Yesterday the Department of State’s Directorate of Defense Trade Controls (“DDTC”) updated the website page of frequently asked questions (“FAQs”) relating to the agency’s commodity jurisdiction (“CJ”) request procedure. Although this update occurs just days before the requirement that all CJ requests must be made on Form DS-4076 and submitted electronically, only one of the revised FAQs relates to this upcoming requirement.

One of the FAQs relating to electronic submission now clarifies the file formats that can be used for supporting documentation. Those formats are BMP, CSV, GIF, JPEG, JPG, PDF, PNG, RTF, TIF, TXT and XML. The other FAQ on electronic submission continues to say that once the CJ request is filed, the only way to submit additional information is by putting it on a CD (!!) and then delivering the physical copy of the CD by horse and buggy to the agency.

Most of the new FAQs deal with general issues that, while known to regular practitioners before the agency, have not previously been stated clearly by the agency. Key among them is the statement that a license is required to export each item subject to a CJ while the CJ is pending. Two new FAQs clarify that a request to change an item from the United States Munitions List to the Commerce Control List can be done by a new CJ request but that a request to change USML category should be made in general correspondence sent to the agency. The other new FAQ is the following:

Submitting Request for Similar or Like Items: I have several items that are very similar. May I submit one CJ covering those items, or a catalog of like items?

The CJ form addresses single items, not a group, family or catalog of items.

Although this is accurate as far as it goes, it does not address the problem of whether various models or configurations of an item are all “single items” or a “group, family or catalog” of items. In the past, DDTC has granted single CJ requests that cover multiple configurations of the same item. Certainly this is easier for the exporter and the agency than the submission of 100 CJ requests for each and every configuration of the same item. Presumably this will remain the case, particularly where the item has the same name but differing model numbers.

As has been anticipated since March 29, 2010, when the State Department’s Directorate of Defense Trade Controls (“DDTC”) issued a Notice of Proposed Rulemaking eliminating the advance notice and approval requirements of section 126.8 of the International Traffic in Arms Regulations (“ITAR”), the agency has now officially eliminated those requirements and deleted the section from the ITAR. During the rulemaking, DDTC received submissions from three — count ’em, three — commenters, probably because the defense industry as a whole prefers to fly well below DDTC’s radar and avoid doing anything that might possibly annoy the regulators.

The rationale for the change was simple and justified. It was too much trouble for the agency to have to review certain export transactions twice, particularly where the average time to process a license had dropped from sixty or more days to fifteen days. If an exporter is concerned that a license might not be granted, the exporter retains an option to request an advisory opinion under section 126.9 of the ITAR. Prior written approval is still required under section 126.1(e) for any sales proposals to a country subject to an arms embargo under section 126.1.

In response to a comment that elimination of section 126.8 would eliminate a requirement to keep records of sale proposals, DDTC had an interesting comment:

We do not agree, since the § 126.8 requirement to report certain proposals is an obligation separate and independent from recordkeeping requirements. It will continue to be good practice to maintain records of such transactions for an appropriate duration in compliance with § 122.5, particularly to rebut any post hoc allegations that ITAR controlled technical data were transferred without a license or authorization.

I added the emphasis to the quotation to underscore DDTC’s interesting locution here. I’m not sure that all of the documents relating to a proposal — particularly one that is never consummated — fit comfortably within the records covered by § 122.5, namely records concerning the “manufacture, acquisition and disposition” of defense articles. That is no doubt why DDTC talks about this being a “good practice” rather than a requirement of the regulations. Of course, DDTC is right that maintenance of these records, regardless of whether required or not, can help rebut any subsequent allegations that the exporter improperly transferred controlled technical data without a DDTC license.