On August 15, 2024, the US Department of State’s Directorate of Defense Trade Controls published a final rule that amends the International Traffic in Arms Regulations (“ITAR”) to add two activities to the definition of “activities that are not exports, reexports, retransfers, or temporary imports.” The final rule, which had first been proposed on December 16, 2022, will go into effect on September 16, 2024.
The first new activity states that the taking of a defense article on a deployment or training exercise outside a previously approved country does not constitute an export, reexport, retransfer, or temporary import when the article is taken by either (1) the previously authorized armed forces of a foreign government or (2) United Nations military personnel. It is important to note that there can be “no change in end-use or end-user with respect to the defense article” during and after its transport.
The second new activity states that a foreign defense article previously imported into the US but is subsequently exported pursuant to a license or other approval under the ITAR is not subjected to ITAR’s reexport or retransfer requirements. In order to qualify under this new activity, the transfer must involve a foreign defense article that “was not modified, enhanced, upgraded, or otherwise altered or improved in a manner that changed the basic performance of the item” while in the United States. The foreign defense article must also not have had a “U.S.-origin defense article…incorporated into the foreign defense article.”
