Officer Ozzie Ossifer is patrolling in Vermont near the Canadian border when he witnesses a juvenile engage in an act of malicious criminal cow-tipping. He takes off after the delinquent who crosses the Canadian border. He follows the youth into Canada, his service revolver still firmly stored in his holster. Donuts and desk work have taken their toll on Officer Ossifer and the youth eludes him.

A bad day for the faithful law enforcement official becomes worse when he’s stopped by ICE as he attempts to cross back into the United States. He’s cuffed and taken away for having violated the Arms Export Control Act when he carried his service revolver into Canada without a license from the Directorate of Defense Trade Controls. The cow-tipper having escaped scot-free returns night after night to Vermont to terrorize the local bovine population while Officer Ossifer is on forced administrative leave.

“Nonsense,” you say. Surely the ITAR must have an exemption for this. Well, the ITAR does have an exemption for temporary exports of firearms in section 123.17, but that exemption would be of no avail to the officer in this case. Officer Ossifer made no declaration of the weapon and there was no customs inspection. Things look grim for our fictional Officer Ossifer.

However, the U.S. and Canada are working on an agreement that may protect future (and real) law enforcement officers that cross the Canadian border with their weapons. An article on the CTV website today revealed that Canada is considering a change in its Export and Import Permits Act to permit exempt imports and exports by law enforcement officers when they cross the U.S.-Canada border in the course of their official duties. Significantly this is said to be part of a reciprocal arrangement with the United States, although the United States has yet to announce that it is considering such a reciprocal arrangement.

The chief motivation appears not to be hot pursuit cases such as the one described above, but the U.S. Air Marshall program and its Canadian equivalent, the Canadian Air Carrier Protective Program. Section 123.17 of the ITAR doesn’t apply to U.S. air marshals, who instead can only export firearms without a license under section 123.18 and then only “if they are assigned abroad for extended duty.” It is, of course, safe to assume that the TSA and its air marshals have simply been ignoring the ITAR. If the CTV report is right, we can expect to see soon a revision of the ITAR to cover temporary exports of service weapons by law enforcement officers in the course of their official duties.

The Canadian Gazette notice of the proposed change in Canadian law can be found here.

Although the text of the Defense Trade Cooperation Treaty signed last week by Bush and Blair has not yet been released to the public, the Society of British Aerospace Companies has published a summary of key points of the treaty. The summary answers some of the preliminary questions that were raised by conflicting press accounts of the treaty that we previously reported here.

Of key interest are what items will be subject to the treaty. Apparently the answer to that is almost everything on the USML. According to the SABC summary:

All USML items, with a small number of exceptions for highly-sensitive technologies that will be agreed between the UK and US, will be included in the coverage of the treaty. Subject to final agreement, the exceptions are likely to relate to low-observable technology and countermeasures, “anti-tamper” technology and communication security technology.

Additionally, dual-use items on the U.S. Commerce Control List will not be subject to the treaty, whereas “dual use” items on the U.K. Strategic Export Control List would be subject to the treaty. The reason for the different treatment of U.S. and U.K. dual use items is not clear and is not explained in the summary.

The SBAC summary also provides some interesting details on the export of technical data. The treatment of technical data in the treaty will be the subject of a separate post.

Credit is due to Jim Bartlett at Northrop Grumman for finding the SBAC summary. When a text of the treaty is made available, we will post it here.

UPDATE: SBAC removed the key points summary of the treaty from its website. We have fixed the link above to point to our archive of the key points document. You can also see that document by clicking here.

Jeffrey Lewis, who works at a DC think tank and who blogs at Arms Control Wonk, took issue with our post on the Sudarshan indictment. Unfortunately, it doesn’t appear that either he or Scott Gearity, whom he quotes, bothered to read what we said very carefully:

Clif Burns at export law blog [sic] suggests one of the microprocessors—the i960—in the second half of the indictment isn’t controlled, noting that its out of production and obsolete.

I asked our old friend Scott Gearity if the i960 microprocessor was controlled. Scott pointed to “a couple red herrings in Burns’ analysis—(1) just because something is no longer being manufactured doesn’t mean its no longer … potentially subject to the ITAR (don’t export that surplus B-52 without asking State first) and (2) a term like “off-the-shelf” obfuscates the main issue, which is whether an item as been specially designed, developed, configured, adapted or modified for a military application.”

To begin with, we never said (nor would we say) that something that is no longer being manufactured isn’t subject to the ITAR. What we said was simple. The i960 processor came in a military version — the i960MX — and non-military versions that were used in telecommunications and other applications, including slot machines. The i960MX would clearly be an ITAR component, but we didn’t think the i960MX was being exported. The fact that it wasn’t being manufactured suggested that it wasn’t being exported, not that it wasn’t on the USML.

Nor does “off-the-shelf” obfuscate anything here. Apparently Lewis and Gearity think that if you test an item in normal commercial use to military specifications, it may transform that off-the-shelf item into a USML item.

I’d say its an unsettled issue as to whether general purpose microprocessors tested to a military standard are subject to the ITAR. The definition of a “defense article” is silent on items tested to military standards.

The fact that the definition of defense article is silent on this point would more likely suggest that simple testing won’t transform a normal commercial item into a defense article.

Say you make 100 chips, all of identical design, materials, etc., but when you test them only 90 meet the military QA standards (for reliability or whatnot). Are those 90 defense articles? All 100? I think you could argue that none of them are, but that’s a more aggressive approach then I would recommend to a client without first obtaining a written opinion from State.

I don’t think the argument that none of them are defense articles is aggressive. Let’s do something that neither Gearity nor Lewis may have done. Let’s actually take a look at the relevant provision of the ITAR: subsection (c) of Category XI – Military Electronics. Subsection (c) states that the following items are included on the USML:

Components, parts, accessories, attachments and associated equipment specifically designed or modified for use with the equipment in paragraphs (a) and (b) of this category, except for such items as are in normal commercial use.

Simply put, testing a microprocessor isn’t designing it or modifying it for a military use. The item is the same thing both before and after the testing, and it either was or wasn’t designed or modified for military use. Furthermore, the explicit exception here of “such items as are in normal commercial use” underlines my point that an off-the-shelf item doesn’t become ITAR-controlled just because it’s been tested to see if it also meets some particular military specification.

Even if testing a normal commercial item won’t turn the item into an ITAR-controlled item, it may well pose another problem under the ITAR. Testing that component to a specification provided by a foreign military is almost certainly a defense service under ITAR § 120.9 if the item is to be integrated into a defense article, as was the case here. Accordingly, such testing would require DDTC authorization. That, however, wasn’t charged in the indictment.