DoD Exemption Guidelines Summary

On 19 April 2019, the U.S. Department of State’s Directorate of Defense Trade Controls (DDTC) amended the text of §126.4 of the International Traffic in Arms Regulations (ITAR) addressing exports made either by or for the U.S. government (USG). The amendment broadens the scope of the exemption and provides details on the terms and conditions of its use.

These revisions advance U.S. interests by facilitating defense cooperation with our partners and allies and by supporting the U.S. defense industry through removal of a range of licensing requirements for transfers that have otherwise been vetted by the U.S. government.

This new language now authorizes the transfer of ITAR-controlled hardware, defense services, and technical data to foreign parties without an export license under the following circumstances:

  • By the USG for one of the authorized activities below; and
  • By U.S. industry:
    • To a USG department or agency at its request; or
    • On behalf of the USG, either at the written direction of the USG or pursuant to an international agreement or arrangement, for one of the authorized activities below.

Authorized activities:

  • For official use by the USG including, in certain circumstances, USG contractors;
  • For carrying out a cooperative project, program, or other activity in furtherance of a binding international agreement or an international arrangement authorized by Title 10 or 22 of the U.S. Code or National Defense Authorization Act provision;
  • For carrying out foreign assistance or sales programs; and
  • For other security cooperation programs and activities of the U.S. Department of Defense (DoD).

The Defense Technology Security Administration (DTSA) issued its Guidelines for Validating the Use of International Traffic in Arms Regulations Exemptions on 10 December, 2019. The DTSA Guidelines are For Official Use Only. The purpose of the guidelines is to provide guidance to U.S. Department of Defense (DoD) organizations for validating U.S. industry’s use of certain exemptions authorized under the ITAR. These guidelines also provide guidance to DoD organizations on the use of ITAR § 126.4(a).

While the guidelines are not releasable to the public, DTSA offers a summary of the guidelines below for consideration:

The guidelines no longer uses the term "certification." The term was replaced with "validation" to clarify that DoD’s role is limited to validating that industry’s use of the exemption is within the scope or pursuant to DoD’s written direction. The Empowered Official, per ITAR § 120.25, is responsible for determining whether a company will invoke the use of the exemption.

In the past, the guidelines limited the validation period of the exemption for one year. The updated guidelines now extend the validation period to meet specific programmatic requirements.

ITAR § 126.4(b)(1) - DoD recommends exporters determine for themselves whether a given "request" is sufficient to self-certify use of this exemption. A valid request must originate with the cognizant DoD authority for the related activity. A request does not need to be written, however, DoD recommends that the exporter document the request to ensure compliance with the §§ 123.22 and 123.26 Recordkeeping requirement for exemptions.

Part 1 to § 126.4(b)(2) - The "written direction" required under ITAR § 126.4(b)(2) must be in writing. A valid "written direction" document must originate from the cognizant DoD authority for the related activity. DoD recommends that any written direction used to meet this requirement is clearly defined.

Part 2 to § 126.4(b)(2) " or pursuant to an agreement…" does not require USG validation. However, DoD strongly recommends that non-USG entities coordinate closely with the cognizant USG officials to ensure that the contemplated scope is authorized for release under § 126.4(a)(1-4).

Questions as to whether a DoD contractors’ agreements meet the binding international agreement or an international arrangement authorized by Title 10 or 22 of the U.S. Code or National Defense Authorization Act provision should be directed to the cognizant DoD program office.

Questions on how international agreement is interpreted by the State Department should be directed to the regulatory authority, State, DDTC.

Only DDTC can provide interpretations of the ITAR, questions regarding ITAR compliance or interpretations of ITAR §126.4 should be directed to DDTC, beginning with the DDTC Response Team at 202-663-1282 or deccspmddtc@midatl.service-now.com

If you are a DoD component seeking DoD guidance on the use ITAR Exemption related matters, please send an email to DTSA_Exemptions@mail.mil

Questions about the Department of Navy’s activities regarding §126.4 exemptions should be directed to ITAR_Exemption_Validations@navy.mil