What counts as an export violation

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1. The list of unlawful acts

Part 127 of the International Traffic in Arms Regulations sets out what is unlawful and who enforces it. The core prohibitions apply to anything done without the required license or written approval from the Directorate of Defense Trade Controls (22 CFR 127.1(a)). It is unlawful to export or attempt to export a defense article or technical data, or to furnish or attempt to furnish a defense service, where a license or approval is required. The same applies to reexports and retransfers from one foreign end-user, end-use or destination to another, including items first exported under an exemption.

Three further acts are listed. It is unlawful to import or attempt to import a defense article where a license is required, and to conspire to export, import, reexport, retransfer or furnish without one. Possessing or attempting to possess a defense article with intent to export or transfer it in violation of the Act is also unlawful (22 CFR 127.1(a)). Attempts and conspiracies count, not only completed shipments.

2. Breaking the terms is a violation too

A license is not a safe harbor if its conditions are ignored. It is unlawful to violate any term or condition of a license or approval, any exemption, or any rule in the regulations (22 CFR 127.1(b)(1)). Provisos attached to an approval are therefore as binding as the approval itself.

Registration failures are violations in their own right. Brokering without the required registration and approval is unlawful, and one occasion is enough (22 CFR 127.1(b)(2)). So is engaging in the United States in manufacturing or exporting defense articles, or furnishing defense services, without registering. "For the purposes of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service" (22 CFR 127.1(b)(3)).

3. Responsibility follows the article abroad

A license holder answers for the people it trusts with the goods. Any person granted a license or approval, or acting under an exemption, "is responsible for the acts of employees, agents, brokers, and all authorized persons to whom possession of the defense article, which includes technical data, has been entrusted" (22 CFR 127.1(c)). That responsibility covers the operation, use, possession, transportation and handling of the article abroad.

The obligations also travel with the article. Anyone abroad who is subject to United States jurisdiction and obtains custody of an exported defense article, or one produced under an approved agreement, is bound by the regulations. The obligation is the same as the original owner’s, however many transfers have taken place (22 CFR 127.1(c)).

4. Dealing with ineligible persons

A separate rule reaches people who deal with ineligible parties. An ineligible person, or anyone who knows another person is ineligible, may not act for or benefit that person without first disclosing the facts to the Directorate and obtaining written authorization (22 CFR 127.1(d)).

The list of forbidden dealings is long. It covers applying for, obtaining or using any export control document for the ineligible person. It also covers ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting or financing in any transaction where the ineligible person may benefit or hold an interest (22 CFR 127.1(d)(2)). Carriers and warehouses are named in terms.

Helping a violation is itself prohibited. No person may knowingly or willfully attempt, solicit, cause, aid, abet, counsel, demand, induce, procure or permit an act the Act or the regulations prohibit, or the omission of an act they require (22 CFR 127.1(e)).

5. False statements on export documents

Paperwork carries its own offense. "It is unlawful to use or attempt to use any export or temporary import control document containing a false statement or misrepresenting or omitting a material fact" for the purpose of moving or obtaining defense articles, data or services (22 CFR 127.2(a)). Such a statement is treated as made in a matter within federal jurisdiction for the purposes of the federal false statements statute and the Act.

The term control document is wide (22 CFR 127.2(b)). It includes license applications and supporting documents, the Electronic Export Information filing, invoices, declarations of destination, delivery verifications and registration applications. It also covers purchase orders, import certificates, bills of lading, air waybills and nontransfer and use certificates. Any other document used to control a defense article, service or brokering activity is included, as is any other shipping document with export information.

6. Who enforces, and with what powers

Immigration and Customs Enforcement and Customs and Border Protection officers may take appropriate action to ensure the regulations are observed, including inspecting the loading or unloading of any vessel, vehicle or aircraft. "This applies whether the export is authorized by license or by written approval issued under this subchapter or by exemption" (22 CFR 127.4(a)). They may investigate, detain or seize any export or attempted export contrary to the regulations (22 CFR 127.4(b)).

Officers can ask for more than the license. On presentation of a license, approval or claimed exemption, a customs officer may require other documents relating to the final export, such as the invoice, order, packing list, shipping documents, correspondence and instructions (22 CFR 127.4(c)). For classified exports, the Defense Security Service may act to ensure compliance with the industrial security manual and may require production of relevant documents (22 CFR 127.5).

7. Seizure and forfeiture

An attempt to export defense articles in violation of the regulations is an offense punishable under section 401 of title 22 (22 CFR 127.6(a)). Where it is known, or there is probable cause to believe, that an article is being or has been exported unlawfully, the article is subject to seizure, forfeiture and disposition. So is any vessel, vehicle or aircraft involved in the attempt. The same applies to an attempt to breach the conditions of a temporary export or temporary import license (22 CFR 127.6(b)).

For carriers, that last point is the sharpest. The conveyance, not only the cargo, is exposed. The penalties that follow a violation are covered in penalties, debarment and the presumption of denial.

Key terms

Export control document	Any document used to control a defense article or service, from license applications to air waybills.
Ineligible person	A person barred under the regulations, whom others may not serve without prior disclosure and authorization.
One occasion rule	The rule that a single act of manufacturing, exporting or brokering is enough to require registration.
Forfeiture	Loss of an unlawfully exported article, and any conveyance involved, under section 401 of title 22.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Carriers and warehouses are named in the rules on ineligible parties, and a vessel or aircraft can be seized with its cargo. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.