On February 2, 2022, the Department of State published a proposed rule that, most significantly, would amend provisions of the International Traffic in Arms Regulations (“ITAR”) affecting how the nationality of foreign persons is determined for purposes of deemed exports/reexports.

Specifically, the proposed rule would modify relevant portions of the definitions of export (ITAR §120.17) and reexport (ITAR §120.19) such that only a foreign person’s current citizenship(s) and current permanent residenc(ies) would need be taken into account for deemed export/reexport purposes. The current practice/definitions take into account any country in which the foreign person holds or has held citizenship or permanent residency.

The Department of State stated in in the proposed rule that this change would provide greater opportunities for foreign persons who are no longer citizens or permanent residents of certain proscribed countries to participate in ITAR-regulated activities.  This revision should result in a somewhat decreased deemed export/reexport compliance burden for companies that engage in ITAR-related activities.

The proposed rule also proposes to clarify the Canadian exemption (ITAR §126.5) (regarding its interplay with exemptions related to dual nationals and third country nationals) and that dual nationals and third country national employees themselves (and not their employer) must execute a non-disclosure agreement requirements when a foreign licensee is relying on the foreign vetting option in the context of ITAR authorizations.

The proposed rule also proposes certain administrative corrections to the voluntary disclosure provisions of the ITAR to include stronger language in order to emphasize that ITAR mandatory notification requirements (e.g., with respect to a proposed, final, or actual sale, export, transfer, reexport, or retransfer of articles, services, or data to an ITAR proscribed country) constitute a legal obligation independent of the submission of a voluntary disclosure to the Directorate of Defense Trade Controls.

Comments on the Proposed Rule are due by April 4, 2022 and are accepted either via email at [email protected] with the subject line: “Regulatory Change: ITAR Sections 120, 126 and 127” or at www.regulations.gov, under Docket DOS-2021-0031.  Please reach out to any of the authors or your Baker McKenzie trade compliance contact if you would like to explore assistance with the submission of comments.


Paul Amberg is a partner in Baker McKenzie’s Madrid office, where he handles international trade and compliance issues. He advises multinational companies on export controls, trade sanctions, antiboycott rules, customs laws, anticorruption laws, and commercial law matters. Paul helps clients assess and address compliance risks presented by export controls, trade sanctions, antiboycott rules, customs laws, and anticorruption laws. His practice especially focuses on internal reviews, voluntary disclosure filings, and enforcement actions brought by, the US Government in relation to the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), trade and economic sanctions programs, and US customs laws.


Meg's practice involves assisting multinational companies with export compliance related matters, specifically trade sanctions and export control classifications. Additionally, she assists companies with respect to customs laws, anti-boycott laws and other trade regulation issues in the US and abroad. She also helps obtain authorizations from the US government for activities subject to sanctions regulations and US export control regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. Meg's practice extends to assistance in internal compliance reviews as well as enforcement actions and disclosures necessitated by US government action.


Daniel’s practice focuses on US economic and trade sanctions, including those targeting Iran, Russia, Cuba, Syria, and North Korea, export controls, and anti-boycott laws. He represents clients in national security reviews before the Committee on Foreign Investment in the United States (CFIUS), and has experience in federal court litigation and congressional investigations. His pro bono practice includes providing sanctions and export control advice to a global humanitarian NGO.