DDTC

State Department Still Deciding Which Comments to Release

DS_Kerry_2Over a month has passed since the closing date for public comments to the State Department’s Proposed “Harmonization Rule,” which seeks to explicitly require U.S. Government approval of public speech concerning technical data controlled by the International Traffic in Arms Regulations (“ITAR”). [F/N 1]  As noted in previous DTL Blog posts, the proposed rule is perhaps the most troubling of those promulgated under the President’s Export Control Reform Initiative because it imposes a prior restraint on speech protected by the First Amendment to the United States Constitution.

Last month, the Commerce Department released the public comments it received in response to its proposed Harmonization Rule at 80 Fed. Reg. 31,504 (June 3, 2015).  Because the Commerce Department’s Harmonization Rule is a corollary to the State Department’s Harmonization Rule, some of the public comments released by the Commerce Department include letters addressed to both State Department and Commerce Department officials.  Many of these letters come from industry representatives that oppose the State Department’s imposition of a prior restraint.

The State Department normally takes one to two weeks to release public comments on proposed changes to the ITAR.  However, the Department reported that it received approximately 12,000 public comments to its proposed Harmonization Rule, and agencies often review submissions to redact or withhold proprietary information or inappropriate language.

Yet, approximately 10,000 comments have been posted for public inspection at Regulations.gov since August 4, 2015.  The approximately 2,000 submissions now being withheld by the State Department reportedly include several of the letters released by the Commerce Department and other substantive opposition to the Harmonization Rule that is expected to increase political pressure against the State Department not to impose the prior restraint.

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[1] See 80 Fed. Reg. 31525, 31528 (June 3, 2015) (“Paragraph (b) of the revised definition explicitly sets forth the Department’s requirement of authorization to release information into the ‘‘public domain.’’ Prior to making available ‘‘technical data’’ or software subject to the ITAR, the U.S. government must approve the release through one of the following: (1) The Department; (2) the Department of Defense’s Office of Security Review; (3) a relevant U.S. government contracting authority with authority to allow the ‘‘technical data’’ or software to be made available to the public, if one exists; or (4) another U.S. government official with authority to allow the ‘‘technical data’’ or software to be made available to the public.”).

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The above is not intended as an exhaustive list of restrictions that may apply to a particular transaction nor advice for a specific transaction because the specifics of an individual case may implicate application of other U.S. laws as well as foreign laws that carry added or different requirements. In addition, U.S. export control and sanctions laws are frequently subject to change. Such changes can affect the continued validity of the information above, which is based on U.S. law existing as of September 10, 2015. For these reasons, assistance from a qualified attorney competent to advise on such matters is highly recommended. Matthew A. Goldstein is an International Trade Attorney in Washington D.C. licensed to practice in the District of Columbia. He can be reached at (202) 550-0040 and Matthew@GoldsteinPLLC.com

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