ABCs of ITAR Compliance
MTI has been fielding a number of inquiries about ITAR (International Traffic in Arms Regulations) compliance and standards. To help members better understand all that is required by ITAR, we asked 2014 MTI President Bob Hill, president of Solar Atmospheres of Western PA, to provide an easy-to-read Q&A on the key elements members need to know about ITAR compliance.
To download a full copy of this document, log in to the MTI Members Only area, click on the Resources tab at the top, and type “ITAR” in the search field to locate it.
What is ITAR all about?
The acronym ITAR stands for International Traffic in Arms Regulations. It is a U.S. export control law designed to:
• Restrict the export of goods and technologies that could contribute to the military potential of U.S. adversaries
• Advance U.S. foreign policy and economic goals
• Prevent the proliferation of weapons of mass destruction and terrorism
Commercial heat treaters do not
manufacture parts. Must we comply with ITAR conditions?
Yes. The U.S. export laws apply to products or services originating in the U.S.
How do I know whether my
service is a “controlled service?”
ITAR laws restrict exports of specific defense articles, technical data or defense services. These are described on the U.S. Munitions List 22 C.F.R. 121.1.
What is the definition of a defense service? Does it really cover commercial heat treating?
Yes. The regulations cover furnishing assistance to foreign persons in design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles. The regulations also cover providing foreign persons with any ITAR-controlled technical data.
What is the definition of “technical data?”
Technical data is:
• Any information that is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles
• Materials such as blueprints, drawings, photographs, plans, work instructions or furnace charts
So, commercial heat treaters ARE responsible to abide by ITAR laws even though we do not manufacture defense parts?
Yes, the reach of U.S. export laws is incredibly broad.
How do I know if a job is ITAR-controlled?
We have all seen the terms and conditions of our customers change rapidly in the last few years. Typically, your customer will notify you either via the purchase order, contract or other terms of sale that their job has a special ITAR requirement.
The responsibility is on my customer to tell me that a job is ITAR-protected, correct?
No, not necessarily. If your customer does not properly notify you and you are aware that the job is being seen by foreign nationals or being exported to rogue countries (e.g., Iran, China, Libya or Syria), it is your responsibility to protect that job.
What is the fine if I do not comply?
Non-compliance can result in severe penalties, including:
• Civil penalties up to $500,000 per violation
• Criminal penalties up to $1 million per violation for corporations and up to $1 million per violation for individuals and 10 years in prison
Do I need to obtain an Export License?
Not unless your customer requires you to do so and/or if you plan to export your service or technology to a foreign person or company.
Who qualifies as a “foreign person?”
Any individual who is not a lawful permanent resident or “green card” holder of the U.S.; or who does not have politically protected status (embassy, refugee or asylum); or has dual U.S./foreign citizenship.
How do I protect my company and myself personally from the stiff ITAR penalties?
Let me tell you how I did it.
1. At Solar, my first line of defense was to ensure that none of my employees are considered “foreign persons.” I immediately initiated the E-Verify program for all full- and part-time employees. E-Verify ensures that your employees are authorized to work in the U.S. It is an Internet-based system that is fast, free and easy to use.
2. We conducted training for all employees.
3. We developed a written policy and procedure on how to handle external customers.
a. A posting was placed in the lobby for all visitors to read.
b. A visitor’s affidavit was developed for each customer visiting the plant to sign and date while producing a valid picture driver’s license.
c. A badging system was developed. If the visitor checks any of the first three blocks of the affidavit, he or she receives a green badge for “Go.” If the visitor checks either of the last two blocks, he or she receives a red badge for “Stop.”
d. Personally, I do not allow any red-badged (non-national) individual into the plant. They are restricted and escorted directly to the conference room area only.
What happens if my company gets it wrong, and I have knowledge that some information did get into the wrong hands or a foreign person saw a sensitive defense article?
Voluntarily disclose this information to the Department of State’s Directorate of Defense Trade Controls (DDTC) immediately.
If I am registered and pay the $2,250 annual fee for the license, may I publicize my registration number?
This number is equivalent to your Social Security Number. Under no circumstances are you allowed to give this number to anyone. I have therefore obliterated our registration number prior to posting the document on our company website.
Are there any other precautions that you take?
Yes. We also identify any shop order that has an ITAR clause within the documentation by adding a red cover sheet. This red sheet tells any of our legal U.S. employees that it is their responsibility to protect that job. We also have an isolation area where all of these red-sheeted jobs are collated.
DISCLAIMER: This is only Bob Hill’s opinion of the law and how it pertains to the commercial heat-treating industry in the U.S. and by no means supersedes the laws dictated by the Office of Defense Trade Controls.