ITAR Obligations for Shipments by and to the U.S. Government

September 21, 2011, 9:06 AM

Shipments of defense articles by and to United States government facilities or personnel in foreign countries are generally not exempt from adhering to the International Traffic in Arms Regulations (ITAR) because such shipments constitute exports, for ITAR purposes. However, ITAR provides some exemptions for shipments involving the Government. 22 CFR 126.4 states that [a] license is not required for the temporary import, or temporary export, of any defense article, including technical data or the performance of a defense service, by or for any agency of the U.S. Government (1) for official use by such an agency, or (2) for carrying out any foreign assistance, cooperative project or sales program authorized by law and subject to control by the President by other means.

This exemption applies only when all aspects of the export transaction are affected by a United States Government agency or when the export is covered by a United States Government Bill of Lading. This exemption, however, does not apply when a United States Government agency acts as a transmittal agent on behalf of a private individual or firm, either as a convenience or in satisfaction of security requirements. Furthermore, in the majority of cases, the Office of Defense Trade Controls must issue approval before defense articles previously exported pursuant to this exemption are permanently transferred.

Another ITAR exemption provides that [a] license is not required for the temporary import, or temporary or permanent export, of any classified or unclassified defense articles, including technical data or the performance of a defense service, for end-use by a U.S. Government Agency in a foreign country under the following circumstances:

  1. The export or temporary import is pursuant to a contract with, or written direction by, an agency of the U.S. Government; and
  2. The end-user in the foreign country is a U.S. Government agency or facility, and the defense articles or technical data will not be transferred to any foreign person; and'
  3. The urgency of the U.S. Government requirement is such that the appropriate export license or U.S. Government Bill of Lading could not have been obtained in a timely manner.
It is important to note that if you export pursuant to one of the above exemptions, you must present a Shipper's Export Declaration (SED) and a written statement certifying that these requirements have been met at the time of export to the appropriate District Director of Customs or Department of Defense transmittal authority. In addition, you must provide a copy of the SED and the written certification statement to the Directorate of Defense Trade Controls (DDTC) immediately following the export.

The DDTC tends to narrowly construe these exemptions, so your company should conduct a thorough analysis to ensure the applicability of a particular exemption. If you would like more information on these ITAR exemptions, please feel free to contact me at recoley@kaufcan.com. --R. Ellen Coley