US – BIS and DDTC propose revisions to EAR and ITAR definitions

On June 3, 2015, the Bureau of Industry and Security (BIS) published in the Federal Register a proposed rule [Docket No. 141016858–5228–01] that would revise the Export Administration Regulations (EAR) to include the definitions of “technology,” “required,” “peculiarly responsible,” “proscribed person,” “published,” results of “fundamental research,” “export,” “reexport,” “release,” “transfer,” and “transfer (in-country)” to enhance clarity and consistency with terms also found on the International Traffic in Arms Regulations (ITAR), which is administered by the Department of State, Directorate of Defense Trade Controls (DDTC). This rulemaking also proposes amendments to the Scope part of the EAR to update and clarify application of controls to electronically transmitted and stored technology and software. DDTC is concurrently publishing comparable proposed amendments to the ITAR’s definitions of “technical data,” “required,” “peculiarly responsible,” “public domain,” results of “fundamental research,” “export,” “reexport,” “release,” and “retransfer” for the same reasons. Finally, this rulemaking proposes conforming changes to related provisions. This proposed rule is part of the Administration’s Export Control Reform Initiative. The Initiative will enhance U.S. national and economic security, facilitate compliance with export controls, update the controls, and reduce unnecessary regulatory burdens on U.S. exporters.

On June 3, 2015, the Department of State also published in the Federal Register a proposed rule [Public Notice 9149] that would amend the International Traffic in Arms Regulations (ITAR) to update the definitions of “defense article,” “defense services,” “technical data,” “public domain,” “export,” and “reexport or retransfer” in order to clarify the scope of activities and information that are covered within these definitions and harmonize the definitions with the Export Administration Regulations (EAR), to the extent appropriate. Additionally, the Department proposes to create definitions of “required,” “technical data that arises during, or results from, fundamental research,” “release,” “retransfer,” and “activities that are not exports, reexports, or retransfers” in order to clarify and support the interpretation of the revised definitions that are proposed in this rulemaking. The Department proposes to create new sections detailing the scope of licenses, unauthorized releases of information, and the “release” of secured information, and revises the sections on “exports” of “technical data” to U.S. persons abroad. Finally, the Department proposes to address the electronic transmission and storage of unclassified “technical data” via foreign communications infrastructure. This rulemaking proposes that the electronic transmission of unclassified “technical data” abroad is not an “export,” provided that the data is sufficiently secured to prevent access by foreign persons. Additionally, this proposed rule would allow for the electronic storage of unclassified “technical data” abroad, provided that the data is secured to prevent access by parties unauthorized to access such data. The revisions contained in this proposed rule are part of the Department of State’s retrospective plan under Executive Order 13563 first submitted on August 17, 2011.

BIS and the Department of State will accept comments on these proposed rules until August 3, 2015.