Cryptography's Role In Securing The Information Society Appendix N Continued [N.4 commences p. 636.] __________________________________________________________________ N.4 REGULATIONS N.4.1 International Traffic in Arms Regulations (22 CFR, Excerpts from Parts 120-123,125, and 126) Part 120 Purpose and Definitions Sec. 120.1--General authorities and eligibility. (a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778) authorizes the President to control the export and import of defense articles and defense services. The statutory authority of the President to promulgate regulations with respect to exports of defense articles and defense services was delegated to the Secretary of State by Executive Order 11958, as amended (42 FR 4311). This subchapter implements that authority. By virtue of delegations of authority by the Secretary of State, these regulations are primarily administered by the Director of the Office of Defense Trade Controls, Bureau of Politico-Military Affairs, Department of State. (b) Authorized Officials. All authorities conferred upon the Director of the Office of Defense Trade Controls by this subchapter may be exercised at any time by the Under Secretary of State for Intemational Security Affairs, the Assistant Secretary of State for Politico-Military Affairs, or the Deputy Assistant Secretary of State for Politico-Military Affairs responsible for supervising the Office of Defense Trade Controls unless the Legal Adviser or the Assistant Legal Adviser for Politico-Military Affairs of the Department of State determines that any specific exercise of this authority under this subsection may be inappropriate. (c) Eligibility. Only U.S. persons (as defined in Sec. 120.15) and foreign govemmental entities in the United States may be granted licenses or other approvals (other than retransfer approvals sought pursuant to this subchapter). Foreign persons (as defined in Sec. 120.16) other than governments are not eligible. U.S. persons who have been convicted of violating the criminal statutes enumerated in Sec. 120.27, who have been debarred pursuant to part 127 or 128 of this subchapter, who are the subject of an indictment involving the criminal statutes enumerated in Sec. 120.27, who are ineligible to contract with, or to receive a license or other form of authorization to import defense articles or defense services from any agency of the U.S. Government, who are ineligible to receive export licenses (or other forms of authorization to export) from anv agency of the U.S. Government, who are subject to Department of State Suspension/Revocation under Sec. 126.7 (a)(1)-(a)(7) of this subchapter, or who are ineligible under Sec. 127.6(c) of this subchapter are generally ineligible. Applications for licenses or other approvals will be considered only if the applicant has registered with the Office of Defense Trade Controls pursuant to part 122 of this subchapter. All [637] applications and requests for approval must be signed by a U.S. person who has been empowered by the registrant to sign such documents.... Sec. 120.3--Policy on designating and determining defense articles and services. An article or service may be designated or determined in the future to be a defense article (see Sec. 120.6) or defense service (see Sec. 120.9) if it: (a) Is specifically designed, developed, configured, adapted, or modified for a military application, and (i) Does not have predominant civil applications, and (ii) Does not have performance equivalent (defined by form, fit and function) to those of an article or service used for civil applications; or (b) Is specifically designed, developed, configured, adapted, or modified for a military application, and has significant military or intelligence applicability such that control under this subchapter is necessary. The intended use of the article or service after its export (i.e., for a military or civilian purpose) is not relevant in determining whether the article or service is subject to the controls of this subchapter. Any item covered by the U.S. Munitions List must be within the categories of the U.S. Munitions List. The scope of the U.S. Munitions List shall be changed only by amendments made pursuant to section 38 of the Arms Export Control Act (22 U.S.C. 2778). Sec. 120.4--Commodity jurisdiction. (a) The commodity jurisdiction procedure is used with the U.S. Government if doubt exists as to whether an article or service is covered by the U.S. Munitions List. It may also be used for consideration of a redesignation of an article or service currently covered by the U.S. Munitions List. The Department must submit a report to Congress at least 30 days before any item is removed from the U.S. Munitions List. Upon written request, the Office of Defense Trade Controls shall provide a determination of whether a particular article or service is covered by the U.S. Munitions List. The determination, consistent with Secs. 120.2, 120.3, and 120.4, entails consultation among the Departments of State, Defense, Commerce and other U.S. Government agencies and industry in appropriate cases. (b) Registration with the Office of Defense Trade Controls as defined in part 122 of this subchapter is not required prior to submission of a commodity jurisdiction request. If it is determined that the commodity is a defense article or service covered by the U.S. Munitions List, registration is required for exporters, manufacturers, and furnishers of defense articles and defense services (see part 122 of this subchapter). [638] (c) Requests shall identify the article or service, and include a history of the product's design, development and use. Brochures, specifications and any other documentation related to the article or service shall be submitted in seven collated sets. (d)(1) A determination that an article or service does not have predominant civil applications shall be made by the Department of State, in accordance with this subchapter, on a case-by-case basis, taking into account: (i) The number, variety and predominance of civil applications; (ii) The nature, function and capability of the civil applications; and (iii) The nature, function and capability of the military applications. (2) A determination that an article does not have the performance equivalent, defined by form, fit and function, to those used for civil applications shall be made by the Department of State, in accordance with this subchapter, on a case-by-case basis, taking into account: (i) The nature, function, and capability of the article; (ii) Whether the components used in the defense article are identical to those components ori~inally developed for civil use. Note: The form of the item is its defined configuration, including the geometrically measured configuration, density, and weight or other visual parameters which uniquely characterize the item, component or assembly. For software, form denotes language, language level and media. The fit of the item is its ability to physically interface or interconnect with or become an integral part of another item. The function of the item is the action or actions it is designed to perform. (3) A determination that an article has significant military or intelligence applications such that it is necessary to control its export as a defense article shall be made, in accordance with this subchapter, on a case-by-case basis, taking into account: (i) The nature, function, and capability of the article; (ii) The nature of controls imposed by other nations on such items (including COCOM and other multilateral controls), and (iii) That items described on the COCOM Industrial List shall not be designated defense articles or defense services unless the failure to control such items on the U.S. Munitions List would jeopardize significant national security or foreign policy interests. (e) The Office of Defense Trade Controls will provide a preliminarv response within 10 working days of receipt of a complete request for commoditv jurisdiction. If after 45 days the Office of Defense Trade Controls has not provided a final commodity jurisdiction determination, the applicant may request in writing to the Director, Center for Defense Trade that this determination be given expedited processing. (f) State, Defense and Commerce will resolve commodity jurisdiction disputes in accordance with established procedures. State shall notify Defense and Commerce of the initiation and conclusion of each case. [639] (g) A person may appeal a commodity jurisdiction determination by submitting a written request for reconsideration to the Director of the Center for Defense Trade. The Center for Defense Trade will provide a written response of the Director's determination within 30 days of receipt of the appeal. If desired, an appeal of the Director's decision can then be made directly to the Assistant Secretary for Politico-Militarv Affairs.... Sec. 120.6--Defense article. Defense article means any item or technical data designated in Sec. 121.1 of this subchapter. The policy described in Sec. 120.3 is applicable to designations of additional items. This term includes technical data recorded or stored in anv physical form, models, mockups or other items that reveal technical data directly relating to items designated in Sec. 121.1 of this subchapter. It does not include basic marketing information on function or purpose or general system descriptions.... Sec. 120.9--Defense service. Defense service means: (1) The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; or (2) The furnishing to foreign persons of any technical data controlled under this subchapter (see Sec. 120.10), whether in the United States or abroad. Sec. 120.10--Technical data. Technical data means, for purposes of this subchapter: (1) Information, other than software as defined in Sec. 120.10(d), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions and documentation. (2) Classified information relating to defense articles and defense services; (3) Information covered by an invention secrecy order; (4) Software as defined in Sec. 121.8(f) of this subchapter directly related to defense articles; (5) This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in Sec. 120.11. [640] It also does not include basic marketing information on function or purpose or general system descriptions of defense articles. Sec. 120.11--Public domain. Public domain means information which is published and which is generally accessible or available to the public: (1) Through sales at newsstands and bookstores; (2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; (3) Through second class mailing privileges granted by the U.S. Government; (4) At libraries open to the public or from which the public can obtain documents; (5) Through patents available at any patent office; (6) Through unlimited distribution at a conference, meeting, seminar, trade show or exhibition, generally accessible to the public, in the United States; (7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. govemment department or agency (see also Sec. 125.4(b)(13) of this subchapter); (8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if: (i) The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity, or (ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.... Sec. 120.14--Person. Person means a natural person as well as a corporation, business association, partnership, society, trust, or any other entity, organization or group, including governmental entities. If a provision in this subchapter does not refer exclusively to a foreign person ( Sec. 120.16) or U.S. person (Sec. 120.15), then it refers to both. [641] Sec. 120.15--U.S. person. U.S. person means a person (as defined in Sec. 120.14 of this part) who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any corporation, business association, partmership, society, trust or any other entity, organization or group that is incorporated to do business in the United States. It also includes any governmental (federal, state or local) entity. It does not include any foreign person as defined in Sec. 120.16 of this part. Sec. 120.16--Foreign person. Foreign person means any natural person who is not a protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any foreign corporation, business association, partnership, trust, society or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments (e.g., diplomatic missions). Sec. 120.17--Export. Export means: (1) Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data; or (2) Transferring registration, control or ownership to a foreign person of any aircraft, vessel, or satellite covered by the U.S. Munitions List, whether in the United States or abroad; or (3) Disclosing (including oral or visual disclosure) or transferring in the United States any defense article to an embassy, any agency or subdivision of a foreign government (e.g., diplomatic missions); or (4) Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad; or (5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad.... Sec. 120.18--Temporary import. Temporary import means bringing into the United States from a foreign country any defense article that is to be returned to the country from which it was shipped or taken, or any defense article that is in transit to another foreign destination. [642] Temporary import includes withdrawal of a defense article from a customs bonded warehouse or foreign trade zone for the purpose of returning it to the country of origin or country from which it was shipped or for shipment to another foreign destination. Permanent imports are regulated by the Department of the Treasury (see 27 CFR parts 47,178 and 179). Sec. 120.19--Reexport or retransfer. Reexport or retransfer means the transfer of defense articles or defense services to an end use, end user or destination not previously authorized. Sec. 120.20--License. License means a document bearing the word license issued by the Director, Office of Defense Trade Controls or his authorized designee which permits the export or temporary import of a specific defense article or defense service controlled by this subchapter. Sec. 120.21--Manufacturing license agreement. An agreement (e.g., contract) whereby a U.S. person grants a foreign person an authorization to manufacture defense articles abroad and which involves or contemplates: (a) The export of technical data (as defined in Sec. 120.10) or defense articles or the performance of a defense service; or (b) The use by the foreign person of technical data or defense articles previously exported by the U.S. person. (See part 124 of this subchapter.) Sec. 120.22--Technical assistance agreement. An agreement (e.g., contract) for the performance of a defense service(s) or the disclosure of technical data, as opposed to an agreement granting a right or license to manufacture defense articles. Assembly of defense articles is included under this section, provided production rights or manufacturing know-how are not conveyed. Should such rights be transferred, Sec. 120.21 is applicable. (See part 124 of this subchapter.) Sec. 120.23--Distribution agreement. An agreement (e.g., a contract) to establish a warehouse or distribution [643] point abroad for defense articles exported from the United States for subsequent distribution to entities in an approved sales territory (see part 124 of this subchapter).... Part 121 The United States Munitions List Sec. 121.1--General. The United States Munitions List. (a) The following articles, services and related technical data are designated as defense articles and defense services pursuant to sections 38 and 47(7) of the Arms Export Control Act (22 U.S.C. 2778 and 2794(7)). Changes in designations will be published in the Federal Register. Information and clarifications on whether specific items are defense articles and services under this subchapter may appear periodically in the Defense Trade News published by the Center for Defense Trade.... Category XIII Auxiliary Military Equipment.... (b) Information Security Systems and equipment, cryptographic devices, software, and components specifically designed or modified therefor, including: (1) Cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components or software with the capability of maintaining secrecy or confidentiality of information or information systems, except cryptographic equipment and software as follows: (i) Restricted to decryption functions specifically designed to allow the execution of copy protected software, provided the decryption functions are not useraccessible. (ii) Specially designed, developed or modified for use in machines for banking or money transactions, and restricted to use only in such transactions. Machines for banking or money transactions include automatic teller machines, self-service statement printers, point of sale terminals or equipment for the encryption of interbanking transactions. (iii) Employing only analog techniques to provide the cryptographic processing that ensures information security in the following applications: (A) Fixed (defined below) band scrambling not exceeding 8 bands and in which the transpositions change not more frequently than once every second; (B) Fixed (defined below) band scrambling exceeding 8 bands and in which the transpositions change not more frequently than once everv ten seconds; (C) Fixed (defined below) frequency inversion and in which the transpositions change not more frequently than once every second; (D) Facsimile equipment; (E) Restricted audience broadcast equipment; (F) Civil television equipment. [644] Note: Special Definition. For purposes of this subparagraph, fixed means that the coding or compression algorithm cannot accept externally supplied parameters (e.g., cryptographic or key variables) and cannot be modified by the user. (iv) Personalized smart cards using cryptography restricted for use only in equipment or systems exempted from the controls of the USML. (v) Limited to access control, such as automatic teller machines, self-service statement printers or point of sale terminals, which 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. (vi) Limited to data authentication which 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. (vii) Restricted to fixed data compression or coding techniques. (viii) Limited to receiving 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. (ix) Software designed or modified to protect against malicious computer damage (e.g., viruses). Note: A procedure has been established to facilitate the expeditious transfer to the Commodity Control List of mass market software products with encryption that meet specified criteria regarding encryption for the privacy of data and the associated key management. Requests to transfer commodity jurisdiction of mass market software products designed to meet the specified criteria may be submitted in accordance with the commodity jurisdiction provisions of Sec. 120.4. Questions regarding the specified criteria or the commodity jurisdiction process should be addressed to the Office of Defense Trade ControIs. All mass market software products with cryptography that were previously granted transfers of commodity jurisdiction will remain under Department of Commerce control. Mass market software governed by this note is software that is generally available to the public by being sold from stock at retail selling points, without restriction, by means of over the counter transactions, mail order transactions, or telephone call transactions; and designed for installation by the user without further substantial support by the supplier. (2) Cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components or software which have the capability of generating spreading or hopping codes for spread spectrum systems or equipment. (3) Cryptanalytic systems, equipment, assemblies, modules, integrated circuits, components or software. (4) Systems, equipment, assemblies, modules, integrated circuits, components or software providing certified or certifiable multi-level security or user isolation [645] exceeding class B2 of the Trusted Computer System Evaluation Criteria (TCSEC) and software to certify such systems, equipment or software. (5) Ancillary equipment specifically designed or modified for paragraphs (b) (1), (2), (3), (4) and (5) of this category; ... Category XXI Miscellaneous Articles (a) Any article not specifically enumerated in the other categories of the U.S. Munitions List which has substantial military applicability and which has been specifically designed or modified for military purposes. The decision on whether any article may be included in this category shall be made by the Director of the Office of Defense Trade Controls. (b) Technical data (as defined in Sec. 120.21 of this subchapter) and defense services (as defined in Sec. 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) of this category.... Part 122 Registration of Manufacturers and Exporters Sec. 122.1--Registration requirements. (a) Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Office of Defense Trade Controls. Manufacturers who do not engage in exporting must nevertheless register. (b) Exemptions. Registration is not required for: (1) Officers and employees of the United States Government acting in an official capacity. (2) Persons whose pertinent business activity is confined to the production of unclassified technical data only. (3) Persons all of whose manufacturing and export activities are licensed under the Atomic Energy Act of 1954, as amended. (4) Persons who engage only in the fabrication of articles for experimental or scientific purpose, including research and development. (c) Purpose. Registration is primarily a means to provide the U.S. Government with necessary information on who is involved in certain manufacturing and exporting activities. Registration does not confer any export rights or privileges. It is generally a precondition to the issuance of any license or other approval under this subchapter. [646] Sec. 122.2--Submission of registration statement. (a) General. The Department of State Form DSP-9 (Registration Statement) and the transmittal letter required by paragraph (b) of this section must be submitted by an intended registrant with a payment by check or money order payable to the Department of State of one of the fees prescribed in Sec. 122.3(a) of this subchapter. The Registration Statement and transmittal letter must be signed by a senior officer who has been empowered bv the intended registrant to sign such documents. The intended registrant shall also submit documentation that demonstrates that it is incorporated or otherwise authorized to do business in the United States. The Office of Defense Trade Controls will return to the sender any Registration Statement that is incomplete, or that is not accompanied by the required letter or payment of the proper registration fee. (b) Transmittal letter. A letter of transmittal, signed by an authorized senior officer of the intended registrant, shall accompany each Registration Statement. (1) The letter shall state whether the intended registrant, chief executive officer, president, vice-presidents, other senior officers or officials (e.g. comptroller, treasurer, general counsel) or any member of the board of directors: (i) Has ever been indicted for or convicted of violating any of the U.S. criminal statutes enumerated in Sec. 120.27 of this subchapter; or (ii) Is ineligible to contract with, or to receive a license or other approval to import defense articles or defense services from, or to receive an export license or other approval from, any agency of the U.S. Government. (2) The letter shall also declare whether the intended registrant is owned or controlled by foreign persons (as defined in Sec. 120.16 of this subchapter). If the intended registrant is owned or controlled by foreign persons, the letter shall also state whether the intended registrant is incorporated or otherwise authorized to engage in business in the United States. (c) Definition. For purposes of this section, ownership means that more than 50 percent of the outstanding voting securities of the firm are owned by one or more foreign persons. Control means that one or more foreign persons have the authority or ability to establish or direct the general policies or day-to-day operations of the firm. Control is presumed to exist where foreign persons own 25 percent or more of the outstanding voting securities if no U.S. persons control an equal or larger percentage. The standards for control specified in 22 CFR 60.2(c) also provide guidance in determining whether control in fact exists.... Part 123 Licenses for the Export of Defense Articles Sec. 123.7--Exports to warehouses or distribution points outside the United States. [647] Unless the exemption under Sec. 123.16(b)(1) is used, a license is required to export defense articles to a warehouse or distribution point outside the United States for subsequent resale and will normally be granted only if an agreement has been approved pursuant to Sec. 124.14 of this subchapter.... Sec. 123.9--Country of ultimate destination and approval of reexports or retransfers. (a) The country designated as the country of ultimate destination on an application for an export license, or on a Shipper's Export Declaration where an exemption is claimed under this subchapter, must be the country of ultimate enduse. The written approval of the Office of Defense Trade Controls must be obtained before reselling, transferring, transshipping, or disposing of a defense article to any end user, end use or destination other than as stated on the export license, or on the Shipper's Export Declaration in cases where an exemption is claimed under this subchapter. Exporters must ascertain the specific end-user and end-use prior to submitting an application to the Office of Defense Trade Controls or claiming an exemption under this subchapter. (b) The exporter shall incorporate the following statement as an integral part of the bill of lading, and the invoice whenever defense articles on the U.S. Munitions List are to be exported: These commodities are authorized bv the U.S. Government for export only to country of ultimate destination for use by end-user. They may not be transferred, transshipped on a non-continuous voyage, or otherwise be disposed of in any other country, either in their original form or after being incorporated into other end-items, without the prior written approval of the U.S. Department of State." (c) A U.S. person or a foreign person requesting approval for the reexport or retransfer, or change in end-use, of a defense article shall submit a written request which shall be subject to all the documentation required for a permanent export license (see Sec. 123.1) and shall contain the following: (1) The license number under which the defense article was previously authorized for export from the United States; (2) A precise description, quantity and value of the defense article; (3) A description of the new end-use; and (4) Identification of the new end-user. (d) The written approval of the Office of Defense Trade Controls must be obtained before reselling, transferring, transshipping on a non-continuous voyage, or disposing of a defense article in anv country other than the country of ultimate destination, or anyone other than the authorized end-user, as stated on the Shipper's Export Declaration in cases where an exemption is claimed under this subchapter. [648 (e) Reexports or retransfers of U.S.-origin components incorporated into a foreign defense article to a government of a NATO country, or the governments of Australia or Japan, are authorized without the prior written approval of the Office of Defense Trade Controls, provided: (1) The U.S.-origin components were previously authorized for export from the United States, either by a license or an exemption; (2) The U.S.-origin components are not significant military equipment, the items are not major defense equipment sold under a contract in the amount of $14,000,000 ($14 million) or more; the articles are not defense articles or defense services sold under a contract in the amount of $50,000,000 ($50 million) or more; and are not identified in part 121 of this subchapter as Missile Technology Control Regime (MTCR) items; and (3) The person reexporting the defense article must provide written notification to the Office of Defense Trade Controls of the retransfer not later than 30 days following the reexport. The notification must state the articles being reexported and the recipient government. (4) In certain cases, the Director, Office of Defense Trade Controls, may place retransfer restrictions on a license prohibiting use of this exemption. Sec. 123.10--Non transfer and use assurances. (a) A nontransfer and use certificate (Form DSP-83) is required for the export of significant military equipment and classified articles including classified technical data. A license will not be issued until a completed Form DSP-83 has been received by the Office of Defense Trade Controls. This form is to be executed by the foreign consignee, foreign end-user, and the applicant. The certificate stipulates that, except as specifically authorized by prior written approval of the Department of State, the foreign consignee and foreign end-user will not reexport, resell or otherwise dispose of the significant military equipment enumerated in the application outside the country named as the location of the foreign end-use or to any other person. (b) The Office of Defense Trade Controls may also require a DSP-83 for the export of any other defense articles or defense services. (c) When a DSP-83 is required for an export of any defense article or defense service to a non-govemmental foreign end-user, the Office of Defense Trade Controls may require as a condition of issuing the license that the appropriate authority of the government of the country of ultimate destination also execute the certificate.... [649] Part 125 Licenses for the Export of Technical Data and Classified Defense Articles Sec. 125.1--Exports subject to this part. (a) The controls of this part apply to the export of technical data and the export of classified defense articles. Information which is in the public domain (see Sec. 120.11 of this subchapter and Sec. 125.4(b)(13)) is not subject to the controls of this subchapter. (b) A license for the export of technical data and the exemptions in Sec. 125.4 may not be used for foreign production purposes or for technical assistance unless the approval of the Office of Defense Trade Controls has been obtained. Such approval is generally provided only pursuant to the procedures specified in part 124 of this subchapter. (c) Technical data authorized for export may not be reexported, transferred or diverted from the country of ultimate end-use or from the authorized foreign end-user (as designated in the license or approval for export) or disclosed to a national of another country without the prior written approval of the Office of Defense Trade Controls. (d) The controls of this part apply to the exports referred to in paragraph (a) of this section regardless of whether the person who intends to export the technical data produces or manufactures defense articles if the technical data is determined by the Office of Defense Trade Controls to be subject to the controls of this subchapter. (e) The provisions of this subchapter do not apply to technical data related to articles in Category VI(e) and Category XVI. The export of such data is controlled by the Department of Energy and the Nuclear Regulatory Commission pursuant to the Atomic Energy Act of 1954, as amended, and the Nuclear NonProliferation Act of 1978. Sec. 125.2--Exports of unclassified technical data. (a) A license (DSP-5) is required for the export of unclassified technical data unless the export is exempt from the licensing requirements of this subchapter. In the case of a plant visit, details of the proposed discussions must be transmitted to the Office of Defense Trade Controls for an appraisal of the technical data. Seven copies of the technical data or the details of the discussion must be provided. (b) Patents. A license issued by the Office of Defense Trade Controls is required for the export of technical data whenever the data exceeds that which is [650] used to support a domestic filing of a patent application or to support a foreign filing of a patent application whenever no domestic application has been filed. Requests for the filing of patent applications in a foreign country, and requests for the filing of amendments, modifications or supplements to such patents, should follow the regulations of the U.S. Patent and Trademark Office in accordance with 37 CFR part 5. The export of technical data to support the filing and processing of patent applications in foreign countries is subject to regulations issued by the U.S. Patent and Trademark Office pursuant to 35 U.S.C. 184. (c) Disclosures. Unless otherwise expressly exempted in this subchapter, a license is required for the oral, visual or documentary disclosure of technical data by U.S. persons to foreign persons. A license is required regardless of the manner in which the technical data is transmitted (e.g., in person, bv telephone, correspondence, electronic means, etc.). A license is required for such disclosures by U.S. persons in connection with visits to foreign diplomatic missions and consular offices.... Sec. 125.4--Exemptions of general applicability. (a) The following exemptions apply to exports of unclassified technical data for which approval is not needed from the Office of Defense Trade Controls. These exemptions, except for paragraph (b)(13) of this section, do not apply to exports to proscribed destinations under Sec. 126.1 of this subchapter or for persons considered generally ineligible under Sec. 120.1(c) of this subchapter. The exemptions are also not applicable for purposes of establishing offshore procurement arrangements. If Sec. 126.8 of this subchapter requirements are applicable, they must be met before an exemption under this section may be used. Transmission of classified information must comply with the requirements of the Department of Defense Industrial Security Manual and the exporter must certify to the transmittal authoritv that the technical data does not exceed the technical limitation of the authorized export. (b) The following exports are exempt from the licensing requirements of this subchapter. (1) Technical data, including classified information, to be disclosed pursuant to an official written request or directive from the U.S. Department of Defense; (2) Technical data, including classified information, in furtherance of a manufacturing license or technical assistance agreement approved by the Departrnent of State under part 124 of this subchapter and which meet the requirements of Sec. 124.3 of this subchapter; (3) Technical data, including classified information, in furtherance of a contract between the exporter and an agency of the U.S. Government, if the contract provides for the export of the data and such data does not disclose the details of design, development, production, or manufacture of any defense article; (4) Copies of technical data, including classified information, previously authorized for export to the same recipient. Revised copies of such technical data are [651] also exempt if they pertain to the identical defense article, and if the revisions are solely editorial and do not add to the content of technology previously exported or authorized for export to the same recipient; (5) Technical data, including classified information, in the form of basic operations, maintenance, and training information relating to a defense article lawfully exported or authorized for export to the same recipient. Intermediate or depotlevel repair and maintenance information may be exported only under a license or agreement approved specifically for that purpose; (6) Technical data, including classified information, related to firearms not in excess of caliber .50 and ammunition for such weapons, except detailed design, development, production or manufacturing information; (7) Technical data, including classified information, being returned to the original source of import; (8) Technical data directly related to classified information which has been previously exported or authorized for export in accordance with this part to the same recipient, and which does not disclose the details of the design, development, production, or manufacture of any defense article; (9) Technical data, including classified information, sent by a U.S. corporation to a U.S. person employed by that corporation overseas or to a U.S. Govemment agency. This exemption is subject to the limitations of Sec. 125.1(b) and may be used only if: (i) The technical data is to be used overseas solely by U.S. persons; (ii) If the U.S. person overseas is an employee of the U.S. Govemment or is directly employed by the U.S. corporation and not by a foreign subsidiary; and (iii) The classified information is sent overseas in accordance with the requirements of the Department of Defense Industrial Security Manual. (10) Disclosures of unclassified technical data in the U.S. by U.S. institutions of higher leaming to foreign persons who are their bona fide and full time regular employees. This exemption is available only if: (i) The employee's permanent abode throughout the period of employment is in the United States; (ii) The employee is not a national of a country to which exports are prohibited pursuant to Sec. 126.1 of this subchapter; and (iii) The institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Office of Defense Trade Controls; (11) Technical data, including classified information, for which the exporter, pursuant to an arrangement with the Department of Defense, Department of Energy or NASA which requires such exports, has been granted an exemption in writing from the licensing provisions of this part by the Office of Defense Trade Controls. Such an exemption will normally be granted only if the arrangement directly implements an international agreement to which the United States is a party and if multiple exports are contemplated. The Office of Defense Trade Controls, in consultation with the relevant U.S. Govemment agencies, will determine whether the interests of the United States Government are best served by expediting exports under an arrangement through an exemption (see also paragraph (b)(3) of this section for a related exemption); [652] (12) Technical data which is specifically exempt under part 126 of this subchapter; or (13) Technical data approved for public release (i.e., unlimited distribution) by the cognizant U.S. Government department or agency or Directorate for Freedom of Information and Security Review. This exemption is applicable to information approved by the cognizant U.S. Government department or agency for public release in any form. It does not require that the information be published in order to qualify for the exemption.... Sec. 125.8--Filing of licenses for exports of unclassified technical data. (a) Licenses for the export of unclassified technical data must be presented to the appropriate District Director of Customs or Postmaster at the time of shipment or mailing. The District Director of Customs or Postmaster will endorse and transmit the licenses to the Office of Defense Trade Controls in accordance with the instructions contained on the reverse side of th~ on~ (b) If a license for the export of unclassified technical data is used but not endorsed by U.S. Customs or a Postmaster for whatever reason (e.g., electronic transmission, unavailability of Customs officer or Postmaster, etc.), the person exporting the data must self-endorse the license, showing when and how the export took place. Every license must be returned to the Office of Defense Trade Controls when the total value authorized has been shipped or when the date of expiration has been reached, whichever occurs first.... Part 126 General Policies and Provisions Sec. 126.1--Prohibited exports and sales to certain countries. (a) It is the policy of the United States to denv licenses, other approvals, exports and imports of defense articles and defense services, destined for or originating in certain countries. This policy applies to: Albania, Armenia, Azerbaijan, Bulgaria, Byelarus, Cambodia, Cuba, Estonia, Georgia, Iran, Iraq, Libya, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Mongolia, North Korea, Romania, Russia, South Africa, Syria, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam. This policy also applies to countries with respect to which the United States maintains an arms embargo (e.g., Burma, China, Liberia, Somalia, the Sudan, the former Yugoslavia, and Zaire) or for whenever an export would not otherwise be in furtherance of world peace and the security and foreign policy of the United States. Comprehensive arms embargoes are normally the subject of a State Department notice published in the Federal Register. The exemptions provided in the regulations in this subchapter, except Secs. 123.17 and [653] 125.4(b)(13) of this subchapter, do not apply with respect to articles originating in or for export to any proscribed countries or areas. (b) Shipments. A defense article licensed for export under this subchapter may not be shipped on a vessel, aircraft or other means of conveyance which is owned or operated by, or leased to or from, any of the proscribed countries or (c) South Africa. South Africa is subject to an arms embargo and thus to the policy specified in paragraph (a) of this section. Exceptions may be made to this policy only if the Assistant Secretary for Politico-Military Affairs determines that: (1) The item is not covered by United Nations Security Council Resolution 418 of November 4,1977; and (2) The item is to be exported solely for commercial purposes and not for use by the armed forces, police, or other security forces of South Africa or for any other similar purpose. (d) Terrorism. Exports to countries which the Secretary of State has determined to have repeatedly provided support for acts of international terrorism are contrary to the foreign policy of the United States and are thus subject to the policy specified in paragraph (a) of this section and the requirements of section 40 of the Arms Export Control Act (22 U.S.C. 2780) and the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986 (22 U.S.C. 4801, note). The countries in this category are: Cuba, Iran, Iraq, Libya, North Korea and Syria. The same countries are identified pursuant to section 6(j) of the Export Administration Act, as amended (50U.S.C. App. 2405(j)). (e) Proposed sales. No sale or transfer and no proposal to sell or transfer any defense articles, defense services or technical data subject to this subchapter may be made to any country referred to in this section (including the embassies or consulates of such a country), or to any person acting on its behalf, whether in the United States or abroad, without first obtaining a license or written approval of the Office of Defense Trade Controls. However, in accordance with paragraph (a) of this section, it is the policy of the Department of State to deny licenses and approvals in such cases. Any person who knows or has reason to know of such a proposed or actual sale, or transfer, of such articles, services or data must immediately inform the Office of Defense Trade Controls.... Sec. 126.5--Canadian exemptions. (a) District Directors of Customs and postmasters shall permit the export or temporary import without a license of any unclassified defense article or any unclassified technical data to Canada for end-use in Canada by Canadian citizens or return to the United States, or from Canada for end-use in the United States or [654] return to a Canadian citizen in Canada, with the exception of the articles or related technical data listed in paragraph (b) of this section. (b) Exceptions. The exemptions of this section do not apply to the following articles and related technical data.... (7) Technical data for use by a foreign national other than a Canadian. (8) Unclassified technical data directly related to a classified defense article.... Sec. 126.7--Denial, revocation, suspension, or amendment of licenses and other approvals. (a) Policy. Licenses or approvals shall be denied or revoked whenever required by any statute of the United States (see Secs. 127.6 and 127.10 of this subchapter). Any application for an export license or other approval under this subchapter may be disapproved, and any license or other approval or exemption granted under this subchapter may be revoked, suspended, or amended without prior notice whenever: (1) The Department of State deems such action to be in furtherance of world peace, the national security or the foreign policy of the United States, or is otherwise advisable; or (2) The Department of State believes that 22 U.S.C. 2778, any regulation contained in this subchapter, or the terms of any U.S. Government export authorization (including the terms of a manufacturing license or technical assistance agreement, or export authorization granted pursuant to the Export Administration Act, as amended) has been violated by any party to the export or other person having significant interest in the transaction; or .... (b) Notification. The Office of Defense Trade Controls will notify applicants or licensees or other appropriate United States persons of actions taken pursuant to paragraph (a) of this section. The reasons for the action will be stated as specifically as security and foreign policy considerations permit.... Sec. 126.9--Advisory opinions. Any person desiring information as to whether the Office of Defense Trade Controls would be likely to grant a license or other approval for the export of a particular defense article or defense service to a particular country may request an advisory opinion from the Office of Defense Trade Controls. These opinions are not binding on the Department of State and are revocable. A request for an advisory opinion must be made in writing and must outline in detail the equipment, its usage, the security classification (if any) of the articles or related technical data, and the country or countries involved. An original and seven copies of the letter must be provided along with seven copies of suitable descriptive information concerning the defense article or defense service.... [End N.4.1]