ITAR Attorneys for Compliance, Audits & Defense

Our ITAR attorneys assist domestic and foreign companies with all International Traffic in Arms Regulations (ITAR) compliance and defense matters—including ITAR audits and investigations.

The U.S. Bureau of Industry and Security (BIS) is responsible for enforcing the Export Administration Regulations (EAR) and other export control laws and regulations governing international trade, exports, reexports, and certain transfers within the United States. It routinely conducts investigations as part of its enforcement strategy, and these investigations can expose companies and individuals to substantial penalties.

But for companies in the defense industry, facing BIS scrutiny is far from the only concern.

The federal government imposes strict controls on the export of defense-related products and technical data—with the goal of keeping sensitive defense technology and information out of the wrong hands. Many of these controls exist under the International Traffic in Arms Regulations (ITAR). 

For domestic and foreign companies engaged in international trade across U.S. borders, federal compliance—including ITAR compliance—needs to be a top priority. U.S. Customs and Border Protection (CBP) and other federal agencies strictly enforce ITAR and the nation’s import and export control laws, and importers and exporters face a host of compliance obligations – and law enforcement risks – under these sources of federal authority. To avoid substantial penalties, importers and exporters need to make ITAR compliance a top priority, and they need to engage experienced defense counsel (i.e. an experienced ITAR lawyer) at the first sign of a federal audit or investigation.

ITAR Compliance and Defense Attorneys and Former Federal Agents Handling Matters Across the U.S.

At Oberheiden, P.C., our ITAR lawyers represent U.S.-based and foreign companies in all compliance and defense-related matters. If you are unsure whether your company needs to comply with ITAR or is ITAR compliant, we can help. If your company, one of your trade partners, or a party with which you are involved through foreign investment is the subject of an ongoing federal investigation under ITAR, we can provide defense representation focused on preventing charges from being filed.

In addition to our ITAR lawyers, many of whom are former federal prosecutors, our team also includes former high-ranking agents with the Federal Bureau of Investigation (FBI) and other federal law enforcement agencies. When advising our clients regarding ITAR compliance matters, including matters involving the Office of Foreign Assets Control (OFAC) and other federal authorities, we rely on our attorneys’ and former agents’ extensive federal experience to offer deep insights, custom-tailored strategies, and practical solutions designed to avoid federal scrutiny. Given our experience and broad knowledge base, we are able to efficiently provide organizations with practical insight, custom-tailored strategies, and targeted solutions to even the most complex and high-risk ITAR-related issues.

Put our highly experienced team on your side.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

What Does ITAR Cover?

ITAR is a complex regulatory framework that applies to businesses that manufacture, sell, or export “defense articles, defense services, or related technical data.” The International Traffic in Arms Regulations implement the requirements and prohibitions of the Arms Export Control Act (AECA) in accordance with Executive Order 13637. Under the AECA, Congress “authorize[d] the President to control the export and import of defense articles and defense services.” Executive Order 13637 passes that power on to the U.S. Secretary of State.

ITAR is primarily concerned with items identified on the United States Munitions List (USML). The USML is comprehensive, and lists hundreds of items in thirteen categories:

• Firearms and related articles
• Guns and armament
• Ammunition and Ordnance
• Launch vehicles, guided missiles, ballistic missiles, rockets, torpedoes, bombs, and mines
• Explosives and energetic materials, propellants, incendiary agents, and their constituents
• Surface vessels of war and special naval equipment
• Ground vehicles
• Aircraft and related articles
• Military training equipment and training
• Personal protective equipment
• Military electronics
• Fire control, laser, imaging, and guidance equipment
• Materials and miscellaneous articles

Notably, the items covered by ITAR constantly change, making it difficult for organizations to identify and meet their compliance requirements on an ongoing basis.

Adding to the confusion, the International Traffic in Arms Regulations impose regulatory burdens not only on companies that deal in physical goods, but also on companies that handle related “technical data.” Under C.F.R. 120.10, technical data consists of information that “is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles,” and that is often disclosed or shared under technical assistance agreements (TAAs). Examples include, but are not limited to, blueprints, photographs, drawings, instructions, documentation, and plans.

ITAR requires any U.S. persons, including corporations, businesses, organizations, and groups that are incorporated in the United States under U.S. law, to obtain export licenses or other appropriate forms of authorization from the U.S. Department of State before they can export any item on the USML list to a “foreign person.” Additionally, any company that manufactures any item on the USML, regardless of any intent to export, must register with the Directorate of Defense Trade Controls.

ITAR also covers the reexport of covered items, meaning that a U.S. organization that exports an item on the USML list to a foreign person cannot turn a blind eye to what happens with the item once it leaves its hands. To maintain ITAR compliance, U.S.-based companies must obtain authorization not only for the parties to which they intend to transfer controlled items, but for third-party transferees as well.

In all, ITAR imposes incredibly complex burdens on U.S.-based businesses that deal in the items identified on the USML. At Oberheiden, P.C., our team of knowledgeable ITAR compliance attorneys works closely with our organizational clients to ensure they are aware of their compliance requirements and take all necessary steps to become ITAR compliant.

5 Critical Steps for Effectively Managing ITAR Compliance 

Step One: Comprehensively Assess the Company’s ITAR Compliance Obligations

The first step toward implementing an effective ITAR compliance program is to comprehensively assess the company’s compliance obligations. Broadly, companies that must ensure ITAR compliance include:

• Companies dealing directly in defense articles and services;
• Manufacturers producing defense articles and services (even the business does not intend to export);
• Those who connect buyers and sellers, such as brokers or agents;
• Those collaborating with non-U.S. persons and companies; and
• Those dealing with all other goods, services, technology, or information that falls outside the Export Administration Regulations (EAR) or that has a specific military application.

However, individual companies’ compliance obligations can vary widely. At Oberheiden, P.C., we work closely with our clients’ executives and key stakeholders to help them understand their companies’ specific obligations under ITAR. With this information in hand, our clients’ executives and key stakeholders can then make informed and strategic decisions about what compliance protocols and procedures are necessary. 

Step Two: Develop and Implement Custom-Tailored ITAR Compliance Protocols and Procedures 

After assessing our clients’ obligations and helping our clients’ executives and key stakeholders make informed and strategic decisions, we then shift our focus to helping our clients develop and implement all necessary protocols and procedures. Due to the significant disparities between different types of companies’ compliance obligations under ITAR, a custom-tailored approach is essential. We draft company-specific ITAR compliance documentation for all of our clients, and then we assist our clients with implementing their compliance programs on an organization-wide scale. 

Step Three: Register with the Directorate of Defense Trade Control

Companies that are subject to ITAR may also need to register with the Directorate of Defense Trade Control (DDTC). The registration requirements are outlined in C.F.R. 122, and include:

• Submitting a registration statement signed by a senior officer;
• Paying a registration fee;
• Keeping the DDTC updated regarding any criminal charges brought against the registrant, certain changes to the registrant’s corporate structure, or any other subsequent ineligibility to export defense articles; and
• Maintaining records pertaining to “the manufacture, acquisition and disposition” of defense articles, technical data, defense services, or whatever conduct resulted in the need for ITAR compliance.

Once an organization submits its registration pack, the DDTC typically issues a response within 45 days. However, because DDTC registration is an annual requirement, we generally recommend that our clients begin the re-registration process at least 60 days before the expiration of their current registration. We manage our clients’ registration filings for them, and we manage any necessary communications with the DDTC for our clients as well. 

Step Four: Identify the End Users of Covered Items

One of the most burdensome aspects of ITAR compliance is identifying and obtaining authorization not only for the party to which a company is directly providing the controlled items, but also for any third-party transferees. Particular concerns arise with potential third-party transferees are located in a prohibited country. The prohibited countries list under ITAR changes based on the political climate, but currently includes:

• Afghanistan
• Belarus
• Central African Republic
• China
• Cote d’Ivoire
• Cuba
• Cyprus
• Democratic Republic of the Congo
• Eritrea
• Fiji
• Haiti
• Iran
• Iraq
• Lebanon
• Liberia
• Libya
• Myanmar
• North Korea
• Republic of the Sudan (Northern Sudan)
• Rwanda
• Somalia
• Sri Lanka
• Syria
• Venezuela
• Vietnam
• Yemen
• Zimbabwe

However, ineligible parties may not necessarily be located within a prohibited country. As a result, it is critical that manufacturers of defense articles and exporters dealing in defense articles take a proactive approach to locating potential end-users of their products, services, technology, or information. We assist our clients with this aspect of ITAR compliance as well. 

Step Five: Monitoring and Enforcing ITAR Compliance Internally 

After taking the necessary steps to develop and implement an effective ITAR compliance program, companies must continue to monitor and enforce compliance internally on an ongoing basis. At Oberheiden P.C., we assist with this critical aspect of ITAR compliance as well—providing training programs, conducting or overseeing internal export control audits, conducting internal investigations, and assisting with enforcement and discipline when necessary. We also assist our clients with documenting these efforts so that they can demonstrate their good-faith commitment to maintaining compliance if necessary. 

The Importance of an Effective ITAR Compliance Program

Given the significant burdens ITAR compliance imposes and the high-stakes of ITAR non-compliance, an effective compliance program is essential. Under ITAR, accidental non-compliance is taken just as seriously as an intentional violation (although intentional violations can also create criminal exposure in some cases). While the DDTC acknowledges the challenges imposed by ITAR compliance, it does not recognize these challenges as an excuse for compliance failures. According to the DDTC:

“In designing import and export compliance programs, you need to understand how your business works to determine your risk areas. Possessing defense articles or technical data raises your risk of an inadvertent violation. Many companies that don’t engage in manufacturing, exporting, or brokering, still maintain compliance programs to reduce the risk of such violations.”

Taking this into account, to both facilitate compliance and ensure that companies are prepared to demonstrate their compliance efforts to the DDTC (or other federal authorities) when necessary, their ITAR compliance documentation should be:

• Clearly written,
• Easily accessible to the necessary parties,
• Custom-tailored to the specific needs of the business,
• Regularly reviewed and updated, and
• Understood and supported by the management team.

As discussed above, every organization’s ITAR compliance program will be different. However, generally, the DDTC advises that all ITAR compliance programs should cover:

• Compliance training,
• Compliance security screening,
• How the organization addresses its recordkeeping requirements,
• All internal and external monitoring efforts, and
• How the organization addresses compliance issues, should they arise.

Of course, these are very broad categories, and this only serves as a starting point for businesses that need to implement a custom-tailored ITAR compliance program. At Oberheiden, P.C., we work closely with businesses to develop comprehensive policies and procedures focused on ITAR compliance and export compliance matters that are custom-tailored to their unique needs. Our team includes former federal prosecutors and former top-ranking federal law enforcement agents who have in-depth knowledge of ITAR’s complex regulatory framework. 

Penalties for Failing to Comply with ITAR

As with many federal compliance obligations, companies that fail to meet their ITAR compliance obligations can face both civil and criminal liability. ITAR violations can result in civil fines as high as $500,000 per violation and criminal penalties including fines of up to $1 million and a maximum of 10 years imprisonment, per violation. However, if the violation involves a false statement or intentional omission of a material fact, the possible criminal penalties include a maximum of 20 years imprisonment. 

Why Choose Oberheiden, P.C. for ITAR Compliance and Defense?

Oberheiden, P.C. is a federal ITAR compliance and defense law firm that represents companies nationwide in import, export, and other federal matters. Our former federal prosecutors and agents distinguish us from other law firms, as does our extensive experience in the areas of federal compliance and defense.

Effectively managing ITAR compliance presents unique challenges; and, as a result, it requires a unique approach. At Oberheiden, P.C., we offer:

1. A Legal Team Committed to ITAR Compliance and Defense

At Oberheiden, P.C., we don’t just tout our “team” of attorneys and former federal agents. Rather, we truly take a team approach to representing our clients. Each of our attorneys lends his or her unique knowledgebase to every matter we handle, and our former agents assist with audits and investigations on an as-needed basis when our clients can benefit from their specific areas of federal expertise.

2. Comprehensive and Custom-Tailored ITAR Compliance Programs

We don’t offer our clients “off the shelf” compliance programs for a simple reason: They don’t work. In order for an ITAR compliance program to be effective, it must be custom-tailored to the company’s specific operations, trade partners, legal risks, and business needs. As your company’s ITAR compliance counsel, we will help ensure that you have the policies, procedures, and other documentation you need to stay compliant on an ongoing basis.

3. Proactive ITAR Defense Representation

As federal defense counsel for ITAR enforcement matters, we take a proactive approach to protecting our clients. During audits and investigations, we focus on achieving a favorable result for our client before federal charges get filed. In federal ITAR enforcement cases, even seemingly minor and inadvertent miscues can lead to substantial exposure. Whether your company is at risk for civil sanctions or your shareholders or executives are at risk for criminal prosecution, we can use our experience to build a targeted and strategic defense.

4. 24/7 Nationwide Availability

We offer nationwide representation for ITAR compliance and defense matters, and our attorneys and former agents are available 24/7. As our client, if you need to get in touch with us for any reason, we want you to contact us right away. If you are not a current client but you need legal representation on an emergency basis, our ITAR attorneys and former agents can get to work immediately and begin building your company’s compliance or defense strategy.

5. Federal Experience Beyond ITAR Compliance and Defense

While we offer deep insights for issues specific to ITAR compliance, this is far from all we do. Our practice encompasses numerous other areas of federal compliance and defense as well, including areas that are commonly implicated in import/export fraud investigations. For example, in criminal matters, company shareholders and executives will often face the risk of prosecution for violations of the Foreign Corrupt Practices Act, money laundering, wire fraud, conspiracy, and other federal crimes. We have a proven record of success defending clients against these kinds of allegations, and we can use this experience to your advantage.

Speak with an ITAR Compliance and Defense Attorney at Oberheiden, P.C.

If you would like to speak with an attorney on our ITAR compliance and defense team, we invite you to get in touch.  To arrange a free and confidential consultation, give us a call at 888-680-1745 or request an appointment online today.