U.S. Export Controls & ITAR Compliance in Translation
The U.S. Government uses export controls as a way to limit and track military hardware and technology as it leaves the United States. Some of the reasons the U.S. Government maintains control over military hardware and technology are:
- To inhibit proliferation, or widespread use, of weapons of mass destruction.
- To protect human rights.
- To ensure national security of the United States and its allies.
River Linguistics strictly adheres to all applicable U.S. Export Control laws and regulations governing the transfer, export, or re-export of technical data that is categorized on either:
- the United States Munitions List (USML) and, as such, subject to the International Traffic in Arms Regulations (ITAR, 22 CFR 120-130); or
- the Commerce Control List and, as such, subject to the Export Administration Regulations (EAR, 15 CFR 730-774).
River Linguistics guarantees that throughout the entire translation process, technical data controlled by the ITAR or the EAR will not be released to foreign individuals, employees, companies or other entities, whether within or outside the U.S.
River Linguistics ensures compliance with all applicable U.S. Export Control laws and regulations by:
- Carefully vetting, verifying and onboarding US-based US Person linguists into our secure Vendor platform
- Controlling every touch point of the translation process
- Adhering to a rigorous Corporate Compliance Management Program
- Adhering to a strict Technology Control Plan
Penalties for Non-Compliance
Penalties are the major enforcement tool for export law. Penalties for violating any portion of the regulations governing controlled exports include:
- Personal and corporate fines – up to $1,000,000.00 per violation (one mistake can comprise several violations).
- Prosecution – up to ten years imprisonment per violation (one mistake can comprise several violations).
- Loss of export privilege. (Debarment).
Please note that most violations of export regulations involve unauthorized release of Technical Data (either classified or unclassified) to foreign persons in the United States or abroad.
The terms used to describe exports, export regulations, export law, etc. are complicated and can be difficult to understand. The following definitions provide an outline of some of the more common terms:
|AECA||Arms Export Control Act|
|Commodity Jurisdiction||The State Department, Office of Defense Trade Controls (ODTC), will provide, upon written request, a determination whether an article or service is covered by the United States Munitions List. It may also be used for consideration of a re-designation of an article or service currently covered by the United States Munitions List (USML). Requests shall identify the article or service, and include a history of the product’s design, development and use.|
|Defense Article||Includes any weapons, weapons system, munitions, aircraft, vessel, boat or other implement of war; any property, installation, commodity, material, equipment, supply or goods used for the purposes of furnishing military assistance or making military sales; any machinery, facility, tool, material, supply or other item necessary for the manufacture, production, processing, repair, servicing, storage, construction, transportation, operation or use of any other defense article or any component or part of any articles listed above, but shall not include merchant vessels, major combatant vessels or as defined by the Atomic Energy Act of 1954, source material, byproduct material, special nuclear material, production facilities, utilization facilities, or atomic weapons or articles involving restricted data.|
|Defense Service||Includes any service, test, inspection, repair, training, publication or technical or other assistance or defense information used for the purpose of furnishing military assistance or FMS but does not include military education and training activities.
|Exemption||Relief from the securing of an export license or other written approval from the Office of Defense Trade Controls to export defense articles or defense services.
|Export||The transfer of Technical Data can take place through a variety of media including telephone or direct conversations, fax or telex transmissions, computer links via direct connection or modem, and the like. These all represent “exports” and must be covered by an appropriate export license or exemption.|
|Department of Commerce||The term “export” means (for purposes of the Export Administration Regulations):
(a) An actual shipment, transfer, or transmission of goods or technology out of the United States;
(b) A transfer of goods or technology in the United States to an embassy or affiliate of a controlled country, or
(c) A transfer to any person of goods or technology either within the United States or outside of the United States with the knowledge or intent that the goods or technology will be shipped, transferred, or transmitted to an unauthorized recipient.
|Department of State||Export means, for purposes of the ITAR:
(a) Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes Technical Data; or
(b) Transferring registration, control, or ownership to a foreign person of any aircraft, vessel, or satellite covered by the U.S. Munitions List, whether in the U.S. or abroad; or
(c) Disclosing (including oral or visual disclosure) or transferring in the United States any defense article to an embassy, any agency or subdivision of a foreign government (e.g., diplomatic missions); or
(d) Disclosing (including oral or visual disclosure) or transferring Technical Data to a foreign person, whether in the U.S. or abroad; or
(e) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad.
(f) A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export for purposes of this subchapter. However, for certain limited purposes, the controls of this subchapter may apply to any sale, transfer or proposal to sell or transfer defense articles or defense services.
|U.S. Customs||An export is considered to have been “attempted” when the merchandise is placed in the “export stream” (e.g., has been delivered to the carrier at a port of export in a manner indicating “intent to export” or has been delivered to a freight forwarder with instructions to transport it to the international carrier, etc.). At that point, the goods are subject to detention or seizure if export documentation is not in order.
|ITAR||International Traffic in Arms Regulations
|License||License refers to a document bearing the word “license”, issued by the Director Office of Defense Trade Controls, or his authorized designee, permits the export or temporary import of a specific defense article or defense service controlled by the ITAR. This definition generally applies also to export licenses issued by the Department of Commerce, Bureau of Export Administration.|
|Manufacturing License Agreement (MLA)||An agreement (e.g., contract) whereby a U.S. person grants a foreign person an authorization to manufacture defense articles, abroad and which involves or contemplates (a) the export of Technical Data or defense articles or the performance of a defense service, or (b) the use by the foreign person of Technical Data or defense articles previously exported by the U.S. person.|
|Basic Marketing Information||Information that relates to the general function, purpose, or generic system descriptions of defense articles as well as information generally available in the public domain.|
|Person||Department of the Treasury - Any individual, corporation, company, association, firm, partnership, society, or joint stock company.
Department of Commerce - A corporation, partnership, limited partnership, association, company, trust, or any other kind of organization, situated, residing, or doing business in the U.S. or any foreign country, including any government or agency thereof, as well as a citizen or national of the U.S. or any foreign country.
Department of State - Person means a natural person as well as a corporation, business association, partnership, society, trust, or any other entity, organization or group, including governmental entities. If a provision of this does not refer exclusively to a foreign person or U.S. person then it refers to both.
|Re-export or Retransfer||The term ‘re-export’ in the Export Administration Regulations (EAR), or in any license, order, or export control document issued there under, includes re-export, transshipment, or diversion of commodities or Technical Data from one foreign destination to another.
The written approval of the Department of State must be obtained before reselling, diverting, transferring, transshipping, or disposing of a defense article in any country other than the country of ultimate destination as stated on the export license, or on the shipper’s export declaration in cases where an exemption is claimed under the ITAR.
|Technical Assistance Agreement (TAA)||An agreement (e.g., contract) for the performance of defense services or the disclosure of Technical Data, as opposed to an agreement granting a right or license to manufacture defense articles.|
|Technical Data||Department of Commerce - Technical data means information of any kind that can be used, or adapted for use, in the design, production, manufacture, utilization, or reconstruction of articles or materials. The data may take a tangible form, such as a model, prototype, (models and prototypes are controlled both as Technical Data and as commodities), blueprint, or an operating manual (the tangible form may be stored on recording media); or they may take an intangible form such as technical service. All software is considered Technical Data.
Department of Defense - Classified or unclassified information of any kind that can be used, or adapted for use, in the design, production, manufacture, repair, overhaul, processing, engineering, development, operation, maintenance, or reconstruction of goods or munitions; or any technology that advances the state of the art or establishes a new art in an area of significant military applicability in the United States. The data may be tangible, such as a model, prototype, blueprint, or an operating manual, or may be intangible, such as a technical service or oral or visual interactions.
Department of State - Technical data means, for purposes of the ITAR:
Ordinarily, under the ITAR, unclassified information that provides only a description of the defense article and its general characteristics and expected performance does not constitute Technical Data. Further, information which does not exceed that normally included in sales brochures or marketing data sheets or similar products, readily available to the public (including competitors) at trade shows or other public events, normally does not constitute Technical Data within the spirit and intent of the ITAR.
The Office of Defense Trade Controls has stated in public forum that a reasonable ‘rule-of thumb’ which companies may use in helping evaluate’ whether or not information is Technical Data, for licensing purposes, is whether or not the company would readily provide the information to a competitor.
|Temporary Import||Temporary import means bringing into the United States from a foreign country any defense article that is to be returned to the country from which it was shipped or taken, or any defense article that is in transit to another foreign destination. Temporary import includes withdrawal of a defense article from a customs bonded warehouse or foreign trade zone for the purpose of returning it to the country of origin or country from which it was shipped or for shipment to another foreign destination.
Imports of defense articles into the United States are normally regulated by the Department of Treasury. However, the Department of State also regulates imports of defense articles if the article is being returned to the United States under the authority of a temporary export license (DSP- 73) or if the article is brought in as an in transit shipment or temporary import.
|United States Munitions List (USML)||Those articles, services and related Technical Data designated as defense articles and defense services pursuant to sections 38 and 47(7) of the Arms Export Control Act (22 U.S.C. 2778 and 2794(7)). Such designations are made by the Department of State with the concurrence of the Department of Defense (lTAR, 121.1 and 120.2).|