You want to bring your night vision through the border, but you are afraid if it is legal. You have probably heard about ITAR, but you do not know if this applies to you either.
ITAR (International Traffic in Arms Regulations) and the EAR (Export Administration Regulations) are laws and regulations exist to monitor and control exports from the United States, run by different departments of the US Government. Both of them are designed to help ensure that defense related technology does not get into the wrong hands. An export license is a general term for both ITAR and EAR controlled items in which the US Government has granted permission to transport or sell potentially dangerous items to foreign countries or parties.
This means that if you export devices from other countries than the United States, ITAR probably does not apply to you, but be aware that the US has interpreted export controls in a different way to other countries and to be captured by the regulations, an item could have originated in the US or even another country where a manufacturer outside the US has made something with US information or incorporated US components; or a company could just be US-controlled. All can fall under US export controls and in addition, the US not only controls exports when an item leaves the US, but also when that item is re-exported and re-transferred.
For example a US ITAR item in the UK can not be sold or even moved without US permission, even to another UK company. The US also has control, under ITAR, regarding nationality, so that if someone working on ITAR-restricted items changes citizenship from one country to another that is viewed as an export.
By purchasing any night vision or thermal imaging device from an American company, or such device manufactured in the US, you may be unwittingly under ITAR control, even if the seller claims that the sale was legal.
ITAR Title 22,Chapter 1, Subchapter Part 120 - Purpose and Definition and ITAR Title 22,Chapter 1, Subchapter Part 121 - The United States Munitions List
The following text was taken from Parts 120 and 121 of ITAR Title 22 and may be considered cliff notes for those using image intensified night vision systems. Since a definition of what night vision is regulated by the U.S. Department of State determines whether the subsections of Part 120 are applicable, the order is a bit reversed, Part 121 then Part 120.
ITAR Title 22, Chapter 1, Part 121 - The United States Munitions List
§ 121.1 -- General. The United States munitions list.
a)The following articles, services and related technical data are designated as defense articles and defense services pursuant to sections 38 and 47(7) of the Arms Export Control Act (22 U.S.C. 2778 and 2794(7)). Changes in designations will be published in the Federal Register. Information and clarifications on whether specific items are defense articles and services under this subchapter may appear periodically in the Defense Trade News published by the Center for Defense Trade.
b) Significant military equipment: An asterisk precedes certain defense articles in the following list. The asterisk means that the article is deemed to be "significant military equipment" to the extent specified in § 120.19. The asterisk is placed as a convenience to help identify such articles.
c) Certain items in the following list are placed in brackets. The brackets mean that the item is (c.1) scheduled to be moved to the licensing jurisdiction of the Department of Commerce upon establishment of a foreign policy control or (c.2) in the case of spacecraft and related equipment, the item is under review by an interagency space technical working group. The interagency review will result in a recommendation as to whether an item should be moved to the jurisdiction of the Department of Commerce or to USML category XV which was established for this purpose.
Category XII-Fire Control, Range Finder, Optical and Guidance and Control Equipment
a) Fire control systems; gun and missile tracking and guidance systems; gun range, position, height finders, spotting instruments and laying equipment; aiming devices (electronic, optic, and acoustic); bomb sights, bombing computers, military television sighting and viewing units, and periscopes for the articles of this section.
b) Lasers specifically designed, modified or configured for military application including those used in military communication devices, target designators and range finders, target detection systems, and directed energy weapons.
c) Infrared focal plane array detectors specifically designed, modified, or configured for military use; image intensification and other night sighting equipment or systems specifically designed, modified or configured for military use; second generation and above military image intensification tubes (defined below) specifically designed, developed, modified, or configured for military use, and infrared, visible and ultraviolet de- vices specifically designed, developed, modified, or configured for military application. Military second and third generation image intensification tubes and military infrared focal plane arrays identified in this subparagraph are licensed by the Department of Commerce (ECCN 6A002A and 6A003A)) when part of a commercial system (i.e., those systems originally designed for commercial use). This does not include any military system comprised of non-military specification components. Replacement tubes or focal plane arrays identified in this paragraph being exported for commercial systems are subject to the controls of the ITAR.
NOTE: Special definition. For purposes of this subparagraph, second and third generation image intensification tubes are defined as having: A peak response within the 0.4 to 1.05 micron wavelength range and incorporating a microchannel plate for electron image amplification having a hole pitch (center-to- center spacing) of less than 25 microns and having either:
a) An S–20, S–25 or multialkali photocathode;
b) A GaAs, GaInAs, or other compound semiconductor photocathode.
d) Inertial platforms and sensors for weapons or weapon systems; guidance, control and stabilization systems except for those systems covered in Category VIII; astro-compasses and star trackers and military accelerometers and gyros. For aircraft inertial reference systems and related components refer to Category VIII.
e) Components, parts, accessories, attachments and associated equipment specifically designed or modified for the articles in para- graphs (a) through (d) of this category, except for such items as are in normal commercial use.
f) Technical data (as defined in §120.10) and defense services (as defined in §120.9) directly related to the defense articles enumerated in paragraphs (a) through (e) of this category. (See §125.4 for exemptions.) Technical data directly related to manufacture and production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
ITAR Title 22, Chapter 1, Part 120 - Purpose and Definitions
§ 120.6 Defense article.
Defense article means any item or technical data designated in § 121.1 of this subchapter. The policy described in § 120.3 is applicable to designations of additional items. This term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in § 121.1 of this subchapter. It does not include basic marketing information on function or purpose or general system descriptions.
§ 120.7 Significant military equipment.
a) Significant military equipment means articles for which special export controls are warranted because of their capacity for substantial military utility or capability.
b) Significant military equipment includes:
b.1) Items in § 121.1 of this subchapter which are preceded by an asterisk;
b.2) All classified articles enumerated in § 121.1 of this subchapter.
§ 120.8 Major defense equipment.
Pursuant to section 47(6) of the Arms Export Control Act (22 U.S.C. 2794(6) note), major defense equipment means any item of significant military equipment (as defined in §120.7) on the U.S. Munitions List having a nonrecurring research and development cost of more than $50,000,000 or a total production cost of more than $200,000,000.
§ 120.9 Defense service.
a) Defense service means:
a.1) The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles;
a.2) The furnishing to foreign persons of any technical data controlled under this subchapter (see §120.10), whether in the United States or abroad;
a.3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or in- formation publications and media of all kinds, training aid, orientation, training exercise, and military advice. (See also § 124.1.)
§ 120.10 Technical data.
a.1) Technical data means, for purposes of this subchapter:(1) Information, other than software as defined in §120.10(a.4), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.
a.2) Classified information relating to defense articles and defense services;
a.3) Information covered by an invention secrecy order;
a.4) Software as defined in §121.8(f) of this subchapter directly related to defense articles;
a.5) This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in §120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
§ 120.13 United States.
United States, when used in the geographical sense, includes the several states, the Commonwealth of Puerto Rico, the insular possessions of the United States, the District of Columbia, the Commonwealth of the Northern Mariana Islands, any territory or possession of the United States, and any territory or possession over which the United States exercises any powers of administration, legislation, and jurisdiction.
§ 120.14 Person.
Person means a natural person as well as a corporation, business association, partnership, society, trust, or any other entity, organization or group, including governmental entities. If a provision in this subchapter does not refer exclusively to a foreign person ( § 120.16) or U.S. person ( § 120.15 ), then it refers to both.
§ 120.15 U.S. person.
U.S. person means a person (as defined in § 120.14 of this part) who is a lawful permanent resident as defined by 8 U.S.C. 1101(a.20) or who is a protected individual as defined by 8 U.S.C. 1324b(a.3). It also means any corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States. It also includes any governmental (federal, state or local) entity. It does not include any foreign person as defined in § 120.16 of this part.
§ 120.16 Foreign person.
Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a.20) or who is not a protected individual as defined by 8 U.S.C. 1324b(a.3). It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g., diplomatic missions).
§ 120.17 Export.
a) Export means: Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.
ITAR Title 22, Chapter 1, Part 127 - Violations and Penalties
§ 127.1 Violations.
a) It is unlawful:
a.1) To export or attempt to export from the United States, or to reexport or retransfer or attempt to reexport or retransfer from one foreign destination to another foreign destination by a U.S. person of any defense article or technical data or by anyone of any U.S. origin defense article or technical data or to furnish any defense service for which a license or written approval is required by this subchapter without first obtaining the required license or written approval from the Directorate of Defense Trade Controls;
a.2) To import or attempt to import any defense article whenever a license is required by this subchapter without first obtaining the required license or written approval from the Directorate of Defense Trade Controls;
a.3) To conspire to export, import, reexport or cause to be exported, imported or reexported, any defense article or to furnish any defense service for which a license or written approval is required by this subchapter without first obtaining the required license or written approval from the Directorate of Defense Trade Controls;
a.4) To violate any of the terms or conditions of licenses or approvals granted pursuant to this subchapter.
a.5) To engage in the United States in the business of either manufacturing or exporting defense article or furnishing defense services without complying with the registration requirements. 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;
a.6) To engage in the business of brokering activities for which registration, a license or written approval is required by this subchapter without first registering or obtaining the required license or written approval from the Directorate of Defense Trade Controls. For the purposes of this subchapter, engaging in the business of brokering activities requires only one occasion of engaging in an activity as reflected in § 129.2(b).
b) Any person who is granted a license or other approval under this subchapter is responsible for the acts of employees, agents, and all authorized persons to whom possession of the licensed defense article or technical data has been entrusted regarding the operation, use, possession, transportation, and handling of such defense article or technical data abroad. All persons abroad subject to U.S. jurisdiction who obtain temporary custody of a defense article exported from the United States or produced under an agreement described in part 124 of this subchapter, and irrespective of the number of intermediate transfers, are bound by the regulations of this subchapter in the same manner and to the same extent as the original owner or transferer.
c) A person with knowledge that another person is then ineligible pursuant to § 120.1(c) or § 126.7 of this subchapter or subject to an order of debarment or interim suspension, may not, directly or indirectly, in any manner or capacity, without prior disclosure of the facts to, and written authorization from, the Directorate of Defense Trade Controls:
c.1) Apply for, obtain, or use any export control document as defined in § 127.2(b) for such debarred, suspended, or ineligible person;
c.2) Order, buy, receive, use, sell, deliver, store, dispose of, forward, transport, finance, or otherwise service or participate in any transaction which may involve any defense article or the furnishing of any defense service for which a license or approval is required by this subchapter for export, where such debarred, suspended, or ineligible person may obtain any benefit therefrom or have any direct or indirect interest therein.
d) No person may knowingly or willfully cause, or aid, abet, counsel, demand, induce, procure or permit the commission of any act prohibited by, or the omission of any act prohibited by, or the omission of any act required by 22 U.S.C. 2778, 22 U.S.C. 2779, or any regulation, license, approval, or order issued there under.
Source of information: U.S. Department of State – Directorate of Defense Trade Controls.