Aug

21

We Apologize for the Inconvenience


Posted by at 5:56 pm on August 21, 2012
Category: DDTCDeemed Exports

DDTC HQ
ABOVE: DDTC offices in DC

The Directorate of Defense Trade Controls (“DDTC”) has just revised its guidance on licensing foreign persons employed by U.S. persons. Foreign persons that will have access to ITAR-controlled technical data need to be licensed by DDTC prior to obtaining access to that technical data, and the guidelines describe how to use licensing application form DSP-5 to obtain the requisite license.

The revised guidelines contain only one change, and it is a footnote inserted at the beginning of the document relating to the enforcement of anti-discrimination provisions by the Office of Special Counsel in the Civil Rights Division of the Department of Justice. The oddly vague footnotes reads in its entirety as follows:

The ITAR imposes a license requirement for the export of U.S. defense articles and defense services to foreign persons. The ITAR does not, however, impose requirements on U.S. companies concerning the recruitment, selection, employment, promotion or retention of a foreign person. Federal law prohibits discrimination in hiring, firing, or recruitment/referral for a fee based on an individual’s citizenship status or national origin. See Section 274B of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. Unless otherwise required to comply with law, regulation, executive order, government contract, or determination by the Attorney General of the United States, discrimination based on an individual’s citizenship status is unlawful. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (Office of Special Counsel) in the Civil Rights Division of the United States Department of Justice enforces Section 274B of the INA. The Office of Special Counsel, located in Washington, D.C., has issued public guidance relating to non-discriminatory practices when complying with ITAR. For additional guidance, please contact the Office of Special Counsel at [email protected], its employer hotline at 1-800-255-8155, or visit its website at www.justice.gov/crt/about/osc.

You would not be alone if your first reaction to this elliptical mish-mash of bureaucratese and CYA-speak does not seem to make any sense. It seems to be saying that the ITAR requires you to discriminate against non-citizens and that the Immigration and Nationality Act makes it illegal to discriminate against non-citizens and it is entirely up to you to figure out how to comply with both requirements at once. So long, poor exporter, and thanks for all the fish.

This problem is complicated by the footnote referencing “public guidance” by the OSC without, of course, bothering to provide, you know, something helpful like a link to that guidance. In fact, the OSC hasn’t issued anything that might fairly be called public guidance on how to navigate the Scylla of the ITAR and the Charybdis of the INA. Instead, I was able to locate two “Technical Assistance Letters” issued by the OSC in response to narrow questions posed by members of the public.

The first said that it was illegal for employers to use documents gathered in the I-9 process to determine whether the employee was eligible to receive ITAR-controlled technical data. It said, somewhat confusingly, that the employer must gather documents establishing ITAR eligibility in a “separate and distinct verification procedure,” whatever that means.

The second technical assistance letter advises that employers may inquire whether applicants are citizens of embargoed countries for purposes of complying with export obligations “as long as such inquiries were made uniformly and without the intent to discriminate on the basis of national origin or citizenship status.” Just to keep things confusing, the letter says that the OSC reserves the right to examine the “totality of the circumstances” to determine whether an inquiry related to citizenship in an embargoed country was nevertheless discriminatory notwithstanding the export issue.

Reading between the lines of these two OSC letters, there is one thing that can be said with certainty about simultaneous compliance with the INA and the ITAR. Because permanent residents, refugees and asylees are entitled to receive ITAR-controlled technical data and employer may not, in an effort to comply with the ITAR, limit employment to U.S. citizens or even to U.S. citizens and permanent residents. Beyond that, you are pretty much on your own in reconciling the two regulatory schemes, with each agency helpfully pointing its fingers at the other for guidance.

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Copyright © 2012 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)


6 Comments:


This is just a small taste of what non-US recipients of ITAR data have had to deal with for many years.

Comment by David on August 22nd, 2012 @ 3:14 am

What happened to the Bona Fide Occupational Qualification under the employment regulations? If one is required to be in the presence of, or required to recieve controlled items or services under the terms of thier employment, nationality would therefore become a bona fide occupational qualification, and not be a matter of discrimination. Just a thought…

Comment by anon on August 22nd, 2012 @ 5:24 am

I think this is simply answered by saying in the job announcement, “For non-U.S. persons, job offers are contingent on issuance of export license from DDTC.” That way the company is not discriminating and is actually showing that they are willing to interview foreign persons but actual employment is based on DDTC’s decision. In that case the civilian employer has followed all laws and put the nationality issue on DDTC.

Comment by Rob on August 22nd, 2012 @ 12:03 pm

State’s guidance seems to add additional requirments beyond the employers responsibilites defined in 22 CFR 126.18. I must be missing something about when and why the DSP-5 is required.

Comment by AB on August 22nd, 2012 @ 12:21 pm

I may be a bit confused, but doesn’t the following sentence solve the issue with the “Unless” keyword?

“Unless otherwise required to comply with law, regulation, executive order, government contract, or determination by the Attorney General of the United States, discrimination based on an individual’s citizenship status is unlawful.”

Comment by Geof on August 22nd, 2012 @ 1:34 pm

As Dave points out this is bread and butter stuff outside the U.S.

Rob – this will work well as long as the person is only doing or going to be doing work around one agreemnt; or a new admin load of getting DDTC to approve the person every time a move or promotion is in the offering may be needed.

AB – If you or your company are actually considering using 126.18(c)(2) you are a braver than me. We use 126.18(c)(1), but not (2).

Comment by Nujje G on August 27th, 2012 @ 1:51 am