In November 2021, the State Department’s Directorate of Defense Trade Controls (“DDTC”) issued new and updated FAQs on violations, disclosures, debarments, rescissions, and reinstatements under the International Traffic in Arms Regulations (“ITAR”). The FAQs mostly reiterate and further clarify past guidance from DDTC on related matters. Key issues are summarized below. For further details, we recommend visiting the DDTC website (here and here) for the full texts of the FAQs.
- Whether disclosure is required: A disclosure related to violations under the ITAR is not typically required although “DDTC strongly encourages voluntary disclosure” and any person submitting a disclosure should notify DDTC “immediately after a violation is discovered.” However, there are certain circumstances where a disclosure is mandatory. The FAQs confirm that disclosures are required in certain cases involving (1) countries listed in ITAR § 126.1 or the “proscribed countries,” and (2) unreturned temporary exports of personal protective gear (see ITAR § 123.17(j)). As a reminder, the mandatory reporting or disclosure requirement under ITAR § 123.17(j) became effective in March 2020 (see 85 FR 3819).
- Directed disclosures: DDTC reiterated its expectation to receive a “complete and detailed response” following the format and procedures for voluntary disclosures outlined in ITAR § 127.12 when parties respond to DDTC’s questions regarding a potential violation that the party has not previously reported through a voluntary disclosure. This is referred to as a “directed disclosure.” DDTC routinely initiates directed disclosures, often based on tips or leads from various sources including whistleblowers, competitors, its own licensing office, policy office, and other US government agencies. It is critical to fully appreciate how such a request should be handled to minimize business disruption and related compliance risks.
- Disclosure & authorization request: The FAQs caution that submitting an authorization request to DDTC without indicating that it is related to a violation or a disclosure may constitute an omission of a material fact for purposes of ITAR § 127.2. If the official DDTC case number is missing, the company should reach out to DDTC to obtain the actual case number and include it on the authorization application.
- Differences between rescission of statutory debarment under ITAR § 127.7(b) and reinstatement of export privileges under ITAR § 127.11(b): Prior to March 2019, DDTC maintained a policy of requiring that export privileges be reinstated pursuant to ITAR § 127.11(b) prior to the rescission of statutory debarment under ITAR § 127.7(b). DDTC abandoned this policy in March 2019 (see 84 FR 7411) and may now rescind a person’s statutory debarment without reinstating the person’s export privileges. This policy change recognizes that the circumstances warranting rescission of statutory debarment may be different than those warranting the reinstatement of export privileges. If DDTC decides to reinstate export privileges in response to a request for reinstatement from an applicant that is also statutorily debarred, DDTC will also rescind the applicant’s statutory debarment.