Technical Data Control Regulations (SOR/86-345)

Short Title

1 These Regulations may be cited as the Technical Data Control Regulations.

Interpretation

2 In these Regulations,

array of design or manufacturing know-how

array of design or manufacturing know-how means the know-how and related technical information required to achieve a development, production or utilization purpose and includes any services, processes, procedures, specifications, design data and criteria and testing techniques required to achieve such development, production or utilization purpose; (savoir-faire en matière de conception ou de fabrication)

Canadian contractor

Canadian contractor means

• (a) a person who is

  • (i) a Canadian citizen, or

  • (ii) a permanent resident,

  located in Canada, or

• (b) a corporation that is incorporated under the laws of Canada or a province; (entrepreneur canadien)

Canadian government agency

Canadian government agency means a department, departmental corporation or Crown corporation set out in Schedule I; (organisme canadien)

certified Canadian contractor

certified Canadian contractor means a Canadian contractor

• (a) who has been certified as a certified contractor in accordance with section 6, and

• (b) whose certification has not expired or been revoked; (entrepreneur canadien agréé)

certified contractor

certified contractor means

• (a) a certified Canadian contractor, or

• (b) a certified United States contractor referred to in and governed by Directive 5230.25; (entrepreneur agréé)

critical technology

critical technology means technology that consists of

• (a) an array of design or manufacturing know-how,

• (b) keystone manufacturing, inspection and test equipment,

• (c) keystone materials, or

• (d) goods accompanied by sophisticated know-how,

that would make a significant contribution to the military potential of any one or more countries and the unauthorized disclosure of which may be detrimental to the security of Canada or to cooperative efforts for defence being carried out by Canada or an associated government; (technologie cruciale)

Crown corporation

Crown corporation has the same meaning as in the Financial Administration Act; (société d’État)

department

department has the same meaning as in the Financial Administration Act; (ministère)

departmental corporation

departmental corporation has the same meaning as in the Financial Administration Act; (établissement public)

Directive 5230.25

Directive 5230.25 means the United States Department of Defense Directive 5230.25 entitled Withholding of Unclassified Technical Data from Public Disclosure (49 Federal Register 40040 of 10 December, 1984); (directive 5230.25)

goods accompanied by sophisticated know-how

goods accompanied by sophisticated know-how means goods

• (a) that cannot be used unless certain technical information or operation, application, maintenance or other know-how is provided or disclosed to the prospective user thereof, or

• (b) in respect of which embedded know-how is inherently derivable by reverse engineering or is revealed by use of the goods; (biens exigeant un savoir-faire sophistiqué)

Joint Certification Office

Joint Certification Office means an office jointly staffed by the United States and Canada that manages and administers the certification process set out in section 6; (Bureau mixte d’agrément)

keystone manufacturing, inspection and test equipment

keystone manufacturing, inspection and test equipment means the equipment specifically necessary for the effective application of technical information and know-how; (matériel essentiel de fabrication, d’inspection et d’essai)

keystone materials

keystone materials means materials specifically necessary for the effective application of technical information and know-how; (matériaux essentiels)

located in Canada

located in Canada, in relation to a person, means that the person is ordinarily resident in Canada; (se trouvant au Canada)

other legitimate business activity

other legitimate business activity means

• (a) providing or seeking to provide equipment or technology to a foreign government with the approval of the Government of Canada,

• (b) bidding or preparing to bid on a sale of surplus government property,

• (c) selling or producing products for the commercial domestic marketplace or, if any required export license or permit has been obtained, for the commercial foreign marketplace,

• (d) engaging in scientific research in a professional capacity, or

• (e) acting as a subcontractor to a concern engaged in any activity described in any of paragraphs (a) to (d). (autres activités commerciales admissibles)

• (f) [Repealed, SOR/91-522, s. 1(E)]

permanent resident

permanent resident has the same meaning as in the Immigration Act, 1976; (résident permanent)

technical data

technical data means

• (a) any blueprint, drawing, plan, instruction, computer software or other documentation that discloses critical technology, or

• (b) any other technical information that discloses critical technology if the critical technology can be used or adapted to be used to design, engineer, produce, manufacture, operate, repair, overhaul or reproduce any equipment; (données techniques)

unclassified technical data

unclassified technical data means technical data other than technical data that, in the interest of the national security of Canada, are subject to a system of security classification; (données techniques non classifiées)

working day

working day means any day other than a Saturday or a holiday. (jour ouvrable)

Application

• 3 (1) These Regulations apply in respect of unclassified technical data that are administered and controlled by a Canadian government agency.

• (2) These Regulations shall not be read or construed so as to

  • (a) apply to scientific or educational data that are in the public domain; or

  • (b) apply to or affect the release of technical data by a Canadian government agency to any foreign government or international organization, or to their respective representatives or contractors, pursuant to official agreements or arrangements made with the Canadian government agency or the Canadian government.

Joint Certification Office

• 4 (1) A Canadian contractor who wishes to request information or make an inquiry with respect to any matter to which these Regulations relate shall direct the request or inquiry to the Joint Certification Office at the following address:

  United States-Canada Joint Certification Office

  Defense Logistics Services Center

  Federal Center

  Battle Creek, Michigan, USA, 49017-3084

• (2) The Minister may appoint one or more persons to represent Canada in, and participate in, the operation of the Joint Certification Office.

Eligibility to Obtain Data

5 A certified contractor is, subject to any other provision of these Regulations, eligible to obtain unclassified technical data.

Application for Certification

• 6 (1) A Canadian contractor who wishes to be certified as a certified contractor shall apply for certification to the Joint Certification Office at the address set out in subsection 4(1) on a form obtained from that Office and shall certify as follows on the form:

  • (a) that the person who will act on its behalf as custodian of any unclassified technical data that it obtains is a Canadian citizen or a permanent resident of Canada;

  • (b) that the unclassified technical data that it wishes to obtain are or will be needed

    • (i) to bid or perform on a contract with a Canadian government agency, the United States Department of Defense or another agency of the Government of Canada or of the United States, or

    • (ii) for other legitimate business activities in which the Canadian contractor is engaged or plans to engage;

  • (c) that it

    • (i) acknowledges its responsibilities under any applicable export control laws of Canada, and

    • (ii) agrees that any unclassified technical data that it obtains will not be disseminated by it in a manner that would contravene the export control laws of Canada;

  • (d) that it will not provide access to any unclassified technical data that it obtains to persons other than its employees or persons acting on its behalf, except

    • (i) where it obtains the data from a Canadian government agency, the United States Department of Defense or an agency of the United States Department of Defense, with the permission of the Canadian government agency, the United States Department of Defense or the agency of the United States Department of Defense, as the case may be, or

    • (ii) in accordance with paragraph 9(6)(b) or Directive 5230.25, whichever is applicable;

  • (e) that no person employed by it or acting on its behalf who will have access to unclassified technical data

    • (i) is debarred or suspended from performing, or is otherwise ineligible to perform, on Canadian or United States Government contracts,

    • (ii) has contravened the export control laws of the United States,

    • (ii.1) has been convicted of a contravention of the export control laws of Canada, or

    • (iii) has had a certification revoked under section 8 or under Directive 5230.25; and

  • (f) that it

    • (i) is not debarred or suspended from performing, and is not otherwise ineligible to perform, on Canadian or United States government contracts,

    • (ii) has not contravened the export control laws of the United States,

    • (ii.1) has not been convicted of a contravention of the export control laws of Canada, and

    • (iii) has not had a certification revoked under section 8 or under Directive 5230.25.

• (2) A Canadian contractor referred to in subsection (1) shall disclose on the form referred to in that subsection any business activity of the contractor in relation to which the contractor will or may wish to obtain unclassified technical data, described sufficiently so that, in the event that the contractor subsequently makes a request for unclassified technical data, an evaluation can be made of whether the unclassified technical data requested by the contractor properly relates to any such business activity.

• (3) Where a Canadian contractor referred to in subsection (1) cannot truthfully certify as required by paragraph (1)(e) or (f), the contractor may request that the application for certification be accepted on the basis of extenuating circumstances set forth by the contractor in writing and submitted to the Joint Certification Office with the application for certification.

• (4) Where a Canadian contractor applies for certification pursuant to subsection (1), the contractor shall attest, on the form on which the application is made and in the manner indicated in the form, that the information and attestations are true, complete and accurate to the best of the knowledge and belief of the contractor and are provided in good faith.

• (5) Where, for the purpose of determining whether a Canadian contractor who has submitted a completed form to the Joint Certification Office should be certified as a certified contractor, the Joint Certification Office requires information additional to that provided on or in conjunction with the form, the contractor shall provide such additional information as the Joint Certification Office may reasonably request.

Disposition of Application for Certification

• 7 (1) Where an application for certification is made under subsection 6(1) by a Canadian contractor, the Joint Certification Office may accept the application or refer it to an officer of the Department of Supply and Services designated by the Minister.

• (2) Where an application is referred to an officer pursuant to subsection (1), the officer shall review the application and either accept or reject it.

• (3) Where an application is rejected pursuant to subsection (2), the Canadian contractor may, within 20 working days after being notified of the rejection, request that the application be reviewed by the Deputy Minister of Supply and Services and, on the review, the Deputy Minister may accept the application or confirm its rejection.

• (4) Where an application is accepted pursuant to this section, the Canadian contractor is thereby certified as a certified contractor for a period commencing on the date that the application is accepted and ending five years after that date, unlesss the certification is sooner revoked under section 8.

Suspension and Revocation of Certification

• 8 (1) Where the Minister receives credible information from which he determines that a certified Canadian contractor

  • (a) has contravened any provision of these Regulations,

  • (b) has contravened any export control laws of Canada,

  • (c) has not complied with anything that the contractor certified in the application made by the contractor pursuant to subsection 6(1),

  • (d) omitted from the application referred to in paragraph (c) any material fact or mis-stated any material fact therein, or

  • (e) certified in bad faith to anything in the application referred to in paragraph (c),

  the Minister may, by notice in writing to the contractor, suspend the contractor’s eligibility to obtain unclassified technical data.

• (2) A notice of suspension sent pursuant to subsection (1) shall state the reason for the suspension in sufficient detail to enable the contractor to make representations to the Minister pursuant to subsection (3).

• (3) A certified Canadian contractor to whom a notice is sent pursuant to subsection (1) may make representations in writing to the Minister in respect of the suspension and, where the contractor shows the Minister

  • (a) that the reason for the suspension no longer exists, or

  • (b) that the decision to suspend the contractor ought not to have been made,

  the Minister shall remove the suspension.

• (4) Where, within 20 working days after the date of the notice sent pursuant to subsection (1), the contractor has not shown as described in paragraph (3)(a) or (b), the Minister may revoke the contractor’s certification as a certified Canadian contractor.

• (5) Where the Minister revokes a contractor’s certification as a certified Canadian contractor pursuant to subsection (4), the Minister shall give written notice of the revocation to the contractor.

• (6) Within thirty days after a notice of revocation is given in accordance with subsection (5), a Canadian contractor whose certification has been revoked may submit to the Minister new or additional information showing why the revocation should not have been made and, in such a case, the Minister shall

  • (a) reconsider the revocation in light of the new or additional information; and

  • (b) give written notice to the contractor as to whether or not the contractor’s certification will be restored.

Access to and Control of Unclassified Technical Data

• 9 (1) A certified contractor may request unclassified technical data by submitting to the Canadian government agency that administers and controls the data a request in writing therefor.

• (2) A request made pursuant to subsection (1) shall include a statement of the use that the contractor intends to make of the unclassified technical data.

• (3) Subject to subsections (4) and (5), a Canadian government agency to which a request for unclassified technical data is made by a certified contractor pursuant to subsection (1) shall authorize release of the data to the contractor unless

  • (a) the certification of the contractor stands suspended;

  • (b) the agency is of the opinion that the data requested are not properly related to any business activity disclosed by the contractor in the course of becoming a certified contractor; or

  • (c) the data are requested for a purpose other than to permit the contractor to bid or perform on a contract with any other Canadian government agency or any other agency of the Government of Canada, and the Canadian government agency determines that the purpose for which the data are being sought is one that may jeopardize a technological or operational military advantage of Canada.

• (4) Where a Canadian government agency to which a request is made by a certified contractor pursuant to subsection (1) is unable, on the information provided by the contractor, to determine whether paragraph (3)(b) applies, the agency may request the contractor to provide additional information with respect to the use that the contractor intends to make of the unclassified technical data or, if the agency considers it appropriate, may request the contractor to submit, pursuant to section 6, a new application in which the business activity of the contractor to which the data relates is disclosed by the contractor pursuant to subsection 6(2).

• (5) A Canadian government agency to which a request for unclassified technical data is made by a certified contractor pursuant to subsection (1) may

  • (a) in the interest of the national security of Canada, refuse to authorize the release of the data if the agency deems that the purpose for which the data are sought is such as may possibly jeopardize the development or maintenance of a defence industrial base in Canada or an important technological or operational military advantage of Canada or the agency may in such circumstance authorize the release of the data subject to such restricitons or limitations as the agency considers advisable;

  • (b) impose special conditions or safeguards on the use of the data in order to prevent the data from becoming available to persons who are not authorized to obtain it; and

  • (c) require the contractor to enter into an agreement governing the use of the data by the contractor, providing for payment by the contractor and generally setting forth the rights and obligations of the contractor and the agency with respect to the unclassified technical data.

• (6) A certified contractor who receives unclassified technical data pursuant to these Regulations

  • (a) shall use the data only for purposes that are consistent with the matters to which it has certified pursuant to subsection 6(1);

  • (b) subject to subsection (7), shall not disclose the data to any person other than another certified contractor in relation to a business activity disclosed by the other contractor in the course of becoming a certified contractor; and

  • (c) shall comply with any restrictions, limitations, conditions or safeguards imposed pursuant to subsection (5).

• (7) A certified contractor who wishes to disclose unclassified technical data other than as permitted by subsection (6) may do so only if authorized by the Canadian government agency that administers and controls the data and only in accordance with that authorization.

• (8) Where a request by a certified contractor to a Canadian government agency

  • (a) pursuant to subsection (1) for unclassified technical data, or

  • (b) pursuant to subsection (7) for authorization to disclose unclassified technical data other than as permitted by subsection (6),

  is denied by the agency, the agency shall, in writing, give its reason for the denial to the contractor and inform the contractor of any procedures that have been established to which the contractor may have recourse if the contractor wishes the agency to reconsider the request.