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Proposed Amendment to ITAR Clarifies Definition of ‘Defense Services’

The U.S. Department of State recently issued a proposed rule clarifying the thorny definition of “defense services” that are subject to the International Traffic in Arms Regulations (ITAR). The Department of State is accepting public comments to the proposed rule until June 13, 2011. 

Historically, the definition of “defense services” has presented interpretation challenges for companies and individuals wishing to train non-U.S. persons in such varied activities as operation or use of defense articles, integration of software or components into ITAR-controlled hardware, firearms certification for armed security forces, and tactical or field medic training. The proposed definition provides much-needed clarity and focus to the existing overly-broad definition of defense services, as follows.

Highlights of Proposed ITAR Revisions to ‘Defense Services’ Definition

Defense Services

NOT Defense Services

Assistance and training to foreign persons performed using information other than public domain data in activities such as the design, development, testing of defense articles.

Assistance and training using public domain data only.

Assistance and training to foreign persons performed using information other than “public domain data” in depot-level repair or maintenance of defense articles.  (New definitions elaborate on the distinction between basic level, intermediate level and depot level repair and maintenance.)

Training in the basic operation (functional level) or basic maintenance of a defense artic

Assistance in integrating components (even foreign-origin) that are subject to either the ITAR or the Department of Commerce dual-use export controls into an end-item or system that is subject to the ITAR

Testing, repair, or maintenance of an item subject to the Department of Commerce dual-use export controls that has been incorporated or installed into a defense article.

Training or providing advice to foreign units and forces, regular and irregular, regardless of whether technical data is transferred to a foreign person, including formal or informal instruction of foreign persons in the United States or abroad by any means including classroom or correspondence instruction, conduct or evaluation of training and training exercises, in the employment of defense articles

Providing assistance (including training) in medical, logistical (other than maintenance), or other administrative support services to or for a foreign per

Conducting direct combat operations for or providing intelligence services to a foreign person directly related to a defense article.

Providing law enforcement, physical security or personal protective training, advice, or services to or for a foreign person, using only public domain data.

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About this Author

Michael Marinelli, Greenberg Traurig Law Firm, Austin, Washington DC, Corporate Law and International Trade Attorney
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Michael X. Marinelli has wide-ranging experience advising clients on the federal regulation of international transactions. He focuses his practice on the Foreign Corrupt Practices Act (“FCPA”), as well as U.S. export control regulations, including the EAR, the ITAR, and the economic sanctions regimes enforced by the Office of Foreign Assets Control (OFAC).

Michael counsels clients in multiple industries, including aerospace, energy, telecommunications, consumer electronics, software and life sciences, on complying the broad array of statutes and...

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Kara Bombach, Greenberg Traurig, Washington DC, International Trade and White Collar Defense Attorney
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Kara Bombach assists companies to lawfully export goods, technology and services around the globe. She places significant emphasis on helping clients achieve practical, workable solutions to complex regulatory situations arising under anti-corruption and anti-bribery measures (U.S. Foreign Corrupt Practices Act (FCPA) and OECD Convention), export control laws (EAR and ITAR), anti-boycott laws, and special sanctions (embargoes) maintained by the U.S. government (OFAC and other agencies) against various countries (including Iran, Cuba and Sudan), entities and individuals. Kara regularly represents clients in matters before U.S. government agencies, including the U.S. Departments of Commerce, State, Treasury and Defense.

She has significant experience advising national and multi-national companies (including Fortune® 5) on best practices in the development and delivery of compliance policies and procedures, training, and risk assessments, as well as executing cross-border export, sanctions and anticorruption due diligence in mergers and acquisitions, targeted internal risk assessments, and compliance investigations.

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Renee Latour, Greenberg Traurig Law Firm, Washington DC, Corporate Law Attorney
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Renee A. Latour focuses her practice on international trade regulation with an emphasis on compliance with U.S. export controls and economic sanctions. Renee assists clients on matters related to international trade that arise under the jurisdiction of various U.S. governmental agencies, including the Departments of Commerce, State, Treasury, and Defense. She advises on U.S. export control laws, anti-boycott laws and special sanctions maintained by the U.S. Government against various countries including Iran, Cuba and Sudan.

Renee also assists...

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