Defense Trade Advisory GroupTechnical Data Harmonization Plenary Session May 9th, 2013
Agenda Working Group Members Task Current ITAR and EAR Definitions Why a Revision is Needed Why DTAG did not recommend a word-for-word alignment of the definition between EAR and ITAR Key Elements of Proposed Definition Other Items Proposed ITAR Definition Questions
Task 1 Working Group Members Greg Hill - DRS Beth Parrish - Lockheed Dennis Burnett - Dennis J Burnett LLC Ginger Carney – Global Connections Stephen Cope – Avioninc Dana Goodwin - TradeLink Lawrence Keane - NSSF Christine McGinn - InterGlobal Trade Consulting Kim DePew - GE Aviation Sam Sevier - Bill Wade – L-3 Dale Rill - Honeywell Bryon Angvall - Boeing Lisa Bencivenga - Gregory Bourn – Bourn Identity Inc. Jeremy Huffman – hrk Krista Larsen - FLIR Spencer Leslie – Tyco Beth Mersch - Northrop Roger Mustian - Daniel Defense Brenda Nicacio - PPG Aerospace Ramzi Robana – Global Integrated Security Joy Robins – Wind River Olga Torres – Holland Knight
Task 1 (attachment to January 11, 2013 letter from A. Shapiro to G. Sevier) • ITAR and the EAR both control the export of Technical Data but define and control it differently • Review the existing technical data definitions in the EAR • and ITAR • Review the control language applied to technical data in • each regulation • Recommend draft language to harmonize the definitions • Recommend draft language to harmonize the controls
Current Definitions ITAR § 120.10 Technical Data (a) Technical data means, for purposes of this subchapter: (1) Information, other than software as defined in § 120.10(a)(4) which is requiredfor the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation. (2) Classified information relating to defense articles and defense services; (3) Information covered by an invention secrecy order; (4) Software as defined in § 121.8(f) of this subchapter directly related to defense articles; This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles. USML CAT VI (g) “Technical data (as defined by §120.10…) …. directly related to the defense articles enumerated in … this category. …”
Current Definitions EAR § 772.1 “Technology” (General Technology Note)—Specific information necessary for the “development”, “production”, or “use” of a product. The information takes the form of “technical data” or “technical assistance”. Controlled “technology” is defined in the General Technology Note and in the Commerce Control List (Supplement No. 1 to part 774 of the EAR). “Technical data” . —May take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories.
General Technology Note (Supplement No. 1 to part 774) “Required” …“As applied to “technology” …, refers to only that portion of “technology” … which is peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics or functions. Such “required” “technology” … may be shared by different products. For example, assume product “X” is controlled if it operates at or above 400 MHz and is not controlled if it operates below 400 MHz. If production technologies “A”, “B”, and “C” allow production at no more than 399 MHz, then technologies “A”, “B”, and “C” are not “required” to produce the controlled product “X”. If technologies “A”, “B”, “C”, “D”, and “E” are used together, a manufacturer can produce product “X” that operates at or above 400 MHz. In this example, technologies “D” and “E” are “required” to make the controlled product and are themselves controlled under the General Technology Note.
Why A Revision Is Needed • Harmonization of the technical data definition between the ITAR and EAR is required to support transfer of technology from the USML to the CCL in accordance with ECR • The revised definitions need to ensure that technical data related to a new “600-series” ECCN item also transfers to the CCL
ITAR/EAR word-for-word alignment Impractical • DTAG does not recommend a word-for-word alignment of the definition of Technical Data between EAR and ITAR • EAR focuses on specific special technology related to an item • Defines “required” to only control technology that is “peculiarly responsible” for achieving or exceeding ….. thresholds” • ITAR focuses broadly on all technology directly related to USML item • Controls technical data “requiredfor the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles…” • Each USML Category controls “Technical data …. directly related to the defense articles enumerated in… this category.” • The definition can be further aligned when the USML and CCL are combined or are more closely aligned
Key Elements of Proposed Definition • Only revise the definition of Technical Data in the ITAR • Proposed ITAR definition of technical data follows the framework of the EAR definition of technology but continues to include certain key terms currently in the ITAR definition • Design, development, production, manufacture, assembly, maintenance, repair & testing • Eliminated “modification” as DTAG believes technical data related to “modifications” would be captured by other elements of the new proposed definition • Proposed definition specifically controls technical data that is “required and unique” to an ITAR controlled item • Technical data that is common to a non-USML item would not be controlled under the ITAR • Ensures technical data related to 600 series CCL component parts of USML end items are controlled under the EAR and not the ITAR
Other Items • DTAG did not address encrypted information as part of this task • Reserved (b)(4) to address encrypted information • DTAG recommends a separate tasking to address the potential review of the definition of “software” uniquely separate from technical data • Consider defining “software” • Levels of controls (e.g., object code vs. source code) • Consider Wassenaar Agreement terms and definitions
Proposed ITAR Definition a. Technical data, for purposes of this subchapter, is: 1) Information required and unique for the development, production and use of defense articles controlled exclusively in the USML; • Development includes information for all stages prior to serial production, such as: design, development, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts. • Production includes information for all production stages, such as: product engineering, production, manufacture, integration, assembly (to include mounting), inspection, testing, quality assurance. • Use includes information required for operation, installation (including on-site installation), maintenance, repair, testing, overhaul, or refurbishing 2) Classified Information related to defense articles and defense services; 3) Information covered by an invention secrecy order; 4) Software as defined in §121.8(f) of this subchapter required for development, production and use of defense articles. b. The definition of Technical data excludes: • Information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities; and • Information in the public domain as defined in §120.11; • Basic information on function, purpose or general system descriptions of defense articles; and • (Reserved)