The International Traffic in Arms Regulations (ITAR) is a set of US Government regulations, under the jurisdiction of the US Department of State, that controls the export of defense items, technical data, and services.

The ITAR is an acronym that is often misused when referring to export compliance, as there are two US Departments that control exports – the Department of State, and the
Department of Commerce. The Department of State (ITAR) controls items that are born military and has first jurisdictional rights. The Department of Commerce has its own set of regulations the Export Administration Regulations (EAR), that has jurisdictional control over items that do not fall within the ITAR and are commercial in nature (dual use).

So, how do you know which regulations apply to a given item? A business must first determine which export regulations to use before diving into the ITAR.

Step #1: Commodity Jurisdiction

22 CFR §120.3 – Policy on designating or determining defense articles and services on the U.S. Munitions List.

A designation that an article or service meets the criteria of a defense article or defense service, or provides the equivalent performance capabilities of a defense article on the U.S. Munitions List, considering:
► (i) The form and fit of the article; and
► (ii) The function and performance capability of the article.
Specifically, an article or service may be designated a defense article if:
► (1) Meets the criteria of a defense article or defense service on the U.S. Munitions List; or
► (2) Provides the equivalent performance capabilities of a defense article on the U.S. Munitions List.
Therefore, if a defense article or service is captured in the USML, its export is regulated by the Department of State (ITAR). If it doesn’t meet the criteria above, then it will fall to the Department of Commerce (EAR).

Step #2: Classification

22 CFR §121 – U.S. Munitions List (USML)
Once it has been determined that an item is subject to the ITAR, the next step is to determine the classification. To classify an item or technology, compare or match the specifications of the item to the items listed on the USML.

Step #3: Registration with Directorate of Defense Trade Controls

22 CFR §122 US
Organizations must register with the Directorate of Defense Trade Controls to export ITAR controlled items. Registration is primarily a means to provide the U.S. Government with necessary information on who is involved in certain manufacturing and exporting activities. Registration does not confer any export rights or privileges.

Step #4: Determining Intent — How will Item be Used?

A business should also determine if an exemption is available, meaning that this specific item may not require a license, or it may be allowed to be brought into the United States for repairs and re-exported without applying for a new license. The exemptions in the ITAR may prove to be helpful. If an exemption is not applicable, then you need to determine what type of license is appropriate to your specific transaction. A license or agreement application should include description
of the item, Commodity Jurisdiction, classification, parties to the transaction, item value. Missing or vague information will cause the Department of State to reject the application with a Returned Without Action (RWA) notice.

Step #5: Review of Exemptions or Application for a License or Agreement

Ready to Export

Once the item has the correct jurisdiction, classification, and necessary license or correct exemption, it is ready for export. However, the business’s responsibilities do not stop there — the business is still liable for the management of the actual export and all associated documents which grant the export authority (e.g., license(s) or agreement(s)). An ITAR exemption, license or agreement management is a tedious task. It requires exporters to be diligent in their document preparation, summary of items shipped and overall record retention procedures.