DDTC Updates FAQ and Guidance on DSP- 5 Licensing of U.S.-Employed Foreign Persons
The State Department's Directorate of Defense Trade Controls has updated its frequently asked questions (FAQ) document and guidance on the licensing of foreign persons employed by a U.S. person through the use of a DSP-5 permanent export license application.
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(The DSP-5 authorizes the U.S. person to transfer technical data and perform limited defense services to the employee(s) on their products. The DSP-5 also authorizes the foreign person to perform defense services on behalf of the employing U.S. person.
The foreign person employed by a U.S. person does not have to reside in the U.S. to be considered an employee but may reside and perform the job duties outside the U.S. If the foreign person is a full time regular employee, directly paid, insured, hired/fired and/or promoted exclusively by the U.S. person, the foreign person is "employed" by the U.S. person. The employing U.S. person is liable to ensure the employee's compliance with U.S. export laws regardless of where the employee currently resides.)
Updated FAQ Provides Additional Details on TAA/MLA, DSP-83, Case Numbers
In its updated FAQ document, DDTC adds three additional questions and answers stating the following:
Identification of foreign persons in TAA/MLA. The agreement holder must amend a Technical Assistance Agreement or Manufacturing License Agreement to specifically identify the foreign person employees of all U.S. signatories. The statement should be made in 22 CFR 124.7(4) with other statements regarding transfer territory. If the foreign person employees are not already identified, this statement should be included in the next amendment submitted to DDTC for approval.
U.S. and foreign person must sign DSP-83 when required. The U.S. person and the foreign person employee must execute (sign) the DSP-83 when the transfer of U.S. classified information is required. DDTC may require the foreign government to execute the DSP-83 on a case-by-case basis.
Case number to be left blank if not known. If the DDTC case number is not known when an application is submitted, the non-disclosure agreement (NDA) should be executed with a blank left for the DDTC case number to be entered by the applicant after they receive approval.
DDTC Updated Guidance for Unknown Case Numbers
DDTC has also updated its web guidance to reflect its requirement when the DDTC case number is not known when an application is submitted, by adding the following language to the bottom of the NDA: "Please leave sufficient space to enter the DDTC case number once approval is received."
(See ITT's Online Archives or 09/16/08 news, 08091630, for BP summary of DDTC's previous updated guidance and FAQ document on the licensing of U.S.-employed foreign persons.)
DDTC updated FAQ document (posted 09/22/08) available at http://www.pmddtc.state.gov/faqs/documents/FAQs_Licensing_ForeignPersons.doc
DDTC updated guidance (posted 09/22/08) available at http://www.pmddtc.state.gov/licensing/documents/Web_Notice_UPDATE_Licensing_ForeignPersons.doc