Wednesday, October 16, 2013

New ITAR Guidelines

The unofficial ITAR has been updated. The three affected parts are: Part 120, Part 123 and Part 126. Some of the changes include paragraphs that were formerly categorized as "reserved". The changes equal 20 additional pages to a 5 x 6 book publication of the ITAR. That's pretty significant. In fact Part 126.16 is such a paragraph formerly marked as "reserved" and now is filled with 5500 words of text.

Let's take a look at the exemption to the Defense Trade Cooperation Treaty between the United States and Australia. This paragraph defines transfer, export, retransfer, reexport, Australian Community, United States Community and other relevant terms. It also explains which exports qualify for licensing exemptions. Though the information addresses transfer of export controlled items between the US and Australia, this article is written to  provide a rule of thumb in handling all cases of export controlled information, articles and services.

Paragraph 126.16 also addresses the export of Defense Articles both classified and unclassified. For example, it reminds us that "U.S.-origin classified defense articles or defense services may be exported only pursuant to a written request, directive, or contract from the U.S. Department of Defense that provides for the export of the classified defense article(s) or defense service(s)."

Paragraph 126.16 j. further identifies the required markings based on the classification level of the export and refers to the National Industrial Security Program Operating Manual (NISPOM).

The lesson here is for government and contractors to properly identify defense articles and information, proprietary data, classified information, technical data, where it resides. Without proper identification and protection, an unauthorized export could occur. The unauthorized activity could be mistakenly exporting an item as exempt from licensing where a license is actually required. Another example would be providing export controlled information in a briefing when non-US persons should be excluded from that briefing and so on.

To prevent unauthorized exports, follow the simple rule of thumb. The government identifies and properly marks the information as government owned, controlled, for official use only, critical technology and etc. The contractor is bound to heed the protection requirements. This includes contract sensitive, research and development, plans, drawings and other government program items. The contractor must also identify customer furnished equipment and treat any contract related items, by products and etc. with the same level of sensitivity as identified by the government and other contractors.

The next step would be selecting countermeasures such as: marking the items, limiting access to US persons, or even enforcing need to know should be established to limit any chance of unauthorized export, "deemed" or otherwise. Confusion over whether or not something is exportable, whether or not a license is required or the items are exempt is eliminated when employees can easily identify what is export controlled.

For a printed copy of ITAR and the NISPOM, visit

 Jeffrey W. Bennett, ISP is the owner of Red Bike Publishing Red Bike Publishing . He regularly consults, presents security training, and recommends export compliance and intellectual property protection countermeasures. He is an accomplished writer of non-fiction books, novels and periodicals. Jeff is an expert in security and has written many security books including: "Insider's Guide to Security Clearances" and "DoD Security Clearances and Contracts Guidebook", "ISP Certification-The Industrial Security Professional Exam Manual", and NISPOM/FSO Training".

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