Withholding of Unclassified Technical Data and Technology From Public Disclosure, 75352-75361 [2016-26236]
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Federal Register / Vol. 81, No. 210 / Monday, October 31, 2016 / Proposed Rules
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Submit electronic comments in the
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• Federal eRulemaking Portal: https://
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FOR FURTHER INFORMATION CONTACT:
Vernon Toelle, Office of Surveillance
and Compliance, Center for Veterinary
Medicine, Food and Drug
Administration, 7519 Standish Pl.,
MPN4–142, Rockville, MD 20855, 240–
402–5637; or Kristin Webster Maloney,
Office of Policy and Risk Management,
Office of Regulatory Affairs, Food and
Drug Administration, 10903 New
Hampshire Ave., Bldg. 32, Rm. 4373,
Silver Spring, MD 20993, 240–402–
4993.
SUPPLEMENTARY INFORMATION: In the
Federal Register of August 24, 2016,
FDA published a proposed rule with a
90-day comment period to request
comments on its proposal to amend the
regulations for good laboratory practice
for nonclinical studies. Comments on
the proposed amendments will inform
FDA’s rulemaking to establish
regulations for good laboratory practice
for nonclinical laboratory studies.
The Agency has received requests for
a 90-day extension of the comment
period for the proposed rule. Each
request conveyed concern that the
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current 90-day comment period does
not allow sufficient time to develop a
meaningful or thoughtful response to
the proposed rule.
FDA has considered the requests and
is extending the comment period for the
proposed rule for 60 days, until January
21, 2017. The Agency believes that a 60day extension allows adequate time for
interested persons to submit comments
without significantly delaying
rulemaking on these important issues.
Dated: October 26, 2016.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2016–26244 Filed 10–28–16; 8:45 am]
BILLING CODE 4164–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 250
[Docket ID: DOD–2015–OS–0126]
RIN 0790–AI73
Withholding of Unclassified Technical
Data and Technology From Public
Disclosure
Office of the Under Secretary of
Defense for Acquisition, Technology,
and Logistics, DoD.
ACTION: Proposed rule.
AGENCY:
This rulemaking establishes
policy, assigns responsibilities, and
prescribes procedures for the
dissemination and withholding of
certain unclassified technical data and
technology subject to the International
Traffic in Arms Regulations (ITAR) and
Export Administration Regulations
(EAR). It applies to DoD components,
their contractors and grantees and is
meant to control the transfer of
technical data and technology
contributing to the military potential of
any country or countries, groups, or
individuals that could prove
detrimental to U.S, national security or
critical interests.
DATES: Comments must be received by
December 30, 2016.
ADDRESSES: You may submit comments,
identified by docket number and/or RIN
number and title, by any of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Department of Defense, Office
of the Deputy Chief Management
Officer, Directorate for Oversight and
Compliance, 4800 Mark Center Drive,
Mailbox #24, Alexandria, VA 22350–
1700.
SUMMARY:
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Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
Federal Register document. The general
policy for comments and other
submissions from members of the public
is to make these submissions available
for public viewing on the Internet at
https://www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
FOR FURTHER INFORMATION CONTACT:
Vakare Valaitis, 703–767–9159.
SUPPLEMENTARY INFORMATION:
Background
For the purposes of this regulation,
public disclosure of technical data and
technology is the same as providing
uncontrolled foreign access. This rule
instructs DoD employees, contractors,
and grantees to ensure unclassified
technical data and technology that
discloses technology or information
with a military or space application may
not be exported without authorization
and should be controlled and
disseminated consistent with U.S.
export control laws and regulations.
These policies preserve the U.S.
military’s technological superiority,
establish and maintain interoperability
with allies and coalition partners, and
manage direct and indirect impacts on
defense industrial base.There are
penalties for export control violations.
For export control violations involving
items controlled by the United States
Department of State under the
International Traffic in Arms
Regulations (ITAR), including many
munitions items, the statute authorizes
a maximum criminal penalty of $1
million per violation and, for an
individual person, up to 10 years
imprisonment. In addition, ITAR
violations can result in the imposition
of a maximum civil fine of $500,000 per
violation, as well as debarment from
exporting defense articles or services.
For export control violations involving
dual-use and certain munitions items
controlled by the United States
Department of Commerce under the
Export Administration Regulations,
criminal and civil penalties are
currently provided by the International
Emergency Economic Powers Act
(IEEPA), 50 U.S.C. 1705, which has
continued the Export Administration
Regulations (EAR) in effect while the
Export Administration Act is in lapse
through Executive Order 13222 of
August 17, 2001 (3 CFR 2001 Comp. 783
(2002)), as amended by Executive Order
13637 of March 8, 2013, 78 FR 16129
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(March 13, 2013) and as extended by
successive Presidential Notices, the
most recent being that of August 4, 2016
(81 FR 52587 (Aug. 8, 2016)). Under the
EAR and IEEPA, as adjusted by 15 CFR
5.4(b), the penalty for persons who
violate, attempt or conspire to violate, or
cause a violation of the export control
regulations includes civil penalties of
not more than $284,582 per transaction
or twice the amount of the transaction,
whichever is greater, and criminal
penalties of not more than $1,000,000,
imprisonment of not more than 20
years, or both. Violations of the EAR
may also result in the denial of export
priveleges and other administrative
sanctions.
Authority To Issue This Regulation
In accordance with 10 U.S.C. 133 part
(b)(2), the Under Secretary of Defense
for Acquisition, Technology and
Logistics (USD(AT&L)) may exercise
powers relating to establishing policies
for acquisition (including procurement
of goods and services, research and
development, developmental testing,
and contract administration) for all
elements of the Department of Defense.
In addition, U.S. export control laws,
including 22 U.S.C. 2778 (also known as
the ‘‘Arms Export Control Act’’); 50
U.S.C. chapter 35 (also known as the
‘‘International Emergency Economic
Powers Act’’ (IEEPA)); 22 CFR parts 120
through 130 (also known as
‘‘International Traffic in Arms
Regulations’’ (ITAR)); and 15 CFR parts
730 through 774 (also known as ‘‘Export
Administration Regulations’’ (EAR))
govern this rule.
Summary of the Major Provisions of the
Rulemaking
This proposed rule describes
procedures for the release of technical
information; discusses procedures for
technical data and technology to be
marked for distribution; and provides an
example of the notice to accompany
export-controlled technical data and
technology.
Costs and Benefits
DoD is proposing this regulation to
update the CFR and DoD Directive
5230.25 (available at https://dtic.mil/
whs/directives/corres/pdf/523025p.pdf).
The Department currently spends
$571,876 annually on export control
certification activities. The costs to DoD
contractors and grantee consist
primarily of the time needed to
organize, format, and submit
information to the U.S./Canada Joint
Certification Office to qualify for export
controlled technical data and
technology.
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The program has no discernible
increase in anticipated costs and
benefits as the program is being updated
to conform to national security guidance
cited in the text in §§ 250.1 through
250.7.
The potential benefits include greater
public access and understanding of
information about the qualifications
needed for access to export controlled
technical data and technology. Such
information may help potential
contractors and grantees to better
understand their options for
participating in DoD activities; to better
enable funders and researchers to
determine the need for information and
technolgy; to provide more complete
information of those who use
information from DoD research and
contracts to inform other decisions; and
to better enable the scientific
community to examine the overall state
of information and technology in this
area as a basis for engaging in quality
improvement (e.g., with regard to
research methods). The proposed rule is
also expected to provide greater clarity
about what is required for those who are
authorized holders of export controlled
technical data and technology.
This proposed rule is included in
DoD’s retrospective plan, completed in
August 2011, and will be reported in
future status updates of DoD’s
retrospective review in accordance with
the requirements in Executive Order
13563. DoD’s full plan can be accessed
at: https://www.regulations.gov/
#!docketDetail;D=DOD-2011-OS-0036.
Regulatory Procedures
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distribute impacts, and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. Although this rulemaking is
not ‘‘economically significant’’ because
it does not have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, it has been deemed ‘‘other
significant’’ for raising novel legal or
policy issues arising out of legal
mandates, the President’s priorities, or
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the principles set forth in these
Executive Orders. For that reason, it has
been reviewed by the Office of
Management and Budget (OMB).
Section 202, Public Law 104–4,
‘‘Unfunded Mandates Reform Act’’
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104–4) requires agencies assess
anticipated costs and benefits before
issuing any rule whose mandates
require spending in any 1 year of $100
million in 1995 dollars, updated
annually for inflation. In 2014, that
threshold is approximately $141
million. This proposed rule would not
mandate any requirements for State,
local, or tribal governments, nor would
it affect private sector costs.
24,000 responses ....................................
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
The Department of Defense certifies
that this proposed rule is not subject to
the Regulatory Flexibility Act (5 U.S.C.
601) because it would not, if
promulgated, have a significant
economic impact on a substantial
number of small entities. Therefore, the
Regulatory Flexibility Act, as amended,
does not require us to prepare a
regulatory flexibility analysis.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been certified that this proposed
rule does impose reporting or
recordkeeping requirements under the
Paperwork Reduction Act of 1995.
These reporting requirements have been
$9.94 * per response ...............................
approved by OMB under OMB Control
Number 0704–0207 titled DD Form
2345, Militarily Critical Technical Data
Agreement.
Cost to the Public
In exchange for Government-owned
unclassified export controlled technical
data and technology, a contractor
provides basic company information,
identifies a technical data and
technology custodian, and describes
need-to-know. The reporting burden is
estimated to average 20 minutes per
response. The DD Form 2345 and
supporting documentation must be
submitted to the U.S./Canada Joint
Certification Office in hardcopy.
Approximately 24,000 U.S. companies
have active certifications.
$19.99 postage ** per response ..............
$638,400
* U.S. Department of Labor. Bureau of Labor Statistics. 2014 median weekly earnings of full-time workers with at least a bachelor’s degree:
$1,193. https://www.bls.gov/spotlight/2015/a-look-at-pay-at-the-top-the-bottom-and-in-between/home.htm.
** Most applicants choose Priority Mail Express Flat Rate Envelope USPS Postage Price Calculator https://postcalc.usps.com/.
COST TO THE GOVERNMENT
4 FTE registrars ............................................................
1 FTE Team Lead ........................................................
.5 FTE US Representative ...........................................
.25 FTE Division Chief .................................................
.25 FTE Director ...........................................................
O&M for IT ....................................................................
GS 9 step 5 ..................................................................
GS11 step 5 .................................................................
GS13 step 5 .................................................................
GS14 step 5 .................................................................
GS15 step 5 .................................................................
SP4701–15–F–0031 .....................................................
$59,036 *
71,429 *
101,807
120,303
35,378 *
2,958,915
$236,144
71,429
50,904
30,075
35,378
147,946
Total .......................................................................
.......................................................................................
........................
571,876
* 2014 General Schedule (Base) Office of Personnel Management Salaries and Wages https://www.opm.gov/policy-data-oversight/pay-leave/
salaries-wages/2014/general-schedule/.
Executive Order 13132, ‘‘Federalism’’
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has federalism implications.
This proposed rule will not have a
substantial effect on State and local
governments.
List of Subjects in 32 CFR Part 250
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Exports, Science and technology.
Accordingly, 32 CFR part 250 is
proposed to be revised to read as
follows:
PART 250—WITHHOLDING OF
UNCLASSIFIED TECHNICAL DATA
AND TECHNOLOGY FROM PUBLIC
DISCLOSURE
Sec.
250.1
250.2
250.3
250.4
Purpose.
Applicability.
Definitions.
Policy.
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250.5
250.6
250.7
Responsibilities.
Procedures.
Directly arranged visits.
Authority: 10 U.S.C. 133.
§ 250.1
Purpose.
This part establishes policy, assigns
responsibilities, and prescribes
procedures for the dissemination and
withholding of certain unclassified
technical data and technology
consistent with the requirements of 10
U.S.C. 130.
§ 250.2
Applicability.
This part:
(a) Applies to:
(1) The Office of the Secretary of
Defense, the Military Departments, the
Office of the Chairman of the Joint
Chiefs of Staff and the Joint Staff, the
Combatant Commands, the Office of
Inspector General of the Department of
Defense, the Defense Agencies, the DoD
Field Activities, and all other
organizational entities within the DoD
(referred to collectively in this part as
the ‘‘DoD Components’’).
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(2) All unclassified technical data and
technology that discloses technology or
information with military or space
application, in the possession or under
the control of a DoD Component, that
may not be exported lawfully without
an approval, authorization, license,
license exception, or exemption in
accordance with U.S. export control
laws and regulations: 22 U.S.C. 2778
(also known as the ‘‘Arms Export
Control Act’’); 50 U.S.C. chapter 35 (also
known as the ‘‘International Emergency
Economic Powers Act’’); 22 CFR parts
120–130 (also known as ‘‘International
Traffic in Arms Regulations’’ (ITAR));
and 15 CFR parts 730 through 774 (also
known as ‘‘Export Administration
Regulations’’ (EAR)).
(b) Does not modify or supplant the
regulations governing the export of
technical data and technology
established by 22 U.S.C. 2778, 50 U.S.C.
chapter 35, 22 CFR parts 120 through
130, 10 CFR 810, and 15 CFR parts 730
through 774.
(c) Does not apply to technical
information under the control of the
Department of Energy or the Nuclear
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Regulatory Commission pursuant to the
Atomic Energy Act of 1954, as amended,
and the Nuclear Non-Proliferation Act
of 1978, as amended.
(d) Does not introduce any additional
controls on the dissemination of
technical data and technology by private
enterprises or individuals beyond those
specified by export control laws and
regulations or in contracts or other
agreements, including certifications as
specified in paragraph (a)(9) of § 250.5.
Accordingly, the fact that DoD may
possess such technical data and
technology does not in itself provide a
basis for control of such technical data
and technology under this part.
(e) Does not introduce any controls on
the dissemination of:
(1) Scientific, educational, or other
items that are not subject to the EAR or
exclusively controlled for export or
reexport by another department or
agency pursuant to 15 CFR 734.3, 734.7
through 734.8;
(2) Information in the public domain
as described in 22 CFR 120.11 and
technical data that has been approved
for release in accordance with 22 CFR
125.4(b)(13)).
(f) Does not alter the responsibilities
of the DoD Components to protect
proprietary technical data and
technology of a private party, including:
(1) In which the DoD has less than
unlimited rights (e.g., pursuant to 48
CFR 227.7202, 252.227–7013, 252.227–
7014, 252.227–7015, and 252.227.7018);
and
(2) That is authorized to be withheld
from public disclosure pursuant to 5
U.S.C. 552, also known and referred to
in this part as the ‘‘Freedom of
Information Act (FOIA).’’
(g) Does not pertain to or affect the
release of technical data and technology
by DoD Components to foreign
governments, international
organizations or their respective
representatives, or contractors pursuant
to official agreements or formal
arrangements with the U.S. Government
(USG), or pursuant to USG-licensed
transactions involving such entities or
individuals. However, in the absence of
such USG-sanctioned relationships this
part does apply.
(h) Does not apply to classified
technical data. However, after
declassification, dissemination of the
technical data and technology within
the scope of paragraph (a)(2) of this
section is governed by this part.
(i) Does not alter the responsibilities
of the DoD Components to mark and
protect information qualifying for
designation as controlled unclassified
information in accordance with
Executive Order 13556, ‘‘Controlled
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Unclassified Information,’’ as
implemented by volume 4 of DoD
Manual 5200.01, ‘‘DoD Information
Security Program’’ (available at https://
www.dtic.mil/whs/directives/corres/pdf/
520001_vol4.pdf).
§ 250.3
Definitions.
Unless otherwise noted, these terms
and their definitions are for the purpose
of this part.
Certification. The United StatesCanada Joint Certification Program
certifies contractors of each country for
access, on an equally favorable basis, to
unclassified technical data and
technology that discloses technology or
information with military or space
application controlled in the United
States by this part and in Canada by
Canada Minister of Justice, Technical
Data Control Regulations SOR/86–345,
May 27, 2014 current edition (available
at https://laws-lois.justice.gc.ca/PDF/
SOR-86-345.pdf).
Controlling DoD office. The DoD
activity that sponsored the work that
generated the technical data and
technology or received the technical
data and technology on behalf of the
DoD and therefore is responsible for
determining the distribution of a
document containing the technical data
and technology. In the case of joint
sponsorship, the controlling office is
determined by advance agreement and
may be a party, a group, or a committee
representing the interested activities or
the DoD Components.
Critical technology. Technology or
technologies essential to the design,
development, production, operation,
application, or maintenance of an
defense or dual-use article or service,
which makes or could make a
significant contribution to the military
potential of any country, including the
United States (also referred to as
militarily critical technology). This
includes, but is not limited to, design
and manufacturing know-how, technical
data, keystone equipment including
manufacturing, inspection, and test
equipment that is required for the
effective application of technical
information and technical know-how.
(1) With respect to defense articles or
defense services: Those technologies
specified in 22 CFR 121.1.
(2) With respect to categories of
systems, equipment, and components;
test, inspection, and production
equipment; materials; software; and
technology subject to the EAR: Those
technologies specified in 15 CFR part
774.
(3) With respect to nuclear
equipment, materials, and technology:
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Those technologies specified in 10 CFR
part 810.
(4) With respect to select agents and
toxins: Those technologies specified in
7 CFR part 331, 9 CFR part 121, and 42
CFR part 73; and any other technologies
affecting the critical infrastructure.
(5) With respect to emerging critical
defense technology: Research and
engineering development, or
engineering and technology integration
that will produce a defense article or
defense service, including its
underlying technology and software,
covered by 22 CFR parts 120 through
130, or a dual-use or munitions item,
including its underlying technology and
software, covered by 15 CFR parts 730
through 774.
Defense article. Defined at 22 CFR
120.6.
Defense services. Defined at 22 CFR
120.9.
Formal arrangement. An instrument
that provides the formal authorization to
establish a voluntary agreement between
two or more parties for mutual sharing
of resources and tasks to achieve a
common set of objectives, such as The
Technical Cooperation Program.
Legitimate business relationship. A
relationship in which the DoD
determines that a need exists to acquire,
share, exchange, or disseminate DoD
technical information to anyone other
than a DoD employee for supporting the
DoD mission. The relationship may be
established by a memorandum of
understanding, agreement, contract, or
grant. The DoD has the sole
responsibility for determining that a
legitimate business relationship exists
since the only purpose is to provide
access to information created by or
under the control of the DoD.
Relationships may be established with
an individual or organization in another
Federal department or agency;
contractors, grantees, or potential DoD
contractors; other branches of the
Federal Government; State and local
governments; and foreign countries.
Limited rights. The rights to use,
modify, reproduce, release, perform,
display, or disclose technical data and
technology, in whole or in part, within
the government.
Other legitimate business purposes.
Include:
(1) Providing or seeking to provide
equipment or technology to a foreign
government with USG approval (for
example, through foreign military sale).
(2) Bidding, or preparing to bid, on a
sale of surplus property.
(3) Selling or producing products for
the commercial domestic marketplace or
for the commercial foreign marketplace,
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providing that any required export
license is obtained.
(4) Engaging in scientific research in
a professional capacity.
(5) Acting as a subcontractor to a
qualified contractor.
Potential DoD contractor. An
individual or organization outside the
DoD declared eligible for DoD
information services by a sponsoring
DoD activity.
Public disclosure. Making technical
data available without restricting its
dissemination or use.
Qualified contractor. A qualified U.S.
contractor or a qualified Canadian
contractor referred to in and governed
by Canada Minister of Justice, Technical
Data Control Regulations SOR/86–345,
May 27, 2014 current edition and
certified in the Joint Certification
Program through acceptance of a valid
DD Form 2345.
Qualified Canadian contractor.
Canadian contractors are qualified for
technical data and technology that do
not require a license or other
authorization for export to Canada
under 22 CFR 126.5 by submitting a
certification request to the United
States-Canada Joint Certification Office
established at the Defense Logistics
Agency, Battle Creek, Michigan, in
accordance with the ‘‘Memorandum of
Understanding Between the
Government of Canada and the
Government of the United States
Concerning Strategic Technical
Exchange’’.
Qualified U.S. contractor. A private
individual or enterprise that, in
accordance with procedures established
by the Under Secretary of Defense for
Acquisition, Technology, and Logistics
(USD(AT&L)) and as a condition of
obtaining export-controlled technical
data and technology subject to this part
from the DoD:
(1) Certifies that the individual who
will act as recipient of the exportcontrolled technical data and
technology on behalf of the U.S.
contractor is a U.S. citizen or a person
admitted lawfully into the United States
for permanent residence and is located
in the United States.
(2) Certifies that such data and
technology are needed to bid or perform
on a contract with the DoD or other USG
agency, or for other legitimate business
purposes in which the U.S. contractor is
engaged or plans to engage. The purpose
for which the data and technology are
needed must be described sufficiently in
such certification to permit an
evaluation of whether subsequent
requests for data and technology are
related properly to such business
purpose.
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(3) Acknowledges its responsibilities
under U.S. export control laws and
regulations (including the obligation,
under certain circumstances, to obtain
an export license prior to the release of
technical data and technology within
the United States) and agrees that it will
not disseminate any export-controlled
technical data and technology subject to
this part in violation of applicable
export control laws and regulations.
(4) Agrees that, unless dissemination
is permitted by paragraph (i) of § 250.6,
it will not provide access, including
network access, to export-controlled
technical data and technology subject to
this part to persons other than its
employees or persons acting on its
behalf, and who meet the same
citizenship or residency requirements
without the permission of the DoD
Component that provided the technical
data and technology.
(5) To the best of its knowledge,
knows of no person employed by it or
acting on its behalf who will have
access to such data and technology, who
is debarred, suspended, or otherwise
ineligible from performing on USG
contracts; or has violated U.S. export
control laws or a certification previously
made to the DoD under the provisions
of this part.
(6) Asserts that it is not debarred,
suspended, or otherwise determined
ineligible by any agency of the USG to
perform on USG contracts, has not been
convicted of export control law
violations, and has not been disqualified
under the provisions of this part.
(7) Requests the certification be
accepted based on its description of
extenuating circumstances when the
certifications required by this definition
cannot be made truthfully.
Restricted rights. The government’s
rights to use a computer program with
one computer at one time. Applicable
only to noncommercial computer
software.
Technical data. Defined at 22 CFR
120.10.
(1) Classified data relating to defense
articles and defense services on the U.S.
Munitions List;
(2) Information covered by an
invention secrecy order; or
(3) Software (see 22 CFR 120.45(f))
directly related to defense articles.
(4) The 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 22 CFR 120.11 or telemetry
data as defined in note 3 to Category
XV(f) of in 22 CFR part 121. It also does
not include basic marketing information
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on function or purpose or general
system descriptions of defense articles.
Technical information. Includes
technical data and technology as
defined in 15 CFR parts 730 through
774, as well as technical information
that is not subject to 22 CFR parts 120
through 130 or 15 CFR parts 730
through 774. It also includes technical
data or computer software of any kind
that can be used or adapted for use in
the design, production, manufacture,
assembly, repair, overhaul, processing,
engineering, development, operation,
maintenance, adapting, testing, or
reconstruction of goods or materiel; or
any technology that advances the state
of the art, or establishes a new art, in an
area of significant military or space
applicability in the United States. The
data may be in tangible form, such as a
blueprint, photograph, plan, instruction,
or an operating manual, or may be
intangible, such as a technical service or
oral, auditory, or visual descriptions.
Examples of technical data include
research and engineering data,
engineering drawings, and associated
lists, specifications, standards, process
sheets, manuals, technical reports,
technical orders, catalog item
identifications, data sets, studies and
analyses and related information, and
computer software.
Technology. Defined in 15 CFR 772.1.
United States. The 50 States, the
District of Columbia, and the territories
and possessions of the United States.
United States-Canada Joint
Certification Office. The office
established to certify contractors of each
country for access, on an equally
favorable basis, to unclassified technical
data and technology disclosing
technology controlled in the United
States by this part and in Canada by
Canada Minister of Justice, Technical
Data Control Regulations SOR/86–345,
May 27, 2014 current edition.
U.S. DoD contractor. Those qualified
U.S. contractors currently holding
grants or contracts with DoD or those
contractors declared eligible for DoD
information services by a sponsoring
DoD activity on the basis of
participation in a DoD Potential
Contractor Program.
§ 250.4
Policy.
It is DoD policy that:
(a) Pursuant to 10 U.S.C. 130 and 133,
the Secretary of Defense may withhold
from public disclosure any technical
data and technology with military or
space application in the possession or
under the control of the DoD, if such
technical data and technology may not
be exported lawfully without a license,
exception, exemption, or other export
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authorization, in accordance with U.S.
export control laws and regulations
(including 22 U.S.C. 2778, 50 U.S.C.
chapter 35, 22 CFR parts 120 through
130, and 15 CFR parts 730 through 774).
However, technical data and technology
may not be withheld if regulations
distributed in accordance with 22 U.S.C.
2778 authorize the export of such
technical data and technology pursuant
to a general unrestricted license or
exemption.
(b) Because public disclosure of
technical data and technology subject to
this part is the same as providing
uncontrolled foreign access,
withholding such technical data and
technology from public disclosure,
unless approved, authorized, or licensed
in accordance with export control laws,
is necessary and in the national interest.
(c) Notwithstanding the authority in
paragraph (c)(1) of this section, it is DoD
policy to provide technical data and
technology governed by this part to
individuals and enterprises that are:
(1) Currently qualified U.S.
contractors, when such technical data
and technology relate to a legitimate
business purpose for which the
contractor is certified; or
(2) A certified Canadian contractor
referred to in and governed by Canada
Minister of Justice, Technical Data
Control Regulations SOR/86–345, May
27, 2014 current edition (available at
https://laws-lois.justice.gc.ca/PDF/SOR86-345.pdf) and registered at the United
States-Canada Joint Certification Office
when a legitimate business relationship
has been established between the
government and the contractor.
(d) This part may not be used by the
DoD Components as authority to deny
access to technical data and technology
to the Congress or to any Federal, State,
or local government agency that requires
the technical data and technology for
regulatory or other official government
purposes. Dissemination of the
technical data and technology will
include a statement that DoD controls it,
in accordance with this part.
(e) The authority in this part may not
be used to withhold from public
disclosure unclassified information
regarding DoD operations, policies,
activities, or programs, including the
costs and evaluations of performance
and reliability of military and space
equipment. When information does
contain technical data and technology
subject to this part, the technical data
and technology must be excised from
what is disclosed publicly.
(f) This part may not be used as a
basis for the release of limited rights or
restricted rights data as defined in 48
CFR or those that are authorized to be
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withheld from public disclosure
pursuant to the 5 U.S.C. 552.
(g) This part may not be used to
provide protection for technical data
that should be classified in accordance
with Executive Order 13526, ‘‘Classified
National Security Information,’’ and
volume 1 of DoD Manual 5200.01
(available at https://www.dtic.mil/whs/
directives/corres/pdf/520001_vol1.pdf).
(h) This part provides immediate
authority to cite section (b)(3) of 5
U.S.C. 552 (FOIA Exemption 3)
described in 32 CFR part 286 as the
basis for denials under 5 U.S.C. 552 of
technical data and technology currently
determined to be subject to the
provisions of this part. The technical
data will be withheld under the
authority of 10 U.S.C.130. If the
information originated or is under the
control of a Government Agency outside
the DoD, DoD Components will refer to
that Government Agency for a release
determination.
(i) Technical data and technology
subject to this part must be marked in
accordance with DoD Instruction
5230.24, ‘‘Distribution Statements on
Technical Documents’’ (available at
https://www.dtic.mil/whs/directives/
corres/pdf/523024p.pdf) and volume 4
of DoD Manual 5200.01 and released in
accordance with DoD Instruction
2040.02, ‘‘International Transfers of
Technology, Articles, and Services’’
(available at https://www.dtic.mil/whs/
directives/corres/pdf/204002_2014.pdf),
DoD Directive 5230.09, ‘‘Clearance of
DoD Information for Public Release’’
(available at https://www.dtic.mil/whs/
directives/corres/pdf/523009p.pdf), DoD
Instruction 5230.29, ‘‘Security and
Policy Review of DoD Information for
Public Release’’ (available at https://
www.dtic.mil/whs/directives/corres/pdf/
523029p.pdf), and 32 CFR part 285.
(j) Technical data and technology
subject to this part, when disseminated
electronically, must be marked in
accordance with volume 4 of DoD
Manual 5200.01 and are subject to all
applicable security requirements
specified in DoD Instruction 8500.01,
‘‘Cybersecurity’’ (available at https://
www.dtic.mil/whs/directives/corres/pdf/
850001_2014.pdf) and Chairman of the
Joint Chiefs of Staff Instruction
6510.01F, ‘‘Information Assurance (IA)
and Support to Computer Network
Defense (CND),’’ February 9, 2011, as
amended (available at https://
www.dtic.mil/cjcs_directives/cdata/
unlimit/6510_01.pdf).
(k) In accordance with DoD
Instruction 5015.02, ‘‘DoD Records
Management Program’’ (available at
https://www.dtic.mil/whs/directives/
corres/pdf/501502p.pdf), technical data
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and technology subject to this part must
be maintained and managed consistent
with National Archives and Records
Administration approved dispositions
to ensure proper maintenance, use,
accessibility, and preservation,
regardless of format or medium.
§ 250.5
Responsibilities.
(a) The Under Secretary of Defense for
Acquisition, Technology, and Logistics
(USD(AT&L)) has overall responsibility
for the implementation of this part and
will designate an office to:
(1) Administer and monitor
compliance with this part.
(2) Receive and disseminate
notifications of temporary revocation of
contractor qualification in accordance
with paragraph (e) of § 250.6.
(3) Receive recommendations for
contractor disqualification made in
accordance with paragraph (f) of § 250.6,
and act as disqualification authority.
(4) Provide technical assistance when
necessary to the DoD Components to
assess the significance of the military or
space application of technical data and
technology that may be withheld from
public disclosure in accordance with
this part.
(5) Maintain and update procedures
and appropriate mechanisms for the
certification of qualified contractors, in
accordance with paragraph (c) of § 250.4
of this part.
(6) Ensure that the requirements of
this part are incorporated into 48 CFR
for application to contracts involving
technical data and technology governed
by this part.
(7) Develop, in conjunction with the
Office of the General Counsel of the
Department of Defense (GC DoD),
guidelines for responding to appeals, as
identified in paragraph (k) of § 250.6.
(8) Develop procedures to ensure that
the DoD Components apply consistent
criteria in authorizing exceptions in
accordance with paragraph (j) of § 250.6.
(9) Prescribe procedures to develop,
collect, and disseminate certification
statements; to ensure their sufficiency,
accuracy, and periodic renewal; and to
make final determinations of
qualification.
(10) Take such other actions that may
be required to ensure consistent and
appropriate implementation of this part
within the DoD.
(b) The Under Secretary of Defense for
Policy (USD(P)):
(1) Prepares and issues policy
guidance regarding the foreign
disclosure and security controls for
information in international programs
within the scope of this part.
(2) Provides consultation to DoD
offices on export control and
commodity jurisdiction determinations.
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(c) The Deputy Chief Management
Officer (DCMO) of the Department of
Defense:
(1) Monitors the implementation of
the provisions of this part that pertain
to 5 U.S.C. 552 and 32 CFR part 285.
(2) Provides such other assistance as
may be necessary to ensure compliance
with this part.
(d) The GC DoD:
(1) Advises DoD Components with
respect to the statutory and regulatory
requirements governing the export of
technical data and technology.
(2) Advises the USD(AT&L) regarding
consistent and appropriate
implementation of this part.
(e) The DoD Component heads:
(1) Disseminate and withhold from
public disclosure technical data and
technology subject to this part
consistent with its policies and
procedures.
(2) Designate a focal point to:
(i) Ensure implementation of this part.
(ii) Identify classes of technical data
and technology whose release are
governed by paragraph (d)(3) of § 250.6.
(iii) Act on appeals relating to caseby-case denials for release of technical
data and technology.
(iv) Temporarily revoke a contractor’s
qualification in accordance with
paragraph (e) of § 250.6.
(v) Receive and evaluate requests for
reinstatement of a contractor’s
qualification in accordance with
paragraph (e)(4) of § 250.6.
(vi) Recommend contractor’s
disqualification to the USD(AT&L) in
accordance with paragraph (f) of § 250.6.
(3) Develop, distribute, and effect
Component regulations to implement
this part.
(4) Ensure that the controlling DoD
office that created or sponsored the
technical information exercises its
inherently governmental responsibility
to determine the appropriate marking in
accordance with DoD Instruction
5230.24 and volumes 2 and 4 of DoD
Manual 5200.01 (volume 2 available at
https://www.dtic.mil/whs/directives/
corres/pdf/520001_vol2.pdf) and that all
technical documents, including
research, development, engineering,
test, sustainment, and logistics
information, regardless of media or
form, are marked correctly.
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§ 250.6
Procedures.
(a) Procedures for release of technical
information must be made under the
following guidelines:
(1) DoD Components may make their
technical information for other than
military or space application available
for public disclosure in accordance with
DoD Directive 5230.09 and DoD
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Instruction 5230.29. DoD has the
authority to withhold technical data and
technology as defined in § 250.3 from
public disclosure.
(2) DoD Components will process
FOIA requests from the public for
technical information in accordance
with 32 CFR part 286 and governing
DoD Component issuances. All
requested technical data and technology
currently determined to be subject to the
withholding authority in this part will
be denied under Exemption 3 of 5
U.S.C. 552 and 10 U.S.C. 130. Any FOIA
appeals for the denied information will
be processed in accordance with 32 CFR
part 286 and governing DoD Component
issuances.
(3) DoD Components may give
qualified contractors access to their
technical data and technology as
permitted by the provisions of this part.
(i) United States-Canada Joint
Certification Office adjudicates
certification of qualified contractors.
(ii) To qualify, U.S. and Canadian
contractors must submit a completed
DD Form 2345 ‘‘Militarily Critical
Technical Data Agreement,’’ to the
United States-Canada Joint Certification
Office.
(iii) To qualify, Canadian contractors
will submit a completed DD Form 2345
when a Canadian contractor intends to
request access to DoD-controlled
technical data and technology.
(iv) A copy of the company’s State/
Provincial Business License,
Incorporation Certificate, Sales Tax
Identification Form, ITAR Controlled
Goods Registration letter or certificate,
or other documentation that verifies the
legitimacy of the company must
accompany all DD Forms 2345.
(v) The contractor’s business activity
is a key element of the certification
process since this information is used
by the controlling office as a basis for
approving or disapproving specific
requests for technical data and
technology. The business activity
statement should be sufficiently
detailed to support requests for any data
that the contractor expects for legitimate
business purposes.
(b) Upon receipt of a request for
technical information in the possession
of, or under the control of the DoD, the
controlling DoD office for the requested
information will determine whether the
information is governed by this part.
(1) The determination will be based
on whether
(i) The information is subject to 22
CFR part 121 or 15 CFR part 774.
(ii) The information would require a
license, exception, exemption, or other
export authorization in accordance with
U.S. export control laws and regulations
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in accordance with 22 U.S.C. 2778, 50
U.S.C. chapter 35, 22 CFR parts 120
through 130, and 15 CFR parts 730
through 774.
(iii) The information would not fall
into the categories of information
described in paragraphs (c) and (d) of
§ 250.2.
(2) In making such a determination,
the controlling office may consult with
the Defense Technology Security
Administration for advice on whether
U.S. export control laws or regulations
apply. The controlling DoD office may
request assistance in making this
determination from the USD(AT&L),
and if necessary, consult the
Departments of State, Commerce, or
Energy.
(c) The controlling DoD office will
ensure technical data and technology
governed by this part are marked for
distribution in accordance with DoD
Instruction 5230.24 and volume 4 of
DoD Manual 5200.01.
(d) The controlling DoD office will
authorize release of technical data and
technology governed by this part to
qualified contractors, as defined in
§ 250.3, unless either:
(1) The qualification of the contractor
concerned has been temporarily revoked
in accordance with paragraph (e) of this
section;
(2) The controlling DoD office judges
the requested technical data and
technology to be unrelated to the
purpose for which the qualified
contractor is certified. When release of
technical data and technology is denied
in accordance with this paragraph, the
controlling DoD office will request
additional information to explain the
intended use of the requested technical
data and technology and, if appropriate,
request a new certification (see § 250.3)
describing the intended use of the
requested technical data and
technology; or
(3) The technical data and technology
are being requested for a purpose other
than to permit the requester to bid or
perform on a contract with the DoD or
other USG agency. In this case, the
controlling DoD office will withhold the
technical data and technology if the
DoD Component focal point determines
the release of the technical data and
technology may jeopardize an important
technological or operational military
advantage of the United States.
(e) Upon receipt of substantial and
credible information that a qualified
U.S. contractor has violated U.S. export
control law; violated its certification;
made a certification in bad faith; or
omitted or misstated material fact, the
DoD Component will temporarily
revoke the U.S. contractor’s
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qualification. Canadian contractors are
disqualified in accordance with Canada
Minister of Justice, Technical Data
Control Regulations SOR/86–345, May
27, 2014 current edition.
(1) The DoD Component may delay
such temporary revocations with the
potential to compromise a USG
investigation.
(2) Immediately upon a temporary
revocation, the DoD Component will
notify the contractor and the
USD(AT&L).
(3) The contractor will be given an
opportunity to respond in writing to the
information upon which the temporary
revocation is based before being
disqualified.
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(4) Any U.S. contractor whose
qualification has been temporarily
revoked may present information to the
DoD Component showing that the basis
for revocation was in error or has been
remedied and be reinstated.
(f) When the basis for a contractor’s
temporary revocation cannot be
removed within 20 working days, the
DoD Component will recommend to the
USD(AT&L) that the contractor be
disqualified.
(g) After receipt of substantial and
credible information that a qualified
U.S. contractor has violated U.S. export
control law, the DoD Component must
notify the appropriate law enforcement
agency.
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(h) Charges for copying, certifying,
and searching records rendered to
requesters will be levied in accordance
with chapter 4, appendix 2 of volume
11A of DoD 7000.14–R, ‘‘Department of
Defense Financial Management
Regulations (FMRs)’’ (available at https://
comptroller.defense.gov/Portals/45/
documents/fmr/Volume_11a.pdf).
Normally, only one copy of the same
record or document will be provided to
each requester. Each release to qualified
contractors of controlled technical data
and technology governed by this part
will be accompanied by a ‘‘Notice to
Accompany the Dissemination of
Export-Controlled Technical Data and
Technology’’ (see Figure to § 250.6(h)).
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Figure to§ 250.6(h}-Example of the Notice to Accompany Export-Controlled Technical
Data and Technology
1. Export of information contained herein, including release to foreign nationals within the
United States, without first obtaining approval or license from the Department of State for items
controlled by the International Traffic in Arms Regulations (ITAR), or the Department of
Commerce for items controlled by the Export Administration Regulations (EAR), may constitute
a violation of law.
2. Under 22 U.S.C. §2778 the penalty for unlawful export of defense articles controlled under the
ITAR is not more than 20 years imprisonment, a fine of$1,000,000, or both.
3. Under 50 U.S.C. §1705 and 15 CFR §764.3, as adjusted for inflation by 15 CFR §6.4, the
penalty for persons who violate, attempt or conspire to violate, or cause a violation of the EAR,
while the EAR is continued in effect by Executive Order under the International Emergency
Economic Powers Act, may include civil penalties of not more than $284,582 per transaction
(subject to further adjustment for inflation) or twice the amount of the transaction, whichever is
greater and criminal penalties of not more than $1,000,000, imprisonment of not more than 20
years, or both. Violations of the EAR may also result in the denial of export privileges.
5. In accordance with the certification that establishes you as a "qualified contractor,"
unauthorized dissemination of this information is prohibited and may result in disqualification as
a qualified contractor, and may be considered in determining your eligibility for future contracts
with the Department of Defense.
6. The U.S. Government assumes no liability for direct patent infringement, contributory patent
infringement, or misuse of technical data and technology.
7. The U.S. Government does not warrant the adequacy, accuracy, currency, or completeness of
the technical data.
8. The U.S. Government assumes no liability for loss, damage, or injuries resulting from
manufacture or use for any purpose of any product, article, system, or material involving
reliance upon any or all technical data and technology furnished in response to the request for
technical data and technology.
9. If the technical data and technology furnished by the government will be used for commercial
manufacturing or other profit potential, a license for such use may be necessary. Any payments
made in support of the request for data and technology do not include or involve any license
rights.
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(i) Qualified U.S. contractors who
receive technical data and technology
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that technical data and technology for
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10. A copy of this notice must be provided with any partial or complete reproduction of these
technical data and technology that are provided to qualified contractors.
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purposes consistent with their
certification without the permission of
the controlling DoD office or when
dissemination is:
(1) To any foreign recipient for which
the technical data and technology are
approved, authorized, or licensed in
accordance with 22 U.S.C. 2778 or 15
CFR parts 730 through 774.
(2) To another qualified U.S.
contractor including existing or
potential subcontractors, but only
within the scope of the certified
legitimate business purpose of the
recipient.
(3) To the Departments of State and
Commerce to apply for approvals,
authorizations, or licenses for export
pursuant to 22 U.S.C. 2778 or 15 CFR
parts 730 through 774. The application
will include a statement that the
technical data and technology for which
the approval, authorization, or license is
sought is controlled by the DoD in
accordance with this part.
(4) To the Congress or any Federal,
State, or local governmental agency for
regulatory purposes or otherwise as may
be required by law or court order. Any
such dissemination will include a
statement that the technical data and
technology are controlled by the DoD in
accordance with this part.
(j) A qualified contractor desiring to
disseminate technical data and
technology subject to this part in a
manner not permitted expressly by the
terms of this part must be granted
authority to do so by the controlling
DoD office, consistent with U.S. export
control laws and regulations specified
in 22 U.S.C. 2778, 50 U.S.C. chapter 35,
22 CFR parts 120 through 130, and 15
CFR parts 730 through 774 and DoD
policies.
(k) Any requester denied technical
data and technology or any qualified
U.S. contractor denied permission to
disseminate such technical data and
technology in accordance with this part
will be promptly provided with a
written statement of reasons for that
action, and advised of the right to make
a written appeal to a specifically
identified appellate authority within the
DoD Component. Other appeals will be
processed as directed by the
USD(AT&L).
(l) Denials will cite 10 U.S.C. 130 and
133 as implemented by this part.
Implementing procedures will provide
for resolution of any appeal within 20
working days.
§ 250.7
Directly arranged visits.
(a) USG officials and certified U.S.
contractors and Canadian government
officials and certified Canadian
contractors may use the certification
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Jkt 241001
process to facilitate directly arranged
visits that involve access to unclassified
technical data and technology.
Activities under this process are limited
to:
(1) Procurement activities such as
unclassified pre-solicitation
conferences, discussions related to
unclassified solicitations, and collection
of procurement unclassified documents.
(2) Performance of an unclassified
contract.
(3) Scientific research, in support of
unclassified U.S. or Canadian national
defense initiatives.
(4) Attendance at restricted meetings,
conferences, symposia, and program
briefings where technical data and
technology governed by this part or
Canada Minister of Justice, Technical
Data Control Regulations SOR/86–345,
May 27, 2014 current edition will be
presented, or the event is being held in
an unclassified access controlled area.
(b) A directly arranged visit does not
apply to uncertified U.S. or Canadian
contractors; classified visits, where
confirmation of the visitors’ security
clearances is required; or unsolicited
marketing visits.
(c) A directly arranged visit related to
the release of information controlled in
the United States by this part or in
Canada by Canada Minister of Justice,
Technical Data Control Regulations
SOR/86–345, May 27, 2014 current
edition, is permitted when two
conditions are satisfied.
(1) First condition:
(i) There is a valid license covering
the export of the technical data and
technology;
(ii) The export or release is permitted
under the Canadian exemption on 22
CFR 126.5;
(iii) The export or release is covered
by the general exemptions in 22 CFR
125.4; or
(iv) The export or release qualifies for
a license exception under 15 CFR parts
730 through 774.
(2) Second condition:
(i) The distribution statement applied
to the technical data and technology
pursuant to DoD Instruction 5230.24
permits release; or
(ii) The originator or government
controlling office authorizes release.
Dated: October 26, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2016–26236 Filed 10–28–16; 8:45 am]
BILLING CODE 5001–06–P
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75361
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R08–OAR–2016–0620; FRL–9954–67–
Region 8]
Approval and Promulgation of Air
Quality Implementation Plans; State of
Utah; Revisions to Nonattainment
Permitting Regulations
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to
conditionally approve State
Implementation Plan (SIP) revisions
submitted by the state of Utah on
August 20, 2013, with supporting
administrative documentation
submitted on September 12, 2013. These
submittals revise the Utah
Administrative Code (UAC) that pertain
to the issuance of Utah air quality
permits for major sources in
nonattainment areas. The EPA proposes
a conditional approval because while
the submitted revisions to Utah’s
nonattainment permitting rules do not
fully address the deficiencies in the
state’s program, Utah has committed to
address additional remaining
deficiencies in the state’s nonattainment
permitting program no later than a year
from the EPA finalizing this conditional
approval. If finalized, and upon the EPA
finding a timely meeting of this
commitment in full, the proposed
conditional approval of the SIP
revisions would convert to a final
approval of Utah’s plan. This action is
being taken under section 110 of the
Clean Air Act (CAA) (Act).
DATES: Written comments must be
received on or before November 30,
2016.
SUMMARY:
Submit your comments,
identified by EPA–R08–OAR–2016–
0620 at https://www.regulations.gov.
Follow the online instructions for
submitting comments. Once submitted,
comments cannot be edited or removed
from regulations.gov. The EPA may
publish any comment received to its
public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. The EPA will
ADDRESSES:
E:\FR\FM\31OCP1.SGM
31OCP1
]]>Agencies
[Federal Register Volume 81, Number 210 (Monday, October 31, 2016)]
[Proposed Rules]
[Pages 75352-75361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26236]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 250
[Docket ID: DOD-2015-OS-0126]
RIN 0790-AI73
Withholding of Unclassified Technical Data and Technology From
Public Disclosure
AGENCY: Office of the Under Secretary of Defense for Acquisition,
Technology, and Logistics, DoD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rulemaking establishes policy, assigns responsibilities,
and prescribes procedures for the dissemination and withholding of
certain unclassified technical data and technology subject to the
International Traffic in Arms Regulations (ITAR) and Export
Administration Regulations (EAR). It applies to DoD components, their
contractors and grantees and is meant to control the transfer of
technical data and technology contributing to the military potential of
any country or countries, groups, or individuals that could prove
detrimental to U.S, national security or critical interests.
DATES: Comments must be received by December 30, 2016.
ADDRESSES: You may submit comments, identified by docket number and/or
RIN number and title, by any of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Department of Defense, Office of the Deputy Chief
Management Officer, Directorate for Oversight and Compliance, 4800 Mark
Center Drive, Mailbox #24, Alexandria, VA 22350-1700.
[[Page 75353]]
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at https://www.regulations.gov as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Vakare Valaitis, 703-767-9159.
SUPPLEMENTARY INFORMATION:
Background
For the purposes of this regulation, public disclosure of technical
data and technology is the same as providing uncontrolled foreign
access. This rule instructs DoD employees, contractors, and grantees to
ensure unclassified technical data and technology that discloses
technology or information with a military or space application may not
be exported without authorization and should be controlled and
disseminated consistent with U.S. export control laws and regulations.
These policies preserve the U.S. military's technological superiority,
establish and maintain interoperability with allies and coalition
partners, and manage direct and indirect impacts on defense industrial
base.There are penalties for export control violations. For export
control violations involving items controlled by the United States
Department of State under the International Traffic in Arms Regulations
(ITAR), including many munitions items, the statute authorizes a
maximum criminal penalty of $1 million per violation and, for an
individual person, up to 10 years imprisonment. In addition, ITAR
violations can result in the imposition of a maximum civil fine of
$500,000 per violation, as well as debarment from exporting defense
articles or services. For export control violations involving dual-use
and certain munitions items controlled by the United States Department
of Commerce under the Export Administration Regulations, criminal and
civil penalties are currently provided by the International Emergency
Economic Powers Act (IEEPA), 50 U.S.C. 1705, which has continued the
Export Administration Regulations (EAR) in effect while the Export
Administration Act is in lapse through Executive Order 13222 of August
17, 2001 (3 CFR 2001 Comp. 783 (2002)), as amended by Executive Order
13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by
successive Presidential Notices, the most recent being that of August
4, 2016 (81 FR 52587 (Aug. 8, 2016)). Under the EAR and IEEPA, as
adjusted by 15 CFR 5.4(b), the penalty for persons who violate, attempt
or conspire to violate, or cause a violation of the export control
regulations includes civil penalties of not more than $284,582 per
transaction or twice the amount of the transaction, whichever is
greater, and criminal penalties of not more than $1,000,000,
imprisonment of not more than 20 years, or both. Violations of the EAR
may also result in the denial of export priveleges and other
administrative sanctions.
Authority To Issue This Regulation
In accordance with 10 U.S.C. 133 part (b)(2), the Under Secretary
of Defense for Acquisition, Technology and Logistics (USD(AT&L)) may
exercise powers relating to establishing policies for acquisition
(including procurement of goods and services, research and development,
developmental testing, and contract administration) for all elements of
the Department of Defense. In addition, U.S. export control laws,
including 22 U.S.C. 2778 (also known as the ``Arms Export Control
Act''); 50 U.S.C. chapter 35 (also known as the ``International
Emergency Economic Powers Act'' (IEEPA)); 22 CFR parts 120 through 130
(also known as ``International Traffic in Arms Regulations'' (ITAR));
and 15 CFR parts 730 through 774 (also known as ``Export Administration
Regulations'' (EAR)) govern this rule.
Summary of the Major Provisions of the Rulemaking
This proposed rule describes procedures for the release of
technical information; discusses procedures for technical data and
technology to be marked for distribution; and provides an example of
the notice to accompany export-controlled technical data and
technology.
Costs and Benefits
DoD is proposing this regulation to update the CFR and DoD
Directive 5230.25 (available at https://dtic.mil/whs/directives/corres/pdf/523025p.pdf). The Department currently spends $571,876 annually on
export control certification activities. The costs to DoD contractors
and grantee consist primarily of the time needed to organize, format,
and submit information to the U.S./Canada Joint Certification Office to
qualify for export controlled technical data and technology.
The program has no discernible increase in anticipated costs and
benefits as the program is being updated to conform to national
security guidance cited in the text in Sec. Sec. 250.1 through 250.7.
The potential benefits include greater public access and
understanding of information about the qualifications needed for access
to export controlled technical data and technology. Such information
may help potential contractors and grantees to better understand their
options for participating in DoD activities; to better enable funders
and researchers to determine the need for information and technolgy; to
provide more complete information of those who use information from DoD
research and contracts to inform other decisions; and to better enable
the scientific community to examine the overall state of information
and technology in this area as a basis for engaging in quality
improvement (e.g., with regard to research methods). The proposed rule
is also expected to provide greater clarity about what is required for
those who are authorized holders of export controlled technical data
and technology.
This proposed rule is included in DoD's retrospective plan,
completed in August 2011, and will be reported in future status updates
of DoD's retrospective review in accordance with the requirements in
Executive Order 13563. DoD's full plan can be accessed at: https://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.
Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. Although this rulemaking is not ``economically
significant'' because it does not have an annual effect on the economy
of $100 million or more or adversely affect in a material way the
economy, it has been deemed ``other significant'' for raising novel
legal or policy issues arising out of legal mandates, the President's
priorities, or
[[Page 75354]]
the principles set forth in these Executive Orders. For that reason, it
has been reviewed by the Office of Management and Budget (OMB).
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any 1 year
of $100 million in 1995 dollars, updated annually for inflation. In
2014, that threshold is approximately $141 million. This proposed rule
would not mandate any requirements for State, local, or tribal
governments, nor would it affect private sector costs.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Department of Defense certifies that this proposed rule is not
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a significant economic impact on a
substantial number of small entities. Therefore, the Regulatory
Flexibility Act, as amended, does not require us to prepare a
regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that this proposed rule does impose reporting
or recordkeeping requirements under the Paperwork Reduction Act of
1995. These reporting requirements have been approved by OMB under OMB
Control Number 0704-0207 titled DD Form 2345, Militarily Critical
Technical Data Agreement.
Cost to the Public
In exchange for Government-owned unclassified export controlled
technical data and technology, a contractor provides basic company
information, identifies a technical data and technology custodian, and
describes need-to-know. The reporting burden is estimated to average 20
minutes per response. The DD Form 2345 and supporting documentation
must be submitted to the U.S./Canada Joint Certification Office in
hardcopy. Approximately 24,000 U.S. companies have active
certifications.
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
24,000 responses........................ $9.94 * per response...... $19.99 postage ** per $638,400
response.
----------------------------------------------------------------------------------------------------------------
* U.S. Department of Labor. Bureau of Labor Statistics. 2014 median weekly earnings of full-time workers with at
least a bachelor's degree: $1,193. https://www.bls.gov/spotlight/2015/a-look-at-pay-at-the-top-the-bottom-and-in-between/home.htm.
** Most applicants choose Priority Mail Express Flat Rate Envelope USPS Postage Price Calculator https://postcalc.usps.com/.
Cost to the Government
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
4 FTE registrars.............................. GS 9 step 5..................... $59,036 * $236,144
1 FTE Team Lead............................... GS11 step 5..................... 71,429 * 71,429
.5 FTE US Representative...................... GS13 step 5..................... 101,807 50,904
.25 FTE Division Chief........................ GS14 step 5..................... 120,303 30,075
.25 FTE Director.............................. GS15 step 5..................... 35,378 * 35,378
O&M for IT.................................... SP4701-15-F-0031................ 2,958,915 147,946
-------------------------------
Total..................................... ................................ .............. 571,876
----------------------------------------------------------------------------------------------------------------
* 2014 General Schedule (Base) Office of Personnel Management Salaries and Wages https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2014/general-schedule/.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has federalism
implications. This proposed rule will not have a substantial effect on
State and local governments.
List of Subjects in 32 CFR Part 250
Exports, Science and technology.
Accordingly, 32 CFR part 250 is proposed to be revised to read as
follows:
PART 250--WITHHOLDING OF UNCLASSIFIED TECHNICAL DATA AND TECHNOLOGY
FROM PUBLIC DISCLOSURE
Sec.
250.1 Purpose.
250.2 Applicability.
250.3 Definitions.
250.4 Policy.
250.5 Responsibilities.
250.6 Procedures.
250.7 Directly arranged visits.
Authority: 10 U.S.C. 133.
Sec. 250.1 Purpose.
This part establishes policy, assigns responsibilities, and
prescribes procedures for the dissemination and withholding of certain
unclassified technical data and technology consistent with the
requirements of 10 U.S.C. 130.
Sec. 250.2 Applicability.
This part:
(a) Applies to:
(1) The Office of the Secretary of Defense, the Military
Departments, the Office of the Chairman of the Joint Chiefs of Staff
and the Joint Staff, the Combatant Commands, the Office of Inspector
General of the Department of Defense, the Defense Agencies, the DoD
Field Activities, and all other organizational entities within the DoD
(referred to collectively in this part as the ``DoD Components'').
(2) All unclassified technical data and technology that discloses
technology or information with military or space application, in the
possession or under the control of a DoD Component, that may not be
exported lawfully without an approval, authorization, license, license
exception, or exemption in accordance with U.S. export control laws and
regulations: 22 U.S.C. 2778 (also known as the ``Arms Export Control
Act''); 50 U.S.C. chapter 35 (also known as the ``International
Emergency Economic Powers Act''); 22 CFR parts 120-130 (also known as
``International Traffic in Arms Regulations'' (ITAR)); and 15 CFR parts
730 through 774 (also known as ``Export Administration Regulations''
(EAR)).
(b) Does not modify or supplant the regulations governing the
export of technical data and technology established by 22 U.S.C. 2778,
50 U.S.C. chapter 35, 22 CFR parts 120 through 130, 10 CFR 810, and 15
CFR parts 730 through 774.
(c) Does not apply to technical information under the control of
the Department of Energy or the Nuclear
[[Page 75355]]
Regulatory Commission pursuant to the Atomic Energy Act of 1954, as
amended, and the Nuclear Non-Proliferation Act of 1978, as amended.
(d) Does not introduce any additional controls on the dissemination
of technical data and technology by private enterprises or individuals
beyond those specified by export control laws and regulations or in
contracts or other agreements, including certifications as specified in
paragraph (a)(9) of Sec. 250.5. Accordingly, the fact that DoD may
possess such technical data and technology does not in itself provide a
basis for control of such technical data and technology under this
part.
(e) Does not introduce any controls on the dissemination of:
(1) Scientific, educational, or other items that are not subject to
the EAR or exclusively controlled for export or reexport by another
department or agency pursuant to 15 CFR 734.3, 734.7 through 734.8;
(2) Information in the public domain as described in 22 CFR 120.11
and technical data that has been approved for release in accordance
with 22 CFR 125.4(b)(13)).
(f) Does not alter the responsibilities of the DoD Components to
protect proprietary technical data and technology of a private party,
including:
(1) In which the DoD has less than unlimited rights (e.g., pursuant
to 48 CFR 227.7202, 252.227-7013, 252.227-7014, 252.227-7015, and
252.227.7018); and
(2) That is authorized to be withheld from public disclosure
pursuant to 5 U.S.C. 552, also known and referred to in this part as
the ``Freedom of Information Act (FOIA).''
(g) Does not pertain to or affect the release of technical data and
technology by DoD Components to foreign governments, international
organizations or their respective representatives, or contractors
pursuant to official agreements or formal arrangements with the U.S.
Government (USG), or pursuant to USG-licensed transactions involving
such entities or individuals. However, in the absence of such USG-
sanctioned relationships this part does apply.
(h) Does not apply to classified technical data. However, after
declassification, dissemination of the technical data and technology
within the scope of paragraph (a)(2) of this section is governed by
this part.
(i) Does not alter the responsibilities of the DoD Components to
mark and protect information qualifying for designation as controlled
unclassified information in accordance with Executive Order 13556,
``Controlled Unclassified Information,'' as implemented by volume 4 of
DoD Manual 5200.01, ``DoD Information Security Program'' (available at
https://www.dtic.mil/whs/directives/corres/pdf/520001_vol4.pdf).
Sec. 250.3 Definitions.
Unless otherwise noted, these terms and their definitions are for
the purpose of this part.
Certification. The United States-Canada Joint Certification Program
certifies contractors of each country for access, on an equally
favorable basis, to unclassified technical data and technology that
discloses technology or information with military or space application
controlled in the United States by this part and in Canada by Canada
Minister of Justice, Technical Data Control Regulations SOR/86-345, May
27, 2014 current edition (available at https://laws-lois.justice.gc.ca/PDF/SOR-86-345.pdf).
Controlling DoD office. The DoD activity that sponsored the work
that generated the technical data and technology or received the
technical data and technology on behalf of the DoD and therefore is
responsible for determining the distribution of a document containing
the technical data and technology. In the case of joint sponsorship,
the controlling office is determined by advance agreement and may be a
party, a group, or a committee representing the interested activities
or the DoD Components.
Critical technology. Technology or technologies essential to the
design, development, production, operation, application, or maintenance
of an defense or dual-use article or service, which makes or could make
a significant contribution to the military potential of any country,
including the United States (also referred to as militarily critical
technology). This includes, but is not limited to, design and
manufacturing know-how, technical data, keystone equipment including
manufacturing, inspection, and test equipment that is required for the
effective application of technical information and technical know-how.
(1) With respect to defense articles or defense services: Those
technologies specified in 22 CFR 121.1.
(2) With respect to categories of systems, equipment, and
components; test, inspection, and production equipment; materials;
software; and technology subject to the EAR: Those technologies
specified in 15 CFR part 774.
(3) With respect to nuclear equipment, materials, and technology:
Those technologies specified in 10 CFR part 810.
(4) With respect to select agents and toxins: Those technologies
specified in 7 CFR part 331, 9 CFR part 121, and 42 CFR part 73; and
any other technologies affecting the critical infrastructure.
(5) With respect to emerging critical defense technology: Research
and engineering development, or engineering and technology integration
that will produce a defense article or defense service, including its
underlying technology and software, covered by 22 CFR parts 120 through
130, or a dual-use or munitions item, including its underlying
technology and software, covered by 15 CFR parts 730 through 774.
Defense article. Defined at 22 CFR 120.6.
Defense services. Defined at 22 CFR 120.9.
Formal arrangement. An instrument that provides the formal
authorization to establish a voluntary agreement between two or more
parties for mutual sharing of resources and tasks to achieve a common
set of objectives, such as The Technical Cooperation Program.
Legitimate business relationship. A relationship in which the DoD
determines that a need exists to acquire, share, exchange, or
disseminate DoD technical information to anyone other than a DoD
employee for supporting the DoD mission. The relationship may be
established by a memorandum of understanding, agreement, contract, or
grant. The DoD has the sole responsibility for determining that a
legitimate business relationship exists since the only purpose is to
provide access to information created by or under the control of the
DoD. Relationships may be established with an individual or
organization in another Federal department or agency; contractors,
grantees, or potential DoD contractors; other branches of the Federal
Government; State and local governments; and foreign countries.
Limited rights. The rights to use, modify, reproduce, release,
perform, display, or disclose technical data and technology, in whole
or in part, within the government.
Other legitimate business purposes. Include:
(1) Providing or seeking to provide equipment or technology to a
foreign government with USG approval (for example, through foreign
military sale).
(2) Bidding, or preparing to bid, on a sale of surplus property.
(3) Selling or producing products for the commercial domestic
marketplace or for the commercial foreign marketplace,
[[Page 75356]]
providing that any required export license is obtained.
(4) Engaging in scientific research in a professional capacity.
(5) Acting as a subcontractor to a qualified contractor.
Potential DoD contractor. An individual or organization outside the
DoD declared eligible for DoD information services by a sponsoring DoD
activity.
Public disclosure. Making technical data available without
restricting its dissemination or use.
Qualified contractor. A qualified U.S. contractor or a qualified
Canadian contractor referred to in and governed by Canada Minister of
Justice, Technical Data Control Regulations SOR/86-345, May 27, 2014
current edition and certified in the Joint Certification Program
through acceptance of a valid DD Form 2345.
Qualified Canadian contractor. Canadian contractors are qualified
for technical data and technology that do not require a license or
other authorization for export to Canada under 22 CFR 126.5 by
submitting a certification request to the United States-Canada Joint
Certification Office established at the Defense Logistics Agency,
Battle Creek, Michigan, in accordance with the ``Memorandum of
Understanding Between the Government of Canada and the Government of
the United States Concerning Strategic Technical Exchange''.
Qualified U.S. contractor. A private individual or enterprise that,
in accordance with procedures established by the Under Secretary of
Defense for Acquisition, Technology, and Logistics (USD(AT&L)) and as a
condition of obtaining export-controlled technical data and technology
subject to this part from the DoD:
(1) Certifies that the individual who will act as recipient of the
export-controlled technical data and technology on behalf of the U.S.
contractor is a U.S. citizen or a person admitted lawfully into the
United States for permanent residence and is located in the United
States.
(2) Certifies that such data and technology are needed to bid or
perform on a contract with the DoD or other USG agency, or for other
legitimate business purposes in which the U.S. contractor is engaged or
plans to engage. The purpose for which the data and technology are
needed must be described sufficiently in such certification to permit
an evaluation of whether subsequent requests for data and technology
are related properly to such business purpose.
(3) Acknowledges its responsibilities under U.S. export control
laws and regulations (including the obligation, under certain
circumstances, to obtain an export license prior to the release of
technical data and technology within the United States) and agrees that
it will not disseminate any export-controlled technical data and
technology subject to this part in violation of applicable export
control laws and regulations.
(4) Agrees that, unless dissemination is permitted by paragraph (i)
of Sec. 250.6, it will not provide access, including network access,
to export-controlled technical data and technology subject to this part
to persons other than its employees or persons acting on its behalf,
and who meet the same citizenship or residency requirements without the
permission of the DoD Component that provided the technical data and
technology.
(5) To the best of its knowledge, knows of no person employed by it
or acting on its behalf who will have access to such data and
technology, who is debarred, suspended, or otherwise ineligible from
performing on USG contracts; or has violated U.S. export control laws
or a certification previously made to the DoD under the provisions of
this part.
(6) Asserts that it is not debarred, suspended, or otherwise
determined ineligible by any agency of the USG to perform on USG
contracts, has not been convicted of export control law violations, and
has not been disqualified under the provisions of this part.
(7) Requests the certification be accepted based on its description
of extenuating circumstances when the certifications required by this
definition cannot be made truthfully.
Restricted rights. The government's rights to use a computer
program with one computer at one time. Applicable only to noncommercial
computer software.
Technical data. Defined at 22 CFR 120.10.
(1) Classified data relating to defense articles and defense
services on the U.S. Munitions List;
(2) Information covered by an invention secrecy order; or
(3) Software (see 22 CFR 120.45(f)) directly related to defense
articles.
(4) The 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 22 CFR 120.11 or telemetry data as defined in note
3 to Category XV(f) of in 22 CFR part 121. It also does not include
basic marketing information on function or purpose or general system
descriptions of defense articles.
Technical information. Includes technical data and technology as
defined in 15 CFR parts 730 through 774, as well as technical
information that is not subject to 22 CFR parts 120 through 130 or 15
CFR parts 730 through 774. It also includes technical data or computer
software of any kind that can be used or adapted for use in the design,
production, manufacture, assembly, repair, overhaul, processing,
engineering, development, operation, maintenance, adapting, testing, or
reconstruction of goods or materiel; or any technology that advances
the state of the art, or establishes a new art, in an area of
significant military or space applicability in the United States. The
data may be in tangible form, such as a blueprint, photograph, plan,
instruction, or an operating manual, or may be intangible, such as a
technical service or oral, auditory, or visual descriptions. Examples
of technical data include research and engineering data, engineering
drawings, and associated lists, specifications, standards, process
sheets, manuals, technical reports, technical orders, catalog item
identifications, data sets, studies and analyses and related
information, and computer software.
Technology. Defined in 15 CFR 772.1.
United States. The 50 States, the District of Columbia, and the
territories and possessions of the United States.
United States-Canada Joint Certification Office. The office
established to certify contractors of each country for access, on an
equally favorable basis, to unclassified technical data and technology
disclosing technology controlled in the United States by this part and
in Canada by Canada Minister of Justice, Technical Data Control
Regulations SOR/86-345, May 27, 2014 current edition.
U.S. DoD contractor. Those qualified U.S. contractors currently
holding grants or contracts with DoD or those contractors declared
eligible for DoD information services by a sponsoring DoD activity on
the basis of participation in a DoD Potential Contractor Program.
Sec. 250.4 Policy.
It is DoD policy that:
(a) Pursuant to 10 U.S.C. 130 and 133, the Secretary of Defense may
withhold from public disclosure any technical data and technology with
military or space application in the possession or under the control of
the DoD, if such technical data and technology may not be exported
lawfully without a license, exception, exemption, or other export
[[Page 75357]]
authorization, in accordance with U.S. export control laws and
regulations (including 22 U.S.C. 2778, 50 U.S.C. chapter 35, 22 CFR
parts 120 through 130, and 15 CFR parts 730 through 774). However,
technical data and technology may not be withheld if regulations
distributed in accordance with 22 U.S.C. 2778 authorize the export of
such technical data and technology pursuant to a general unrestricted
license or exemption.
(b) Because public disclosure of technical data and technology
subject to this part is the same as providing uncontrolled foreign
access, withholding such technical data and technology from public
disclosure, unless approved, authorized, or licensed in accordance with
export control laws, is necessary and in the national interest.
(c) Notwithstanding the authority in paragraph (c)(1) of this
section, it is DoD policy to provide technical data and technology
governed by this part to individuals and enterprises that are:
(1) Currently qualified U.S. contractors, when such technical data
and technology relate to a legitimate business purpose for which the
contractor is certified; or
(2) A certified Canadian contractor referred to in and governed by
Canada Minister of Justice, Technical Data Control Regulations SOR/86-
345, May 27, 2014 current edition (available at https://laws-lois.justice.gc.ca/PDF/SOR-86-345.pdf) and registered at the United
States-Canada Joint Certification Office when a legitimate business
relationship has been established between the government and the
contractor.
(d) This part may not be used by the DoD Components as authority to
deny access to technical data and technology to the Congress or to any
Federal, State, or local government agency that requires the technical
data and technology for regulatory or other official government
purposes. Dissemination of the technical data and technology will
include a statement that DoD controls it, in accordance with this part.
(e) The authority in this part may not be used to withhold from
public disclosure unclassified information regarding DoD operations,
policies, activities, or programs, including the costs and evaluations
of performance and reliability of military and space equipment. When
information does contain technical data and technology subject to this
part, the technical data and technology must be excised from what is
disclosed publicly.
(f) This part may not be used as a basis for the release of limited
rights or restricted rights data as defined in 48 CFR or those that are
authorized to be withheld from public disclosure pursuant to the 5
U.S.C. 552.
(g) This part may not be used to provide protection for technical
data that should be classified in accordance with Executive Order
13526, ``Classified National Security Information,'' and volume 1 of
DoD Manual 5200.01 (available at https://www.dtic.mil/whs/directives/corres/pdf/520001_vol1.pdf).
(h) This part provides immediate authority to cite section (b)(3)
of 5 U.S.C. 552 (FOIA Exemption 3) described in 32 CFR part 286 as the
basis for denials under 5 U.S.C. 552 of technical data and technology
currently determined to be subject to the provisions of this part. The
technical data will be withheld under the authority of 10 U.S.C.130. If
the information originated or is under the control of a Government
Agency outside the DoD, DoD Components will refer to that Government
Agency for a release determination.
(i) Technical data and technology subject to this part must be
marked in accordance with DoD Instruction 5230.24, ``Distribution
Statements on Technical Documents'' (available at https://www.dtic.mil/whs/directives/corres/pdf/523024p.pdf) and volume 4 of DoD Manual
5200.01 and released in accordance with DoD Instruction 2040.02,
``International Transfers of Technology, Articles, and Services''
(available at https://www.dtic.mil/whs/directives/corres/pdf/204002_2014.pdf), DoD Directive 5230.09, ``Clearance of DoD Information
for Public Release'' (available at https://www.dtic.mil/whs/directives/corres/pdf/523009p.pdf), DoD Instruction 5230.29, ``Security and Policy
Review of DoD Information for Public Release'' (available at https://www.dtic.mil/whs/directives/corres/pdf/523029p.pdf), and 32 CFR part
285.
(j) Technical data and technology subject to this part, when
disseminated electronically, must be marked in accordance with volume 4
of DoD Manual 5200.01 and are subject to all applicable security
requirements specified in DoD Instruction 8500.01, ``Cybersecurity''
(available at https://www.dtic.mil/whs/directives/corres/pdf/850001_2014.pdf) and Chairman of the Joint Chiefs of Staff Instruction
6510.01F, ``Information Assurance (IA) and Support to Computer Network
Defense (CND),'' February 9, 2011, as amended (available at https://www.dtic.mil/cjcs_directives/cdata/unlimit/6510_01.pdf).
(k) In accordance with DoD Instruction 5015.02, ``DoD Records
Management Program'' (available at https://www.dtic.mil/whs/directives/corres/pdf/501502p.pdf), technical data and technology subject to this
part must be maintained and managed consistent with National Archives
and Records Administration approved dispositions to ensure proper
maintenance, use, accessibility, and preservation, regardless of format
or medium.
Sec. 250.5 Responsibilities.
(a) The Under Secretary of Defense for Acquisition, Technology, and
Logistics (USD(AT&L)) has overall responsibility for the implementation
of this part and will designate an office to:
(1) Administer and monitor compliance with this part.
(2) Receive and disseminate notifications of temporary revocation
of contractor qualification in accordance with paragraph (e) of Sec.
250.6.
(3) Receive recommendations for contractor disqualification made in
accordance with paragraph (f) of Sec. 250.6, and act as
disqualification authority.
(4) Provide technical assistance when necessary to the DoD
Components to assess the significance of the military or space
application of technical data and technology that may be withheld from
public disclosure in accordance with this part.
(5) Maintain and update procedures and appropriate mechanisms for
the certification of qualified contractors, in accordance with
paragraph (c) of Sec. 250.4 of this part.
(6) Ensure that the requirements of this part are incorporated into
48 CFR for application to contracts involving technical data and
technology governed by this part.
(7) Develop, in conjunction with the Office of the General Counsel
of the Department of Defense (GC DoD), guidelines for responding to
appeals, as identified in paragraph (k) of Sec. 250.6.
(8) Develop procedures to ensure that the DoD Components apply
consistent criteria in authorizing exceptions in accordance with
paragraph (j) of Sec. 250.6.
(9) Prescribe procedures to develop, collect, and disseminate
certification statements; to ensure their sufficiency, accuracy, and
periodic renewal; and to make final determinations of qualification.
(10) Take such other actions that may be required to ensure
consistent and appropriate implementation of this part within the DoD.
(b) The Under Secretary of Defense for Policy (USD(P)):
(1) Prepares and issues policy guidance regarding the foreign
disclosure and security controls for information in international
programs within the scope of this part.
(2) Provides consultation to DoD offices on export control and
commodity jurisdiction determinations.
[[Page 75358]]
(c) The Deputy Chief Management Officer (DCMO) of the Department of
Defense:
(1) Monitors the implementation of the provisions of this part that
pertain to 5 U.S.C. 552 and 32 CFR part 285.
(2) Provides such other assistance as may be necessary to ensure
compliance with this part.
(d) The GC DoD:
(1) Advises DoD Components with respect to the statutory and
regulatory requirements governing the export of technical data and
technology.
(2) Advises the USD(AT&L) regarding consistent and appropriate
implementation of this part.
(e) The DoD Component heads:
(1) Disseminate and withhold from public disclosure technical data
and technology subject to this part consistent with its policies and
procedures.
(2) Designate a focal point to:
(i) Ensure implementation of this part.
(ii) Identify classes of technical data and technology whose
release are governed by paragraph (d)(3) of Sec. 250.6.
(iii) Act on appeals relating to case-by-case denials for release
of technical data and technology.
(iv) Temporarily revoke a contractor's qualification in accordance
with paragraph (e) of Sec. 250.6.
(v) Receive and evaluate requests for reinstatement of a
contractor's qualification in accordance with paragraph (e)(4) of Sec.
250.6.
(vi) Recommend contractor's disqualification to the USD(AT&L) in
accordance with paragraph (f) of Sec. 250.6.
(3) Develop, distribute, and effect Component regulations to
implement this part.
(4) Ensure that the controlling DoD office that created or
sponsored the technical information exercises its inherently
governmental responsibility to determine the appropriate marking in
accordance with DoD Instruction 5230.24 and volumes 2 and 4 of DoD
Manual 5200.01 (volume 2 available at https://www.dtic.mil/whs/directives/corres/pdf/520001_vol2.pdf) and that all technical
documents, including research, development, engineering, test,
sustainment, and logistics information, regardless of media or form,
are marked correctly.
Sec. 250.6 Procedures.
(a) Procedures for release of technical information must be made
under the following guidelines:
(1) DoD Components may make their technical information for other
than military or space application available for public disclosure in
accordance with DoD Directive 5230.09 and DoD Instruction 5230.29. DoD
has the authority to withhold technical data and technology as defined
in Sec. 250.3 from public disclosure.
(2) DoD Components will process FOIA requests from the public for
technical information in accordance with 32 CFR part 286 and governing
DoD Component issuances. All requested technical data and technology
currently determined to be subject to the withholding authority in this
part will be denied under Exemption 3 of 5 U.S.C. 552 and 10 U.S.C.
130. Any FOIA appeals for the denied information will be processed in
accordance with 32 CFR part 286 and governing DoD Component issuances.
(3) DoD Components may give qualified contractors access to their
technical data and technology as permitted by the provisions of this
part.
(i) United States-Canada Joint Certification Office adjudicates
certification of qualified contractors.
(ii) To qualify, U.S. and Canadian contractors must submit a
completed DD Form 2345 ``Militarily Critical Technical Data
Agreement,'' to the United States-Canada Joint Certification Office.
(iii) To qualify, Canadian contractors will submit a completed DD
Form 2345 when a Canadian contractor intends to request access to DoD-
controlled technical data and technology.
(iv) A copy of the company's State/Provincial Business License,
Incorporation Certificate, Sales Tax Identification Form, ITAR
Controlled Goods Registration letter or certificate, or other
documentation that verifies the legitimacy of the company must
accompany all DD Forms 2345.
(v) The contractor's business activity is a key element of the
certification process since this information is used by the controlling
office as a basis for approving or disapproving specific requests for
technical data and technology. The business activity statement should
be sufficiently detailed to support requests for any data that the
contractor expects for legitimate business purposes.
(b) Upon receipt of a request for technical information in the
possession of, or under the control of the DoD, the controlling DoD
office for the requested information will determine whether the
information is governed by this part.
(1) The determination will be based on whether
(i) The information is subject to 22 CFR part 121 or 15 CFR part
774.
(ii) The information would require a license, exception, exemption,
or other export authorization in accordance with U.S. export control
laws and regulations in accordance with 22 U.S.C. 2778, 50 U.S.C.
chapter 35, 22 CFR parts 120 through 130, and 15 CFR parts 730 through
774.
(iii) The information would not fall into the categories of
information described in paragraphs (c) and (d) of Sec. 250.2.
(2) In making such a determination, the controlling office may
consult with the Defense Technology Security Administration for advice
on whether U.S. export control laws or regulations apply. The
controlling DoD office may request assistance in making this
determination from the USD(AT&L), and if necessary, consult the
Departments of State, Commerce, or Energy.
(c) The controlling DoD office will ensure technical data and
technology governed by this part are marked for distribution in
accordance with DoD Instruction 5230.24 and volume 4 of DoD Manual
5200.01.
(d) The controlling DoD office will authorize release of technical
data and technology governed by this part to qualified contractors, as
defined in Sec. 250.3, unless either:
(1) The qualification of the contractor concerned has been
temporarily revoked in accordance with paragraph (e) of this section;
(2) The controlling DoD office judges the requested technical data
and technology to be unrelated to the purpose for which the qualified
contractor is certified. When release of technical data and technology
is denied in accordance with this paragraph, the controlling DoD office
will request additional information to explain the intended use of the
requested technical data and technology and, if appropriate, request a
new certification (see Sec. 250.3) describing the intended use of the
requested technical data and technology; or
(3) The technical data and technology are being requested for a
purpose other than to permit the requester to bid or perform on a
contract with the DoD or other USG agency. In this case, the
controlling DoD office will withhold the technical data and technology
if the DoD Component focal point determines the release of the
technical data and technology may jeopardize an important technological
or operational military advantage of the United States.
(e) Upon receipt of substantial and credible information that a
qualified U.S. contractor has violated U.S. export control law;
violated its certification; made a certification in bad faith; or
omitted or misstated material fact, the DoD Component will temporarily
revoke the U.S. contractor's
[[Page 75359]]
qualification. Canadian contractors are disqualified in accordance with
Canada Minister of Justice, Technical Data Control Regulations SOR/86-
345, May 27, 2014 current edition.
(1) The DoD Component may delay such temporary revocations with the
potential to compromise a USG investigation.
(2) Immediately upon a temporary revocation, the DoD Component will
notify the contractor and the USD(AT&L).
(3) The contractor will be given an opportunity to respond in
writing to the information upon which the temporary revocation is based
before being disqualified.
(4) Any U.S. contractor whose qualification has been temporarily
revoked may present information to the DoD Component showing that the
basis for revocation was in error or has been remedied and be
reinstated.
(f) When the basis for a contractor's temporary revocation cannot
be removed within 20 working days, the DoD Component will recommend to
the USD(AT&L) that the contractor be disqualified.
(g) After receipt of substantial and credible information that a
qualified U.S. contractor has violated U.S. export control law, the DoD
Component must notify the appropriate law enforcement agency.
(h) Charges for copying, certifying, and searching records rendered
to requesters will be levied in accordance with chapter 4, appendix 2
of volume 11A of DoD 7000.14-R, ``Department of Defense Financial
Management Regulations (FMRs)'' (available at https://comptroller.defense.gov/Portals/45/documents/fmr/Volume_11a.pdf).
Normally, only one copy of the same record or document will be provided
to each requester. Each release to qualified contractors of controlled
technical data and technology governed by this part will be accompanied
by a ``Notice to Accompany the Dissemination of Export-Controlled
Technical Data and Technology'' (see Figure to Sec. 250.6(h)).
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(i) Qualified U.S. contractors who receive technical data and
technology governed by this part may disseminate that technical data
and technology for
[[Page 75361]]
purposes consistent with their certification without the permission of
the controlling DoD office or when dissemination is:
(1) To any foreign recipient for which the technical data and
technology are approved, authorized, or licensed in accordance with 22
U.S.C. 2778 or 15 CFR parts 730 through 774.
(2) To another qualified U.S. contractor including existing or
potential subcontractors, but only within the scope of the certified
legitimate business purpose of the recipient.
(3) To the Departments of State and Commerce to apply for
approvals, authorizations, or licenses for export pursuant to 22 U.S.C.
2778 or 15 CFR parts 730 through 774. The application will include a
statement that the technical data and technology for which the
approval, authorization, or license is sought is controlled by the DoD
in accordance with this part.
(4) To the Congress or any Federal, State, or local governmental
agency for regulatory purposes or otherwise as may be required by law
or court order. Any such dissemination will include a statement that
the technical data and technology are controlled by the DoD in
accordance with this part.
(j) A qualified contractor desiring to disseminate technical data
and technology subject to this part in a manner not permitted expressly
by the terms of this part must be granted authority to do so by the
controlling DoD office, consistent with U.S. export control laws and
regulations specified in 22 U.S.C. 2778, 50 U.S.C. chapter 35, 22 CFR
parts 120 through 130, and 15 CFR parts 730 through 774 and DoD
policies.
(k) Any requester denied technical data and technology or any
qualified U.S. contractor denied permission to disseminate such
technical data and technology in accordance with this part will be
promptly provided with a written statement of reasons for that action,
and advised of the right to make a written appeal to a specifically
identified appellate authority within the DoD Component. Other appeals
will be processed as directed by the USD(AT&L).
(l) Denials will cite 10 U.S.C. 130 and 133 as implemented by this
part. Implementing procedures will provide for resolution of any appeal
within 20 working days.
Sec. 250.7 Directly arranged visits.
(a) USG officials and certified U.S. contractors and Canadian
government officials and certified Canadian contractors may use the
certification process to facilitate directly arranged visits that
involve access to unclassified technical data and technology.
Activities under this process are limited to:
(1) Procurement activities such as unclassified pre-solicitation
conferences, discussions related to unclassified solicitations, and
collection of procurement unclassified documents.
(2) Performance of an unclassified contract.
(3) Scientific research, in support of unclassified U.S. or
Canadian national defense initiatives.
(4) Attendance at restricted meetings, conferences, symposia, and
program briefings where technical data and technology governed by this
part or Canada Minister of Justice, Technical Data Control Regulations
SOR/86-345, May 27, 2014 current edition will be presented, or the
event is being held in an unclassified access controlled area.
(b) A directly arranged visit does not apply to uncertified U.S. or
Canadian contractors; classified visits, where confirmation of the
visitors' security clearances is required; or unsolicited marketing
visits.
(c) A directly arranged visit related to the release of information
controlled in the United States by this part or in Canada by Canada
Minister of Justice, Technical Data Control Regulations SOR/86-345, May
27, 2014 current edition, is permitted when two conditions are
satisfied.
(1) First condition:
(i) There is a valid license covering the export of the technical
data and technology;
(ii) The export or release is permitted under the Canadian
exemption on 22 CFR 126.5;
(iii) The export or release is covered by the general exemptions in
22 CFR 125.4; or
(iv) The export or release qualifies for a license exception under
15 CFR parts 730 through 774.
(2) Second condition:
(i) The distribution statement applied to the technical data and
technology pursuant to DoD Instruction 5230.24 permits release; or
(ii) The originator or government controlling office authorizes
release.
Dated: October 26, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-26236 Filed 10-28-16; 8:45 am]
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