NOAA Export Compliance Program International Traffic in Arms ...

NOAA Export Compliance Program International Traffic in Arms ...

NOAA Export Compliance Program Overview of the International Traffic in Arms Regulations Hugh Schratwieser Weather, Satellites, and Research Section NOAA Office of General Counsel NOAA Inouye Regional Center April 25, 2018 Arms Export Control Act (AECA) 22 U.S.C. Chapter 39 Department of State is responsible for the export and

temporary import of defense articles and services 22 U.S.C. 2778 of the AECA provides the authority to control the export of defense articles and services charges the President to exercise this authority Executive Order No. 13637 (March 8, 2013), Administration of Reformed Export Controls, 78 Fed. Reg. 16129 (March 13, 2013) delegates functions of AECA 2 International Traffic in Arms Regulations (ITAR) 22 C.F.R. Ch. 1, Subchapter M, Parts 120 130

Implements the AECA Regulations control the export and import of defenserelated articles and services on the United States Munitions List (USML) Directorate of Defense Trade Controls (DDTC) charged with controlling the export and temporary import of defense articles and defense services covered by the USML 3 Export Export defined broadly -- 22 C.F.R. 120.4 applies not only to exports of tangible items from the U.S., but also to transfers of intangibles, such as technology or information

defines as an export the passing of information or technology to foreign nationals even in the U.S. Examples Shipping or taking a defense article out of the United States by any means. Disclosing technical data to a foreign person, whether in the United States or abroad, through oral, visual, or other means (including electronic means, such as e-mail). 4 Defense Article Any item or technical data designated in the ITAR's USML, including any technical data

recorded or stored in any physical form, models, mock-ups, or other items that reveal technical data directly relating to a defense article listed in the USML Defense article does not include basic marketing information on function, purpose, or general system descriptions. -- 22 C.F.R. 120.6 5 Defense Service Furnishing assistance (including training) anywhere (inside the United States or abroad) to foreign nationals in connection

with the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles; or furnishing ITARcontrolled technical data to non-US persons anywhere, requires authorization from the State Department. -- 22 C.F.R. 120.9 6 Future Designation Any article or service may be designated or determined in the future to be a defense article or defense service if it:

Is specifically designed, developed, configured, adapted, or modified for a military application, and Does not have predominate civil applications, and Does not have performance equivalent to those of an article or service used for civil applications; or Is specifically designed, developed configured, adapted, or modified for a military application, and has significant military or intelligence applicability such that control under ITAR is necessary. 7 License Requirements A license is required for the export of nearly

all items on the USML Canada has a limited exemption, as it is considered part of the U.S. defense industrial base Recent treaties with the United Kingdom and Australia exempt certain defense articles from licensing obligations to approved end-users in those countries 8 Exceptions Does not apply to information related to general scientific, mathematical, or engineering principles that is commonly

taught in schools and colleges or information that is (legitimately) in the public domain Exceptions must be treated with extreme caution -- college professors have been prosecuted for breaches of the AECA as a result of access to USML items by foreign graduate students 9 Prohibited Exports, Imports, and Sales to or from Certain Countries U.S. policy is to deny licenses and other approvals for exports and imports of defense articles and defense services destined for, or originating in, certain countries -- 22 C.F.R. 126.1

Derived from U.N. sanctions, terrorism, arms embargos and sanctions Policy of denial: Belarus, Burma, China, Cuba, Iran, North Korea, Syria, Venezuela -- 22 C.F.R. 126.1(d)(1) Policy of denial with some exceptions for Irag, Afghanistan, Libya, Somalia, and others -- 22 C.F.R. 126.1(d)(2) May not be shipped on a vessel, aircraft, spacecraft, or other means of conveyance that is owned by, operated by, leased to, or leased from any of the proscribed countries, areas, or other persons referred to in this section 10 Embargos Office of Foreign Assets Control (OFAC), U.S. Department of

the Treasury, administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy or economy of the United States A specific license is a written document issued by OFAC to a particular person or entity, authorizing a particular transaction in response to a written license application. Persons engaging in transactions pursuant to general or specific licenses must make sure that all conditions of the licenses are strictly observed. 11

Registration with DDTC Required of all U.S. persons that manufacture or export defense articles or furnish defense services [Required for U.S. and foreign persons engaged in arms brokering] Does not confer any export privileges, but is a prerequisite to export licensing approval 12 Registration Process GOALS Informs the U.S. Government about the U.S. defense industry

legal status, export eligibility, foreign ownership/affiliations, legally responsible personnel, areas of activity Serves as a channel to provide information about export regulations and Government concerns Helps validate the bona fides of U.S. firms engaged in defense trade, especially during the review of export license applications. 13 Enforcement and Penalties AECA provides criminal penalties of up to $1 million or 20 years of imprisonment, or

both, for each violation AECA also authorizes civil penalties of up to $500,000 and debarment from future exports DDTC enforcement staff are in the Office of Defense Trade Compliance Works with: Defense Security Service; Customs and Border Protection (CBP); and Immigration and Customs Enforcement (ICE) 14 ITAR Violation Example John Reece Roth, a former professor of Electrical Engineering at the University of Tennessee in Knoxville, began serving a four-year prison sentence

on January 18, 2012, for his September 2008 convictions. Roth received this sentence for illegally exporting military technology (plasma actuator for reducing drag on the wings of drones), in large part due to his work with graduate students from Iran and China. Roth claimed he was ignorant of the regulations but the prosecution pointed out that he was warned on a number of occasions, including by university counsel, that the technology may have been controlled. 15 Defense Technology Security

Administration (DTSA) Located in the Department of Defense, Office of the Under Secretary of Defense for Policy Coordinates the technical and national security review of direct commercial sales export licenses and commodity jurisdiction requests received from the Departments of Commerce and State Not all licenses from DDTC or BIS are referred to DTSA. 16 Dual National ITAR treats access to USML items by "Dual-National"

and "Third Country National" employees of a foreign organization as a Retransfer to the employees' other countries of nationality. As a result, access to USML items by such employees must be specifically authorized under the relevant export authorization. If access to USML items by Dual and Third Country National employees of a foreign organization is authorized, it only authorizes transfer to the employee. It does not authorize export to the employee's country of Dual or Third Nationality. 17 Export Control Reform

Broad-based interagency review of the U.S. export control system with the goal of strengthening national security and the competitiveness of key U.S. manufacturing and technology sectors by focusing on current threats and adapting to the changing economic and technological landscape. (August 2009) The Departments of Commerce and State are actively working to reform the U.S. satellite export control regime with the goal of improving the competitiveness of the domestic space industry. 18 Ultimate Goals of Reform

Single export control licensing agency for both dual-use, munitions, and exports licensed to embargoed destinations Unified control list Single enforcement coordination agency Single integrated information technology system, which would include a single database of sanctioned and denied parties This is a work in progress 19

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