warehousing and distribution agreements: "Sales or other transfers of the licensed article shall be limited to governments of the countries in the distribution territory and to private entities seeking to procure the licensed article pursuant to a contract with a government within the distribution territory, unless the prior written approval of the U.S. Department of State is obtained."

[49 FR 47695, Dec. 6, 1984; 49 FR 48536, Dec. 13, 1984; 50 FR 12787, Apr. 1, 1985; 51 FR 47015, Dec. 30, 1986; 53 FR 11497, Apr. 7, 1988]

assistance unless the approval of the Department of State 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 diverted or transferred from the country of ultimate end-use (as designated in the license or approval for export) or disclosed to a national of another country without the prior written approval of the Department of State.

(d) The export 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 Munitions Control 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 Non-Proliferation Act of 1978.

(c) Disclosures. Unless otherwise expressly exempted in this subchapter, a license is required for the oral, visual or documentary disclosure of technical data to foreign nationals in connection with visits by U.S. persons to foreign countries, visits by foreign persons to the United States, or otherwise. A license is required regardless of the manner in which the technical data is transmitted (e.g., in person, by telephone, correspondence, electronic means, telex, etc.). A license is required for such disclosures in connection with visits by U.S. persons to foreign diplomatic missions and consular offices.

§ 125.3 Exports of classified technical data and classified defense articles.

(a) A request for authority to export defense articles or technical data classified pursuant to Executive Order 12356 or other legal authority must be submitted to the Office of Munitions Control for approval. The application must contain full details of the proposed transaction. A nontransfer and use certificate (Form DSP-83) executed by the foreign consignee, end-user and an authorized representative of the foreign government involved will be required. This requirement may be waived by the Office of Munitions Control if the end-user is a foreign government with which the United States has a General Security of Information Agreement or other foreign government security assurance (e.g., diplomatic note).

(b) Classified technical data which is approved by the Department of State either for export or reexport after a temporary import will be transferred or disclosed only in accordance with the requirements relating to the transmission of classified information in the Department of Defense Industrial Security Manual. Any other requirements imposed by cognizant U.S. departments and agencies must also be satisfied.

(c) The approval of the Department of State must be obtained for the export of technical data by a U.S. person to a foreign person in the U.S. or in a foreign country unless the proposed export is exempt under the provisions of this subchapter.

(d) All communications relating to a patent application covered by an invention secrecy order are to be addressed to the U.S. Patent and Trademark Office (See 37 CFR 5.11).

EXEMPTIONS

§ 125.4 Exemptions of general applicability.

(a) The following exemptions apply to exports of technical data for which no license or other approval is needed from the Office of Munitions Control. These exemptions, except for paragraph (b)(13) of this section, do not apply to exports to proscribed destinations under § 126.1. 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 authority that the technical data does not exceed the technical limitation of the authorized export. A person who determines that an export is not subject to this subchapter should review the Department of Commerce regulations to ensure that the export is not subject to its export jurisdiction.

(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 Department of State under Part 124 of this subchapter and which meet the requirements of § 124.3;

(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 relevant technical 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 techni

cal data are 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 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. This exemption applies only to exports by the original exporter. Intermediate or depot-level repair and maintenance information may be exported only under a license or agreement approved specifically for that purpose;

(6) Technical data 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. Government agency. This exemption is subject to the limitations of

§ 125.1(b) and may be used only if (i) the technical data is to be used overseas solely by U.S. persons and (ii) if the U.S. person overseas is an employee of the U.S. Government or is directly employed by the U.S. corporation and not by a foreign subsidiary;

(10) Disclosures of technical data in the U.S. by U.S. institution of higher learning 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 § 126.1; 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 Munitions Control;

(11) Technical data, including classified information, for which the exporter, pursuant to an arrangement with the Department of Defense or NASA which requires such exports, has been granted an exemption in writing from the licensing provisions of this part by the Office of Munitions Control. 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 Munitions Control, in consultation with the relevant U.S. Government 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.);

(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. This exemption is applicable to information approved by the cognizant U.S. Government department or agency for public release in any form (e.g., publications, speeches, conference papers, movies, etc.). It does not require that the information be published in order to qualify for the exemption.

[49 FR 47699, Dec. 6. 1984; 50 FR 12787, Apr. 1, 1985, as amended at 51 FR 47015, Dec. 30, 1986; 53 FR 11498, Apr. 7, 1988]

§ 125.5 Exemptions for plant visits.

(a) A license is not required for the oral and visual disclosure of unclassified technical data during the course of a classified plant visit by a foreign person, provided (1) the classified visit has itself been authorized pursuant to a license issued by the Office of Munitions Control; or (2) the classified visit was approved in connection with an actual or potential government-to-gov

ernment program or project by a U.S. Government agency having classification jurisdiction over the classified defense article or classified technical data involved under Executive Order 12356 or other applicable Executive Order; and (3) the unclassified information to be released is directly related to the classified defense article or technical data for which approval was obtained and does not disclose the details of the design, development, production or manufacture of any other defense articles. In the case of U.S. Government approved visits, the requirements of the Defense Industrial Security Manual (Department of Defense Manual 5220.22M) must be met.

(b) The approval of the Office of Munitions Control is not required for the disclosure of oral and visual classified information to a foreign person during the course of a plant visit approved by the appropriate U.S. Government agency if (1) the requirements of the Defense Industrial Security Manual have been met, (2) the classified information is directly related to that which was approved by the U.S. Government agency, (3) it does not exceed that for which approval was obtained, and (4) it does not disclose the details of the design, development, production or manufacture of any other defense articles.

(c) A license is not required for the documentary disclosure to a foreign person of unclassified technical data during the course of a plant visit (either classified or unclassified) approved by the Office of Munitions Control or a U.S. Government agency provided the documents do not contain technical data in excess of that approved for oral and visual disclosure. The documents must not contain technical data which could be used for design, development, production or manufacture of a defense article.

§ 125.6 Certification requirements.

To claim an exemption for the export of technical data under the provisions of § 125.4 and § 125.5, an exporter must certify that the proposed export is covered by a relevant paragraph of that section. This certification is not required if the technical data is only disclosed orally or visual

ly. The certification referred to in this section consists of marking the package or letter containing the technical data: "22 CFR 125. (identify subsection) applicable" and identifying the specific paragraph under which the exemption is claimed. In the case of unclassified technical data, district directors of customs may require that the certification be made on a shipper's export declaration.

PROCEDURES

§ 125.7 Exports of unclassified technical data.

(a) General. Unless an export is exempt from the licensing requirements of this subchapter, an application for the permanent export of unclassified technical data must be made to the Office of Munitions Control on Form DSP-5. If the technical data is to be returned to the United States, Form DSP-73 should be used instead. In the case of a visit, sufficient details of the proposed discussions must be transmitted for an adequate appraisal of the data. Seven copies of the data or the details of the discussions must be provided. Only one copy must be provided if a renewal of the license is requested.

(b) Patents. Requests for the filing of patent applications in a foreign country and requests for the filing of amendments, modifications or supplements to such patents must be directed to the U.S. Patent and Trademark Office in accordance with 37 CFR Part 5. If an applicant complies with the regulations of that office, the approval of the Office of Munitions Control is required only in the circumstance described in § 125.2(b). In such cases, an application must be submitted in accordance with the provisions of paragraph (a) of this section.

§ 125.8 Exports of classified technical data and classified defense articles.

All applications for the export or temporary import of classified technical data or classified defense articles must be submitted to the Office of Munitions Control on Form DSP-85. Applications will be accepted from U.S. nationals only. An application for the export of classified technical data

must be accompanied by seven copies of the data and a completed Form DSP-83 (see § 123.10). An application for the export of classified defense articles must be accompanied by seven copies of descriptive information and a completed Form DSP-83. Only one copy of the data or descriptive literature must be provided if a renewal of the license is requested. All classified materials accompanying an application must be transmitted to the Office of Munitions Control in accordance with the requirements of section II of the Defense Industrial Security Manual (Department of Defense Manual Number 5220.22-M).

§ 125.9 Filing of licenses for exports of unclassified technical data.

Licenses for the export of unclassified technical data must be deposited with 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 Munitions Control in accordance with the instructions contained on the reverse side of the license. 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, the person exporting the data must selfendorse the license and return it promptly to the Office of Munitions Control.

§ 125.10 Filing of licenses for exports of classified technical data and classified defense articles.

Licenses for the export of classified technical data or classified defense articles will be forwarded by the Office of Munitions Control to the Defense Investigative Service of the Department of Defense in accordance with the provisions of the Department of Defense Industrial Security Manual. The Office of Munitions Control will forward a copy of the license to the applicant for the applicant's information. The Defense Investigative Service will return the endorsed license to the Office of Munitions Control upon completion of the authorized export or expiration of the license, whichever occurs first.

amendment of licenses and other approvals.

126.8 Proposals to foreign persons relating to significant military equipment. 126.9 Advisory opinions.

126.10 Disclosure of information to the public.

126.11 Relation to other provisions of law. 126.12 Continuation in force.

126.13 Required information.

AUTHORITY: Sec. 38, sec. 42, Arms Export Control Act, 90 Stat. 744 (22 U.S.C. 2778, 2780); E.O. 11958, 42 FR 4311, E.O. 11322, 32 FR 119; 22 U.S.C. 2658; sec. 317, Comprehensive Anti-Apartheid Act of 1986 (22 U.S.C. 5067); E.O. 12571, 51 FR 39505.

SOURCE: 49 FR 47702, Dec. 6, 1984, unless otherwise noted.

§ 126.1 Prohibited exports and sales to certain countries.

(a) General. It is the policy of the United States to deny licenses and other approvals with respect to defense articles and defense services destined for or originating in certain countries or areas. This policy also applies to exports to and imports from these countries or areas. This policy applies to Albania, Bulgaria, Cuba, Czechoslovakia, East Germany, Estonia, Hungary, Kampuchea, Latvia, Lithuania, North Korea, Outer Mongolia, Poland, Rumania, the Soviet Union and Vietnam. This policy also applies to countries or areas with respect to which the United States maintains an arms embargo (e.g., Angola) or whenever an export would not otherwise be in furtherance of world peace and the security and foreign policy of the United States. The exemptions provided in the regulations in this subchapter, except § 123.17 and § 125.4(b)(13) of this subchapter, do