International Law Advisory - DDTC Issues New ITAR Exemption Regarding Temporary Export of Body Armor

On August 6, 2009, the US State Department’s Directorate of Defense Trade Controls (DDTC) issued a final rule at 74 Fed. Reg. 39,212-213 amending the International Traffic in Arms Regulations (ITAR), 22 C.F.R. § 123.17, to add a temporary export exemption for body armor. Designated as a defense article under the United States Munitions List, 22 C.F.R. § 121.1, Category X(a)(1), the body armor may be temporarily exported for exclusive personal use to: (1) destinations not subject to a US or multilateral arms embargo pursuant to section 126.1 of the ITAR, and (2) Afghanistan and Iraq under certain conditions. Though some aspects of the rule may be subject to varying interpretations, the rule is generally a positive development for US contractors working in various countries, including Iraq and Afghanistan, where there continues to be significant US government contractor activity. However, US persons citing the exemption will be responsible for remaining in compliance with certain limitations and obligations imposed by the rule, which in some instances are not defined clearly.

Only one set of body armor is authorized under the temporary export exemption for the “individual’s exclusive use.” The body armor must be returned to the United States. The US person may not re-export the body armor to a foreign person or otherwise transfer ownership. In addition, as indicated in an explanatory note accompanying the rule, the US person cannot export the body armor to any country where the importation of such an article or articles would be in violation of that country’s laws. 

The US person must declare the temporary export of body armor to US Customs and Border Protection by using CBP Form 4457 entitled the “Certificate of Registration for Personal Effects Taken Abroad.” At the time of making the declaration, the body armor must be with the US person’s baggage or effects, whether accompanied or unaccompanied (but not mailed). The export information is not required to be reported electronically using the Automated Export System (AES). Upon re-entering the United States, the CBP Form 4457 should be presented to US Customs and Border Protection. 

In the event the body armor is lost or otherwise not returned to the United States, a detailed report about the incident must be submitted to the Office of Defense Trade Controls Compliance pursuant to the ITAR voluntary disclosure procedures set forth at 22 C.F.R. § 127.12. The report should describe all attempts to locate the body armor.

As a practical matter, this exemption is most relevant to US persons supporting operations in Iraq and Afghanistan. On its face, the temporary export exemption appears to be generally applicable to Afghanistan without additional conditions. As to Iraq, the US person utilizing the temporary export exemption must either be: (1) “a person affiliated with the US government traveling on official business,” or (2) “a person not affiliated with the US Government but traveling to Iraq under direct authorization by the Government of Iraq and engaging in humanitarian activities for, on behalf of, or at the request of the Government of Iraq.”

The language regarding Iraq may be subject to varying interpretations, and is not clarified by the rule, supplemental information, or additional guidance. For instance, is a private contractor a “person affiliated with the US government”? Since the rule is not written to apply only to “US government employees,” it is possible that US government contractors and subcontractors are covered by this provision. However, it is not clear what DDTC intended when using the term “affiliated.” Similarly, the phrase “direct authorization by the Government of Iraq” is not defined, nor is the phrase “humanitarian activities.” Were US government contractors not to be considered “persons affiliated with the US government” the fact that they now generally receive visas or are otherwise formally approved by the Government of Iraq for entry into Iraq may provide a basis for asserting that they have been subject to “direct authorization” by the Government of Iraq. Moreover, because US forces are no longer a combat force and instead are engaged in temporary operations in Iraq at the request and invitation of the Iraqi government, it may be possible that US government contractors–even if working for agencies such as DOD–are engaged in humanitarian activities. Again, the intended scope of DDTC's language is not clear.

In short, the rule is a positive and practical step for US persons traveling abroad and entering dangerous situations, therefore needing body armor for personal safety. But how it will be interpreted in practice remains to be seen, especially for temporary exports to Iraq. Contractors working in Iraq should be cognizant of the issues raised above, and all contractors should be mindful of local law compliance. For example, even if the US authorizes the temporary export of body armor, not all countries will allow its import, and according to press reports, some countries in the Gulf have interdicted US persons transiting through their airports with such an article.

Should you have any questions regarding this rule, or the international regulatory aspects of work related to US operations in Iraq or Afghanistan, please contact Andy Irwin at 202-429-8177, Jack Hayes at 202-429-6491, or Mike Navarre at 202-429-8081.