[Federal Register Volume 59, Number 55 (Tuesday, March 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6417]
[[Page Unknown]]
[Federal Register: March 22, 1994]
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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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