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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 with the subject line: “Regulatory Change: ITAR Sections 120, 126 and 127” or at, 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 Amsterdam 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.


Meghan Hamilton is a member of the International Commercial Practice Group and the International Trade Compliance Sub-Practice Group in Baker McKenzie Chicago, where she has been an associate since 2015. Meg regularly assists multinational companies on sanctions, customs and export control compliance as well as other international trade matters, including commercial agreements and anti-boycott regulations. She is active in civic activities throughout Chicago, serving on the Young Professional Board of the Center for Disability and Elder Law as well as the Auxiliary Board of the Chicago Legal Clinic.


Daniel Andreeff is an associate in the Firm’s International Trade practice group in Washington, DC. Prior to joining the Firm, he interned with the Department of the Treasury’s Office of Foreign Assets Control.

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