Challenging Export Enforcement Actions: Policies of Denial under the International Traffic in Arms Regulations

摘要

Companies rarely challenge US Government civil enforcement actions. The export reform effort, however, now places a more costly price on violations of the export laws, in particular the International Traffic in Arms Regulations. Based on the reform effort's goal of transferring less significant military items from State to Commerce, what remains on the US Munitions List and under the International Traffic in Arms Regulations ("ITAR") will now reflect what the US Government considers to be the "crown jewels." As such, civil enforcement actions may now result in more serious and more frequent enforcement. It is important to understand the full scope of the Department of State's authorities in the enforcement arena to prepare for more enhanced Government interest. The Department's discretionary authority is used to institute undefined "policies of denial" that effectively suspend a party's export privileges and result in a form of "deharment" from obtaining export licenses under the ITAR. This article discusses the Department's view of its underlying authorization for such actions and legal support which can be used to challenge these policies when issued.