an export license for Direct Commercial Sales (DCS) from the Department of State takes too long under the ITAR.

Fact: There are many exemptions available under the ITAR to enable speedy and secure defense trade, including the exemption at ITAR section 126.4 which supports exports by or for the U.S. Government. 

  • For DCS defense trade, or defense trade subject to the ITAR, there are 50+ ITAR exemptions and other authorization mechanisms available for some of our closest allies that don’t require a license from the Directorate of Defense Trade Controls (DDTC).
  • For example, there is an exemption specifically designed to facilitate license-free transfers for both classified and unclassified defense articles for programs like AUKUS (under ITAR 126.4).
  • Another example is the Open General License (OGL) Pilot Program. Recently extended by three years, OGLs enable certain qualifying re-exports and re-transfers to occur without requiring specific authorization from the Department of State.

Myth: Military exercises must build in a buffer of anywhere between 6 to 18 months to obtain the necessary U.S. export control approvals prior to the commencement of the exercise.

Fact: The Department of State published a proposed rule (Public Notice 11801 (87 FR 77046), December 16, 2022) that, if implemented as a final rule, would state that taking a defense article on deployment or exercises, assuming certain conditions are met, is not a re-export or re-transfer subject to the ITAR. 

  • In some instances, leases are sought to enable countries to participate in military exercises. These are obtained via the FMS process, not subject to the ITAR.
  • State Department authorizations do not take 6-18 months. Authorizations for commercial transactions regulated under the ITAR take on average 40-45 days.

Myth: The ITAR unnecessarily prevents U.S. companies from building munitions production facilities abroad.

Fact: The ITAR provides an authorization mechanism for the Government of the United States to authorize the manufacture of U.S.-origin defense articles, including munitions abroad. However, before such an authorization can be provided, the U.S. manufacturer and a foreign party need to sign a contract for such activities. The Department of State does not review or authorize hypothetical business arrangements that have not been finalized or agreed to by the parties. Coproduction facilities are often offset arrangements to FMS cases and require licenses.

Myth: Due to ITAR restrictions, foreign companies and government entities who receive U.S.-origin defense technology are unable to allow skilled dual nationals to work on projects that require access to such technology.

Fact: There is a specific ITAR exemption that enables dual nationals to work on projects with U.S.-origin defense technology. In addition, there are additional licenses and authorizations available from DDTC for dual and third-country national employees if they don’t want to use the exemption.

Myth: Partners with sophisticated and mature export controls systems have no need for the ITAR.

Fact: Export controls are necessary to protect against the transfer of items to unauthorized users or uses. The ITAR exists to protect U.S. technology, national security, and US competitive edge. US expect their trading partners protect the US technology as they  would protect theirs.

  • Some of US allies and partners have legal frameworks that do not currently control certain critical transfers of unclassified – but still export-controlled – technologies, including intangible technology transfers of emerging technologies to third countries.
  • When an ally or partner transfers export-controlled technology to a third party – what the U.S. Government refers to as “deemed exports” and “deemed reexports” – it is important these transfers are regulated to safeguard these critical technologies, to protect the warfighter, and ensure the continued competitiveness of the U.S. and allied defense industries.
  • The United States legal framework controls transfers and assistance to prevent diversion of critical technology and know-how that would provide a critical military or intelligence advantage to foreign adversaries.

Myth: The ITAR controls non-sensitive items such as bolts and screws, which hinders production, maintenance, and refurbishment timelines.

Fact: Over the last decade, the executive branch conducted a complete review of the commodities and activities described on the United States Munitions List (USML) and controlled under the ITAR.

  • Commodities and activities found to not provide a critical military or intelligence advantage were moved to the Commerce Control List administered by the Department of Commerce and are no longer subject to the ITAR’s jurisdiction.
  • As a result of this review, the Department of State went from processing over 85,000 licenses to around 20,000 a year, dramatically reducing the licensing burden on industry.
  • The Department of State continues to monitor the technology frontier to identify technologies that have reached the point at which they warrant removal from, or addition to, the USML.
  • Many parts and components that are not specially designed for certain defense articles are not described in the USML and not controlled by the ITAR.

Myth: Export controls are not necessary to transfer sensitive technology to close partners and allies since our countries have similar foreign policy and national security objectives.

  • The Department of State does not doubt the integrity and sincerity of our close partners and allies.
  • The application of export controls to our most sensitive technologies does not demonstrate a lack of trust in our partners and allies. Rather, it reflects our awareness that malign actors are intent on acquiring sensitive technology that we, along with our partners and allies, develop.
  • The threat of proliferation and misuse of critical technologies by malign actors is a serious concern for all. For example, an AI algorithm capable of creating drone swarms would cause great harm in the wrong hands.
  • To combat these risks, we engage with key allies and partners to implement technology protection framework standards. Unfortunately, regulatory gaps allow unscrupulous individuals to share dangerous technologies without any government authorization or oversight.
  • In addition, all governments have the power to prosecute anyone who violates the law. Effective technology protection frameworks must enable governments to prevent and prosecute citizens providing military and intelligence training to malign actors.
  • Such commonsense controls protect us all.

Source: The US Bureau of Political-Military Affairs, Office of Congressional and Public Affairs at PM.

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