Archive for the ‘EU’ Category

DDTC Slips in Change to 123.9(b) ITAR Destination Control Statement


By: John Black

Under the deep regulatory cover of the Federal Register notice with the new ITAR UK exemption, the Directorate of Defense Trade Controls (DDTC) slipped in some changes to the ITAR 123.9(b).  Depending on how you read the changes, they may create a troublesome hassle to change your automated systems and export paperwork, or they also may create a significant new compliance burden.

It seems to me that the likely case is that you, unlike many of your colleagues, have not even read the changes yet.   Based on my analysis, this change creates at least two issues you should address.

If I read the new 123.9(b) literally, see three primary changes, based on the words in bold face below in the new 123.9(b):

ITAR 123.9(b) The exporter shall incorporate the following statement as an integral part of the bill of lading, airway bill, or other shipping documents, and the invoice whenever defense articles are to be exported or transferred pursuant to a license, other written approval, or an exemption under this subchapter, other than the exemptions contained in § 126.16 and § 126.17 of this subchapter (Note: for exports made pursuant to § 126.16 or § 126.17 of this subchapter, see § 126.16(j)(5) or § 126.17(j)(5)):

‘‘These commodities are authorized by the U.S. Government for export only to [country of ultimate destination] for use by [end-user]. They may not be transferred, transshipped on a noncontinuous voyage, or otherwise be disposed of, to any other country or end-user, either in their original form or after being incorporated into other end-items, without the prior written approval of the U.S. Department of State.’’

Issue 1) The ITAR now requires the statement be on “the airway or other shipping documents” in addition to the previous requirement that it be on the bill of lading and invoice. The new “other shipping documents” words seem to expand the documents on which the statement is required to include, but the ITAR, in its typical fashion, does not define what other shipping documents means, so you have to come with your best educated guess, or  interpretation.  Some other documents that might be shipping documents are for example, packing lists and shipper’s letters of instruction.

Issue 2) The ITAR now requires that the statement be used when defense articles are to be transferred in addition to previous requirement that is be used when defense articles are to be exported. The ITAR does not define “transfer” or “transferred.” Since the ITAR does not control transfers within the United States, I do not think the statement is required for transfers within the United States. The ITAR defines and controls “retransfers.” It could be logically inferred that all retransfers are also transfers so for the first time DDTC wants this statement put on documents for retransfers in addition to exports.  If you were naïve, you might assume that DDTC would either use a defined term such as “retransfer” or define a term it uses.

Issue 3) In the actual required new 123.9(b) statement, the word “to” replaces the former word “in” and the words “or end-user” was added after “country.” This means that all such statements need to be updated to reflect the new language.  Take care of this means tracking down all the automated systems and non-automated procedures that apply the statement to documents and updating the language.

My issues 1) and 3) above require the attention of companies in the United States, at least.  My issue 2) creates issues primarily for companies outside the United States who transfer/retransfer defense articles—companies outside the United States have to decide whether they think this extends the 123.9(b) requirement to retransfers and take appropriate steps to revise their compliance programs accordingly.

Some Nuts and Bolts of New ITAR Agreements Requirements



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. (more…)

DDTC Announces New Dual and Third Country National TAA and MLA Rule



By: John Black

“Beware of apparently good news.” — John Black

In the December 19, 2007 Federal Register, the Directorate of Defense Trade Controls (DDTC) of the State Department announced its new policy for dual and third country nationals. The change primarily is related to the requirement that when you apply for a Technical Assistance Agreement (TAA) or Manufacturing License Agreement, you must identify the foreign nationalities of the foreign signatories to the agreement. (more…)

ITAR Rumors from Washington



By: John Black

Well, these are a bit more solid than rumors:

First: the State Department has said that it relaxed its burdensome dual-national/third country national requirements for foreign nationals from NATO, Australia, Japan and New Zealand. If an employee of a company on a TAA or MLA is a national of one of these countries, they will be considered to be authorized to receive the US defense articles covered by the TAA and MLA and the applicant will no longer be required to obtain a non-disclosure agreement form such nationals. This policy change should reduce the current TAA and MLA burdens once (if) the State Department actually implements the policy.

Second: State plans to put out new brokering regulations soon. We will not know if this is good news or bad news until the regulations come out.

European Union Adopts Proposal for New Trade Restrictions on Iran



By: Jill Kincaid

In mid-March 2007, the European Union adopted a proposal specifying trade restrictions on Iran. The goal is to further the restrictions placed on Iran, with emphasis on those practices which could contribute to Iran’s nuclear program. The proposal includes the following:

  1. Guidelines for consistent implementation of the program
  2. Specifying which goods and technology will be affected. Companies who wish to export such goods will have to apply for proper authorizations from the appropriate member state
  3. Prohibition on providing technical or financial assistance to any parties listed in Annex I or Annex II of the Regulation
  4. Authorization for Member States to override the above prohibition when certain criteria are met:
    1. Confirmation by the UN that transaction will not contribute to Irans’s nuclear program
    2. Appropriate end-use guarantees in contract
    3. Commitment by Iran not to use transaction for nuclear program
  5. A freeze in funds or assets controlled by individuals or entities listed in Annex IV and Annex V

Penalties for violation of the regulations will be set out by individual Member States.


  • Steptoe & Johnson Publications International Law Advisory:
    EU Draft Regulation Implementing Trade Restrictions on Iran March 14, 2007

Substantial Tightening of Chemical/Biological Controls



By: Scott Gearity

Without formally requesting comments, BIS on April 14 published a rule substantially increasing export restrictions on several items subject to controls for chemical or biological weapons reasons (CB). This regulation comes only two weeks after a March 30 rule expanding the scope of CB catch-all controls to include members of the Australia Group (AG), the multilateral group which seeks to limit the proliferation of chemical and biological weapons. Steven Goldman, director of the Office of Nonproliferation and Treaty Compliance, first alerted the exporting community to the prospect of the new rule in a January 27 meeting of the Materials Technical Advisory Committee (MTAC). (This is as good a time as any to remind folks to be sure to read the meeting minutes of the TACs related to your business for all sorts of interesting nuggets, at least from those committees which deign to hold their discussions in open session and bother to publish minutes at all.)


US and EU Impose Trade Sanctions on Zimbabwe in Response to Mugabe Crackdown



By: John Black

The United States and the European Union (EU) have imposed trade sanctions on Zimbabwe in response to President Robert Mugabe fixing Zimbabwe’s national elections and continuing crackdown against political
opposition. While both the US and the EU imposed sanctions of transfers of military equipment and technology, the EU imposed additional measures targeting President Mugabe.

In the April 17, 2002 Federal Register the Office of Defense Trade Controls suspended all licenses and approvals (i.e., agreements and retransfer authorizations) for Zimbabwe. At the same time, DTC also prohibited the use of any license exemptions in the International Traffic in Arms Regulations for Zimbabwe.

Soon after the corrupt election in Zimbabwe, the EU agreed to impose smart sanctions targeting arms transfers to Zimbabwe and Robert Mugabe.(“Smart sanctions” seems to be the new buzzword in Europe for sanctions
that have a precise target, in this case President Mugabe. The problem with smart sanctions is that the first few times you implement smart sanctions, you seem to be implying that previous sanctions were not “smart sanctions.” Does that mean earlier sanctions were “stupid sanctions,” or maybe just “slow sanctions”? Perhaps past efforts
have been “silly sanctions.” Rumor has it that the Bush Administration, not to be outdone by the EU, already has a plan in place to designate its next trade sanctions as “incredibly brilliant sanctions,” a designation
that just barely beat out “Texas sanctions” in an internal White House debate.

In addition to prohibiting transfers of military equipment and technology, the EU imposed to sanctions on Mugabe and 19 members of his inner circle: 1) The EU froze their assets, and 2) The EU imposed a travel ban on them. The EU also decided to prohibit the transfer of equipment that may be used for internal repression.