International Traffic in Arms Regulations

The United States International Traffic in Arms Regulations (ITAR) is administered by the Department of State. The Department of State is responsible for the export and temporary import of defense articles and services governed by 22 U.S.C. 2778 of the Arms of Export Control Act (AECA). ITAR regulates the export of defense items, also known as munitions. These are items determined to have inherent military properties. ITAR also regulates information and assistance relating to the controlled items. An item originally identified as having military purpose may continue to be identified as a defense article even when the defense function has lapsed. For example, certain sophisticated equipment (such as infra-red night-vision goggles used for basic research) is still covered by State Department export controls as defense articles. This is true even when the equipment has no military purpose for an institution and can be readily purchased both domestically and overseas.

The U.S. Government requires that all manufactures, exporters, and brokers of defense articles, defense services or related technical data to be ITAR compliant. This requires that companies register with the Directorate of Defense Trade Controls (DDTC). This registration is a means to provide the U.S. Government with the necessary information on who is involved in certain manufacturing, exporting and brokering activities. Registration does not confer any export rights or privileges to an organization, but it is a precondition for the issuance of any license or other approval for export. ITAR regulations dictate that information and material pertaining to defense and military related technologies may only be shared with U.S. Persons unless authorization from the Department of State is received or a special exemption is used. U.S. Persons, including organizations, are subject to heavy fines if they, without authorization or the use of an exemption, provide foreign persons with access to ITAR protected defense articles.

ITAR currently authorizes Customs to permit the following exports of defense equipment without a license: (1) non-automatic firearms manufactured before 1898 (collectibles and antiques) and replicas, (2) minor components for certain firearms that do not exceed $100 wholesale per transaction and (3) temporary exports of up to three non-automatic firearms and up to 1,000 cartridges per U.S. citizen or resident alien if the firearms are intended exclusively for personal use (hunting or self-protection), are not for resale, and are shipped as baggage. 1 Law of International Trade § 32:69. The U.S. Munitions List changes over time. Until 1996–1997, ITAR classified strong cryptography as arms and prohibited their export from the U.S. ITAR does not apply to information related to general scientific, mathematical or engineering principles that are commonly taught in schools and colleges or information that is legitimately in the public domain.

In addition to the required documentation, companies seeking a license to export firearms and firearm ammunition to foreign lands are required to receive an import permit issued by the foreign government of the recipient country. In those instances where a foreign government does not issue import permits, a statement must be made on the application, after having received written verification from the foreign purchaser, that such import permits are not required by the importing country. The company must attach the document from the foreign purchaser with its request. Prior to submitting the application for firearms and ammunition, the company is advised to review the special guidelines provided by DDTC relating to acquiring a license for firearms and ammunition.

In 1978 the U.S. Court of Appeals in the Fifth Circuit held that to sustain a conviction on charge of conspiracy to export firearms in violation of 22 U.S.C.A 2778 that the Government must prove the same specific intent as required in proving substantive violation itself. United States v. Ortiz-Loya, 777 F.2d 973, 983 (5th Cir. 1985). In May 2012 Congress enacted legislation asserting that the President is authorized to determine the appropriate export controls on items based on national security and foreign policy objectives from the jurisdiction of ITAR to the Export Administration Regulations. 112th Congress, 2nd Session. Except as provided in §26.01, district directors of customs and postal authorities are authorized to permit export, without a license of unclassified technical data, if it relates to firearms not in excess of caliber .50 and ammunition for weapons, except technical data containing advanced designs, processes, and manufacturing techniques. 32 Cod of Federal Regulations §250.8.