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News from Reeves & Dola, LLP
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MYTH BUSTERS --
COMMON MISCONCEPTIONS ABOUT
EXPORT CONTROLS
*******
PART 2
This is the second part to our Myth Busters article on export controls. Part 1 was published on August 10, 2017.
MYTH #6
INFORMATION AVAILABLE ON THE INTERNET IS IN THE PUBLIC DOMAIN AND THEREFORE NOT SUBJECT TO THE ITAR
As counterintuitive as this seems, this is absolutely false when it comes to "technical data" controlled under the International Traffic in Arms Regulations (ITAR). Simply posting controlled "technical data" to the Internet does not remove that information from the ITAR controls because the information is now in the public domain.
The ITAR defines controlled "technical data" to include information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles, and include information in the form of blueprints, drawings, photographs, plans, instructions or documentation. However, there is certain information that is specifically NOT subject to ITAR controls: information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, and information in the public domain. However, "public domain" is defined in the ITAR at 22 C.F.R. 120.11 and is limited to only those media forms specifically enumerated in the definition. The Internet is not included.
The U.S. Department of State, Directorate of Defense Trade Controls (DDTC) has long held that controlled technical data cannot be released in any form without prior authorization from the U.S. Government.
In a June 3, 2015 Proposed Rule on certain ITAR definitions, including "Public Domain," DDTC confirmed its interpretation of what constitutes release of controlled technical data in the context of the Internet and other media. In the proposed revision to the definition of "Public Domain," DDTC acknowledged the current definition is "unnecessarily limiting in scope and insufficiently flexible with respect to the continually evolving array of media," and proposed a revised definition that would identify characteristics that are common to the existing enumerated media forms. The proposed new definition, however, contained an important limitation: "Technical data or software, whether or not developed with government funding, is not in the public domain if it has been made available to the public without authorization from [DDTC, other identified government offices]."
Explaining this limitation, DDTC provided important insight into its interpretation of public domain and the release of technical data: "The requirements of paragraph (b) are not new. Rather, they are a more explicit statement of the ITAR's requirement that
one must seek and receive a license or other authorization from the Department [of State] or other cognizant U.S. government authority to release ITAR controlled "technical data," as defined in 22 C.F.R. § 120.10. A release of ''technical data'' may occur by disseminating ''technical data'' at a public conference or trade show, publishing ''technical data'' in a book or journal article, or posting ''technical data'' to the Internet. This proposed provision will enhance compliance with the ITAR by clarifying that ''technical data'' may not be made available to the public without authorization. Persons who intend to discuss ''technical data'' at a conference or trade show, or to publish it, must ensure that they obtain the appropriate authorization." 80 FR 31525, 31528 (June 3, 2015).
A recent case that illustrates DDTC's interpretation of public domain and unauthorized release of ITAR-controlled technical data is
Defense Distributed v. U.S. Dep't of State
,
121 F.Supp.3d 680 (W.D. Tex. 2015), aff'd on appeal, 838 F.3d 451 (5th Cir. 2016). Defense Distributed made available for free on the Internet computer files used to create firearms and firearm parts, including so-called 80% AR-15-type lower receivers and a one-shot pistol known as the Liberator on a
3D-printer. Subsequent to the posting, DDTC sent a letter to Defense Distributed requesting the company remove the files from the Internet because the posting may be an unauthorized release of technical data in violation of the ITAR. The plaintiffs, Defense Distributed and Second Amendment Foundation, sued the Department of State, seeking to enjoin DDTC from enforcing the requirement for pre-publication approval. Defense Distributed and the Second Amendment Foundation argued that the pre-publication approval requirement is an unconstitutional prior restraint on protected First Amendment speech, and also argued violations of the Second and Fifth Amendments of the U.S. Constitution. The plaintiffs ultimately seek a declaration that no prepublication approval is needed for privately generated unclassified information, regardless of whether the information constitutes controlled "technical data."
After plaintiffs filed their Complaint, they filed for a preliminary injunction against the State Department to have the district court suspend enforcement of the ITAR's prepublication approval requirement pending final resolution of the case. The district court denied plaintiffs' motion, finding the government's interest in protecting national security outweighed the constitutional rights of Defense Distributed.
On appeal, the U.S. Court of Appeals for the Fifth Circuit affirmed the lower court's decision, declining to reach the question of whether Defense Distributed demonstrated a substantial likelihood of success on the merits of its case. Finding the lower court did not abuse its discretion in denying Defense Distributed's preliminary injunction, the court of appeals rejected the plaintiff's argument that the lower court disregarded the paramount interest in protecting their constitutional rights. "The district court's decision was based not on discounting Plaintiffs-Appelants' interest but rather on finding that the public interest in national defense and national security is stronger here, and the harm to the government is greater than the harm to Plaintiffs-Appellants." Defense Distributed, 838 F.3d at 459.
This case continues, though Defense Distributed has been unsuccessful in its appeals thus far.
It should be noted that the proposed rule on "public domain" has not yet been finalized. Consequently, as of the date of this writing, the ITAR definition of "public domain" is still limited to the enumerated list in
22 C.F.R. 120.11.
MYTH #7
THE "NO LICENSE REQUIRED" (NLR) DESIGNATION
CAN BE USED IN AES FOR SHIPMENTS
MADE UNDER ITAR LICENSE EXEMPTIONS
This myth concerns proper entries in the Automated Export System (AES). While invoking an ITAR exemption for a transaction does mean that no ITAR license is required for that particular export, the "NLR" entry is not the appropriate License Code/License Exemption Code to be used for such exports in AES. The NLR designation is only applicable to items controlled by the Department of Commerce under the Export Administration Regulations (EAR), and only when no license is required for the particular shipment. It is important to note that NLR is not to be used if an EAR exception is applicable. The appropriate License Code/License Exemption Code for type of export license, export permit, license exemption, license exception or other export authorization applicable to the shipment must be entered into AES. A full listing of all AES codes is available on U.S. Customs and Border Protection's website.
Fundamental Rule: exercise caution when using the "NLR" (No License Required) designation for the license/license exemption code in AES. NLR should not be used for ITAR-controlled goods, or for EAR-controlled items that are subject to an EAR license exception.
MYTH #8
MY FREIGHT FORWARDER TAKES CARE OF MY EXPORT FILINGS,
SO I AM NOT RESPONSIBLE FOR ERRORS
The exporter of record is ultimately responsible for compliance with the requirements of the ITAR and EAR, which include entering the appropriate Electronic Export Information (EEI) into the AES. Among other items, the EEI includes identifying the applicable Export Control Classification Number (ECCN) for certain items on the Commerce Control List (CCL), as well as the appropriate License Type Code/License Exemption Code.
While it is perfectly acceptable to authorize an agent to prepare and file your EEI/AES entries, it is incumbent upon you, as the exporter of record, to ensure that you provide the freight forwarder the information necessary to properly complete the filings. A freight forwarder is rarely in the position to know this information without specific instructions from the exporter of record. Inaccurate entries in the AES are potential violations of the ITAR and the EAR. Both sets of regulations require that proper AES entries are made for every export, as applicable.
Further, you should request a copy of the entry made for every export transaction. Both the ITAR and EAR require the retention of records related to export activities, which includes AES entries.
Fundamental Rule: the exporter of record is ultimately responsible for the accuracy of EEI entries, as well as proper reporting of export information to Customs and Border Protection with mandatory support documentation.
MYTH #9
I DON'T HAVE TO WORRY ABOUT EXPORT CONTROLS
BECAUSE MY ITEM IS EAR99
False! This may be the most dangerous misunderstanding of them all. EAR99 is the designation provided in the EAR for items are those items that are "subject to the EAR" but are not specifically listed on the CCL. As explained in Section 734.2 of the EAR (15 C.F.R. § 734.2), items "subject to the EAR" are those items and activities over which the U.S. Department of Commerce, Bureau of Industry and Security (BIS) exercises regulatory jurisdiction under the EAR. This means the EAR may still impose a license or other requirement on such items, even if they are not specifically identified on the CCL.
While it is true that most EAR99 items may be exported as "No License Required" to most countries in the world, there are still situations where a license is required. To illustrate, EAR Part 746 identifies broad based controls for items and activities "subject to the EAR" that are imposed to implement U.S. government policies. For example, a license is required for the export or reexport to Syria of all items subject to the EAR, except food and medicine classified as EAR99 (food and medicine are defined in Part 772 of the EAR).
There have been many enforcement cases involving improper exports of EAR99 items to prohibited end-users or end-uses, which have resulted in administrative penalties, criminal fines, and denial of export privileges. BIS summarizes recent enforcement actions, including those involving EAR99 items, in its frequently updated "Don't Let This Happen to You!" publication available on BIS's website.
Fundamental Rule: classification of an item as EAR99 does not automatically mean no license is required for a particular export, especially if the export involves a prohibited end-use or end-user. The exporter should conduct due diligence to ensure the proposed export does not require a license either because of a country, end-use or party involved in the transaction.
MYTH #10
ONCE MY LICENSE IS ISSUED, IT CANNOT BE REVOKED,
SUSPENDED, OR AMENDED
It is often taken for granted that once the government issues authorization to export, the authorization is ironclad and immune from changes in policy. However, obtaining a license approval does not guarantee that once granted, that approval is irrevocable or unalterable. This is true for licenses issued under both the EAR and the ITAR.
The receipt of an export approval necessarily comes with it the chance that the government may revoke, suspend, or amend the approval for foreign policy or national security reasons. Section 38 of the Arms Export Control Act (AECA) grants the President the authority to control the import and export of defense articles "[i]n furtherance of world peace and the security and foreign policy of the United States." 22 U.S.C. §2778. Courts have interpreted the U.S. government's authority to act in furtherance of foreign affairs to be quite broad, and has held this authority to include the ability to prohibit particular export and import activities, even if previously licensed. In fact, 22 C.F.R § 123.22(c)(4) provides instructions for return of licenses revoked by DDTC. In the EAR, 15 C.F.R. § 750.8 provides guidance for revocation or suspension of licenses issued by the Department of Commerce. Be on the lookout for an upcoming Client Alert on this topic.
Fundamental Rule: courts have consistently held that a party does not have protected property rights in foreign commerce. The U.S. government has the legal authority to revoke, suspend, or amend an export license without prior notice whenever the licensing agency deems such action to be advisable pursuant to the national security or foreign policy interests of the United States.
The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish, in and of itself, an attorney-client relationship.
Questions about this alert can be directed to:
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About Reeves & Dola
Reeves & Dola is a Washington, DC law firm that specializes in helping clients navigate the highly regulated and complex world of manufacturing, sales and international trade of defense and commercial products. We have a deep understanding of the Federal regulatory process, and use our expertise in working with a variety of Federal agencies to assist our clients with their transactional and regulatory needs.
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