Without question, the definition of “Defense Services” has been one of the most controversial provisions of the International Traffic in Arms Regulations. Going back to 2011, DDTC first proposed revising the definition of “defense services” and infamously said this:
[I]t was determined that the current definition of defense services in §?120.9 is overly broad, capturing certain forms of assistance or services that do not warrant ITAR control.
With such an admission by an agency, you would think that the change in the definition was not just likely but inevitable. Admitting the definition captured activities that did not warrant control would have made it more than a little difficult to defend the definition from legal challenge.
Of course, as we all know, that didn’t happen. In 2013, a second definition was proposed. In 2014, while amending other definitions, DDTC deferred further consideration of the second definition. In 2015, we get a third definition, which was not a charm, because in 2016 further consideration of the rule was yet again deferred, twice. A fourth definition was proposed in 2024 and the comment period was later extended to October 15, 2024. And since then, well, crickets or more accurately not even crickets but deafening silence.
Deafening silence, that is, until October 1, when DDTC bravely ventured a revision to the definition of defense services which has absolutely nothing to do with the four previous unfinalized and forgotten definitions and, worse, arguably makes the definition even broader. So here, if you are ready for it (drum roll please), is the fifth proposed revision of the definition, which consists of the eight words shown below in bold:
§?120.32 Defense service.
(a) Defense service means, except as noted in §?120.35 of this subchapter:
And here is the presumably relevant part of § 120.35:
§?120.35 Items that are excluded from the U.S. Munitions List.
(a) Commodities, as follows:
(1) [Demilitarized commodities]
(b) Information, as follows:
(1) Unclassified descriptions of a commodity or software’s functions, or the purpose it serves, that do not convey details on how the functions or purpose are performed; or
(2) Unclassified descriptions of a commodity or software’s performance capabilities that do not convey requirements or specifications.
This is confusing at best, since § 120.35 does not describe any services at all, meaning that the “except [such services] as noted in § 120.35” exception is meaningless.
Let us suppose, although the text of the rules does not say this, that what is meant by the “except as” is that the furnishing of the information described in (b) is not a defense service. The Federal Register notice of the new proposed rule explains the intent of (b) as follows:
Proposed paragraph (b) would revise the text relocated from §?120.31(b), with no intended change to the scope of control, to better describe the information this paragraph excludes from the defense article definition.
The relocated and revised text excluded from the definition of a “Defense Article” was this: “basic marketing information on function or purpose or general system descriptions.”
Subsection (b)(1) of § 120.35 is essentially the same as the removed text from §120.31(b) with the removal of “basic marketing information” and the addition of a requirement that the excluded information has to be “unclassified.” Section (b)(2) is quite different from (b)(1): the information cannot convey “requirements or specifications.” Reading this literally means that telling a foreign person that a defense article needs AA batteries and is 7.25 inches long could be considered an illegal provision of a defense service to that foreign person. The § 124.2 exemption for “basic operation and maintenance” information would apply only if the item was legally exported or authorized for export to the foreign person. And whether battery types and numbers and exact length are general system descriptions is anyone’s guess.
So DDTC may not have intended to broaden the scope of ITAR controls, but there is more than a trivial argument that this is exactly what it did here. This amendment of the definition of “Defense Services” suggests the ship of a narrower definition has not only sailed but also has been sucked into a whirlpool never to surface again.