Proposed DoD Rule on Protection of Unclassified Technical Data Would “Disqualify” Contractors with Export Violations

On October 31, 2016, the Department of Defense (DoD) published a proposed rule entitled, Withholding of Unclassified Technical Data and Technology from the Public Disclosure.  Public comments must be submitted by December 30, 2016. The proposed rule establishes DoD policy, assigns responsibilities, and prescribes procedures for the circulation and withholding of certain unclassified technical data and technology subject to the ITAR and EAR.  The rule applies to DoD components, their contractors, and grantees. It is meant to regulate the transfer of technical data and technology contributing to the military capability of any country or countries, groups, or individuals that could prove adverse to US national security or critical interests. For the purposes of this rule, DoD has taken the position that public disclosure of technical data and technology is the same as providing uncontrolled foreign access.  Therefore, this regulation 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 disseminated according to US export control laws and regulations.  For more information, please see our advisory.