US To Implement New Definitions Of Export, Release And Other Key Terms

Author:Deloitte LLP

On September 1, new definitions of terms used in the International Traffic in Arms Regulations ("ITAR") and Export Administration Regulations ("EAR") will enter into effect. This two-part blog post highlights key upcoming changes.

In Part 1 of this two-part post, we focus on new controls on the "release" of technology and technical data. In Part 2 (available here), we look at new rules related to the use of end-to-end encryption for transferring EAR-controlled technology.  

Overview of changes

Definitions that have been updated include the following: 

Updated Definitions Updated in EAR? Updated in ITAR? Technology/Technical Data Yes No Required Yes No Export Yes Yes Reexport Yes Yes Transfer Yes No Transfer (in-country) Yes No New definitions that have been added include the following:

Newly Added Definitions Added to EAR? Added to ITAR? Retransfer No Yes Release Yes Yes Access Information Yes No Foreign Person Yes Already defined Proscribed Person Yes No Published/Public Domain Yes No Fundamental Research Yes No   Managing access controls under the new 'release' definitions

Currently, the EAR controls the "release" (e.g., visual inspection, oral exchange) of EAR-controlled technology to non-US (i.e., "foreign") nationals within or outside the US. Similarly, the ITAR controls the "disclosing" of technical data to a non-US person within or outside the US. The broad scope of these controls has required companies handling US-controlled items to implement effective controls in areas such as:

Physical access by non-US employees to US-controlled items; Visitor access to facilities containing US-controlled items; Access by IT administrators and "super users" to technical data in IT networks; and Access to technical data by third parties in workspaces. The new definitions of 'export' and 'release' under both the EAR and ITAR now specify that access by a non-US person to US-controlled technical data or technology is considered a 'release' (i.e., subject to export authorisation requirements) if it "reveals" technical data or technology to that person. Although the term "reveals" is not defined, Guidance in the Department of Commerce's ("DoC") Final...

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