BIS has concluded that an unintended consequence of changing the jurisdiction over military items before harmonizing the Commerce Department and State Department treatments of dual and third country nationals is that the BIS policy in place prior to this revision would impose individual licensing obligations on certain deemed reexports that did not exist for the same items in the same circumstances when they were subject to the ITAR. Such an outcome would violate a general principle of the reform effort, which is not to impose, unintentionally, more restrictive controls for items subject to the EAR than those that exist for the same items when they were subject to the ITAR, in the same circumstances. For these reasons and as described below, BIS has decided to update its guidance on the subject so that one may use either the current BIS deemed reexport guidance or the comparable ITAR rules or State Department guidance for determining when an individual BIS license or other EAR authorization, such as the application of a license exception, is needed to release technology or source code subject to the EAR outside the United States to a dual or third country national.

Published 10-31-2013