Export Control Update: Amendment to International Traffic in Arms Regulations Clarifies That Technical Data May Be Physically Taken Out of the Country

January 5, 2010

On November 24, 2009, the Department of State, Directorate of Defense Trade Controls, Office of Policy issued a proposed amendment to the existing exemption in Section 125.4(b)(9) of the International Traffic in Arms Regulations (“ITAR”) permitting the export of technical data under the ITAR for use by U.S. persons.  The proposed amendment would make it clear that a U.S. person who is employed by a U.S. corporation or a U.S. Government agency may physically take technical data outside the U.S. (e.g., on a laptop or a data storage media) for use by a U.S. person who is employed by the same U.S. corporation or a U.S. Government agency.  The technical data may be in any format or medium.  The exemption also permits the export of classified technical data provided the Department of Defense National Industrial Security Program Operating Manual (“NISPOM”) requirements are met.  However, if the NISPOM requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Control, the latter would control.

The proposed rule is subject to the limitations in Section 125.1(b) of the ITAR.  In addition, the recipient cannot be employed by a foreign subsidiary of a U.S. corporation.  Finally, the exemption does not permit exports to destinations proscribed under Section 126.1 of the ITAR.

The Department of State will accept comments on the proposed rule until January 25, 2010.