DDTC Issues FAQs for ITAR Exemption of Exports Made by or on Behalf of US Government Agencies

The Directorate of Defense Trade Controls issued a series of frequently asked questions on May 11 to clarify an International Traffic in Arms Regulations exemption that authorizes exports and other activities made by or for a U.S. government agency.

The DDTC clarified that exporters and other users of the exemption do not need “written approval” from the U.S. government “if a transaction involving the transfer of technical data satisfies the provisions” of the exemption. But the agency stressed that technical information transfers to an entity other than the U.S. government are approved pursuant to a “written request,” and exporters must “complete a written certification” for transfers that are oral, visual or electronic.” Government agencies “are responsible for developing their own criteria for what constitutes a ‘request,’” the DDTC said.

U.S. contractors may not use the ITAR 126.4(a) exemption to export an ITAR-controlled defense item for a government program, the DDTC said. The DDTC specified that 126.4(a) “allows transfers by a department or agency of the U.S. government” and said “126.4(b) is the exemption available to non-government persons in a contractual relationship with the U.S. Government who wish to export a defense article.” The DDTC added that “the difference between (a) and (b) lies in the person that is undertaking the transfer.” In addition, ITAR 126.4 can be used to complete “classified transfers,” the agency said, provided that users of the exemption comply with “all certification and filing requirements” for “significant” military equipment.

DDTC said it will not provide exporters with an advisory opinion about whether their sale qualifies for the exemption, saying that “exporters are best positioned to make their own determination.” The company or person undertaking the transfer is responsible for keeping records of the sale, the DDTC added. “The exporter should, at all times, be able to satisfy the relevant record keeping requirements,” the agency said.

While the “plain text” of the exemption does not “limit the scope of the exemption to certain portions” of the U.S. Munition List, it does not authorize exports that are blocked by “other administrative provisions,” U.S. arms embargoes or United Nations Security Council Resolutions, DDTC said. The agency also said the exemption cannot be used “in lieu of obtaining a third party transfer approval” from the State Department’s Office of Regional Security and Arms Transfers for items procured via a foreign military sale.