People looking for an up-to-date version of the International Traffic in Arms Regulations (“ITAR”) on the web might be tempted to rely on the “Consolidated ITAR” on the website of the Directorate of Defense Trade Controls (“DDTC”), the agency that promulgates those regulations. The preface to the “Consolidated ITAR” says that it “integrates the text of the annual April 1 publication in the CFR with subsequent amendments made via Federal Register notices.” Unfortunately, that is simply not the case. The “Consolidated ITAR” does not incorporate the text of the last three amendments.

Those amendments are:

• The amendment of May 16, 2011, effective August 15, 2011, which created an exemption for certain transfers by foreign end users to their employees who were dual nationals or third country nationals of countries other than the country in which the end user is located;
• The amendment of May 24, 2011, effective on the same date, which broadened the arms embargo against Libya by eliminating the case-by-case consideration for licenses for certain non-lethal defense items and services destined for Libya; and
• The amendment of August 8, 2011, effective on the same date, which made a number of revisions to section 126 to update country policies regarding Afghanistan, Côte d’Ivoire, Cyprus, the Democratic Republic of the Congo, Eritrea, Fiji, Iraq, Lebanon, Liberia, North Korea, Sierra Leone, Somalia, Sri Lanka, Yemen, and Zimbabwe, and to correct various technical errors.

Given that DDTC insists that exporters be familiar with and comply with the ITAR, it should either update the “Consolidated ITAR” or remove it from the web site.

Alternatively, I suppose DDTC could file a voluntary disclosure with exporters that it failed to update a version of the rules which it represented to be complete and up-to-date. I’m sure that exporters would be happy to provide the agency with a no action letter, conditioned, of course, on DDTC adopting and providing to exporters a compliance program which would guarantee that these regulations be kept up to date.

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