Some Nuts and Bolts of New ITAR Agreements Requirements

Dec 19, 2007 | Australia, DDTC, Defense Trade Controls, Dual/3rd Party Nationals, EU, Federal Register, Information Technology, ITAR, MLA, NATO, TAA, USA Regulations

2007/12/19

By: Danielle McClellan

On December 19, 2007, an amendment to the ITAR was published that revised the licensing procedures with regards to third party/dual nationals for technical assistance and manufacturing license agreements. It is no longer required that additional approval for a release of technical data, defense services, and access to defense articles for third part/dual national employees from NATO, EU, Australia, New Zealand, Japan, and Switzerland.

When determining nationality, the Department of Defense Trade Controls will consider an individuals country of origin or birth in addition to citizenship. The individuals must be physically located within one of the countries to receive access to the technical data.

The “Guidelines for Preparing Agreements” available on the DDTC website will be revised to incorporate this change and are effective February 1, 2008. Any submission that does not meet the following requirements will be subject to being Returned Without Action:

  • On pages 10 and 22 of the Guidelines, insert the following statement: This agreement (does/does not) request retransfer of defense articles and defense services pursuant to ITAR 124.16. (Change or No Change on page 22)
  • On page 15 of the Guidelines, the applicant must include the following statements (if applicable) which are required by the ITAR. Both the second and third statement my be used in conjunction depending on the location of the foreign licensees and or sublicensees:
    1. If Not Requesting Third Country/Dual Nationals: This agreement does not authorize access to defense articles or transfer of technical data/defense services to third country/dual national employees of the foreign licensees (or approved sublicenses – if applicable).
    2. If Requesting Third Country/Dual Nationals Who Do Not Qualify for ITAR 124.16: Pursuant to ITAR 124.8(5), this agreement authorizes access to defense articles and/or retransfer of technical data/defense services to individuals who are third country/dual national employees of the foreign licensees (and its approved sublicensees – if applicable). The exclusive nationalities authorized are listing all foreign nationalities of the employees who are not eligible for application of ITAR 124.16. Prior to any access or retransfer, the employee must execute a Non-Disclosure Agreement (NDA) referencing this DTC case number. The applicant must maintain copies of the executed NDAs for five years from the expiration of the agreement.
    3. If Requesting Third Country/Dual Nationals Who Do Qualify for ITAR 124.16: Pursuant to ITAR 124.16, this agreement authorizes access to unclassified defense articles and/or retransfer of technical data/defense services to individuals who are third country/dual national employees of the foreign licensees (and its approved sublicensees – if applicable). The exclusive nationalities authorized are limited to NATO, European Union, Australia, Japan, New Zealand, and Switzerland. All access and/or retransfers must take place completely within the physical territories of these countries or the United States.

More information available at: www.pmddtc.state.gov/dual_nationals.htm

At this time the Department of State is reviewing and modifying the current Guidelines for Preparing Agreements. Here are some key links. State says it will publish comprehensive new Agreements Guidelines this summer.

Current Guidelines for Preparing Agreements:

Word Version

PDF version

Updates to Guidelines for Preparing Agreements:

Section 9.4, Exporting Hardware Via Separate License in Furtherance of an Agreement (DOC)

Section 10.1, Sublicensing (DOC)

Agreements Menu:

Agreements Expiration Schedule

Agreements Renewal Deadline