作者:约翰·布莱克
首先，这只是一个拟议的规则，所以它还不能帮助任何人. 但是如果DDTC实施了这个提议的改变, it will have made a big step in the direction of making life easier for countries who deal with US defense articles. This proposal, 如果实现的话, would, for example, eliminate the requirement that foreign (i.e., non-US) end-users and consignees on Technical Assistance Agreements and Manufacturing License Agreements first identify the nationalities of their dual national and third country national employees in the agreement application and thereafter limit access to US defense articles to only those nationalities approved on the application. 当然, all burdens eliminated by one hand must be replaced by burdens imposed by the other hand—we will look at the details of the proposal below.
If implemented, this proposal would immediately reduce the number of ITAR violations. 第一个, 如果实现的话, the proposal would bring into compliance those foreign companies who currently are allowing unauthorized dual and third country nationals to have access to US defense articles. 第二个, 如果实现的话, it would bring into compliance those US companies who have failed to collect the currently required non-disclosure agreements from all of those dual and third country national employees of the foreign parties. (就像我们在南方所说的那样, 现在祝福你们不听话的小心灵, 我们知道你们不会遵守所有这些. 哈哈)
那么，DDTC打算怎么做呢? DDTC建议创建ITAR 126.18豁免. (顺便说一下, wouldn’t it be nice if DDTC put all of its exemptions together in one place so that for the rest of our lives we are not always required to remember all of the obscure places that DDTC hides exemptions in the ITAR?) The proposed exemption would allow the transfer of defense articles including technical data within a foreign entity to all bona fide, 外国实体的正式雇员, 包括双重国籍和第三国国民. The authorized transfers have to occur where the foreign entity is located—so, a French company can transfer US ITAR data to its Estonian engineer Sven when he is in the company facility in Toulouse, but the French company cannot email the ITAR data to Sven if he is in 加拿大 in a hotel or at an affiliated company site or if he is in DC at an SIA seminar.
哦，抱歉指出了一个问题，这是一篇感觉不错的文章.
In exchange for not having to get ITAR authorization for all dual and third country nationals, 外国政党必须做三件事. 第一个, the foreign party must implement “effective procedures to prevent diversion destinations other than those authorized.有效的程序可以是以下任何一种:
- A security clearance approved by the host nation government for its employees; or
- The foreign party has a process in place to screen its employees and have signed non-disclosure agreements that provides assurances that the employee will not transfer any information to other persons unless authorized by the foreign party.
第二个, in addition to choosing one of the above “effective procedures” the foreign party “must screen its employees for substantive contacts with restricted or prohibited countries listed in 126.1 [e.g.,中国). 实质性接触包括, 但不限于, 旅行:最近或经常到这些国家旅行, 最近或继续与这些国家的代理人和国民接触, 继续效忠于这些国家, 或其他表示有转移风险的行为.”
(所以法国公司的爱沙尼亚工程师斯文还好, 但如果他的妻子是中国公民呢? Does marriage constitute “recent or continuing contact with …nationals of [中国]”? 和 what does the French company have to do to determine if Sven is having continuing contact with a Chinese national? 哈哈哈.)
好吧，让我们重新认真起来. 请从拟议规则中查看这一点, 虽然国籍不是, 其本身, 禁止接触国防物品或国防服务, an employee that has substantive contacts with persons from countries listed in § 126.1(a) shall be presumed to raise a risk of diversion, unless DDTC determines otherwise.” This implies that the exemption applies to all employees of the French company, 不论国籍, 只要他们不与126公司有实质性联系.1人. So, apparently the French company can share the US defense articles with Shao Shin, its employee with dual French-Chinese citizenship as long as he does not have substantive contact.
但是等等, 毫无疑问，一些ITAR的铁杆宅男在想, 国籍到底是什么意思? 是出生国吗? 公民身份? 最喜欢的奥运队伍? 这条规则没有定义国籍, 这是另一个问题, 但这似乎降低了这个问题的重要性.
The third thing the foreign party would have to do is “maintain a technology security/clearance plan that details its procedures for screening employees for such substantive contacts and maintain records of such screening. The technology security/clearance plan and screening records will be available to DDTC or its agents upon request.”
所以，你得到了它. The proposal significantly eliminated the pesky dual and third country national issues at foreign entities, 只要外国实体愿意做这三件事. 如果执行此规则, it would make life significantly easier and more compliant for US exporters. Foreign entities will have to determine for themselves whether this proposed approach is better than the current system.
如果你认真仔细地阅读了这份提案, 你会发现有些事情不是很清楚. 我并没有对提案的细节做彻底的分析, because this is just a proposal so it does not matter if we know what it really means. If you see things that are not clear or you don’t like, you can complain about them. 但, 更好的是, 你可以在9月10日前将你的书面意见发送给DDTC, 2010, 告诉DDTC应该做些什么来使提案更清晰或更好.
当然，这个提议并不完美. 但它确实有很多优点. 我为朝着正确方向迈出的这一步鼓掌. Credit for this proposal goes to the President’s Task Force for Export Control 改革. 和, while I still am not a believer in the Task Force’s goal of creating a single export control agency, 控制清单和规则, 我向这个提议致敬.
For the details of the proposal and to see how to submit your public comments, go to http://www.pmddtc.state.gov/FR/2010/75FR48625.pdf