As of October 27, 2003 exporters were required to electronically file notice of their intention to begin exporting technical data or defense services under a Technical Assistance Agreement (TAA) or technical data under a DSP-5 license, and as of January 18, 2004, exporters were required to electronically file notice of their technical data exports under an exemption.1 The US Department of State, Directorate of Defense Trade Controls (DDTC) intends such electronic reporting to occur through use of a DS-4071 form; however, the electronic mechanism to meet the requirement is still not available. In practice, DDTC has declined to accept email notifications, which arguably would be the only means of strictly complying with the regulation in the absence of the reporting system.
DDTC now advises that the electronic system is not yet available but asks exporters to submit paper copies. In a March 5, 2009, notice posted on its website, DDTC announced that until DS-4071 is available, exporters are required to provide notification through a paper submission. Per its March 5 notice, DDTC continues to work on the implementation of the DS-4071. We note that DDTC’s final implementation of the DS-4071 and accompanying instructions will be provided by DDTC via a Federal Register notice. N
otwithstanding this March 5 notice, DDTC has not engaged in a formal rulemaking procedure to revise the ITAR to require notification of initial exports of technical data or defense services through a paper submission to DDTC until the electronic system is available. Therefore, until such time as the electronic means is available or the ITAR is revised pursuant to a rulemaking process, the paper notification of an initial export is advisory and not an enforceable requirement. Nonetheless, given the March 5 notice clarifying DDTC’s position, it is advisable that companies submit the paper notices, if they are not doing so already.