Authorizations and who may hold them

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1. Approval comes first

The International Traffic in Arms Regulations (ITAR) start from a simple rule. Unless an exemption applies, approval from the Directorate of Defense Trade Controls (DDTC) must be requested and obtained before a defense article is exported, reexported, retransferred or temporarily imported (22 CFR 120.14(a)). The same rule covers furnishing a defense service (22 CFR 120.14(b)). A person required to register as a broker also needs approval before brokering the articles listed in section 129.4(a), unless a brokering exemption applies (22 CFR 120.14(c)).

Registration is a separate requirement (22 CFR 120.13(a)). Anyone in the United States in the business of manufacturing, exporting or temporarily importing defense articles, or furnishing defense services, must register, and one occasion is enough to count as being in business. A manufacturer that never exports must still register. How registration works is covered in registering as a manufacturer or exporter.

2. Six kinds of authorization

The regulations define the forms authorization can take (22 CFR 120.57). A license is a document bearing that word, issued by the Deputy Assistant Secretary of State for Defense Trade Controls or a designee, permitting a transaction in a specific article or service (22 CFR 120.57(a)). An other approval is any other such document approving a regulated activity, such as brokering or a retransfer, or the use of an exemption (22 CFR 120.57(b)). An exemption is a provision of the regulations that authorizes a transaction without a license or other written authorization (22 CFR 120.57(c)).

Three kinds of agreement need DDTC approval. A manufacturing license agreement lets a foreign person manufacture defense articles abroad, and involves the export of technical data or articles, a defense service, or the use of data or articles exported earlier (22 CFR 120.57(d)). A technical assistance agreement covers defense services or the disclosure of technical data, without manufacturing rights (22 CFR 120.57(e)). Assembly falls under it if no production rights or manufacturing know-how pass. A distribution agreement sets up a warehouse or distribution point abroad for articles exported from the United States, for later distribution to entities in an approved sales territory (22 CFR 120.57(f)). These agreements are covered in what a defense services agreement is.

3. Who may hold one

American persons may receive licenses and other approvals, and foreign persons generally may not (22 CFR 120.16(a)). There are three exceptions. A foreign government entity in the United States may receive one. A foreign person may receive a reexport or retransfer approval, or an approval for brokering. Requests from American persons, foreign government entities and brokers are considered only if the applicant has registered under part 122 or part 129 (22 CFR 120.16(b)).

Some people are generally ineligible to be involved in regulated activities (22 CFR 120.16(c)). They include those convicted of, subject to indictment for or otherwise charged with violating the criminal statutes listed in the regulations, and those debarred under parts 127 or 128. Those ineligible to contract with or receive import or export authorizations from any federal agency are included too. So is anyone under a publicly announced State Department policy of denial, suspension or revocation.

4. The rules every exemption carries

Exemptions are not a way round registration or eligibility. Anyone required to register must do so before using an exemption (22 CFR 120.15(a)). Exemptions cannot be used where the exporter, any party to the export, any source or manufacturer, or any broker is generally ineligible, unless DDTC gives prior written authorization (22 CFR 120.15(b)). They do not apply to exports, reexports or retransfers to, or temporary imports from, countries, areas or persons listed in section 126.1, except as that section allows (22 CFR 120.15(c)). Each exemption is also limited by the terms of its own section (22 CFR 120.15(d)).

5. Records of exempt transactions

Anyone exporting, reexporting, transferring or retransferring under an exemption must keep records of each transaction (22 CFR 120.15(e)). To the extent they apply to the transaction, the records cover the article or service, the end user’s name and contact details, and the person responsible. They also cover the stated end use, the date, the Internal Transaction Number of the export filing and the method of transmission. Exemptions with their own record rules, such as the treaty exemptions, add to these.

Technical data exported under an exemption must be certified (22 CFR 120.15(f)). The exporter marks the package or letter "22 CFR [insert ITAR exemption] applicable", naming the paragraph and subparagraph. The certification is written and kept for five years. Oral, visual or electronic exports need a written certification kept for five years as well. The general exemptions are covered in congressional certification and general exemptions.

6. Other laws still apply

The ITAR add to other law and do not replace it (22 CFR 120.7(a)). Selling firearms inside the United States, for example, remains subject to the Gun Control Act of 1968 and Justice Department rules. Retired military personnel who perform defense services for foreign governments still need consent under part 3a of title 22. The regulation warns that meeting ITAR requirements does not relieve anyone of other legal requirements. Authorizations, licenses and agreement approvals issued under section 414 of the Mutual Security Act of 1954, or under earlier versions of the regulations, stay in force until the State Department modifies, revokes or supersedes them (22 CFR 120.7(b)).

Decisions are made with wide discretion (22 CFR 120.20). The Arms Export Control Act lets the President control defense imports and exports in furtherance of world peace, security and foreign policy, and the Secretary of State decides, under delegated authority, whether to grant applications or allow exemptions. The Secretary may also revoke, suspend or amend approvals whenever that seems advisable. The regulation states that administering the Act is a foreign affairs function exempt from parts of the Administrative Procedure Act. Because those decisions are highly discretionary, they are excluded from review under that Act. How denials and revocations work is covered in when a license is denied or revoked.

Key terms

License	A document bearing that word that permits a transaction in a specific article or service.
Other approval	A written approval of a regulated activity, or of the use of an exemption.
Exemption	A provision allowing a transaction without a license or other written authorization.
Distribution agreement	An approved agreement for a warehouse or distribution point abroad.
General ineligibility	The bar on taking part in regulated activity that follows certain convictions, charges or debarments.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Authorization is only the start of getting controlled items where they are needed. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.