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Compliance (ITAR & EAR), Government Procurement, Immigration
and Foreign National Employment law for Industry and Academia.

 

FEEs (Frequently Expressed Excuses)

But my company doesn't have any DoD contracts, so my company doesn't need to become familiar with the ITAR.

To some degree it is an unfortunate misnomer that the regulations are called International Traffic in Arms Regulations "ITAR," and the governing list of products and defense services is called the U.S. munitions list "USML."

 

The ITAR is not the exclusive province of DoD contractors. It applies to anyone with goods or services listed on the U.S. munitions list. That means if your company is developing its export control program, it would be patently irresponsible to ignore the ITAR just because your company does not have any contracts with the DoD.

 

But my company doesn't have any classified contracts, so we are not subject to the ITAR.

This is precisely the point at which the ITAR is triggered. The jurisdiction of the ITAR is unclassified technical data and/or hardware and services included on the U.S. munitions list.

 

But my company's technology is old; this isn't high tech, so we are not subject to the ITAR.

The age of the technology is irrelevant. For example, ANVIS technology has been around a long time and is primarily controlled under the ITAR. If you think your goods and/or services don't belong on the U.S. munitions list, there are means by which a commodity jurisdiction can be requested. Until then, if the goods or services are included on the USML, you are obligated to adhere to the export control laws. If you are uncertain, it is even more important to seek a commodity jurisdiction from the Directorate of Defense Trade Control.

 

But my company already has an SSA, so we are automatically covered.

The Special Security Agreement with the Defense Security Service, "DSS," and the ITAR are not mutually exclusive. The purpose of the SSA is to negate Foreign Ownership Control and Influence, "FOCI," that may be over a U.S. company by virtue of its having foreign shareholders or other non-U.S. ties. The SSA is used in situations where the company with FOCI issues has been sponsored for a facility security clearance to perform secured contracts. The SSA permits representation of the foreign (non-U.S.) shareholder on the Board of Directors where other FOCI mitigation vehicles do not. Having an SSA in place does not exempt a company from properly adhering to export control laws for products, services and/or know-how included on the USML. In most cases, the resultant hardware and the bulk of the technical data and services of secured contracts are unclassified and controlled under the ITAR in addition to requirements of the NISP (National Industrial Security Program).

 

But my company doesn't do any exporting so we don't have to worry about the ITAR.

 

But HR and Recruiting selected the person for the job and didn't say anything to Programs about their status so they must have been exempt from the ITAR.

HR isn't always privy to the specific programs that operation's plans to assign to employees. It is lawful to question a person's immigration status for purposes of determining ITAR compliance. Have you checked in with the Human Resources Department to find out if they understand the ITAR? HR and Recruiting is often the best defense against ITAR violations but all too often they are the first breach, because export managers don't communicate with HR on a regular and systematic basis. It doesn't require a great deal of time or effort, it just requires cooperation.

 

But my company only imports this product from our customer to make a modification to it and then we re-ship.

In this scenario the company is at minimum subject to export control laws under ITAR for temporary imports.

 

But my company only imports component parts which we integrate into a larger system that the prime contractor may or may not eventually export.

Permanent imports are under the jurisdiction of the Bureau of Alcohol Tobacco and Firearms. For certain items of hardware import licenses are required. Additionally a clear understanding of the jurisdiction of the component part will be required by your prime or the OEM.

 

But my company's product was developed for strictly commercial purposes and uses. It just so happens the current contract is for the military.

A predominantly commercial use does not necessarily exempt the product, know-how and technical data from export control under ITAR. Changes to the product could put that version/part number under the ITAR. Even if the product is not controlled under the ITAR there is a possibility it is controlled under BIS (Bureau of Industry and Security) EAR (Export Administration Regulations).

 

But all this information is in the public domain and not subject to the ITAR.

You can't put something in the public domain by offering it to Jane's or Popular Mechanics, and it's not public domain if the information, data, or know-how became known through an unauthorized release. It's not in the public domain if you are using the information, technical data and/or know-how for a purpose controlled by the ITAR. Patents are public domain, books with ISBN numbers are public domain, other types of information or modifications may not be. It's up to the individual company and its personnel to know its products and make a well reasoned decision.

 

But my company is working with a University, so any ITAR or export compliance issues are negated by the research exemption to the ITAR.

The research exemption to the ITAR for Universities has never been as broad as industry and academia have interrupted it to be and the exemption if further curtailed by the very nature of the university/industry partnership in research projects. Many of these research scenarios do require ITAR licensing and have export restrictions. Compliance is not difficult. Serious issues arise when the requirement is ignored in favor of assuming the activity must be exempt because a University is involved.

 


 

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