[Federal Register Volume 60, Number 71 (Thursday, April 13, 1995)]
[Rules and Regulations]
[Pages 18731-18733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9157]
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DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR Parts 771 and 779
[Docket No. 950407090-5090-01]
RIN 0694-AB18
Establishment of New General License G-BETA for Exports of
Certain Beta Test Software
AGENCY: Bureau of Export Administration, Commerce.
ACTION: Interim rule.
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SUMMARY: This rule amends the Export Administration Regulations (EAR)
by establishing a new General License G-BETA for certain exports of
beta test software under the jurisdiction of the Department of
Commerce. Under the provisions of this new General License, beta test
software programs may be exported to all destinations except Country
Groups S and Z, Iran, Iraq, Sudan, and Syria. Exporters are advised
that certain restrictions apply, and should consult the EAR before
using General License G-BETA.
This new General License eligibility will greatly reduce the number
of validated license applications for certain software intended for
mass-market distribution.
DATES: This rule is effective April 13, 1995. Comments must be received
by May 30, 1995.
ADDRESSES: Written comments (six copies) should be sent to Nancy Crowe,
Bureau of Export Administration, Department of Commerce, P.O. Box 273,
Washington, DC 20044.
FOR FURTHER INFORMATION CONTACT: Nancy Crowe, Regulatory Policy
Division, Office of Exporter Services, Bureau of Export Administration,
Telephone: (202) 482-2440.
SUPPLEMENTARY INFORMATION: This rule amends Part 771 of the Export
Administration Regulations (EAR) by establishing a new General License
G-BETA for certain exports of beta test software. This change will
allow exports, under certain conditions, of software controlled by the
Department of Commerce on the Commerce Control List (Supplement No. 1
to Part 799.1 of the EAR), and under Commerce licensing jurisdiction,
which would otherwise require a validated license to all destinations
except Country Groups S and Z, Iran, Iraq, Sudan, and Syria.
This rule will allow shipment under General License G-BETA of beta
test software programs that: (a) Are intended for export and reexport
under the provisions of the General Software Note (Supplement No. 2 to
Part 799.1 of the EAR) after completion of testing; (b) are provided
free-of-charge or at a price that does not exceed the cost of
reproduction and distribution; and (c) are designed for user-
installation. In addition, the exporter must obtain a statement from
each testing consignee prior to shipment certifying that the beta test
software will only be used for beta testing purposes, and will not be
rented, leased, sold, sublicensed, assigned, or otherwise transferred.
Further, the statement must certify that the testing consignee will not
transfer or export any product, process, or service that is the direct
product of the beta test software. Software shipped under General
License G-BETA must be destroyed abroad or returned to the exporter
within 30 days of the end of the beta test period as defined by the
software producer or, if the software producer does not define a test
period, within 30 days of completion of the consignee's role in the
test.
The following is a brief description of the development of this
rule. In the Fall
[[Page 18732]]
of 1994, BXA hosted a large seminar for exporters. At that meeting, BXA
invited the exporting community to provide input on administrative
changes that might be made to the EAR without the passage of new
legislation. In response to that invitation, several of the major
exporters of mass market software provided suggestions on a new general
license to authorize the export of software for beta testing. BXA also
gathered the views of industry on a new general license for beta test
software through BXA's Telecommunications Technical Advisory Committee,
Regulations & Procedures Technical Advisory Committee, and Computer
Systems Technical Advisory Committee. The industry views served as a
basis for BXA's development of a regulation on General License G-BETA.
BXA shared with industry its view of the possible changes in the
draft regulation and sought information from certain software exporters
to determine the industry's best practices for exporting software to
Beta testers. For example, BXA collected samples of end-use clauses
regularly used by software producers for commercial purposes. BXA then
shaped General License G-BETA so that certifications required under the
rule are consistent with the standard practices of many members of the
industry. This has the benefit of achieving the objectives of the
export control system with the least intrusive impact on the exporting
community. The industry input provided by the advisory committees and
by the companies was highly valuable to BXA in developing General
License G-BETA.
This new General License eligibility will reduce the number of
validated license applications for certain software intended for
distribution to the general public.
Rulemaking Requirements
1. This interim rule has been determined to be not significant for
purposes of E. O. 12866.
2. This rule involves collections of information subject to the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). These
collections have been approved by the Office of Management and Budget
under control numbers 0694-0005, 0694-0007, and 0694-0010.
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 military and foreign affairs
function of the United States. Further, no other law requires that a
notice of proposed rulemaking and an opportunity for public comment be
given for this rule.
However, because of the importance of the issues raised by these
regulations, this rule is issued in interim form and comments will be
considered in the development of final regulations. Accordingly, the
Department encourages interested persons who wish to comment to do so
at the earliest possible time to permit the fullest consideration of
their views.
The period for submission of comments will close May 30, 1995. The
Department will consider all comments received before the close of the
comment period in developing final regulations. Comments received after
the end of the comment period will be considered if possible, but their
consideration cannot be assured. The Department will not accept public
comments accompanied by a request that a part or all of the material be
treated confidentially because of its business proprietary nature or
for any other reason. The Department will return such comments and
materials to the person submitting the comments and will not consider
them in the development of final regulations. All public comments on
these regulations will be a matter of public record and will be
available for public inspection and copying. In the interest of
accuracy and completeness, the Department requires comments in written
form.
Oral comments must be followed by written memoranda, which will
also be a matter of public record and will be available for public
review and copying. Communications from agencies of the United States
Government or foreign governments will not be made available for public
inspection.
The public record concerning these regulations will be maintained
in the Bureau of Export Administration Freedom of Information Records
Inspection Facility, Room 4525, Department of Commerce, 14th Street and
Pennsylvania Avenue, N.W., Washington, DC 20230. Records in this
facility, including written public comments and memoranda summarizing
the substance of oral communications, may be inspected and copied in
accordance with regulations published in Part 4 of Title 15 of the Code
of Federal Regulations. Information about the inspection and copying of
records at the facility may be obtained from Margaret Cornejo, Bureau
of Export Administration Freedom of Information Officer, at the above
address or by calling (202) 482-5653.
List of Subjects
15 CFR Part 771
Exports, Reporting and recordkeeping requirements.
15 CFR Part 779
Computer technology, Exports, Reporting and recordkeeping
requirements, Science and technology.
Accordingly, Parts 771 and 779 of the Export Administration
Regulations (15 CFR Parts 730-799) are amended as follows:
PART 771--[AMENDED]
1. The authority citation for 15 CFR Part 771 continues to read as
follows:
Authority: 50 U.S.C. App. 5, as amended; Pub. L. 264, 59 Stat.
619 (22 U.S.C. 287c), as amended; Pub. L. 90-351, 82 Stat. 197 (18
U.S.C. 2510 et seq.), as amended; sec. 101, Pub. L. 93-153, 87 Stat.
576 (30 U.S.C. 185), as amended; sec. 103, Pub. L. 94-163, 89 Stat.
877 (42 U.S.C. 6212), as amended; secs. 201 and 201(11)(e), Pub. L.
94-258, 90 Stat. 309 (10 U.S.C. 7420 and 7430(e)), 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); sec. 208,
Pub. L. 95-372, 92 Stat. 668 (43 U.S.C. 1354); Pub. L. 96-72, 93
Stat. 503 (50 U.S.C. App. 2401 et seq.), as amended; sec. 125, Pub.
L. 99-64, 99 Stat. 156 (46 U.S.C. 466c); Pub. L. 102-484, 106 Stat.
2575 (22 U.S.C. 6004); E.O. 11912 of April 13, 1976 (41 FR 15825,
April 15, 1976); 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.
12851 of June 11, 1993 (58 FR 33181, June 15, 1993); E.O. 12867 of
September 30, 1993 (58 FR 51747, October 4, 1993); E.O 12918 of May
26, 1994 (59 FR 28205, May 31, 1994); E.O. 12924 of August 19, 1994
(59 FR 43437 of August 23, 1994); and E.O. 12938 of November 14,
1994 (59 FR 59099 of November 16, 1994)
PART 779--[AMENDED]
2. 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,
[[Page 18733]]
93 Stat. 503 (50 U.S.C. App. 2401 et seq.), as amended; Pub. L. 102-
484, 106 Stat. 2575 (22 U.S.C. 6004); 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. 12730 of September 30, 1990 (55 FR 40373, October 2,
1990), as continued by Notice of September 25, 1992 (57 FR 44649,
September 28, 1992); E.O. 12924 of August 19, 1994 (59 FR 43437,
August 23, 1994); and E.O. 12938 of November 14, 1994 (59 FR 59099
of November 16, 1994).
PART 771--[AMENDED]
3. Part 771 is amended by adding a new Sec. 771.27 to read as
follows:
Sec. 771.27 General license G-BETA; Exports of beta test software.
(a) Scope. A General License designated G-BETA is established
subject to the provisions of this section authorizing exports and
reexports to eligible countries of beta test software intended for
distribution to the general public.
(b) Eligible countries. The countries that are eligible to receive
exports and reexports under this General License are all countries
except those listed in Country Groups S and Z, Iran, Iraq, Sudan, and
Syria.
(c) Eligible software. All software that is controlled by the
Commerce Control List (see Supplement No. 1 to Part 799.1 of this
subchapter), and under Commerce licensing jurisdiction, is eligible for
export and reexport under General License G-BETA, subject to the
restrictions set forth in this section.
(d) Conditions for use. Any beta test software program may be
exported or reexported to eligible countries if all of the conditions
under this section are met:
(1) The software producer intends to market the software to the
general public after completion of the beta testing, as described in
the General Software Note found in Supplement No. 2 to Part 799.1 of
this subchapter;
(2) The software producer provides the software to the testing
consignee free-of-charge or at a price that does not exceed the cost of
reproduction and distribution; and
(3) The software is designed for installation by the end-user
without further substantial support from the supplier.
(e) Importer statement. Prior to shipping any eligible software
under General License G-BETA, the exporter or reexporter must obtain
the following statement from the testing consignee, which may be
included in a contract, non-disclosure agreement, or other document
that identifies the importer, the software to be exported, the country
of destination, and the testing consignee:
We certify that this beta test software will only be used for
beta testing purposes, and will not be rented, leased, sold,
sublicensed, assigned, or otherwise transferred. Further, we certify
that we will not transfer or export any product, process, or service
that is the direct product of the beta test software.
(f) Use limitations. Only testing consignees that provide the
importer statement required by paragraph (e) of this section may
execute any software received under General License G-BETA.
(g) Return or disposal of software. All beta test software exported
under General License G-BETA must be destroyed abroad or returned to
the exporter within 30 days of the end of the beta test period as
defined by the software producer or, if the software producer does not
define a test period, within 30 days of completion of the consignee's
role in the test. Among other methods, this requirement may be
satisfied by a software module that will destroy the software and all
its copies at or before the end of the beta test period.
PART 779--[AMENDED]
4. Part 779.2 is amended in the last sentence by revising the
phrase ``exports to Canada7,8'' to read ``exports to
Canada7,8, and exports of beta test software eligible for General
License G-BETA.''.
Dated: April 10, 1995.
Sue E. Eckert,
Assistant Secretary for Export Administration.
[FR Doc. 95-9157 Filed 4-12-95; 8:45 am]
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