On January 5, 2023, the Directorate of Defense Trade Controls (DDTC), which administers the International Traffic in Arms Regulations (ITAR), announced updated guidance and FAQs for US persons abroad (USPAB) authorization requests. DDTC also released a submission letter template and sample § 121.13 certification letter to accompany such requests.
US Persons Abroad Authorizations
A USPAB is an individual US person (as defined in ITAR § 120.62) who resides overseas, works for a foreign employer, and provides defense services (as defined in ITAR § 120.32(a)(1) and/or (3)) to their employer or other foreign parties. Under the ITAR, USPABs require DDTC authorization to furnish defense services to any foreign person, including their foreign employer, or other foreign persons on behalf of their employer. The USPAB authorization, however, applies only to defense services – it does not permit the export of defense articles or transfer of ITAR-controlled technical data.
The FAQs clarified that the USPAB authorization is distinct from a Technical Assistance Agreement (TAA). The TAA authorizes the applicant on the TAA to export technical data or furnish defense services to a foreign employer under the TAA’s conditions. If a USPAB is not a signatory on the TAA, then the TAA does NOT authorize the USPAB to furnish defense services to foreign parties. Accordingly, the USPAB will need a USPAB authorization to provide defense services to their foreign employer.
The FAQs further explained that if a USPAB has the authorization to work on a project subject to an existing TAA that is being amended to add new parties, the USPAB may request a new USPAB authorization for the potential recipients of defense services under the amended TAA prior to its execution. The FAQs cautioned, however, that if the TAA amendment is not executed, the employer may not be authorized to transfer defense articles, including technical data, to the potential parties, even if they are authorized to receive defense services from the USPAB personally in the USPAB authorization.
USPABs and DDTC Registration
Although US persons residing overseas and providing defense services to foreign persons require USPAB authorizations, the FAQs clarified that a US person who both physically resides and provides defense services outside of the US does not need to register with DDTC. Under ITAR §122.1(a), registration is required only for persons who engage in the US in the business of furnishing defense services or manufacturing, exporting, or temporarily importing defense articles.
Accordingly, if at any point a USPAB engages in the US in the business of furnishing defense services (to include remote work/telework), the USPAB must register with DDTC unless otherwise exempted under ITAR §122.1(b). For example, if a US person has an existing USPAB authorization but travels to the US as part of employment and furnishes defense services to a foreign person while in the US, then the US person would need to register with DDTC and obtain a separate authorization.
The FAQs also explained that whether a USPAB authorization allows a US person to telework depends on the USPAB’s residency status and physical locations while teleworking. USPAB authorization is intended for those who permanently reside and work overseas – it does not authorize US persons to provide defense services while physically located in the United States or permanently residing in the US.
USPAB Authorization Request
The US person is the applicant of a USPAB authorization request, not the foreign employer. The FAQs explained that third parties may help facilitate the submission of the request, but the US person is responsible for ensuring compliance with the ITAR. If the request is facilitated by a third party, the USPAB must grant that third party authorization to communicate with DDTC on their behalf.
The USPAB authorization requests consist of:
- Form DS-6004 submitted via the Defense Export Control and Compliance System (DECCS);
- Submission Letter (described below);
- Detailed Job Description (if not included in the submission letter);
- ITAR § 126.13(a) Certification (described below); and
- Other supporting documentation.
The FAQs clarified that an authorization request cannot be submitted for multiple employees at one time. Each US person is an individual applicant and requires an individual authorization.
If DDTC approves the authorization request, authorization letters are sent electronically to the applicant’s email address. The FAQs advised that if US persons believe they may have furnished or may be furnishing defense services without authorization, they may submit a voluntary disclosure to DDTC pursuant to ITAR §127.12(c) and may still apply for a USPAB authorization while their disclosure remains under DTCC review.
The submission letter must be signed by the USPAB, even if it is prepared by a third party. According to the DDTC guidance, the submission letter should contain:
- Contact Information;
- Scope of Request;
- Relevant US Experience Related to Defense Articles Described on the USML;
- Recipients of Defense Services;
- Applicant Information; and
- Statement of Understanding.
DDTC provided a template, located here, to assist applicants in drafting the submission letter.
The Guidance specifically indicates that in the scope of the request, applicants must tie their work back to one of the defense services in ITAR § 120.32(a)(1) or (3). The applicant should describe their technical role, the defense article (including the USML defense category), the program (if applicable), and the end-use platform (if applicable). The FAQs clarified that if there is any change in the scope of the defense services to be furnished by the US person, including the technical scope of work, the addition of defense articles, or a change in recipients of defense services, a new authorization is required.
ITAR § 126.13(a) certification
The US person must personally complete ITAR § 126.13(a) certification that certifies to the conditions of ITAR § 126.13(a). DDTC provided a sample certification letter, located here, that the US person may sign and submit.