25 June 1998

Date: Thu, 25 Jun 1998 15:52:49 -0400 (EDT)
From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
To: Undisclosed recipients: ;
Subject: A plausible argument why the ITAR are not valid.

I have just read an amazing article which argues rather persuasively that
the ITAR are invalid because they fail to conform with the Paperwork
Reduction Act.  The article is Jon W. van Horne, A Potential Out for
Weapons Dealers, Legal Times June 22, 1998 pages s32 and s33.
(Incidentally, van Horne is a "shareholder" in the D.C. office of the
Greenberg Traurig law firm). 

Van Horne states that the OMB control numbers for the ITAR, required by
the PRA, lapsed at various dates in 1996 and have not been renewed.

I've contacted the author and hope to have an online copy available soon. 
I'll put a link from my web page if/when I get one. 

Meanwhile here are a few highlights.  Under the PRA a claim is always
timely at any point in a lawsuit, and can be brought by either side.  And,
PRA sec. 3512 says, "Not withstanding any other provision of law, no
person shall be subject to any penalty for failing to comply with a
collection of information" subject to PRA. 

Furthermore, "The protection provided by this section may be raised in the
form of a complete defense, bar, or otherwise at any time during the
agency administrative process or judicial action applicable thereto." 

Emergency PRA compliance is possible, but--it cannot be done
retroactively.  To date the agencies have shown no interest in expediting
their applications for the control numbers required for compliance.

I'd **consult a lawyer** before doing anything, if only because van Horne
also outlines a legal theory the government could use to justify the
validity of the ITAR.  I think, however, that to the extent that the ITAR
now rely on executive orders rather than a statute, an awfully good
argument might be made that the defense proposed by van Horne is not
currently applicable. 

Were it not legal advice, one would be tempted to say, "Gentelpersons,
start your exports."  

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Professor of Law           | 
U. Miami School of Law     | froomkin@law.tm          http://www.law.tm 
P.O. Box 248087            |   
Coral Gables, FL 33124 USA | Record heat.  Usual humidity.