On July 29, 2024, the U.S. Department of State published a new proposed rule in the Federal Register to revise the definition of defense service in the International Traffic in Arms Regulations (22 CFR parts 120-130, “ITAR”). Interested parties are invited to submit comments to the Department of State by September 27, 2024.

Under the new proposed rule, the ITAR would be amended as follows:

1. The definition of “defense services” would be expanded in § 120.32(a)(1) to include “assistance, including training or consulting, to foreign persons in the development (including, for example, design), production (including, for example, engineering and manufacture), assembly, testing, repair, maintenance, modification, disabling, deterioration, destruction, operation, processing, use, or demilitarization of a defense article.” The introductory text of paragraph (a)(1) would be amended to clarify that “assistance” includes training or consulting activities.
2. Remove current § 120.32(a)(2) from the definition of “defense services” (e.g., “The provision of technical data covered by this subchapter to foreign persons, whether in the United States or abroad”) because such provision of technical data to foreign persons is already addressed in §§ 120.50 through 120.52 (in the definitions of export, reexport, and retransfer).
3. Delete current paragraph § 120.32(a)(3) from the definition of “defense services” in the context of military training, and add a new paragraph (a)(2) to refer to two new entries for intelligence and military defense services in Category IX of the United States Munitions List (USML).
4. Rename Category IX of the USML to “Military Training Equipment, Intelligence and Defense Services, and Military Defense Services.”
5. Create new proposed paragraphs (s)(2) and (s)(3) within Category IX (paragraph (s)(1) would remain reserved for a future entry). New paragraph (s)(2) would regulate certain “intelligence support activities” provided to a foreign government, entity, or force, or to its proxies or agents, and new paragraph (s)(3) would regulate certain military and paramilitary support activities.

The newly proposed Category IX(s)(2) would regulate defense intelligence as follows:

Providing assistance, including training or advice, to a foreign government, entity, or military force, or its proxies or agents, that initiates, supports, or enhances intelligence activities, including by planning, conducting, directing, analyzing, participating in, evaluating, or otherwise advising on such activities, for compensation, except for the following types of assistance:

• Providing medical, translation, financial, insurance, legal, scheduling or administrative services or acting as a public carrier;
• Participation of a U.S. citizen who has been drafted into the regular armed forces of another State as a member of such armed forces (see also § 124.2(b) of this subchapter);
• Training and advice based exclusively on general scientific, mathematical or technical principles commonly taught in schools, colleges and universities;
• Information technology services that support ordinary business activities that are not limited to a particular business line;
• Any lawfully authorized investigative, protective, or intelligence activity of a law enforcement or intelligence agency of the United States or of any territory, possession, state, or district of the United States, including any political subdivision thereof; or
• Maintenance or repair of a product or software.

The newly proposed Category IX(s)(3) would regulate military and paramilitary defence services as follows:

Assistance, including training or advice, to a foreign government, unit, or force, or its proxies or agents, that creates, supports, or enhances, except as provided in paragraph (s)(3)(iv) of this category:

• The organisation or formation of military or paramilitary forces;
• Military or paramilitary operations by planning, directing or evaluating such operations; or
• Military or paramilitary skills through advice or training, including formal or informal instruction.
• The following shall not be considered as support under paragraphs (s)(3)(i) to (iii) of this category:
  • Providing medical, translation, financial, insurance, legal, scheduling or administrative services or acting as a public carrier;
  • Participation of a U.S. citizen as a member of a regular armed force of another State who has been drafted into such a force (see also § 124.2(b) of this subchapter); or
  • Training and advice based exclusively on general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities.