On August 15, 2024, the DDTC published a final rule to expand the ITAR’s definition of “activities that are not exports, reexports, retransfers, or temporary imports.”  The final rule implements the amendments the DDTC originally proposed on December 16, 2022 with six changes.  The rule is effective on September 16, 2024 and codifies longstanding DDTC policies and clarifies the jurisdiction of the ITAR.

First, the final rule codifies existing DDTC policy that taking a defense article subject to the reexport or retransfer requirements of the ITAR on a deployment or training exercise outside a previously approved country is not a reexport or retransfer provided:

  • there is no change in end-use or end-user;
  • the defense article is transported by and remains in the possession of the previously authorized armed forces of a foreign government or United Nations military personnel; and
  •  the defense article is not being exported from or temporarily imported into the United States.

Second, the final rule clarifies that the transfer of a foreign defense article previously imported into the United States that has since been exported from the United States pursuant to a license or other approval is not a reexport or retransfer provided:

  • the foreign defense article was not modified, enhanced, upgraded, or otherwise altered or improved in a manner that changed the basic performance of the item prior to its return to the country from which it was imported or a third country;
  • a U.S.-origin defense article was not incorporated into the foreign defense article; and
  •  the defense article is not being exported from or temporarily imported into the United States.

While the rule change appears to have fairly narrow implications for industry, it does confirm that foreign-origin defense articles (including technical data) that come within U.S. jurisdiction (for example, transit a U.S. server) do not effectively become U.S. origin, and that ITAR-control over these items, if unmodified, extends only to the import or export from the United States.

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Photo of Jana del-Cerro Jana del-Cerro

Maria Alejandra (Jana) del-Cerro is a partner in Crowell & Moring’s Washington, D.C. office and a member of the firm’s International Trade and Government Contracts groups. She advises clients with respect to the U.S. regulation of outbound trade, including U.S. export controls. Jana

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Maria Alejandra (Jana) del-Cerro is a partner in Crowell & Moring’s Washington, D.C. office and a member of the firm’s International Trade and Government Contracts groups. She advises clients with respect to the U.S. regulation of outbound trade, including U.S. export controls. Jana works with clients across a broad range of industries, from traditional aerospace and defense manufacturers and multi-national software companies, to start-ups in the technology sector, and she regularly represents them before the Departments of State, Commerce, and Treasury in responding to government inquiries, conducting internal reviews, and in compliance investigations and voluntary disclosures.

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Photo of Jeremy Iloulian Jeremy Iloulian

Recognized as a “Rising Star” in International Trade by Super Lawyers, Jeremy Iloulian advises clients globally on complex cross-border regulatory, compliance, investigative, and transactional matters and policy developments that touch U.S. national security, international trade, and foreign investment, including those relating to

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Recognized as a “Rising Star” in International Trade by Super Lawyers, Jeremy Iloulian advises clients globally on complex cross-border regulatory, compliance, investigative, and transactional matters and policy developments that touch U.S. national security, international trade, and foreign investment, including those relating to U.S. export controls (EAR and ITAR), economic sanctions, anti-boycott laws, the Committee on Foreign Investment in the United States (CFIUS), and various national security controls on fundamental research and supply chains.

Jeremy has extensive experience counseling U.S. and non-U.S. clients, including public and private companies, private equity sponsors, and nonprofits spanning a multitude of industries, including aerospace and defense, energy, entertainment, fashion, food and beverage, health care, infrastructure, technology, telecommunications, and transportation. He provides strategic guidance on managing risks for dealings in high-risk jurisdictions such as China, Russia, Venezuela, and the Middle East, among other countries and regions. He regularly advocates on behalf of such clients before the U.S. Bureau of Industry and Security (BIS), Directorate of Defense Trade Controls (DDTC), Office of Foreign Assets Control (OFAC), Bureau of Economic Affairs (BEA), Census Bureau, Department of Energy, and Nuclear Regulatory Commission (NRC).

Additionally, Jeremy has previously counseled on, presented on, and published research related to international environmental law, specifically the United Nations Convention on the Law of the Sea (UNCLOS) and Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

Prior to and during law school, Jeremy interned at multiple government agencies, including the United Nations, the U.S. State Department, and the Iraqi Embassy in Washington, D.C.

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Photo of Aryn Gruneisen Aryn Gruneisen

With over a decade of experience working in-house in trade compliance roles, Aryn Gruneisen provides clients with a wealth of knowledge in export controls, sanctions compliance, and trade regulations. Before joining Crowell & Moring, Aryn managed trade compliance programs involving encryption, robotics, avionics,

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With over a decade of experience working in-house in trade compliance roles, Aryn Gruneisen provides clients with a wealth of knowledge in export controls, sanctions compliance, and trade regulations. Before joining Crowell & Moring, Aryn managed trade compliance programs involving encryption, robotics, avionics, photonics, semiconductor, and defense-related controls. She has demonstrated success in building risk-based compliance programs with cross-functional teams.

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