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Determining ITAR License Requirements and the Effective Use of Exemptions
Interview with Jennifer Maki, Counsel Government Group at FLUOR
marcus evans spoke to Jennifer before the upcoming 3rd Annual Advanced ITAR Compliance Conference. In her presentation, Ms. Maki will discuss global agreements and advancements surrounding technical assessment agreements (TAA). She will also explain the impact of the ECR initiative on TAAs and the implications for the international trade industry.
Jennifer Maki works as counsel in the areas of export controls and economic sanctions, including the Office of Foreign Assets Control (OFAC), Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), Foreign Corrupt Practices Act (FCPA), Foreign Trade Regulations (FTR), and the National Industrial Security Program (NISP).
How did you get your start with ITAR compliance and how has the industry evolved since that time?
Jennifer Maki: I began working in the area of export controls and economic sanctions when I was a second year associate at a large law firm. I really enjoyed the tie between foreign policy initiatives and the regulations. As an associate, I was responsible for understanding the facts and details of large segments of investigations and business development matters for our clients.
The biggest evolution over the last few years has really been the increased awareness of the ITAR and related export control regulations. Big and small companies are becoming increasingly aware of the importance for export compliance. Small companies will receive export compliance certifications and reach out to large business partners or outside counsel for advice on the application of these regulations to their business. Medium sized companies will engage in classification exercises to expand sales of their products to new overseas markets. Large corporations are increasing their export compliance ranks to ensure their diverse business lines are compliant with the regulations, and to manage their global business networks.
What recent changes to export controls have created the biggest challenge for you and are there any changes on the horizon that you would like to know more about? (Second point is a stretch for this question, but it is one of the challenges we are facing)
JM: The ITAR Section 126.18 exemption has directly impacted our management of foreign persons on large overseas projects. Specifically, Section 126.18 was amended to modify the requirements for giving foreign persons access to technical data and defense articles. This exemption has changed our management of the foreign persons and their subcontractors working on large overseas contracts.
Additionally, with the issuance of new consent agreements by DDTC, companies are constantly working to read and interpret the agreements to identify areas of concern that the regulators are focusing on. The constant challenge of addressing soft areas in a company’s compliance program can be difficult. Each problem needs a different solution. As a result, companies use the information in the consent agreements published each year to make adjustments and improvements to their systems.
Why should professionals be interested in knowing more about TAAs and what do you believe is the main challenge organizations face when going through the application process?
JM: Every company is different and every project, contract, or business line within a company can be different. As a result, each technical assistance agreement that a company uses is different. The challenge for a company may be to address new and changing needs as the business or project evolves. One project may involve a large host country national work force that will receive and have access to defense articles and the foreign persons will be trained to maintain and repair the defense articles. Another project, and separate TAA, may need certain authorization to exchange technical data for assembly and production that will be completed by foreign persons, and involve few, specialized other country nationals working in the U.S.
Each situation presents new and different regulatory concerns. As a result, one of the biggest challenges is ensuring that your TAA is not an off-the-shelf item. Rather, the creation of your TAA will require close cooperation between business management, controls, human resources, subcontractors and third parties, and experienced export compliance counsel.
How is the role of technology expanding within ITAR Compliance? Why should organizations be concerned with knowing more about the current status of Technology Controls and Electronic Data Transfers?
JM: The oversight and control of technical data in a corporation is challenging. For global companies with multinational work forces, this challenge is even greater when trying to manage access to export-controlled technical data. Sophisticated companies have robust systems and controls with capabilities to isolate the export-controlled technical data on the physical company networks.
For companies that are new to export compliance, or are in the process of developing systems that are capable of managing access to export-controlled technical data, technology transfers and electronic data transfers are a concern. These companies may have a system with limited access controls and are working to develop solutions for the prevention of deemed exports to a multinational workforce. The development of a system capable of managing access to export-controlled technical data, technology transfers and electronic data transfers is a key component of a company’s export compliance program.
What do you believe attendees can gain most from attending this event?
JM: Conferences are a fantastic resource for any professional working in the area of export compliance. The opportunities that are presented at the marcus evans conferences are limitless. Attendees will learn from their industry peers, while sharing and exchanging ideas about achieving export compliance management within their companies. Regardless of your role in a company’s export compliance system, no one person can be aware of all export compliance regulatory updates, challenges or advances at a given time. This event is an opportunity to benchmark with your colleagues and hear how others are navigating the obstacles associated with export compliance.
For more information please contact Michele Westergaard, Senior Marketing Manager, Media & PR, Marcus Evans at 312-540-3000 ext. 6625 or Michelew@marcusevansch.com.