An ITAR Attorney is highly recommended for any business which intends to export defense or military goods or information. This area of the Law is an area of legal practice where an attorney or lawyer is retained to assess ITAR risks, help with licensure or licensure exemptions, and to provide legal advice on ITAR compliance issues and minimize risks.
The law firm of Arcadier and Associates helps companies stay compliant and minimize civil and criminal exposures. It is a niche area of the law and actual experience from an ITAR attorney is highly recommended. Arcadier and Associates, P.A., through board certified attorney, Maurice Arcadier, has the legal experience and know-how in this field and has successfully advised dozens of defense-related companies navigate in this highly regulated field. Our lawyers and attorneys can help with compliance, licensing, classification, and minimizing risks. Additionally, if there has been a previous non-compliance issue, we can mitigate damages or litigate ambiguous issues if necessary.
ITAR is a congressionally enacted law which regulates the United States defense technology through the Arms Export Control Act (AECA). ITAR, which stands for International Traffic in Arms Regulations, implements the AECA to oversee the international transfer of arms.
- The ITAR is maintained by the U.S. Department of State as a part of the Code of Federal Regulations- Title 22, which deals with foreign relations.
- These regulations control the export and distribution of goods and services pertaining to defense and military, as well as intelligence services.
- ITAR is applicable to all companies in the U.S. that are involved in export of defense or military products and services listed pursuant to the United States Munitions List (USML).
- ITAR non-compliance can evoke severe criminal and civil penalties administered by the Department of Justice.
- ITAR regulations and enforcement procedures are constantly evolving. It is important to consult with an experienced ITAR attorney before incurring any ITAR compliance risks.
Our legal services through a qualified ITAR attorney include:
Directorate of Defense Trade Controls registration, compliance and licensing.
Avoiding fines and / or criminal and civil penalties for violations.
Mitigation of damages and minimization of liability
Contest government findings and litigation.
Classification of data and products
Export Plan for defense-related articles.
For Additional Information our ITAR attorneys can assist, please see the following sub-categories.
As with any type of law, how the regulations are enforced or interpreted depends on the person interpreting the laws. This is often the case in commodity jurisdiction issues. Which agency–State, Commerce, etc.–has jurisdiction depends on who is being asked at the time. The key here is to make sure complete and correct information is provided when doing a commodity jurisdiction request, otherwise, it could get placed in the wrong jurisdiction and the fault will be with the company, not the government.
The laws and regulations do evolve and companies must keep abreast of these changes. The State Department will update its U.S. Munitions list but not as often as the Commerce Department adjusts its Commerce Control List (CCL).
Any technology used for space–commercial, NASA-related, or defense–typically is ITAR controlled because it is integrated with launch vehicles, such as the Aries, which automatically come under the ITAR, say legal experts.
The Bureau of Industry and Security (BIS) part of the Department of Commerce, frequently updates the Export Control Classification Numbers (ECCNs) on the CCL because major multi-national agreements that govern many of the ECCN controls are frequently changed.
It is also important to keep up with lists of which countries receive a friendly status and which are off limits, as well as which countries that fall under U.S. sanctions and United Nations sanctions. Countries currently off limits include Iran, Cuba, Syria, Sudan, and North Korea, for virtually all products and technology. There are many restrictions on the export of defense articles and technology to China.
Export compliance should not be an afterthought. Many companies, unfortunately, think that their business is exempt when they are ‘just making small metal parts and shipping them to Lockheed or Harris.’ If they are found in violation the individuals may face jail time and the company may be subjected to hefty civil fines and penalties.
Most Common ITAR Mistakes
The ITAR is fraught with complications that make it easy for companies to break the law if they are not vigilant. There are seven areas where many companies may slip up.
- The most common mistake among small businesses new to export compliance is the lack of any compliance program internally. They need to invest in training at least one person internally to handle the compliance process.
- Many businesses in this economy are so focused on sales that they do not spend the appropriate time making sure all their products are properly licensed.
- Some companies also believe that having a compliance program on paper is enough, which is a mistake. Their program may be largely ineffective because it does not tie in with their actual company procedures or because they do not have trained export compliance personnel to help with issues.
- A mistake that results in a vast number of violations is company failure to classify long-term products as ITAR or Commerce controlled. Many companies have been making a product for decades and have not licensed it. Without this license, it is a violation. Compliance oversight often occurs when a company has missed something in their programs such as foreign national employees or foreign procurement of controlled parts. They may not have controls that follow shifting programs or products. This situation can be termed “ITAR creep” when the company thinks they have covered every angle, but something sneaks up on them and they have a violation.
- When a company sees a potential export problem with one of its orders, knows it is a red flag, but goes ahead anyway because they want to make the delivery and fill the order. It is a critical and dangerous mistake to go ahead and ship without identifying potential problems and resolving them prior to the product leaving the facility.
- One of the biggest mistakes companies make is with their record keeping. They have a tendency to focus on getting the license, but then fail to maintain their records. They need to answer all the requirements to show that they did what they said they would do. Just knowing what the proper records are is still not enough. When doing export compliance, it is important to become intimately familiar with the process that supports the generation of each record, so that when a third-party wants to review or validate what you did, no one has to scramble.
- Another area that requires close attention is writing product descriptions for a license application. Companies need to be aware of who their audience is.
- Prime contractors are set up well with large export compliance staffs and systems, but in such large organizations miscommunications sometimes happen. Often someone will say “I didn’t know that was ITAR controlled, or a defense item, etc.”
Sometimes they are so focused on what is happening today they do not plan for what may happen down the road with inventory that may be exported a year or two years later. They still get the license and do the paperwork correctly, but find themselves scrambling at the last minute because they lacked foresight.
At small corporations, people are often too busy and need to focus on the definitions. They need to understand what they are doing and keep it simple, breaking the compliance process down into simple elements.
Should you wish to discuss your ITAR legal needs, you may schedule a consultation with Maurice Arcadier, Esq who is our experienced attorney in ITAR related matters. Arcadier and Associates P.A. also works with an ITAR consultant company (CVG Strategies) who helps with the implementation of ITAR related programs at reasonable costs.