Lessons For Exporters from ITAR Consent Agreement
In this article, Brian J. Fleming,* Timothy P. O'Toole, and Christopher Stagg* assert that the State Department's Directorate of Defense Trade Controls' (DDTC) recent settlement with Keysight "highlights the critical importance of companies ensuring the correctness of their jurisdiction and classification assessments – particularly with respect to the International Traffic in Arms Regulations' (ITAR) application to intangibles, such as software and technical data." The authors provide a summary of the Keysight case, observations, regulatory and policy notes, and key takeaways. They note "this consent agreement once again demonstrates that the DDTC continues to afford great credit as a mitigating factor to companies that cooperate with the government's investigation." Additionally, the Keysight case displays the numerous considerations that must be carefully examined when there is a jurisdiction and classification dispute with the government, including the heightened importance in this context of DDTC's commodity jurisdiction procedure for an official determination.
*Former Miller & Chevalier attorney