The “see-through rule,” formally known under the ITAR as the “Integration of Controlled Items,” was initially a colloquial concept that later became codified in the regulations. This concept dictates certain items that become subject to the ITAR. The rule states that if an ITAR-controlled part is incorporated into another item not described on the USML—even one intended for commercial use—the entire item effectively becomes subject to ITAR controls. For example, if a single ITAR-regulated part is incorporated into a commercial aircraft, the entire aircraft is then subject to the ITAR, regardless of its primary commercial purpose.
Why is this important?
This rule is designed to protect ITAR-controlled technology, particularly when such technology could be accessed by disassembling a finished product and falling into the wrong hands.
More specifically, this concept is crucial during the classification process. When following the order of review, understanding the see-through rule is essential for accurate classification under the ITAR, especially when compared to the EAR’s method. The EAR generally classifies items as whole without focusing on individual incorporated parts. Furthermore, this rule has significant implications when considering the reexport, retransfer, or similar activity of an ITAR-controlled item that has been integrated into a larger system.
There are some exceptions to this rule
While this rule dictates what items remain subject to the ITAR, there are some notable exceptions. For instance, within Category XV of the USML, concerning spacecraft and related articles, Note 1 to paragraph (a) clarifies that EAR spacecraft under ECCNs 9A004 and 9A515 remain subject to the EAR, despite incorporating ITAR-controlled components. Some exclusions may apply. Similarly, Category XIX, which addresses gas turbine engines and associated equipment, includes a Note to paragraph (d) stating that ITAR-controlled engines listed within this section are subject to the Department of Commerce when integrated into aircraft subject to the EAR under ECCN 9A610. In all other scenarios, these engines are controlled under the ITAR. Lastly, Category V which covers explosives, energetic materials, propellants, and related items, includes Note 3 to USML Category V stating that—except for certain specified paragraphs—items in this category fall under the Department of Commerce’s jurisdiction when embedded into EAR controlled items and classified under ECCN 1C608. More exceptions like these ones are found throughout the USML.
Conclusion
While the rule can be complex, it is a critical concept to understand as it highlights the reach of the ITAR. In today’s globalized trade environment, it’s essential to remain cautious and account for these far-reaching controls during classification and export activities.
Do you have questions about your organization’s export controls?
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Maria G. Ferree is Export Controls Associate at ECTI
