Probably more than you can prove. "ITAR-free" is not a status defined by the regulations. It is a claim your company makes about a product — usually that the product contains no content controlled under the International Traffic in Arms Regulations (ITAR), and carries no ITAR-related dependency or transfer restriction relevant to the claim. The claim is easy to write and hard to prove, and a single part can make it false.
A claim, not a status
Customers outside the United States increasingly ask for products they can re-export without US approval. "ITAR-free" has become the shorthand: in tenders, on datasheets, in contracts.
But the phrase appears nowhere in the ITAR. There is no list of ITAR-free products, no application to file, no certificate to obtain. When your company writes "ITAR-free", it is making its own statement of fact — and it carries the consequences if the statement is wrong, towards the customer and, if ITAR-controlled items are then re-exported without authorization, towards the US authorities. (What does exist is a commodity jurisdiction determination, by which DDTC can decide that a specific item is not a defense article. That is a decision about an item, not an "ITAR-free" label for a product.)
Because "ITAR-free" is undefined, its scope must be stated. In this article, a full ITAR-free claim means that the identified configuration contains no ITAR-controlled content and is not dependent on ITAR-controlled technical data, defense services or authorization terms that restrict its transfer. A narrower statement — for example, that the delivered end item is not itself a defense article — should say exactly that.
One part is enough
The EAR have a de minimis rule: where the exclusion is available, controlled US-origin content below certain thresholds does not bring a foreign-made item under the EAR (15 CFR §734.4). The ITAR have no general de minimis rule comparable to EAR §734.4. Under DDTC's long-standing position, called the "see-through rule", a defense article incorporated into a larger item does not lose its identity: unless a specific USML provision says otherwise, the ITAR "see through" the end item to the defense article inside, whatever its share of the value.
So, if your claim is that the configuration contains no ITAR-controlled content, a single ITAR-controlled defense article can make that claim false — even several levels down in a sub-assembly. That does not necessarily mean the larger foreign-made end item itself becomes a defense article; the see-through rule means the embedded defense article retains its ITAR-controlled identity.
What a full ITAR-free claim should test
Hardware is only one part of a full ITAR-free analysis. ITAR issues can arise from content incorporated into the configuration, but also from technical data, defense services and authorization terms used to design, manufacture or support it. In practice, five areas need screening:
- Hardware in the bill of materials — at any level, including parts bought through distributors or inside a supplier's sub-assembly.
- Software and firmware — in bought-in modules, FPGA configurations, libraries or code received from US partners. Operationally worth screening separately; software directly related to defense articles can itself be ITAR technical data (22 CFR §120.33(a)(4)).
- Technical data — drawings, models, specifications or test data received from the United States and used in design or production (22 CFR §120.33).
- Defense services and agreements — US assistance involving defense articles can require ITAR authorization (§120.32). Where technical data or defense services are supplied under a Technical Assistance Agreement or Manufacturing License Agreement, §124.8(a)(5) can restrict subsequent transfers of defense articles produced or manufactured from them.
- People and reuse — engineers or repositories carrying ITAR data or design content from an earlier programme into a new one.
A claim built only on the bill of materials tests the first area at best. Data, services and agreements do not automatically turn a foreign product into a defense article — but they can bring authorization requirements or transfer restrictions that a full claim must rule out.
What ITAR-free does not mean
| It does not mean… | Why |
|---|---|
| Free of US export controls | A product with no ITAR content can still be subject to the EAR — through controlled US content above the de minimis level, where that exclusion is available, or a foreign direct product rule (15 CFR §§734.3, 734.4, 734.9). |
| Free of export controls | National military and dual-use controls, EU rules and sanctions apply independently. |
| Approved by the US Government | No agency certifies the claim. Wording that suggests otherwise is a risk in itself. |
| True forever | A new supplier, part, software release or rule change can make it false overnight. |
The weak link: supplier labels
Most ITAR-free files rely on what suppliers say: "EAR99", "not ITAR", an ECCN, sometimes a CCATS number. These statements matter, but a supplier label is evidence, not conclusive proof of jurisdiction. A supplier can be wrong about its own part, and its classification does not change the part's jurisdiction.
DDTC has said so in terms: "a Department of Commerce commodity classification is not a jurisdictional determination for purposes of the AECA", and "improper classification by the manufacturer would not change the jurisdiction of the article". The EAR take the same line: a BIS classification and its CCATS number may not be cited as evidence that an item is subject to the EAR (15 CFR §748.3).
A real case: "ITAR free", in the charging letter
In 2013, DDTC charged a US manufacturer, Aeroflex, over radiation-tolerant microelectronics designed or modified for space. The company had relied mainly on Commerce classifications and treated many of them as EAR items; DDTC considered them USML Category XV defense articles, and a 2006 commodity jurisdiction ruling on space ASICs had pointed the same way.
Among the transactions described in the proposed charging letter: 50 receivers sent to France in 2008 for a satellite described as "ITAR free", and later re-exported to China. The letter proposed 158 charges over roughly a decade. The State Department announced the settlement on 9 August 2013: an $8 million civil penalty, $4 million of it suspended for remedial compliance measures.
Aeroflex had treated the relevant microelectronics as Commerce-controlled. The satellite was described as "ITAR free". Neither characterization changed the jurisdiction of the defense articles.
Ask the customer one question first
"ITAR-free" often stands in for a different need. Before you answer, ask: do you need no ITAR content, or no US re-export authorization at all for a given destination? The second is a wider question. It also requires an EAR analysis for that destination — de minimis, foreign direct product rules, end users — which an ITAR-free claim does not answer.
Three questions before any ITAR-free statement leaves the company
- Which configuration, at which date? A part number, revision and software version — not a product family.
- Has every area been screened — hardware, software, technical data, US services and agreements — not only the bill of materials?
- What rests on supplier statements alone? For high-risk lines, a supplier's "EAR99" or "not ITAR" should be checked, not copied.
If the answer to the third question is "almost everything", the claim is not ready.
Sources (checked 1 November 2026)
- US regulations — 22 CFR §§120.31, 120.32, 120.33 and 124.8(a)(5) (ITAR). ecfr.gov
- US regulations — 15 CFR §§734.3, 734.4, 734.9 and 748.3 (EAR). ecfr.gov
- US Department of State, DDTC — "Where can I find the 'see-through rule' in the ITAR and how does it work?", ITAR / USML Updates FAQ. pmddtc.state.gov
- US Department of State, DDTC — Aeroflex Incorporated: Proposed Charging Letter, 25 July 2013. pmddtc.state.gov
- US Department of State — "State Department Concludes Settlement of Export Violations by Aeroflex Incorporated", media note, 9 August 2013. state.gov
General information, not legal advice. Export controls change frequently: check the current regulations before relying on any statement.