Cryptography's Role In Securing The Information Society

                Appendix N   Continued

[N.4.2 commences p. 655.]
__________________________________________________________________



       N.4.2 Export Administration Regulations
                           
                           
               Part 779 Technical Data


Sec. 779.1 Definitions.(6)

     (a) Technology, technical data, technical assistance, and
software.7 These terms are defined in Supplement No. 3 to Sec.
799.1 of this subchapter. The terminology used in this part 779
will be changed in the future to conform to the terms and
definitions used in Supplement No. 3 to part Sec. 799.1 of this
subchapter and in other parts of this subchapter. In the interim,
the term "technical data" as used in this part 779, is understood
to include both "technology" (i.e., technical data and technical
assistance) and "software". If the term "software" is cited
separately, the term refers only to software as defined in
Supplement No. 3 to Sec. 799.1 of this subchapter.

     (b) Export of technical data(8)(9)

(1) Export of technical data. "Export of technical data" means

(i) An actual shipment or transmission of technical data out of
the United states;(10)

(ii) Any release of technical data in the United States with the
knowledge or intent that the data will be shipped or transmitted
from the United States to a foreign country; or

(iii) Any release of technical data of U.S.-origin in a foreign
country.

(2) Release of technical data. Technical data may be released for
export through: (i) Visual inspection by foreign nationals of
U.S.-origin equipment and facilities; [656]

(ii) Oral exchanges of information in the United States or abroad;
and

(iii) The application to situations abroad of personal knowledge
or technical experience acquired in the United States.

     (c) Reexport of technical data. "Reexport of technical data"
means an actual shipment or transmission from one foreign country
to another, or any release of technical data of U.S. origin in a
foreign country with the knowledge or intent that the data will be
shipped or transmitted to another foreign country. Technical data
may be released for reexport through:

(1) Visual inspection of U.S.-origin equipment and facilities
abroad; 

(2) Oral exchanges of information abroad; and

(3) The application to situations abroad of personal knowledge or
technical experience acquired in the United States.

     (d) Direct product. The term "direct product" means the
immediate product (including processes and services) produced
directly by the use of technical data.

__________

[Notes on p. 655]

(6) See Sec. 770.2 for definitions of other terms used in this
part.

(7) The provisions of part 779 do not apply to "classified"
technical data, i.e., technical data that have been officially
assigned a security classification (e.g., "top secret", "secret",
or "confidential") by an officer or agency of the U.S. Government.
The export of classified technical data is controlled by the
Center for Defense Trade of the U.S. Department of State or the
U.S. Nuclear Regulatory Commission, Washington, DC.

(8) License applications for, or questions about, the export of
technical data relating to commodities which are licensed by U.S.
Government agencies other than the U.S. Department of Commerce
shall be referred to such other appropriate U.S. Government agency
for consideration (see Sec. 770.10 of this subchapter).

(9) Patent attorneys and others are advised to consult the U.S.
Patent Office, U.S. Department of Commerce, Washington, DC 20231,
regarding the U.S. Patent Office regulations concerning the filing
of patent applications or amendments in foreign countries. In
addition to the regulations issued by the U.S. Patent Office,
technical data contained in or related to inventions made in
foreign countries or in the United States, are also subject to the
U.S. Department of Commerce regulations covering the export of
technical data, in the same manner as the export of other types of
technical data.

(10) As used in this Part 779, the United States includes its
possessions and territories.



Sec. 779.2 Licenses to export.

     Except as provided in Sec. 770.3(a) of this subchapter, an
export of technical data must be made under either a U.S.
Department of Commerce general license or a validated export
license. (See Secs. 771.1 and 772.2 of this subchapter for
definitions of "general" and "validated" licenses.) General
Licenses GTDA and GTDR (see Secs. 779.3 and 779.4) apply to
specific types of exports of technical data. A validated license
is required for any export of technical data where these general
licenses do not apply, except in the case of certain exports to
Canada.(11)(12)

__________

(11) An export of technical data to Canada may be made without
either a validated or general license, unless a validated license
is required to Canada by a specific subcategory D or E ECCN on the
CCL.

(12) Although the Bureau of Export Administration may provide
general information on licensing policies regarding the prospects
of approval of various types of export control actions, including
actions with respect to technical data, normally it will give a
formal judgement respecting a specific request for an action only
upon the actual submission of a formal application or request
setting forth all of the facts relevant to the export transaction
and supported by all required documentation Advice is always
available, however, regarding any questions as to the
applicability of a general license. Such questions should be
submitted by letter to the U.S. Department of Commerce, Bureau of
Export Administration, P.O. Box 273, Washington, DC 20044.



Sec. 779.3 General License GTDA: Technical data available to all
destinations.

Note: In this Sec. 779.3 the word information means "technical
data" as used in this part (i.e., "technology" and "software" as
defined in Supplement No. 3 to Sec. 799.1 of this subchapter).
[657]

     (a) Establishment of general license. A General License GTDA
is hereby established authorizing:

(1) Unrestricted export to any destination of information that is
already publicly available or will be made publicly available as
described in paragraph (b) of this section;

(2) Unrestricted export to any destination of information arising
during or reulting from fundamental research, as described in
paragraph (c) of this section;

     Note: Paragraphs (a)(1) and (a)(2) of this section do not
authorize the export of data contained in a patent application for
purposes of filing and/or publishing for opposition abroad. Such
exports are controlled by the U.S. Patent and Trademark Office and
must be licensed by that office. See EAR Sec. 770.10(j).

(3) Release of educational information, as described in paragraph
(d) of this section; and

(4) Export of information in connection with certain patent
applications, as described in paragraph (e) of this section.

     Note 1: See paragraph (f) regarding Government sponsored
research covered by contractual national security controls and the
note following this section regarding consulting and training. Use
of General License GTDA is subject to the prohibitions of Sec.
771.2(c) (1), (4), and (9), but not to the other prohibitions of
Sec. 771.2(c).

     Note 2: Supplement No. 5 to part 779 contains explanatory
questions and answers about the use of General License GTDA.
Certain paragraphs of this Sec. 779.3 are followed by references
to relevant questions and answers in supplement No. 5.

     (b) Publicly available. Information is made public and so
becomes "publicly available" when it becomes generally accessible
to the interested public in any form, including:

(1) Publication in periodicals, books, print, electronic, or any
other media available for general distribution to any member of
the public or to a community of persons, such as those in a
scientific or engineering discipline, interested in the subject
matter either free or at a price that does not exceed the cost of
reproduction and distribution (see Questions A(1) through A(6));

(2) Ready availability at libraries open to the public or at
university libraries (see Question A(6));

(3) Patents available at any patent office; and

(4) Release at an open conference, meeting, seminar, trade show,
or other open gathering.

(i) A conference or other gathering is "open" if all technically
qualified members of the public are eligible to attend and
attendees are permitted to take notes or otherwise make a personal
record (not necessarily a recording) of the proceedings and
presentations.

(ii) All technically qualified members of the public may be
considered eligible to attend a conference or other gathering
notwithstanding: [658]

(A) A registration fee reasonably related to costs and reflecting
an intention that all interested and technically qualified persons
be able to attend, or

(B) A limitation on actual attendance, as long as attendees either
are the first who have applied or are selected on the basis of
relevant scientific or technical competence, experience, or
responsibility (see Questions B(1) through B(6)).

     This General License GTDA authorizes submission of papers to
domestic or foreign editors or reviewers of journals, or to
organizers of open conferences or other open gatherings, with the
understanding that the papers will be made publicly available if
favorably received. (See Questions A(1) and A(3).)

     (c) Information resulting from fundamental research--

(1) Fundamental research. Paragraphs (c)(2) through (c)(4) and
paragraph (f) of this section provide specific operational rules
that will be used to determine whether research in particular
institutional contexts qualifies as "fundamental research." The
intent behind those operational rules is to identify as
"fundamental research" basic and applied research in science and
engineering, where the resulting information is ordinarily
published and shared broadly within the scientific community. Such
research can be distinguished from proprietary research and from
industrial development, design, production, and product
utilization, the results of which ordinarily are restricted for
proprietary reasons or specific national security reasons as
defined in Sec. 779.3(f). (See Question D(8).)

(2) University-based research.

(i) Research conducted by scientists, engineers, or students at a
university normally will be considered fundamental research, as
described below. ("University" means any accredited institution of
higher education located in the United States.) 

(ii) Prepublication review by a sponsor of university research
solely to ensure that publication would not inadvertently divulge
proprietary information that the sponsor has furnished to the
researchers does not change the rule described in paragraph
(c)(2)(i) of this section. However, General License GTDA does not
authorize the release of information from a corporate sponsor to
university researchers where the research results are subject to
prepublication review. See other sections in this part 779 for
provisions that may authorize such releases without a validated
license. (See Questions D(7), D(9), and D(10).)

(iii) Prepublication review by a sponsor of university research
solely to ensure that publication would not compromise patent
rights does not change the rule described in paragraph (c)(2)(i)
of this section, so long as the review causes no more than a
temporary delay in publication of the research results.

(iv) However, General License GTDA does not authorize the initial
transfer of information from an industry sponsor to university
researchers where the parties have agreed that the sponsor may
withhold from publication some or all of the information so
provided. (See Question D(2).)

(v) University based research is not considered "fundamental
research" if the university or its researchers accept (at the
request, for example, of an industrial sponsor) other restrictions
on publication of scientific and technical information resulting
from the project or activity. Scientific and technical information
resulting from the research will nonetheless become subject to
General License GTDA [659] once all such restrictions have expired
or have been removed. (See Questions D(7) and D(9).)

(vi) The provisions of paragraph (f) of this section will apply if
a university or its researchers accept specific national security
controls (as defined in paragraph (f) of this section) on a
research project or activity sponsored by the U.S. Government.
(See Questions E(1) and E(2).)

(3) Research based at Federal agencies or FFRDCs. Research
conducted by scientists or engineers working for a Federal agency
or a Federally Funded Research and Development Center (FFRDC) mav
be designated as "fundamental research" within any appropriate
system controlling release of information by such scientists and
engineers devised by the agency or the FFRDC. (See Questions D(8)
and D(11).)

(4) Corporate research.

(i) Research conducted by scientists or engineers working for a
business entitv will be considered "fundamental research" at such
time and to the extent that the researchers are free to make
scientific and technical information resulting from the research
publicly available without restriction or delay based on
proprietary concerns or specific national security controls as
defined in paragraph (f) of this section.

(ii) Prepublication review by the company solely to ensure that
the publication would compromise no proprietary information
provided by the company to the researchers is not considered to be
a proprietary restriction under paragraph (c)(4)(i) of this
section. However General License GTDA does not authorize the
release of information to university researchers where the
research results are subject to prepublication review. See other
sections in this part 779 for provisions that may authorize such
releases without a validated license. (See Questions D(8), D(9),
and D(10).)

(iii) Prepublication review by the company solely to ensure that
prepublication would compromise no patent rights will not be
considered a proprietary restriction for this purpose, so long as
the review causes no more than a temporary delay in publication of
the research results.

(iv) However, General License GTDA does not authorize the initial
transfer of information from a business entity to researchers
where the parties have agreed that the business entitS~ may
withhold from publication some or all of the information so
provided.

(5) Research based elsewhere. Research conducted by scientists or
engineers who are not working for any of the institutions
described in paragraphs (c)(2) through (c)(4) of this section will
be treated as corporate research, as described in paragraph (c)(4)
of this section. (See Question D(8)).

     (d) Educational information. The release of "educational
information" referred to in paragraph (a)(3) of this section is
release by instruction in catalog courses and associated teaching
laboratories of academic institutions. Dissertation research is
treated in paragraph (c)(2) of this section. (See Question C(1)
through C(6).) [660]

     (e) Patent applications. The information referred to in
paragraph (a)(4) of this section is:

(1) Information contained in a patent application prepared wholly
from foreign-origin technical data where the application is being
sent to the foreign inventor to be executed and returned to the
United States for subsequent filing in the U.S. Patent and
Trademark Office;

(2) Information contained in a patent application, or an
amendment, modification, supplement, or division of an
application, and authorized for filing in a foreign country in
accordance with the regulations of the Patent and Trademark
Office, 37 CFR part 5 (see Sec. 770.10(j)); or

(3) Information contained in a patent application when sent to a
foreign country before or within six months after the filing of a
United States patent application for the purpose of obtaining the
signature of an inventor who was in the United States when the
invention was made or who is a co-inventor with a person residin~
in the United States.

     (f) Government-sponsored research covered by contract
controls.

(1) If research is funded by the U.S. Government, and specific
national security controls are agreed on to protect information
resulting from the research, paragraph (a)(2) of this section will
not apply to any export of such information in violation of such
controls. General License GTDA as described in paragraph (a)(2) of
this section is nonetheless available for any export of
information resulting from the research that is consistent with
the specific controls.

(2) Examples of "specific national security controls" include
requirements for prepublication review by the Government, with
right to withhold permission for publication; restrictions on
prepublication dissemination of information to nonU.S. citizens or
other categories of persons; or restrictions on participation of
nonU.S. citizens or other categories of persons in the research. A
general reference to one or more export control laws or
regulations or a general reminder that the Government retains the
right to classify is not a "specific national security control".
(See Questions E(1) and E(2).)

     (g) Advice concerning uncontrolled information. Persons may
be concerned that an export of uncontrolled information could
adversely affect U.S. national security interests. Exporters who
wish advice before exporting such information can contact the
appropriate Government scientific or technical personnel by
calling the Bureau of Export Administration at (202) 377-4811.

     Note: Consulting and training. Technical data can be
inadvertently exported in various ways. Consulting and training
are especially effective mechanisms of technology transfer. The
exporter should be aware that the Department of Commerce maintains
controls on exports of technical data that do not qualify for
General License GTDA as described in paragraphs (a)(1) through
(a)(3) of this section, including application abroad of personal
knowledge or technical experience acquired in the United States.
(See also paragraph (g) of this section and Question F(1).) [[661]


Sec. 779.4 General license GTDR: Technical data under restriction.

     A general license designated GTDR is hereby established
authorizing the export of technical data that are not exportable
under the provisions of General License GTDA, subject to the
provisions, restrictions, exclusions, and exceptions set forth
below and subject to the written assurance requirement set forth
in paragraph (f) of this section.

     (a) Country restrictions. General License GTDR with written
assurance may not be used for exports to Country Groups QWYS and
Z, the People's Republic of China, Iran, or Syria. General License
GTDR without written assurance (GTDU) may not be used for exports
to Country Groups S and Z, Iran or Syria of software available at
retail outlets as described in the General Software Note.(13)
General License GTDR without written assurance (GTDU) as described
in any entry on the Commerce Control List (Supplement No. 1 to
Sec. 799.1 of this subchapter) may not be used for exports to
Country Groups S and Z. This General License is subject to the
prohibitions described in Sec. 771.2(c) of this subchapter,
including the prohibition on any export to the South African
military or police.

__________

(13) The General Software Note (GSN) is contained in Supplement
No. 2 to Sec. 799.1 of Subchapter C, Chapter VII, Title 15, Code
of Federal Regulations. The text of the GSN is as follows:

     General License GTDR, without written assurance, is
     available for release of software that is generally
     available to the public by being:

     a. Sold from stock at retail selling points without
     restriction by means of:

          1. Over the counter transactions;

          2. Mail order transactions, or 

          3. Telephone call transactions; and 

     b. Designed for installation by the user without further
     substantial support by the supplier.

     General license GTDA is available for software that is
     publicly available.

     The General Software Note does not apply to exports of
"software" controlled by other agencies of the U.S. Government.

     The phrase "without restriction" clarifies that software is
not "generally available to the public" if it is to be sold only
with bundled hardware generally available to the public. Software
that is both bundled with hardware and "generally available to the
public" does qualify for General License GTDR without a written
assurance.
__________


     (b) General License GTDR without written assurance
authorizes the following exports--

(1) Operation technical data.

(i) For definitions and conditions for use of General License GTDR
without written assurance for operation technical data, refer to
the third paragraph of the General Technology Note as listed in
Supplement No. 2 to Sec. 799.1 of this subchapter. As defined in
that Note, "operation technical data" is the minimum [662]
necessary for the installation, operations,(14) maintenance
(checking), and repair of those products that are eligible for
general licenses, or that are exported under a validated export
license. The "minimum necessary" excludes from operation technical
data development or production technical data and includes use
technology only to the extent required to ensure safe and
efficient use of the product. Individual entries in the software
and technology subcategories of the CCL may further restrict
export of "minimum necessary" technical data. (See Supplement Nos.
2 and 3 to Sec. 799.1 of this subchapter for further information
and definitions of the terms "development", "production", "use",
and "required".)

_________

(14) Exporters of digital computer equipment must describe on
their license applications any software, including that shipped
under General License GTDR, to be used with the equipment.
_________


(ii) Operation software may be exported under GTDR, without
assurance, provided that:

(A) The operation software is the minimum necessary to operate the
equipment authorized for export; and

(B) The operation software is in object code. (2) Sales technical
data.

(i) "Sales technical data" is defined as data supporting a
prospective or actual quotation, bid, or offer to sell, lease, or
otherwise supply any item controlled by the EAR.

(ii) Sales technical data may be exported under GTDR, without
written assurances, provided that:

(A) The technical data is a type customarily transmitted with a
prospective or actual quotation, bid, or offer in accordance with
established business practice; and

(B) The export will not disclose the detailed design, production,
or manufacture, or the means of reconstruction, of either the
quoted item or its product. The purpose of this limitation is to
prevent disclosure of technical data so detailed that the
consignee could use the technical data in production.

     Note: Neither this authorization nor its use means that the
U.S. Government intends, or is committed, to approve an export
license application for any commodity, plant, or technical data
that may be the subject of the transaction to which such
quotation, bid, or offer relates. Exporters are advised to include
in any quotations, bids, or offers, and in any contracts entered
into pursuant to such quotations, bids, or offers, a provision
relieving themselves of liability in the event that an export
license (when required) is not approved by the Bureau of Export
Administration.

(3) Software updates. Software updates that are intended for and
are limited to correction of errors ("fixes" to "bugs" that have
been identified) qualify for export under General License GTDR,
without written assurance, provided the updates are being exported
to the same consignee and do not enhance the functional capacities
of the initial software package.

(4) Technical data described in the Commerce Control List. Certain
other technical [663] data may be exported under GTDR without
written assurance. Such technical data is identified in the
"Requirements" section of the ECCN under the heading "GTDU". The
designations "GTDU: Yes" or "GTDU: Yes except ...." indicate that
General License GTDR without written assurance is available
subject to any applicable exceptions. The designation "GTDU: No"
indicates that General License GTDR without written assurance is
not available. However, the designation "GTDU: No" does not
restrict exports under paragraphs (b)(1), (b)(2), or (b)(3) of
this section. Exporters have the option of using the term "GTDU"
to describe General License GTDR without written assurance for all
purposes, including information requirements on the Shipper's
Export Declaration.

     (c)-(d) [Reserved]

     (e) Restrictions applicable to the Republic of South
Africa--

(1) General prohibition. Except as provided in Sec. 779.4 (b)(1),
(b)(2), and (b)(3), no technical data may be exported or
reexported to the Republic of South Africa under this General
License GTDR where the exporter or reexporter knows or has reason
to know that the data or the direct product of the data are for
delivery, directly or indirectly, to or for use by or for military
or police entities in South Africa or for use in servicing
equipment owned, controlled, or used by or for such entities. In
addition, no technical data relating to the commodities listed in
Supplement No. 2 to this Part 779 may be exported or reexported
under General License GTDR to any consignee in the Republic of
South Africa.

(2) Written assurances. In addition to any written assurances that
may or may not be required by paragraph (f) of this section, no
export or reexport of technical data may be made to the Republic
of South Africa under General License GTDR until the exporter has
received written assurance from the importer that neither the
technical data nor the direct product of the data will be made
available to or for use by or for military or police entities of
the Republic of South Africa.

     (f) General License GTDR with written assurances. Except as
provided in Sec. 779.4(b) and (f)(5), no export of technical data
described in this Sec. 779.4(f) may be made under General License
GTDR:

(1) Until the U.S. exporter has received a written assurance from
the foreign importer that, unless prior authorization is obtained
from the Office of Export Licensing, the importer will not
knowingly:

(i) Reexport, directly or indirectly, to Country Group Q, S,
W,(15) Y, or Z, or the [664] People's Republic of China any
technical data relating to commodities controlled to Country Group
W as described in the paragraph titled "Validated License
Required" of any entry of the Commerce Control List;

_________

[Note on page 663]

(15) Effective April 26, 1971, Country Group W no longer included
Romania Assurances executed prior to April 26, 1971, that refer to
Country Group W continue to apply to Romania as well as Poland.
Effective April 25,1991, Czechoslovakia was added to Country Group
W. Assurances executed on or after April 25,1991, that refer to
Country Group W apply to Czechoslovakia as well as Poland. On May
8,1992, Hungary was removed from Country Group W. Assurances are
no longer applicable to Hungary. On January 1,1993, Czechoslovakia
became two separate countries called the Czech Republic and the
Slovak Republic. Assurances executed prior to January 1, 1993,
that refer to Czechoslovakia continue to apply to the Czech
Republic and the Slovak Republic.
_________


(ii) Export, directly or indirectly, to Countrv Group Z any direct
product of the technical data if such direct product is controlled
to Country Group "W" in the paragraph of any entry on the Commerce
Control List titled "Validated License Required"; or

(iii) Export, directly or indirectly, to any destination in
Country Group Q, S, W, Y, or the People's Republic of China, any
direct product of the technical data if such direct product is
identified by the code letter "A" following the Export Control
Classification Number on the Commerce Control List.

(2) If the direct product of any technical data is a complete
plant or any major component of a plant that is capable of
producing a commodity controlled to Country Group "W" in the
paragraph of any entry on the Commerce Control List titled
"Validated License Required" or appears on the U.S. Munitions
List, a written assurance by the person who is or will be in
control of the distribution of the products of the plant (whether
or not such person is the importer) shall be obtained by the U.S.
exporter (via the foreign importer), stating that, unless prior
authorization is obtained from the Office of Export Licensing,
such person will not knowingly:

(i) Reexport, directly or indirectly, to Country Group Q, S, W, Y,
or Z, or the People's Republic of China, the technical data
relating to the plant or the major component of a plant;

(ii) Export, directly or indirectly, to Country Group Z, the plant
or the major component of a plant (depending upon which is the
direct product of the technical data) or any product of such plant
or of such major component, if such product is identified by the
symbol "W" in the paragraph of any entry on the Commerce Control
List titled "Validated License Required" or appears on the U.S.
Munitions List; or

(iii) Export, directly or indirectly, to any destination in
Country Group Q, S, W, Y, or the People's Republic of China, the
plant or the major component of a plant (depending upon which is
the direct product of the technical data) or any product of such
plant or of such major component, if such product is identified by
the code letter "A" following the Export Control Classification
Number on the Commerce Control List or appears on the U.S.
Munitions List.

     Note: Effective April 1,1964, Sec. 779.4(f)(2)(ii) and
(f)(2)(iii) required certain written assurances relating to the
disposition of the products of a complete plant or major component
of a plant that is the direct product of unpublished technical
data of U.S. origin exported under General License GTDR. Except as
to commodities identified by the code letter "A" following the
Export Control Classification Number on the Commerce Control List,
and items on the U.S. Munitions List, the effective date of the
written assurance requirements for plant products as a condition
of using General License GTDR for export of this type of technical
data is hereby deferred until further notice, subject to the
following limitations:

     1. The exporter shall, at least two weeks before the initial
export of the technical data, notify the Office of Export
Licensing, by letter, of the facts required [665] to be disclosed
in an application for a validated export license covering such
technical data; and

     2. The exporter shall obtain from the person who is or will
be in control of the distribution of the products of the plant
(whether or not such person is the importer) a written commitment
that he will notify the U.S. Government, directly or through the
exporter, whenever he enters into negotiations to export any
product of the plant to any destination covered by Sec.
779.4(f)(2)(ii), when such product is not identified by the code
letter "A" following the Export Control Classification Number on
the Commerce Control List and requires a validated license for
export to Countr,v Group W by the information set forth in the
applicable CCL entry in the paragraph titled "Validated License
Required". The notification should state the product, quantity,
country of destination, and the estimated date of the shipment.

     Moreover, during the period of deferment, the remaining
written assurance requirements of Sec. 779.4 (f)(2)(ii) and
(fl(2)(iii) as to plant products that are identified by the code
letter "A" following the Export Control Classification Number on
the Commerce Control List, or are on the U.S. Munitions List, will
be waived if the plant is located in one of the following COCOM
countries: Australia, Belgium, Canada, Denmark, the Federal
Republic of Germany, France, Greece, Italy, Japan, Luxembourg, the
Netherlands, Norway, Portugal, Spain, Turkey, and the United
Kingdom. This deferment applies to exports of technical data
pursuant to any type of contract or arrangement, including
licensing agreements, regardless of whether entered into before or
after April 1,1964.

(3) The required assurance may be made in the form of a letter or
other written communication from the importer or, if applicable,
the person in control of the distribution of the products of a
plant; or the assurance may be incorporated into a licensing
agreement that restricts disclosure of the technical data to be
used only in authorized destinations, and prohibits shipment of
the direct product thereof by the licensee to any unauthorized
destination. An assurance included in a licensing agreement will
be acceptable for all exports made during the life of the
agreement, provided that the obligations of the importer set forth
in the assurances survive any termination of the licensing
agreement. If such assurance is not received, this general license
is not applicable and a validated export license is required. An
application for validated license shall include an explanatory
statement setting forth the reasons why such assurance cannot be
obtained.

(4) In addition, this general license is not applicable to any
export of technical data of the kind described in this Sec.
779.4(f), if at the time of export of the technical data from the
United States, the exporter knows or has reason to believe that
the direct product to be manufactured abroad by use of the
technical data is intended to be exported directly or indirectly
to any unauthorized destination.

(5) The limitations in this Sec. 779.4(f) do not apply to the
export of technical data included in an application for the
foreign filing of a patent, provided such filin~ is in accordance
with the re~ulations of the U.S. Patent Office.

(g) Additional restrictions applicable to chemical or biological
weapons. In [666] addition to any other restrictions in Sec.
779.4, the use of General License GTDR is further restricted bv
Sec. 778.8(a)(5) of this subchapter.


Sec. 779.5 Validated license applications.

     (a) General. No technical data, other than that exportable
without license to Canada or under general license to other
destinations, may be exported from the United States without a
validated export license. Such validated export licenses are
issued by the Office of Export Licensing upon receipt of an
appropriate export application or reexport request. An application
for a technical data license shall consist of:

(1) Form BXA-622P, Application for Export License, accompanied by;

(2) A letter of explanation described in Sec. 779.5(d) for
technology or description of the capabilities of the software; and

(3) For shipments to the Czech Republic, Hungary, Poland, and the
Slovak Republic, an Import Certificate issued by the appropriate
national government. (See Sec. 775.8 and supplement No. 1 to part
775 of this subchapter.)

     (b) Application Form. Form ITA-622P shall be completed as
provided in Sec. 772.4, except that Items 9(a) and 11 shall be
left blank. In Item 9(b), "Description of Commodity or Technical
Data," enter a general statement which specifies the technical
data (e.g., blueprints, manuals, etc.). In Purpose."

     (c) [Reserved]

     (d) Letter of explanation. Each application shall be
supported by a comprehensive letter of explanation in duplicate.
This letter shall set forth all the facts required to present to
the Office of Export Licensing a complete disclosure of the
transaction including, if applicable, the following:

(1) The identification of all parties to the transaction;

(2) The exact project location where the technical data will be
used; 

(3) The type of technical data to be exported;

(4) The form in which the export will be made; 

(5) The uses for which the data will be employed;

(6) An explanation of the process, product, size, and output
capacity of the plant or equipment, if applicable, or other
description that delineates, defines, and limits the data to be
transmitted (the "technical scope");

(7) The availability abroad of comparable foreign technical data. 

     (e) Special provisions--

(1) Maritime nuclear propulsion plants and related
commodities.(16) These special provisions are applicable to
technical data relating to maritime (civil) nuclear propulsion
plants, their land prototypes, and special facilities for their
construction, [667] support, or maintenance, including any
machinery, device, component, or equipment specifically developed
or designed for use in such plants or facilities. Every
application for license to export technical data relating to any
of these commodities shall include the following:

_________

(16) See Sec. 779.8(a) which sets forth provisions prohibiting
exports and reexports of certain technical data and products
manufactured therefrom.
_________


(i) A description of the foreign project for which the technical
data will be furnished;

(ii) A description of the scope of the proposed services to be
offered by the applicant, his consultant(s), and his
subcontractor(s), including all the design data which will be
disclosed;

(iii) The names, addresses and titles of all personnel of the
applicant, his consultant(s) and his subcontractor(s) who will
discuss or disclose the technical data or be involved in the
design or development of the technical data;

(iv) The beginning and termination dates of the period of time
during which the technical data will be discussed or disclosed and
a proposed time schedule of the reports which the applicant will
submit to the U.S. Department of Commerce, detailing the technical
data discussed or disclosed during the period of the license;

(v) The following certification:

     I (We) certify that if this application is approved, I (we)
and any consultants, subcontractors, or other persons employed or
retained by us in connection with the project thereby licensed
will not discuss with or disclose to others, directly or
indirectly, any technical data relating to U.S. naval nuclear
propulsion plants. I (We) further certify that I (we) will furnish
to the U.S. Department of Commerce all reports and information
which it may require concerning specific transmittals or
disclosures of technical data pursuant to any license granted as a
result of this application;

(vi) A statement of the steps which the applicant will take to
assure that personnel of the applicant, his consultant(s) and his
subcontractor(s) will not discuss or disclose to others technical
data relating to U.S. naval nuclear propulsion plants; and (vii) A
written statement of assurance from the foreign importer that
unless prior authorization is obtained from the Office of Export
Licensing, the importer will not knowingly export directly or
indirectly to Country Group Q, S, W, Y, or Z, or the People's
Republic of China, the direct product of the technical data.
However, if the U.S. exporter is not able to obtain this statement
from the foreign importer, the U.S. exporter shall attach an
explanatory statement to his license application setting forth the
reasons why such an assurance cannot be obtained.

(2) Other license applications. For all other license applications
to export technical data identified in an entrv with an ECCN
ending in the code letter "A" to any destination, other than
Country Group Q, S, W, Y, or Z, or the People's Republic of China,
an applicant shall attach to the license application a written
statement from his foreign importer assuring that, unless prior
authorization is obtained from the Office of Export Licensing, the
importer will not knowingly reexport the technical data to any
destination, or export any national security controlled direct
product of the technical data, directly or indirectly, to Country
Group Q, S, W, Y, or Z, or the People's Republic of China.
However, if the U.S. exporter is not able to obtain the required
statement from his importer, the exporter [668] shall attach an
explanatory statement to his license setting forth the reasons why
such an assurance cannot be obtained.

     (f) Validity period and extension--

(1) Initial validity. Validated licenses covering exports of
technical data will generally be issued for a validity period of
24 months. Upon request, a validity period exceeding 24 months may
be granted where the facts of the transaction warrant it and the
Office of Export Licensing determines that such action would be
consistent with the objectives of the applicable U.S. export
control program. Justification for a validity period exceeding 24
months should be provided in accordance with the procedures set
forth in Sec. 772.9(d)(2) for requesting an extended validity
period with a license application. The Office of Export Licensing
will make the final decision on what validity beyond 24 months, if
any, should be authorized in each case.

(2) Extensions. A request to extend the validity period of a
technical data license shall be made on Form ITA-685P in
accordance with the procedures set forth in Sec. 772.12(a). The
request shall include on Form ITA-685P, in the space entitled
"Amend License to Read as Follows," whether the license has been
previously extended and the date(s) and duration of such
extension(s). The Office of Export Licensing will make the final
decision on what extension beyond 24 months, if any, should be
authorized in each case. (See Sec. 779.8(c)(1) for validity period
extensions for reexports of technical data.)


Sec. 779.6 Exports under a validated license.

     (a) Use of validated licenses--

(1) Retention of license. The validated technical data license
need not be presented to the customs of fice or post office but
shall be retained and made available for inspection in accordance
with the provisions of Sec. 787.13 of this subchapter. (2) Return
of revoked or suspended technical data licenses. If the Office of
Export Licensing revokes or suspends a technical data license, the
licensee shall return the license immediately to the Office of
Export Licensing in accordance with the instructions in Sec.
786.2(d) of this subchapter.

     (b) Records. Any person to whom a validated technical data
license has been issued shall retain the license and maintain
complete records in accordance with Sec. 786.2(d) of this
subchapter, including any export licenses (whether used or unused,
valid or expired) and all supporting documents and shipping
records.


Sec. 779.7 Amendments.

     Requests for amendments shall be made in accordance with the
provisions of Sec. 772.11. Changes requiring amendment include any
expansion or upgrade of the technical scope that was described in
the letter of explanation, as approved or modified on the export
license. [669]


Sec. 779.8 Reexports of technical data and exports of the product
manufactured abroad by use of United States technical data.

     (a) Prohibited exports and reexports. Unless specifically
authorized by the Office of Export Licensing, or otherwise
authorized under the provisions of paragraph (b) of this section,
no person in the United States or in a foreign country may:

(1) Reexport any technical data imported from the United States,
directly or indirectly, in whole or in part, from the authorized
country(ies) of ultimate destination;

(2) Export any technical data from the United States with the
knowledge that it is to be reexported, directly or indirectly, in
whole or in part, from the authorized country(ies) of ultimate
destination; or

(3) Export or reexport to Country Group Q, S, W, Y or Z, the
People's Republic of China or Afghanistan any foreign produced
direct product of U.S. technical data, or any commodity produced
by any plant or major component thereof that is a direct product
of U.S. technical data, if such direct product or commodity is
covered by the provisions of Sec. 779.4(f) or Sec. 779.5(e)(1); or

(b) Permissive reexports--

(1) Exportable under General License GTDA or GTDR. Any technical
data which have been exported from the United States may be
reexported from any destination to any other destination provided
that, at the time of reexport, the technical data may be exported
directly from the United States to the new country of destination
under General License GTDA or GTDR and provided that all of the
requirements and conditions for use of these general licenses have
been met.

(2) COCOM authorization. Separate specific authorization by the
Office of Export Licensing to reexport any U.S. origin technical
data is not required if all of the following conditions are met:

(i) The data being exported are identified bv the suffix "A" on
the CCL;

(ii) The export or reexport is from a COCOM participating country,
i.e., Australia, Belgium, Canada, Denmark, France, the Federal
Republic of Germany, Greece, Italy, Japan, Luxembourg, the
Netherlands, Norway, Portugal, Spain, Turkey, or the United
Kingdom;

(iii) The export or reexport is made in accordance with the
condihons of the licensing authorization issued by the applicable
COCOM participating country; and

(iv) The export or reexport is to a country in Country Group Q, W,
or Y or the People's Republic of China.

(3) Direct product. Separate specific authorization by the Office
of Export Licensing to export or reexport the direct product of
U.S. origin technical data is not required if the direct product,
were it of U.S. origin, could be shipped under any of the
permissive reexport provisions of Sec. 774.2 of this subchapter.

(4) People's Republic of China. Separate specific authorization by
the Office of Export Licensing is not required to reexport
software from a COCOM participating country, Austria, Finland,
Hong Kong, Ireland, New Zealand, Sweden, or Switzerland to the
People's Republic of China that meets the requirements set forth
in Advisory Notes for the People's Republic of China or for
Country Groups [670] Q, W, Y in the Commerce Control List
(Supplement No. 1 to Sec. 799.1 of this subchapter) and are
licensed for shipment by the country from which reexported.

     (c) Specific authorization to reexport--

(1) Submission of request for reexport authorization. Requests for
specific authorization to reexport technical data or to export any
product thereof, as applicable, shall be submitted on Form
ITA-699P, Request To Dispose of Commodities or Technical Data
Previously Exported (OMB approval No. 0625-0009), to: Office of
Export Licensing, P.O. Box 273, Washington, DC 20044.

     (See Supplement No. 1 to Part 774 for instructions on
completing the form.) If Form ITA-699P is not readily available, a
request for specific authorization to reexport technical data or
to export any product thereof, as applicable, may be submitted by
letter. The letter shall bear the words "Technical Data Reexport
Request" immediately below the heading or letterhead and contain
all the information required by Sec. 779.5(d). Authorization to
reexport technical data or to export the product thereof, if
granted, will generally be issued with a validity period of 24
months on Form ITA- 699P, or by means of a letter from the Office
of Export Licensing. Any request for extension of the validity
period shall be requested in accordance with Sec. 774.5(b), and
shall specify the period for which additional validity is
required. The Office of Export Licensing will make the final
decision on what validity beyond 24 months, if any, should be
authorized in each case.

(2) Return of reexport authorization. If the Office of Export
Licensing revokes or suspends a reexport authorization, the
licensee shall return the reexport authorization immediately to
the Office of Export Licensing.

(3) Records. Any person to whom a reexport authorization has been
issued shall retain and make available for inspection records in
accordance with the provisions of Sec. 787.13 of this subchapter,
including any reexport authorizations (whether used or unused,
valid or expired) and all supporting documents and shipping
records.

     (d) Effect of foreign laws. No authority granted by the U.S.
Office of Export Licensing, or under the provisions of the U S.
Export Administration Regulations, to reexport technical data or
export a product thereof shall in any way relieve any person from
his responsibility to comply fully with the laws, rules, and
regulations of the country from which the reexport or export is to
be made or of any other country having authority over any phase of
the transaction. Conversely, no foreign law, rule, regulation, or
authorization in any way relieves any person from his
responsibility to obtain such authorization from the U.S. Office
of Export Licensing as may be required by the U.S. Export
Administration Regulations.


Sec. 779.9 Commercial agreements with certain countries.

     Pursuant to section 5(j) of the Export Administration
Amendments Act of 1979, as amended, any non-governmental U.S.
person or firm that enters into an [671] agreement with any agency
of the government of a controlled country (Country Groups Q, W, Y,
and the People's Republic of China), which agreement encourages
technical cooperation and is intended to result in the export from
the U.S. to the other party of U.S.-origin technical data (except
under General License GTDA or General License GTDR as provided
under the provisions of Sec. 779.4(b)), shall submit those
portions of the agreement that include the statement of work and
describe the anticipated exports of data to the Office of
Technology and Policy Analysis, Room 4054, P.O. Box 273,
Washington, DC 20044. This material shall be submitted no later
than 30 days after the final signature on the agreement.

     (a) This requirement does not apply to colleges,
universities and other educational institutions.

     (b) The submission required by this section does not relieve
the exporter from the licensing requirements for controlled
technical data and goods.

     (c) Acceptance of a submission does not represent a judgment
as to whether Export Administration will or will not issue any
authorization for export of technical data.


Sec. 779.10 Other applicable provisions.

     As far as may be consistent with the provisions of this
part, all of the other provisions of the Export Administration
Regulations shall apply equally to exports of technical data and
to applications for licenses and licenses issued under this part.



            Supplement No. 1 to Part 779--
            Technical Data Interpretations

     1. Technology based on U.S.-origin technical data.
U.S.-origin technical data does not lose its U.S.-origin when it
is redrawn, used, consulted, or otherwise commingled abroad in any
respect with other technical data of any other origin. Therefore,
any subsequent or similar technical data prepared or engineered
abroad for the design, construction, operation, or maintenance of
any plant or equipment, or part thereof, which is based on or
utilizes any U.S.-origin technical data, is subject to the same
U.S. Export Administration Regulations that are applicable to the
original U.S.-origin technical data, including the requirement for
obtaining Office of Export Licensing authorization prior to
reexportation.

     2. Distinction between General and Validated License
requirements for shipment to QWY destinations of technical data
and replacement parts.

     A number of exporters have recently asked where the line is
drawn between general license and validated license exports to
PQWY destinations of technical data related to equipment exports.

     The export of technical data under validated license is
authorized only to the extent specifically indicated on the face
of the license. The only data related to equipment exports that
can be provided under general license is the publicly [672]
available data authorized by General License GTDA, or the
assembly, installation, maintenance, repair, and operation data
authorized by General License GTDR.


771.20 General License GLX; exports to Country Groups QWY and the
People's Republic of China.

     (a) Scope. A general license designated GLX is established,
authorizing exports to civil end-users in Country Group QWY and
the People's Republic of China (PRC) of certain specified items.

     (b) Eligible exports. The items eligible for this general
license are those described in the Advisory Notes in the CCL that
indicate likelihood of approval for "Country Groups QWY and the
PRC," except items described in the notes to ECCNs lC18A and
2B18A. Likelihood of approval notes that apply only to the PRC, or
to specified destinations in Country Group Y also qualify for this
general license to eligible destinations (however, those notes
indicating Country Group Q or W only, are specifically not
eligible). In addition, those entries and sub-entires listed in
Supplement No. 1 to this Part 771 are eligible to export under
this general license. However, this general license is not
available for items that are also subject to missile technology
(MT), nuclear nonproliferation (NP), or foreign policy (FP)
controls to the recipient country.

     (c) Eligible consignees. This general license is available
only for exports to civil end-users for civil end-uses. Exports
under this general license may not be made to military end-users
or to known military uses. Such exports will continue to require
an individual validated license and be considered on a
case-by-case basis. In addition to conventional military
activities, military uses include any proliferation activities
described in Part 778 of this subchapter. Retransfers to military
end-users or end-uses in eligible countries are strictly
prohibited, without prior authorization.

     The relevant part of the Commerce Control List is the
"Information Security" category, as described below (taken from
Supplement Number 1 to Section 799.1 of the Code of Federal
Regulations).


              II. "Information Security"

     NOTE: The control status of "information security"
equipment, "software", systems, application specific "assemblies",
modules, integrated circuits, components, technology or functions
is defined in the "information security" entries in this Category
even if they are components or "assemblies" of other equipment.

     NOTE: "Information security" equipment, "software", systems,
application specific "assemblies", modules, integrated circuits,
components, technology or functions that are excepted from
control, not controlled, or eligible for licensing under an
Advisory Note are under the licensing jurisdiction of the
Department of Commerce. For all other, exporters requesting a
validated license from the Department [673] of Commerce must
provide a statement from the Department of State, Office of
Defense Trade Control, verifying that the equipment intended for
export is under the licensing jurisdiction of the Department of
Commerce.


       A. Equipment, Assemblies and Components

5A11A Systems, equipment, application specific "assemblies",
modules or integrated circuits for "information security", as
described in this entry, and other specially designed components
therefor.


               List of Items Controlled

     Systems, equipment, application specific "assemblies",
modules or integrated circuits for "information security," as
follows, and other specially designed components therefor:

     a. Designed or modified to use "cryptography" employing
digital techniques to ensure "information security";

     b. Designed or modified to perform cryptanalytic functions;

     c. Designed or modified to use "cryptography" employing
analog techniques to ensure "information security", except:

     c.1. Equipment using "fixed" band scrambling not exceeding 8
bands and in which the transpositions change not more frequently
than once very second;

     c.2. Equipment, using "fixed" band scrambling exceeding 8
bands and in which the transpositions change not more frequently
than once every ten seconds;

     c.3. Equipment using "fixed" frequency inversion and in
which the transpositions change not more frequently than once
every second;

     c.4. Facsimile equipment;

     c.5. Restricted audience broadcast equipment;

     c.6. Civil television equipment;

     d. Designed or modified to suppress the compromising
emanations of information-bearing signals;

     NOTE: 5A11.d does not control equipment specially designed
to suppress emanations for health and safety reasons.

     e. Designed or modified to use cryptographic techniques to
generate the spreading code for "spread spectrum" or hopping code
for "frequency agility" systems;

     f. Designed or modified to provide certified or certifiable
"multilevel security" or user isolation at a level exceeding Class
B2 of the Trusted Computer System Evaluation Criteria (TCSEC) or
equivalent;

     g. Communications cable systems designed or modified using
mechanical, electrical or electronic means to detect surreptitious
intrusion.

5B11A Equipment specially designed for the development of
equipment or functions controlled by the "information security"
entries in this Category, including measuring or test equipment.
[674]

5B12A Equipment specially designed for the production of equipment
or functions controlled by the "information security" entries in
this Category, including measuring, test, repair or production
equipment.

5B13A Measuring equipment specially designed to evaluate and
validate the "information security" functions controlled by the
"information security" entries in 5A or 5D.


               C. Materials [Reserved]


                    D. "Software"

5D11A "Software" specially designed or modified for the
"development", "production", or "use" of equipment controlled by
"information security" entries 5A11, 5B11, 5B12, or 5B13 or
"software" controlled by "information security" entries 5D11,
5D12, or 5D13.

5D12A "Software" specially designed or modified to support
technology controlled by "information securitv" entry 5E11.

5D13A Specific "software" as follows.

     NOTE: Exporter must have determined that the software is not
controlled by the Office of Defense Trade Control, Department of
State, before using this general license.


               List of Items Controlled

     a. "Software" having the characteristics, or performing or
simulating the functions of the equipment controlled by the
"information security" entries in 5A or 5B.

     b. "Software" to certify "software" controlled by 5D13.a;

     c. "Software" designed or modified to protect against
malicious computer damage, e.g., viruses.


                    E. Technology

5E11A Technology according to the General Technology Note for the
"development", "production", or "use" of equipment controlled by
"Information Security" entries 5A11, 5B11, 5B12, or 5B13 or
"software" controlled by "information security" entries 5D11,
5D12, or 5D13.

NOTES for "Information Security"

NOTE 1: "Information security" entries in this Category do not
control:

     a. "Personalized smart cards" using "cryptography"
restricted for use only in equipment or systems released from
control under 5A11.c.1 to c.6, by this Note or as described in
"Information Security" Advisory Notes 3 and 4 below; [675]

     b. Equipment containing "fixed" data compression or coding
techniques;

     c. Receiving equipment for radio broadcast, pay television
or similar restricted audience television of the consumer type,
without digital encryption and where digital decryption is limited
to the video, audio or management functions;

     d. Portable (personal) or mobile radio-telephones for civil
use; e.g., for use with commercial civil cellular
radiocommunications systems, containing encryption, when
accompanying their users;

     e. Decryption functions specially designed to allow the
execution of copy-protected "software", provided that the
decryption functions are not user-accessible.

NOTE 2: "Information Security" entries in this Category do not
control:

     a. "Software" "required" for the "use" of equipment released
by "Information Security" Note 1;

     b. "Software" providing any of the functions of equipment
released by "Information Security" Note 1;

ADVISORY NOTE 3: Licenses are likely to be approved, as
administrative exceptions, for exports to Country Group W or
cellular radio equipment or systems specially designed for
cryptographic operation, provided any message traffic encryption
capability that is within the scope of the control of the
"information security" entries in Category 5 and that is contained
in such equipment or systems is irreversibly disabled.

N.B.: Provided message traffic encryption is not possible within
such a system, the export of mobile or portable cellular radio
subscriber equipment containing cryptographic capabilities is
permitted under this Advisory Note.

ADVISORY NOTE 4: Licenses are likely to be approved, as
administrative exceptions, for exports to satisfactory end-users
in Country Groups QWY and the PRC of the following cryptographic
equipment, provided that the equipment is intended for civil use:

     a. Access control equipment, such as automatic teller
machines, self-service statement printers or point of sale
terminals, that protects password or personal identification
numbers (PIN) or similar data to prevent unauthorized access to
facilities, but does not allow for encryption of files or text,
except as directly related to the password of PIN protection;

     b. Data authentication equipment that calculates a Message
Authentication Code (MAC) or similar result to ensure no
alteration of text has taken place, or to authenticate users, but
does not allow for encryption of data, text or other media other
than that needed for the authentication;

     c. Cryptographic equipment specially designed, developed or
modified for use in machines for banking or money transactions,
such as automatic teller machines, self-service statement
printers, point of sale terminals or equipment for the encryption
of interbanking transactions, and intended for use only in such
applications.

ADVISORY NOTE 5: (Eligible for GTDR). Licenses are likely to be
approved as administrative exceptions, for exports to satisfactory
end-users in Country Groups QWY and the PRC of the following
cryptographic "software";

     a. "Software" required for the "use" of equipment eligible
for administrative exceptions treatment under Advisory Notes 3 and
4 in the Notes for "Information Security" (Category 5);

     b. "Software" providing any of the functions of equipment
eligible for administrative exceptions treatment under Advisory
Notes 3 and 4 in the Notes for "Information Security" (Category
5). *[End of Notes for "Information Security."]* [676]



III. Other Equipment, Materials, "Software" and Technology
                           
                           
       A. Equipment, Assemblies and Components

5A20B Telemetering and telecontrol equipment usable as launch
support equipment for unmanned air vehicles or rocket svstems.

5A80D Communications intercepting devices; and parts and
accessories therefor. (Specify by name.) (Also see S776.13 of this
subchapter.)

NOTES: 1. These items are subject to the United Nations Security
Council arms embargo against Rwanda described in S785.4 (a) of
this subchapter.

     2. Controls on this equipment are maintained in accordance
with the Omnibus Crime Control and Safe Streets Act of 1968 (Pub.
L. 90-351).


[End N.4.2 and Appendix N]

__________________________________________________________________

Digitized November 12-13, 1996.



