ITAR Licensing for Foreign Person Employees - Export Compliance Training Institute

By: Danielle McClellan

Any US company who has employed a foreign national knows that a DSP-5 is going to be required to give the employee any access to any ITAR-related technical data or defense services. There are however instances where DDTC required a TAA along with the DSP-5. DDTC realized that this “double licensing” really wasn’t necessary and was actually causing them much more work than was necessary. Now all requests for the licensing of a foreign person employed by a US company/person must be submitted via a DSP-5 which will cover all requested levels of technical data and defense services, which will make licensing easier for both the exporter and DDTC.

Some things to remember with regard to foreign employees and ITAR related technical data or services:

• If a foreign national employee does not require any access to any ITAR related technical data or defense articles then a DSP-5 is not required; but keep in mind that it is the responsibility of the US company to prevent any unauthorized access of the data by the employee, any access would be considered a violation of the ITAR.

• If the foreign national employee requires access to classified technical data or Significant Military Equipment (SME) than a DSP-85 must be submitted in lieu of the DSP-5.

• The foreign national employee must execute a Non-Disclosure Agreement (NDA) and the DDTC case number must be entered on the NDA prior to execution and must be kept on file by the applicant. Note: the NDA does not need to be submitted with the application.

• Once a foreign person is authorized by a DSP-5/DSP-83 than no additional authorization is needed to work within the scope of the approved DSP-5/DSP-83.

• The DSP-5 and DSP-83 is only valid for four years, applicants must apply for a license renewal no later than 60 days before expiration.

• MOST IMPORTANT OF ALL: It is the responsibility of the employing party to obtain all authorizations and ensure internal controls are in place to prevent any unauthorized access of ITAR related data by foreign employees.

New Guidance: http://pmddtc.state.gov/licensing/documents/WebNotice_LicensingForeign.doc

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