Revisions to the Export Administration Regulations; Transfers of Technology to Foreign Nationals in the United States

DEPARTMENT OF COMMERCE

Bureau of Export Administration

15 CFR Part 779

[Docket No. 931242-3342]

RIN 9694-AA71

Revisions to the Export Administration Regulations; Transfers of

Technology to Foreign Nationals in the United States

AGENCY: Bureau of Export Administration, Commerce.

ACTION: Final rule.

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SUMMARY: The Bureau of Export Administration is amending the Export

Administration Regulations (EAR), to codify the long standing

interpretation that the release of technical data and source code to a

foreign national is deemed an export to the foreign national's home

country. This will clarify the EAR with respect to exports of technical

data.

EFFECTIVE DATE: This rule is effective March 22, 1994.

FOR FURTHER INFORMATION CONTACT: Larry Christensen, Office of Chief

Counsel for Export Administration, Bureau of Export Administration,

U.S. Department of Commerce, Telephone: (202) 482-5304.

SUPPLEMENTARY INFORMATION: The purpose of the amendments to Sec. 779.1

(b) and (c) of the Export Administration Regulations (EAR) is to codify

the longstanding interpretation of the Bureau of Export Administration

(BXA) that the release of technical data and source code to a foreign

national is a deemed export to the foreign national's home country or

countries and to conform the EAR treatment of the release of technical

data to the prohibitions under the International Traffic in Arms

Regulations.

The purpose of the amendment to the introductory paragraph of

section 779.4 is to clarify that General License GTDR does not extend

to all technical data that is ineligible for General License GTDA.

Rather, a validated license is required for the export and reexport of

technical data (technology and software) unless a general license is

authorized.

Rulemaking Requirements

1. This rule was not subject to review by the Office of Management

and Budget under Executive Order 12866.

2. This rule involves a collection of information subject to the

Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.), approved by

the Office of Management and Budget under control numbers 0694-0005,

0694-0010, and 0694-0023. This rule will reduce the reporting burden on

the public.

3. This rule does not contain policies with Federalism implications

sufficient to warrant preparation of a Federalism assessment under

Executive Order 12612.

4. Because a notice of proposed rulemaking and an opportunity for

public comment are not required to be given for this rule by section

553 of the Administrative Procedure Act (5 U.S.C. 553) or by any other

law, under section 3(a) of the Regulatory Flexibility Act (5 U.S.C.

603(a) and 604(a)) no initial or final Regulatory Flexibility Analysis

has to be or will be prepared.

5. The provisions of the Administrative Procedure Act, 5 U.S.C.

553, requiring notice of proposed rulemaking, the opportunity for

public participation, and a delay in effective date, are inapplicable

because this regulation involves a foreign and military affairs

function of the United States. Section 13(b) of the EAA does not

require that this rule be published in proposed form because this rule

does not impose a new control. No other law requires that a notice of

proposed rulemaking and an opportunity for public comment be given for

this rule.

Accordingly, it is issued in final form. However, comments from the

public are always welcome. Comments should be submitted to Patricia

Muldonian, Office of Technology and Policy Analysis, Bureau of Export

Administration, Department of Commerce, P.O. Box 273, Washington, DC

20044.

List of Subjects in 15 CFR Part 779

Computer technology, Exports, Reporting and recordkeeping

requirements, Science and technology.

Accordingly, part 779 of the Export Administration Regulations (15

CFR parts 730-799) is amended as follows:

PART 779--[AMENDED]

1. The authority citation for 15 CFR part 779 continues to read as

follows:

Authority: Pub. L. 90-351, 82 Stat. 197 (18 U.S.C. 2510 et

seq.), as amended; Pub. L. 95-223, 91 Stat. 1626 (50 U.S.C. 1701 et

seq.); Pub. L. 95-242, 92 Stat. 120 (22 U.S.C. 3201 et seq. and 42

U.S.C. 2139a); Pub. L. 96-72, 93 Stat. 503 (50 U.S.C. app. 2401 et

seq.), as amended (extended by Pub. L. 103-10, 107 Stat. 40); E.O.

12002 of July 7, 1977 (42 FR 35623, July 7, 1977), as amended; E.O.

12058 of May 11, 1978 (43 FR 20947, May 16, 1978); E.O. 12214 of May

2, 1980 (45 FR 29783, May 6, 1980); E.O. 12735 of November 16, 1990

(55 FR 48587, November 20, 1990), as continued by Notice of November

11, 1992 (57 FR 53979, November 13, 1992); E.O. 12867 of September

30, 1993 (58 FR 51743, October 4, 1993); E.O. 12868 of September 30,

1993 (58 FR 51749, October 4, 1993).

2. Section 779.1 is amended by adding a colon after the word

``means'' in paragraph (b)(1) introductory text and revising paragraphs

(b)(1)(ii) and (c) introductory text to read as follows:

Sec. 779.1 Definitions1.

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\1\See Sec. 770.2 of this subchapter for definitions of other

terms used in this part.

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* * * * *

(b) * * *

(1) * * *

(ii) Any release of technology or source code to a foreign

national, provided however, this deemed export rule does not apply to

persons lawfully admitted for permanent residence in the United States

and does not apply to persons who are protected individuals under the

Immigration and Naturalization Act (8 U.S.C. 1324b (a)(3)). A release

under this paragraph (b)(1)(ii) is a deemed export to the home country

or countries of the foreign national. Note that the release of any item

to any party with knowledge or reason to know a violation is about to

occur is prohibited by Sec. 787.4 of this subchapter; or

* * * * *

(c) Reexport of technical data. ``Reexport of technical data''

means an actual shipment or transmission from one foreign country to

another. In addition, any release of technology or source code to a

foreign national of another country is a deemed export to the home

country or countries of the foreign national. However, this deemed

reexport definition does not apply to persons lawfully admitted for

permanent residence. The term ``release'' is defined by

Sec. 779.1(b)(2). Note that the release of any item to any party with

knowledge or reason to know a violation is about to occur is prohibited

by Sec. 787.4 of this subchapter. Technical data may be released for

reexport through:

* * * * *

3. Section 779.4 is amended by revising the introductory text of

the section to read as follows:

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

A general license designated GTDR is hereby established to permit

exports, without a validated export license, of certain technical data

that is not eligible for General License GTDA. Individual technology

and software entries on the Commerce Control List (CCL) indicate

eligibility by the symbol GTDR (indicating the requirement of a written

assurance from the customer before exporting) and GTDU (indicating that

a written assurance is not required). Even when an entry indicates

``no'' for both GTDR and GTDU, export under this general license

without a written assurance (GTDU) may be authorized by paragraph (b)

of this section or by the General Software and Technology Notes in

Supplement No. 2 to Sec. 799.1 of this subchapter. Any export of

technical data that is not authorized by this general license or by

General License GTDA requires a validated export license.

* * * * *

Dated: March 15, 1994.

Sue E. Eckert,

Assistant Secretary for Export Administration.

[FR Doc. 94-6417 Filed 3-21-94; 8:45 am]

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