2013 Q&A Archive

 

 

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We are a distributor of electronic components, we have 80% EAR99 parts and the rest are military parts. I would like to know if for the ITAR annual report we need to report all brokering activities for all of our customers (military and non-military)? Are only transactions performed with military/aerospace customers or only transactions for military end use required for reporting purposes?

You have to report all brokering activities involving items on the US Munitions List.


A NATO country manufacturer wants to ship a scrap NATO military turbine engine part (cold section) to our company in the States for us to apply a protective coating to it. We intend to apply the coating and ship it back for them to test and evaluate its properties. Is a DSP-5 license sufficient for this purpose or do we also need to get a TAA? We do not intend to tell them anything about how we applied the coating.

Your activity appears to be a "defense service."  Check to see if you qualify for the 123.4 exemption.  If not, then you will need a DSP-5 and a TAA.


To what encryption level does email need to conform to be ITAR compliant?

The ITAR does not require encryption of email. 

Even though you do not have to encrypt email, it may be prudent for you to encrypt email.  An industry standard encryption would be reasonable.


We are suppliers of custom machined components.  Potential customers and current customers from all different industries will send us their drawings for us to quote.  We do not manufacture anything in house.  We have domestic and foreign companies that we work with that will produce the products.  We do not forward customer drawings to them.  We take the customer drawings and cut and paste part dimensions and information onto our own template.  This template/drawing is what we would then send forward to our partners to quote.

 

We have an export compliance system in place.  As soon as a request is received- we show our due diligence and inquire with the potential customer-- is this part ITAR controlled, government regulated or EAR-99?  We find that many companies are not aware of what these requirements are and/or what they mean.

 

An example of what we may receive: a print for a simple pin which contains no notations with regards to ITAR etc. However, when we inquire about the end use it may be used in a sensor for a military component.  

Even if you do not know that your drawing requires a license, if it does and you do not get a license, it is your violation. That means to ensure you are compliant, you need to find out or determine the export control classification.

I certainly understand the difficult situation you are in and have worked with other companies who face the same problem, including dealing with customers who do not have a clue about ITAR and EAR classifications.  There is no easy way to deal with the situation but you are on the right track by inquiring with the customer so as to determine the export classification and licensing requirements.  Sometimes it helps if you make their cooperation on export classification a part of a contract or proposal.  The other advice is if you seek such information, the best place to find export classification information is to try to find the export compliance person, legal staff or shipping associates.


Our current DSP-73 license has a listed foreign consignee who is going out of business. A new foreign consignee will need to be found. I know I have to submit a new DSP-73 license to add a new foreign consignee. Can I have two DSP-73 licenses, for the same product line, running concurrently until all the repairs temporarily exported under the first license are completed and returned to the U.S.? Alternatively, can I apply for a new DSP-73 license and have the parts temporarily exported under the old license and re-imported under the new license once repaired?

You may have as many DSP-73s as you need for the same product line. 

Generally speaking, you may not export items under one DSP-73 and import those same exact same items under a different DSP-73 unless you request and obtain a General Correspondence approval from DDTC approving you to do so.


Can anyone apply for a GC (General Correspondence) request to re-transfer/re-export of goods? Does it have to be the US exporter/approved consignee/end user on the DSP-5 license who has to facilitate this activity?

Typically one of the parties you mentioned would apply for the GC but in special circumstances another party may apply for the GC.


When using ITAR exemption 123.4(a)1 I have always made sure that all documents on the import referenced the exemption and the license. I have also made sure that I have a formal entry and that when I return the unit that the entry number is referenced on the documents/AWB. I make sure that all record keeping ties back to the original shipment/license/replacement etc. I was having a conversation with some people and I was told this was not necessary. Can anyone comment on the regulation?

You may be doing more than the ITAR requires.  The ITAR requirements are in 123.4(d). 

  • At the time of import, file the US Customs document and include the statement required by ITAR 123.4(d)(1)(i) on the import document.  Also, include on the invoice or other appropriate document a list and description of the defense articles being imported.
  • At the time of export, file your EEI citing 123.4 as the export authorization and provide Customs with a copy of the import document or the entry document number.

It is often a good practice to do more than the ITAR requires to ensure compliance. Many companies have many mistakes complying with 123.4 for various reasons.  I think what you are doing is a good system to prevent violations.   If you are happy with your current approach, I would not change it.


I am participating in a collaborative effort with the gov't (federal, state, and local) for commercial companies and non-profits to establish a web site to share critical technical information regarding cyber security. It includes information on the types of cyber-attacks the organizations/companies are seeing as well as mitigation/solutions to protect and defend networks. We are not sure if the information will include military critical information but certainly sensitive information that we would not want anyone to see except for our members. We are trying to develop membership criteria to access the information, would it make sense to use the Joint Certification Program to vet our users. Users would not be exporting information to non-members. Should we use the ITAR definition for US persons as criteria? This is new ground for sharing of information and we need some guidance.

If you have ITAR technical data or will be providing ITAR defense services, the ITAR definition of a US person and foreign person will help you identify ITAR export compliance issues.  In addition to looking at whether a person is US or foreign, for ITAR compliance purposes you need to look at where the recipient is located.


Our US company plans to hire a US citizen "expert" consultant to assist with a training workshop that will occur in a foreign country. We will be applying for a TAA with DDTC, however the guidelines are vague as to whether we need to include the consultant on as a US signatory or not as he'll be working under our direction. Maybe it'll be easier to hire him as a temporary employee?

If he is an employee of the US signatory or a foreign signatory, he does not have to be identified separately.  If he is not an employee of any company in the agreement, I recommend that you include him/his company as a signatory.


We have recently rebaselined our TAA, only to receive notice that our customer would like to replace one of the foreign consignees.  We believe this will require an amendment to the TAA, however the customer is requesting a "minor amendment" which we are unfamiliar with. Could you provide direction on what a "minor amendment" entails?

Adding a new foreign consignee is not a minor amendment.  Deleting an existing foreign consignee without adding a new foreign consignee is normally a minor amendment. 

A minor amendment does not require prior approval from DDTC.  You just change the agreement, for example, to remove an existing foreign consignee, send the executed amended agreement to DDTC.  You will find much more information about minor amendments in the DDTC agreements guidelines document.


I'm a U.S. citizen from birth, and have worked for an electronics company the past 12 years that is certified for ITAR. My mom was born in Canada, so Canadian citizenship is my birthright as well. I've recently applied for my Canadian citizenship card, and I will be moving to Canada in May. Can I continue to work for my current employer? I won't be sharing data with Canadian companies or anything; I would simply work from long distance, doing the same thing I am doing now.

You personally are a US person.  Your US employer may be able to use the ITAR 125.4(b)(9) exemption.  If not, it most certainly may apply for a license or agreement to enable you to continue to work for your US employer.


Our company is in Canada and we are owned by a US Company. We manufacturer machined parts for subsea products, radar type of equipment for military applications (aircraft, navy vessels, tank turrets). The components we supply are for clients worldwide. The majority of the assembled parts we provide are either made in Canada or have a small portion of US content. Do the parts we make for radar targeting pods automatically make our entire assembly ITAR controlled even if there is a small US content part installed? The fact that a tracking radar is on the US munitions list makes me think that our Canadian product, that we ship to countries outside of the US is ITAR controlled.

The ITAR controls items manufactured outside of the United States if those items contain US origin ITAR controlled parts or components or if those items were produced using US ITAR technical data or defense services.


We are due to move premises in the next few months. We hold a number of TAA's and associated technical data. The new premises is not listed on any of the TAA's, what do we need to consider before moving?

You should update your registration and make simple amendments to your TAAs to reflect the new address.


We are a US corporation providing engineering and integration services to NASA and the aerospace community. We have a German affiliate who, under a TAA, provides engineering and design services for certain projects. We are jointly designing a commercial research facility which will fly on the International Space Station. Our German affiliate has produced drawings that we have forwarded to a US fabrication shop to produce "build to print" aluminum boxes which will make up the facility. We need to ship the boxes back to Germany for "fit check" and then they will ship them back to the US for final integration and delivery. These are essentially "blank" boxes which have no ISS unique geometry, interfaces, connectors, etc. and include no electronics, computers, etc. They are essentially physical manifestations of the German developed design drawings. Does this box require an export license? Is it covered or classified as hardware specific to the international space station transferred to the Department of Commerce by commodity jurisdiction action, and would therefor require no further licensing?

We, like the State Department, would have to have the detailed technical specifications for this item to determine whether it is on the US Munitions List.  The USML controls items specifically designed or modified for space applications. 

If you send a commodity jurisdiction request to the State Department, it may decide that it wants an item specially designed for the ISS to be controlled by the Commerce Control List instead of the USML.  You must obtain a State Department CJ determination before you may treat an item specially designed for the ISS as not being on the USML.   If State transfers it to the CCL, it normally would be classified as 9A004 and require a Commerce Department export authorization instead of a State Dept. authorization.


Is there a difference between ITAR controlled and US Dept. of State controlled? My company is located in Canada and when we receive items from the US that we are going to re-transfer outside of Canada and the US it normally comes with a DSP-5. Does the DSP-5 license automatically identify the part received from the USA as ITAR? The item I am referring to will be implemented into a military application end use.

Because the US State Department administers the International Traffic in Arms Regulations (ITAR) then US State Department controlled often means the same as ITAR controlled.  The DSP-5 is one of the licenses that may be used to export ITAR items.


Where does the ITAR regulation allow for self-determination/self-Classification of a product that a company produces?

The ITAR does not prohibit self-classification so you may do it.  Nowhere does the ITAR say you have to get the government to classify your items.


I am a UK defense company; I want to scrap/dispose of ITAR controlled material. How can I do this?

Submit a General Correspondence letter request to DDTC requesting authorization to scrap or dispose of the defense articles.  In your request describe the measures you will take to ensure the items are completely destroyed, unusable and unrecoverable.  See ITAR 123.9(c).


Is there a government avenue of asking a question about my product PRIOR to submitting a CJ for a product determination?

You may call DDTC and have an informal phone conversation prior to submitting your CJ.


Am I required to obtain a DSP-5 in order to ship against a DSP-73 for repair overseas?

No.  If you have a DSP-73 temporary export license to send something out of the US for repair and return to the US, you do not need a DSP-5 permanent export license.


I would like to know what the differences are between 124.16 and 126.18.

124.16 allows a foreign party on a TAA or MLA to get all foreign nationals from NATO+ countries authorized by simply following the instructions in 124.16.   Once approved, the foreign party may share authorized defense articles with them.  The foreign national is not required to do additional screening or monitoring of its authorized foreign national employees.

126.18 is an exemption that a foreign party may use to transfer defense articles to foreign national employees if the foreign party is willing to do a US export/reexport compliance screening on the foreign national employees and continuous monitoring of the foreign national employees activities involving 126.1 countries.  To use the 126.18 exemption, the foreign party takes on the responsibility of ensuring the foreign national employee is a reliable recipient of defense articles.


I'm looking into purchasing software that is ITAR controlled. The software would be used in the analysis of product designs and may lead to different design iterations, but the software itself would not be a part of the product. Currently, the product is not ITAR controlled. Would use of the ITAR controlled software in the design of the product cause the product to become ITAR controlled?

The use of an ITAR controlled product to produce a second item does not necessary cause the second item to be ITAR controlled.


We are a wire producer, who manufactures wire for many applications. Most of our products are used commercially, but some may find their way into military applications. Everything we make is made to order, meeting specific specs for tensile strength, alloy composition, and of course size.

These technically aren’t modified and they are not necessarily specifically designed for military use since that same composition and size could potentially be used for anything. Will we have ITAR concerns if our wire is used in a defense application which is sent overseas?

Yes, you could have ITAR problems.  If my company designs a wire harness in a specific configuration, length, etc. for a battle tank and order it from your company, it could be controlled by the words "designed or modified" for a battle tank.  In recent experience the Directorate Defense Trade Controls has made formal, written, Commodity Jurisdiction (CJ) determinations that certain items in this type of situation are not controlled by the ITAR.  I do not know what DDTC would say in response to a CJ request for your item.  And, it might be that some of your items are ITAR controlled and some are not.  It all depends on the details of each item.

If you are not sure if the ITAR controls an item, you may request a CJ.  I recommend you do so.


Are there any special steps that must be taken when a Chinese owned company purchases a US based company that manufactures components for military/defense equipment? Once purchased, the US based operations will cease manufacturing these components and will no longer do any military/defense business. What steps should be taken to "cleanse" any existing ITAR controlled data & information from the company? Are there consultants or businesses out there that can assist with this "cleansing" process?

Chinese ownership of a US company does automatically create ITAR or EAR export compliance issues.  Exports to the PRC and release of tech data to Chinese nationals in the US or abroad create export compliance issues.  Chinese ownership may increase the likelihood that such things may occur but the ownership itself is not an EAR or ITAR issue, other than the US ITAR registered party must notify DDTC of the planned acquisition.


What address do you send your completed DSP-5 form to?

DDTC generally prefers all DSP-5 applications be submitted electronically using D-TRADE.  If you want to submit a paper form, contact the help desk and ask if they will allow it.  If yes, get the address from them.


A company manufactures ITAR controlled products and they are fully familiar with the ITAR process. However, one question keeps on popping up: When they respond to a foreign RFQ/RFI, if they provide a detailed list of equipment and a system level drawing with our quote, does this require a DSP-5? Essentially, I wonder if they need DSP-5 licenses for every foreign quote they make as their interpretation is that such a quote could be construed as a "defense service" (i.e. even "commerce" (non-ITAR) products offered as a system to a foreign military is considered as a "defense service"). This company does NOT handle any USG secure/classified items. How do companies dealing in the international marketplace handle ITAR when offering responses to RFQ/RFI? In the "defense service" label being misinterpreted?

I assume you are talking about a US company.  Without seeing the response to the RFQ/RFI I cannot make a final determination.  Generally speaking, the biggest issue for a written reply to an RFQ/RFI is whether the reply contains "technical data" as defined by the ITAR (or, when applicable, as defined by the EAR).  In my experience, the initial written reply usually does not involve a "defense service" as defined by the ITAR. 

Sending ITAR technical data in the reply requires a DSP-5 unless there is an ITAR exemption available (e.g., the 126.5(b) Canadian export exemption).  Therefore, you should carefully review the written reply to determine if it contains "technical data," as defined by the ITAR.  In the event you export a defense service, you normally would use a Technical Assistance Agreement ("TAA"). 

Finally, in the event the reply contains EAR controlled technical data or "technology" you need to comply with EAR requirements.


We have a TAA that specifies "export of... hardware will not be managed through this TAA. The export of...hardware will be managed through a separate TAA or through this TAA with a future amendment." The Guidelines for Preparing Electronic Agreements specifies that "the value of all USML hardware being exported (temporarily exported) by the applicant in furtherance of the agreement via DSP-5 (DSP-73) or DSP-85 licenses" should be included in the value established in the TAA. When we apply for a separate license for permanent (temporary) hardware export, do we need to amend the TAA to include the values for these licenses and/or obtain a separate TAA for these exports? Or is the separate license sufficient by itself?

If you will be exporting under a license in furtherance of a TAA, you need to amend the TAA to authorize that and to increase the value of the TAA accordingly as you described.


I am buying a commercial part that has already been classified as EAR99. However, I am giving this part a company part number and putting an ITAR distribution statement on the drawing with the company part number because the design package we export needs to be ITAR controlled. Does this distribution statement on the drawing then turn the EAR classified part into an ITAR controlled item? We are not altering the component in anyway just buying it the way it comes.

A distribution statement has no impact on the export control jurisdiction or status of any item.  The regulations determine jurisdiction and status.  If the statement was important, everybody would mark all ITAR items with the statement "This item is EAR99" to take the restrictions off of it.


I am a retired US military officer living abroad and a citizen of the US. I am considering employment with a private defense firm based in Denmark as a full-time employee providing consultancy, program management and sales services for their defense equipment and programs. Am I required to obtain an ITAR license for export considering my defense background was in the US military and the Danish based firm is in a NATO partner country and works with US based defense firms?

ITAR authorization is required for you to release US origin ITAR controlled technical data to foreign parties. 

The ITAR is not clear as to whether you need ITAR authorization to provide a "defense service" to your foreign employer.   DDTC published a proposed rule to say that you do not need authorization to provide a defense service to your foreign employer, but DDTC has not implemented that as a final rule.  If you want to err on the safe side, submit a General Correspondence request for approval to DDTC.


If we transfer data to a company in Canada under a TAA, could that company rely on the Canadian exemption to retransfer unclassified data (that would ordinarily qualify for the Canadian exemption) to its subs in Canada or would the subs need to be named as subs on the TAA?

ITAR 126.5(d) authorizes the retransfer of eligible defense articles to eligible parties in Canada, so first your subs would have to be registered under the Canadian CGP and the tech data would have to be eligible.  The ITAR 126.5(d) says you must obtain approval from the original US exporter before you may use the exemption to retransfer in Canada.  If you satisfy those requirements, 126.5(d) is available.


We are an engineering services company doing ITAR work for Boeing Seattle. Can we hire a Canadian citizen to work on any ITAR project?

You most likely need to get an approval from DDTC.  Without a detailed description of the scope of the person's activities, what you will do with the person, and the USML categories involved, we cannot answer the question.


I have recently registered as a Broker at the request of a company that intends to use my firm to market products to foreign militaries. The registration approval letter states “This registration serves as a precondition to submitting an application for a brokering license or other approval from the Directorate of Defense Trade Controls (DDTC)”. What is a brokering license and how do you apply for a brokering license or other approval?

Certain brokering activities require that you either obtain prior authorization from DDTC or that you notify DDTC in advance of the activity. ITAR Part 129 is the ITAR brokering rules. See particularly 129.6 - 129.8.


We are a wire manufacturing company. To date, all of our products have been classified EAR99. We received a new inquiry from overseas for a wire that will be used in a military application. Even though the wire is classified as EAR99, does the fact that it is going to be used in a military application make it subject to ITAR compliance? (Communication device.)

The fact that an item will be used in a military application does not make it subject to the ITAR. To determine if the ITAR controls an item you have to see if it is on the US Munitions List. The USML controls many items if they are specifically designed or modified for use in a larger item that is named on the USML, but does not control an item just because it will be used in a military application.


We currently have a need to temporarily export a steel and composite sample and a non-ballistic window, and believe the items qualify for an exemption under 123.16(b)(9). These will be exported to Seoul, Korea and Colombia for trade shows and Taiwan for a visit to a potential military customer. We are registered with DDTC, and the items would always remain in the possession of our US Citizen Employee. There would be no transfer of technical data, only general business discussions. Do you believe we are appropriately using this exemption?

ITAR 123.16(b)(9) is for exports to a subsidiary, affiliate or facility that the exporter owns or controls when the items will be used for manufacture, assembly, testing, production, and or modification, subject to the other terms of the exemption.  Based on my analysis, you may not use this exemption to export to trade shows or for private demonstrations to foreign militaries.  The exemption you cited is normally used, for example, when a company exports some test equipment or tooling to its subsidiary to be used for manufacturing or testing.

Typically a company would apply for a DSP-73 for such temporary exports.  Once you obtain the first license for the trade show, you may use the 123.16(b)(5) to take the same items to other public shows, but not to private demonstrations.  So, for example, if you applied for a DSP-73 for four items for a show in Korea, and now want to take identical items to a trade show in Columbia, while the DSP-73 is still valid, you should look to 123.16(b)(5).  If you would be able to use that exemption, then it looks like you would get one DSP-73 for shows and another DSP-73 for the private demo.


I listened to a webinar by Kevin Wolf, and it has prompted a question among my coworkers about “specially designed." Some heard that the definition, in the EAR/ITAR, will apply to all categories and other heard that the definition will only apply to categories that are changing. What is your impression on the application of specially designed?

In the EAR, the definition applies to all uses of "specially designed" in the CCL.   Page 22691 of the Federal Register notice says "BIS is adopting the definition of 'specially designed' for all uses of the term in the CCL."


We currently have a system that was recently ITAR controlled (we were trying to be proactive). We have not used any government funding for it's development and we do not have a military program at this time. We have been looking into commercial applications and it seems to be a good fit. I'm assuming that if we sell this commercially before a military program begins, it will still keep the ITAR "stink", correct?

The ITAR controls something if the US Munitions Lists controls it.  Commercial sales are not the key factor.  For example, television satellites are ITAR controlled because the USML controls them, even though they are 100% commercial.  So, the determining factor is based on a comparison of your item to the USML.


Concerning (b)(4) and (b)(5) of specially designed, what type of documentation should be used as written proof showing that the item falls under these definitions?

Below is paragraph  (b)(6) of the EAR definition of specially designed.  It also is subject to the same documentation requirements as (b)(4) and (5).

(6) Was or is being developed with‘‘knowledge’’ that it would be for use in or with commodities or software described (i) in an ECCN controlled for AT-only reasons and also EAR99 commodities or software; or (ii) exclusively for use in or with EAR99 commodities or software.

The last Note following the definition of specially designed addresses your question:

Note to paragraphs (b)(4), (b)(5) and (b)(6):

For a commodity or software to be not‘‘specially designed’’ on the basis of paragraphs (b)(4), (b)(5)or (b)(6), documents contemporaneous with its ‘‘development,’’ in their totality, must establish the elements of paragraphs (b)(4), (b)(5) or (b)(6). Such documents may include concept design information, marketing plans, declarations in patent applications, or contracts. Absent such documents, the ‘‘commodity’’ may not be excluded from being ‘‘specially designed’’ by paragraphs (b)(4), (b)(5) or (b)(6).


My supplier received the following response from DDTC(Response a team) regarding the use of the Canadian exemption for repairs (Non US defense articles): "We checked with the Licensing and Policy Divisions, and the only way to import the Canadian origin item for repair is to apply for a DSP-61, temporary import license." This response confused and concerned me since we use this exemption for almost every repair.

Unfortunately, the response team has a record for giving out incorrect advice.  In this case, they told you one of three possible options.

You need to do two things that the ITAR regulates:  1) Temporary import into the United States.  2) Perform a repair for a Canadian party, which is a defense service.  Both require authorization.

The DSP-61 is for temporary imports.  ITAR 126.5(a) is for temporary imports.  ITAR 126.5(b) is for defense services.  ITAR 123.4(a)(1) authorizes temporary imports and repairs.

I see three options for your activity:

1) You may apply for DSP-61 for the temporary import and defense service repair.

2) You could use 126.5(a) for the temporary import in combination with 126.5(b) for the defense service repair, provided you satisfy all the requirements, get the required written agreement in place, and do the semi annual report.

3) You could use 123.4(a)(1) for the temporary import and repair.

You may choose whichever option suits you.  I would expect that 3) may be the easiest option if you verify your activity is described by 123.4(a)(1), you meet the requirements of 123.4(c) and you follow the procedures in 123.4(d).  Regarding the 123.4(d) procedures, you need to coordinate with the US importer so it can get the required statement on the import document.


Is there a temporary export exception available for repairs? or do you have to submit a DSP 73 every time?

There is not a repair export exemption.  There are some exemptions you may use for exports to repairs such as Canadian exemption, exports to foreign entity controlled by US exporter, for example.

If you anticipate multiple repairs, for example, 5 repairs of model ABC over the next 4 years, then apply for a DSP-73 for 4 units.


What is the record retention period for closed DSP5s and 73s once the license has been closed with State?

The retention period is five years from the expiration of the license.


We are a US Company that owns a subsidiary or affiliate in Mexico and that manufactures Defense electronics modules.
Our parent company in the US sends to our Mexico plant all the components (raw material), tools, equipment, and parts required for production/assembly of the product, and after the product is manufactured in Mexico, it is returned to our parent plant in the US.
Presently we have MLAs and DSP-5 licenses in place to export the defense articles to our Mexico plant.
I want to know if we can qualify for ITAR exemption 123.16 (b) (9).

Does CBP has the complete authority from the DOS to grant the exemption?
How would CBP control (or how our company would prove) the "temporary export" of the components we use to build our products?. The components return to the US assembled in the finished product.

It sounds like your parent company may use the exemption if it owns/controls the entity in Mexico.  Customs does not control the shipments.  The company making the export needs to control the shipments by keeping track of everything exported under the exemption and keeping track of when every item is returned to the United States.  The exporter should have documents that demonstrate it is using the exemption properly in case Customs asks.


The FBI had contacted us to request information regarding a company that was believed to had sold ITAR parts to a denied person. We stop selling to them, but we never got a conclusion from the FBI. They are not in any denied list. Can we keep selling ITAR restricted parts to them?

If the party is not on a denial list, then there are not any denial list-based reasons you cannot sell to them in the United States.  There may be other reasons.  I suggest you contact the FBI agent that contacted you in the first place and ask what is going on.


We are a Canadian company that purchased ITAR goods from a U.S. vendor and now need to return some of these goods for failure analysis and repair. The original DSP-5 for the purchase of these items has been closed. What document(s) do we need to apply for to properly return these parts to our U.S. vendor?

You should coordinate with the US party who will receive the items because that party has the primary ITAR compliance responsibility.  The US party may be able to use the Canadian exemption for temporary imports into the US from Canada in 126.5(a) in conjunction with 126.5(b) or 124.2(c) for the defense service involve.  Alternatively, the US party may be able to use the 123.4 temporary import exemption.  If not, then the US party may need to get a temporary import license or other authorization, depending on all the details.


Can a U.S person (from mother company)work as an expat in its subsidiary in a European country on ITAR technical data, provided that TAA or MLA is in place and the mother company is the party of the license and it's subsidiary is sublicensee of this license?

The answer to this question depends on what the TAA or MLA authorizes.  Every TAA and MLA authorizes different things so we cannot answer this question without seeing the TAA or MLA.


Are sub-components, ie raw material, used in an ITAR end product restricted from a sourcing stand point or is only the end product and technical data restricted?

There is no simple rule for this.  The answer is to determine if the items are on the US Munitions List or the Commerce Control List and once you find the classifications for the items, you will know the restrictions.


If a military part/hardware is ITAR-controlled but the corresponding technology is not U.S. origin(ex: European company orders a military part in U.S. sending the appropriate technical data, drawings etc). Is this technology also considered as ITAR?

The ITAR controls the foreign origin data when it is in the United States.  When the foreign origin data is outside of the United States the ITAR does not control it.  If the foreign origin data is modified in the United States, in many cases the modified foreign origin data is ITAR controlled regardless of where it is located.


We are a capital equipment manufacturer. We sell different types of welding machinery. Recently, a customer of ours asked us if we are ITAR-compliant, and how do we handle parts subject to ITAR. Currently, we do not sell parts that can be used directly inside or part of a finished product. However, if our customer sends us a sample of an item that is subject to ITAR and wants to know if our equipment can be used to weld on this ITAR-listed item, what can we do in order to make sure we retain the business, but more importantly follow the regulations?

That is a big question, similar to asking, "We are a welding company, how do we know how much local, state and federal tax to pay?"

The first thing is that, if you are involved in the manufacture of items on the US Munitions List in the ITAR, you must register with the State Dept.per ITAR 122.  Another important point is you may not let foreign persons, including your employees with work visas, have access to ITAR technical data.  You may not send ITAR data or items out of the United States. 

There are a host of other ITAR issues that may be important for you to understand, so you should consider getting training on the ITAR.


Are there any regulations or license requirements if we send our drawings for Teflon parts to China for subsequent manufacture there? We would then import the completed parts back into the USA.

Yes. First check the International Traffic in Arms Regulations. If those regulations do not apply to specific parts check the Export Administration Regulations.


My company is registered with the US Dept. of State (ITAR), and we received a print stating Export Controlled. This part requires a sub-tier supplier. Our customer is giving us permission to use non-registered supplier. Can our customer grant us this authorization?

Your customer may not grant you any ITAR-based authorization.  Your customer may give you permission as a business issue to use non-registered suppliers.  It is not clear if any ITAR authorization is required in your case to use a non-registered supplier.


Should I have DCS on the invoices if I'm located in US but I'm buying from a foreign manufacturer and selling it to a foreign customer without bringing the actual goods to the States. It is a direct import from a manufacturer in China to the customer in Europe, Asia and Australia. But, I need to make sure that I'm compliant according to US law. So, If I do need a DCS - what kind of statement should I have on the invoice and other export documents?

If the items are not on the USML, the parties are not involved in nuclear, missile or chemical biological weapons activities, no OFAC embargoed countries are involved, and the parties are not on any US prohibited parties list, then you do not have to use the DCS anywhere.


We are a US based manufacturing facility whose raw materials are produced abroad. Are there any stipulations concerning the acquisition of near net or net shaped raw materials (rings, discs, blocks, etc.) for the production of ITAR controlled customer product? Customer supplied ITAR documentation is controlled and raw material technical documents are produced internally. Final processing and certification of the product would occur within the US.

The ITAR controls temporary imports of defense articles, but it does not sound like you are bringing the items in temporarily. The issue for you seems to be whether you exported any ITAR controlled technical data for the production of the semi-finished items abroad.


We are a small engineering services company that would like to provide defense services to the Canadian Government supporting the development of a Canadian defense article. The type of service would involve public domain engineering expertise and no technical data transfer is anticipated.

 

Two questions: 1.) To ensure our services are accepted as public domain, we would like to submit the details of this service for Government concurrence that it is public domain. Should we use a general correspondence request to the DDTC? 2.) Assuming the services are not considered an export of technical data, are we still required to process a Technical Assistance Agreement with the DDTC?

The ITAR controls defense services regardless of whether you use only a screw driver or public domain information to provide the defense services.  Defense services never qualify for ITAR public domain status even if all the technical data used and exported is public domain.  If the defense services do not qualify for an exemption such at the Canadian exemption, you must obtain DDTC approval which normally would be a TAA.


Background: I'm a dual citizen of the US and Israel residing in Israel. I moved to Israel in 2010 after a 30 yr career working for NASA and Boeing. I'm currently a self-employed independent consultant in Israel. I'm considering applying for a job to work as a project manager for an Israeli space project. I understand that working for an Israeli entity would make me a "non-US person" from an ITAR perspective on any matters pertaining to my potential Israeli employer.

 

Question: Am I able to work as a project manager for an Israeli aerospace firm? I obviously won't pass along any technical data, but what about the experience in my head as a project manager in the US. Could this work?

US export control regulations do not prohibit you from working for an Israeli entity as long as you do not transfer tech data in violation of the regulations.


On October 15th my UK-manufactured military commodity, currently ITAR USML VIII(h) (unclassified, not SME) by incorporation of some USML XI(c) components, will remain ITAR because of the XI(c) components but will not fit in any of the new USML VIII(h) categories as it is designed for the Eurofighter aircraft, which is excluded from VIII(h)(1), and is not enumerated in any of the other VIII(h) categories (2)-(26). How do I classify my UK military commodity?

Based on your analysis, the ITAR control status of your item will be based on the ITAR control status of the US ITAR component in your item.  The ITAR does not have a classification for non-US origin items with ITAR content so you might want to use the USML classification of the ITAR item in your product.


We are a manufacturer of electronics in the UK and currently make ITAR product for several companies, we have structure in place where we sign MLA's, NDA's and sublicensee agreements. I have written a data procedure where all of our data files are encrypted and securely stored, we have vetted all of our personnel within the guidelines. I am wondering whether we should be doing something more?

It is difficult to answer the question without knowing a lot more about your company.  The short answer is to implement procedures to prevent transfer of US defense articles, including tech data, to unauthorized persons, parties, or locations.


I’m building upon the compliance system we already have in place.  When our parts are on the CCL, 99.99% of them will be classified as EAR99.  A question has come up in our discussions that I’m fuzzy on.  If we are shipping EAR99 parts to a domestic customer, do we need to indicate on the invoice and packing list that they are classified as EAR99?  In other words, what are our legal (or ethical) obligations to inform them the parts are covered under EAR99?

The regulations do not require that you notify other US parties of the classifications of the items you transfer to them.  If you wish to do so, many other US parties will find the information to be helpful, but it is your choice.


I sell indirect material to a local manufacturer who makes article 1 ITAR required equipment. None of the items that we sell are part of the final product however some of the items can be defined as fixtures or devices that are made to aid in the process of making the final products. None of which are ever exported out of the US. Do I need to be ITAR certified?

There is no such thing as "ITAR certified." 

If you are in the United States and produce or export something on the US Munitions List, then you must register with the State Department as described in Part 122 of the ITAR.