ITAR Reorganization Begins With Definitions in Part 120
On March 23, 2022, the Department of State, Directorate of Defense Trade Controls (DDTC) issued an interim final rule (87 FR 16396) that will consolidate International Traffic in Arms Regulations (ITAR) definitions into ITAR Part 120. The long-awaited rule is effective September 6, 2022 and begins what DDTC describes as “the first of a multi-year, multi-rule project to better organize the ITAR.”
The rule primarily consolidates and organize definitions currently distributed throughout the ITAR into Part 120, eliminating redundant text in the process. While DDTC has stated that the rule does not make substantive revisions or impose new requirements, there are some changes that reflect longstanding policy, for example (all citations to the revised ITAR):
- § 120.11(c) – Integration of controlled items. Defense articles described on the USML are controlled and remain subject to this subchapter following incorporation or integration into any item not described on the USML, unless specifically provided otherwise in this subchapter.
- § 120.17 – End-use monitoring
- Pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2785) and related delegations of authority, the Department of State is required to establish a monitoring program in order to improve accountability with respect to defense articles and defense services, sold, leased, or exported under Department of State licenses or other approvals under section 38 of the Arms Export Control Act and this subchapter.
- All exports of defense articles, technical data, services, and brokering activities made pursuant to this subchapter are subject to end-use monitoring by the Department of State through the Blue Lantern program.
- § 120.23(c) –Wassenaar Arrangement background and country list
- § 120.57 – Includes exemptions included within definition of authorization
To assist with the transition, DDTC also published the following documents on their website:
- Summary of Changes to International Traffic in Arms Regulations (pdf)
- Table of Moves, Edits, Removals, and Additions (pdf)
- ITAR Redline (Word)
For additional information and how to submit comments, please refer to the Federal Register Notice. Comments will be accepted through May 9, 2022. The rule is scheduled to take effect September 6, 2022, but may be revised before then.
New Agreement Guidelines
On February 14, 2022, DDTC released Revision 5.0 of the “Guidelines for Preparing Agreements.” The revised guidelines are 105 pages in length, down from 225 in 2016’s Revision 4.4b. The new guidelines include some substantive changes, while reducing redundancy and moving some items to separate guidance documents. A summary of noteworthy changes is included on page 1, including:
- Under certain circumstances, cover letters are no longer required with executed copies of TAAs and WDAs (see Section 5.2.1)
- Expedited Execution is expanded to include the removal of sublicensees (see Section 13.1)
- The U.S. Sublicensing statement is no longer required (see Section 9.1)
- Optional language when utilizing § 126.18 is now provided (see Section 10.3.1)
- Clarification that the description of end-use includes the identification of platforms (throughout Part 1)
- Clarification on identifying and documenting foreign end users (see Section 12)
- Clarification on the “deployment clause” (see Section 17)
- Update to documentation of space launch territories on the DSP-5 vehicle (see Section 18)
- Clarify that the 124.4(b) letter must provide an estimate of the quantity of the articles authorized to be produced. Additionally, MLAs involving the licensed manufacture of defense article abroad should identify the estimated quantity as part of the scope of the agreement (see Section 1.1.1, 2.1.1, and 5.2)
The summary also notes that:
Applicants are not required to submit an amendment for the sole purpose of conforming an agreement to any language or format change presented in these Guidelines. Any changes presented in the Transmittal Letter or Agreement format are intended as an aid to the applicant. These changes are not mandatory. Applications that contain additional information or a different format will still be processed.
The new guidelines and other guidance can be found in the agreements section of the DDTC website.
Commerce Expands Russia/Belarus Sanctions
On April 14, 2022, the Department of Commerce, Bureau of Industry and Security (BIS) published a rule (87 FR 22130) which expands the license requirements for Russia and Belarus to include all items on the Commerce Control List (CCL). Effective April 8, 2022, the rule also removes license exception eligibility for Belarusian aircraft.
Our previous Russia sanctions roundup had noted that the Export Administration Regulations (EAR) §746.8 imposed a license requirement on Categories 3-9, with a presumption of denial. This now applies to Categories 0-9, or all items identified with an Export Control Classification Number (ECCN) on the CCL.
For additional information, please refer to the Federal Register Notice. BIS also maintains a policy guidance page on Russia-Belarus.