The sample detailed questionnaire provided by the DDTC in the Implementation Considerations, which according to the DDTC is a way for authorized entities to meet the screening requirements of § 126.18, contains 17 questions about an employee`s contacts with a third country. The nature of the questions suggests that the selection process under section 126.18(c)(2) can take a long time. In fact, in some cases, the sample questionnaire published by DDTC contains more specific questions than in standard security clearance application forms. Implementation considerations do not make sense of how often questionnaire responses should be updated, which would affect the time and resources a company would have to devote to the selection process. If a company meets the above conditions, it must also require, prior to the transfer of ITAR-controlled defense items, that its regular employees (1) maintain a security clearance approved by the host government or (2) be verified for „substantial contacts“ with countries subject to an arms embargo under Article 126.1(a) or that present risks of distraction and non-disclosure agreements (NDAs). relating to the the complete unauthorized transfer of defence-related products. The DDTC FAQs specify that any host government approved security review is acceptable to meet the requirements of § 126.18(c)(1). In other words, it seems that a foreign equivalent of a „confidential“ release is sufficient. However, since guest government security clearances are typically only granted when an employee needs access to classified information (domestic or foreign), many companies that only want to share ITAR-controlled unclassified data with their employees may be able to search for „content contacts“ in order to benefit from the exemption. Technical data or defense service exported from the United States for the promotion of this Agreement and any defense items that may be manufactured or manufactured from such technical data or defense services may not be disclosed to any foreign person except under §§ 124.16 and 126.18, as expressly permitted in this Agreement, or with the prior written permission of the Department of State.

was caught up. Subsection 124.8(5) identifies three different options that a party may pursue to permit the transfer of technical data or defence services to a foreign person. These options, as articulated in the agreement`s guidelines, are as follows: It is not clear when DDTC expects to participate in the „substantial contacts“ analysis under Option 3. Section 126.18(c)(2) of the new rule states that „an employee who has substantial contact with persons from the countries listed in section 126.1(a) shall presume that he or she would be at risk of being misappropriated, unless the DDTC decides otherwise.“ The Guidelines of the Agreement stipulate that under Article 126.18(c)(2), „DN/TCNs having significant contact with persons from the countries listed in Article 126.1(a) shall be reported to the DDTC for final decision“ (emphasis added). This wording strongly suggests that once a „substantive contact“ with a country has been identified under Article 126.1(a), it is for the DDTC to determine whether there is a real risk of distraction due to the „substantive contact“. However, when describing Option 3 elsewhere in its guidelines, the DDTC says that general correspondence „should be used as a last resort if the foreign party cannot decide for itself the risk of diversion using Option 1“ (emphasis added). Similarly, in response to a FAQ on whether a foreign company can get confirmation from DDTC that something is a „content contact,“ DDTC says that „the foreign company should first try to determine whether something is a `content contact` and is relevant in a particular case, because it is a measure of discretion“ (emphasis added). This wording suggests that once a substantial contact is identified, DDTC expects a company to analyze the risk of redirection itself and only consult DDTC if such an analysis is inconclusive in terms of the risk of distraction (and not the existence of a content contact).

In the guidelines of the agreement, the DDTC provides a detailed explanation of when and how applicants must amend existing agreements to apply the new rule and insert the updated textual clause in § 124.8 (5). DDTC explained that an applicant must amend an already approved agreement in order to use Option 1 and that the agreement must be signed prior to implementation. The details of exactly how the agreement should be amended and the language that should be included are set out in the guidelines of the agreement. In the case of agreements that contain specific reservations that restrict or remove the DN/TCN from the agreement, the applicant must subject the agreement to a thorough review in order to implement Option 1. .