[Federal Register Volume 75, Number 122 (Friday, June 25, 2010)]
[Rules and Regulations]
[Pages 36481-36503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15072]



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Part II





Department of Commerce





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Bureau of Industry and Security



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15 CFR Parts 730, 734, 738, et al.



Encryption Export Controls: Revision of License Exception ENC and Mass 
Market Eligibility, Submission Procedures, Reporting Requirements, 
License Application Requirements, and Addition of Note 4 to Category 5, 
Part 2; Interim Final Rule

Federal Register / Vol. 75 , No. 122 / Friday, June 25, 2010 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 730, 734, 738, 740, 742, 748, 772 and 774

[Docket No. 100309131-0195-02]
RIN 0694-AE89


Encryption Export Controls: Revision of License Exception ENC and 
Mass Market Eligibility, Submission Procedures, Reporting Requirements, 
License Application Requirements, and Addition of Note 4 to Category 5, 
Part 2

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Interim final rule, with request for comments.

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SUMMARY: The Bureau of Industry and Security (BIS) is amending the 
Export Administration Regulations (EAR or Regulations) to modify the 
requirements of License Exception ENC, ``Encryption Commodities, 
Software and Technology,'' and the requirements for qualifying an 
encryption item as mass market. BIS is also amending specific license 
requirements for encryption items. With respect to encryption products 
of lesser national security concern, this rule replaces the requirement 
to wait 30 days for a technical review before exporting such products 
and the requirement to file semi-annual post-export sales and 
distribution reports with a provision that allows immediate 
authorization to export and reexport these products after electronic 
submission to BIS of an encryption registration. A condition of this 
new authorization for less sensitive products is submission of an 
annual self-classification report on these commodities and software 
exported under License Exception ENC. With respect to most mass market 
encryption products, this rule similarly replaces the requirement to 
wait 30 days for a technical review before exporting and reexporting 
such products with a provision that allows immediate authorization to 
export and reexport these products after electronic submission to BIS 
of an encryption registration, subject to annual self-classification 
reporting for exported encryption products. Only a few categories of 
License Exception ENC and mass market encryption products will continue 
to require submission of a 30-day classification request. Encryption 
items that are more strictly controlled continue to be authorized for 
immediate export and reexport to most end-users located in close ally 
countries upon submission of an encryption registration and 
classification request to BIS. This rule also eases licensing 
requirements for the export and reexport of many types of technology 
necessary for the development and use of encryption products, except to 
countries subject to export or reexport license requirements for 
national security reasons or anti-terrorism reasons, or that are 
subject to embargo or sanctions. This rule also removes the requirement 
to file separate encryption classification requests (formerly 
encryption review requests) with both BIS and the ENC Encryption 
Request Coordinator (Ft. Meade, MD).
    BIS is also amending the EAR by implementing the agreements made by 
the Wassenaar Arrangement at the plenary meeting in December 2009 that 
pertained to ``information security'' items. This rule adds an 
overarching note to exclude particular products that use cryptography 
from being controlled as ``information security'' items. The addition 
of this note focuses ``information security'' controls on the use of 
encryption for computing, communications, networking and information 
security. This rule also makes additional changes throughout the EAR to 
harmonize it with the new note.
    This rule also replaces a note in ECCN 5A002 pertaining to 
personalized smart cards with a note pertaining to smart cards and 
smart readers/writers. As a result of this change, a definition is 
being removed from the EAR.

DATES: This rule is effective: June 25, 2010. Comments must be received 
by August 24, 2010.

ADDRESSES: You may submit comments, identified by RIN 0694-AE89, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.Regulations.gov. 
Please follow the instructions for submitting comments.
     E-mail: [email protected]. Please include RIN 
0694-AE89 in the subject line.
     Mail or Hand Delivery/Courier: U.S. Department of 
Commerce, Bureau of Industry and Security, Regulatory Policy Division, 
14th and Pennsylvania Ave., NW., Room H-2705, Washington, DC 20230; or 
by fax to (202) 482-3355. Please insert ``0694-AE89'' in the subject 
line of comments.
    Comments regarding the collections of information associated with 
this rule, including suggestions for reducing the burden, should be 
sent to OMB Desk Officer, New Executive Office Building, Washington, DC 
20503, Attention: Jasmeet Seehra, or by e-mail to [email protected] or by fax to (202) 395-7285; and to the Office of 
Administration, Bureau of Industry and Security, Department of 
Commerce, 14th and Pennsylvania Ave., NW., Room 6883, Washington, DC 
20230.

FOR FURTHER INFORMATION CONTACT: For technical questions contact: The 
Information Technology Division, Office of National Security and 
Technology Transfer Controls within BIS at 202-482-0707 or by e-mail at 
[email protected].
    For other questions contact: Sharron Cook, Office of Exporter 
Services, Bureau of Industry and Security, U.S. Department of Commerce 
at (202) 482-2440 or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Background

    To protect and preserve foreign policy and national security 
interests, the United States maintains export controls on encryption 
items. Encryption items may be used to maintain the secrecy of 
information, and therefore may be used by persons abroad to bring harm 
to law enforcement, and U.S. foreign policy and national security 
interests. The U.S. Government has a critical interest in ensuring that 
the legitimate needs for protecting important and sensitive information 
of the public and private sectors are met, and that persons opposed to 
the United States are not able to conceal hostile or criminal 
activities.
    When dual-use encryption items were transferred from the United 
States Munitions List (USML) to the CCL on December 6, 1996, a foreign 
policy reason for control, Encryption Items (EI), was imposed on these 
items. A license is required to export or reexport EI-controlled items 
classified under Export Control Classification Numbers (ECCNs) 5A002, 
5D002 and 5E002 on the CCL to all destinations except Canada. All items 
controlled for EI reasons are also controlled for National Security 
(NS) reasons.
    This rule enhances national security by focusing encryption export 
controls and streamlining the collection and analysis of information 
about encryption products, through reforms that include:
     Removing review requirements for less sensitive encryption 
items;
     Establishing a company registration requirement for 
encryption items under License Exception ENC or as mass market 
encryption items;
     Creating an annual self-classification report requirement 
for such items pursuant to an encryption registration;

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     Making encryption technology eligible for export and 
reexport under License Exception ENC, except to countries of highest 
concern;
     Lifting the semi-annual sales reporting for less sensitive 
encryption items under License Exception ENC;
     Removing the 30-day delay to export and reexport less 
sensitive encryption items under License Exception ENC; and
     Removing the 30-day delay to make most mass market 
encryption items eligible for mass market treatment.
    BIS is making these amendments to protect national security in the 
face of an ever-changing global marketplace for encryption items and to 
ensure continued United States adherence to multilateral regime 
commitments. The changes in this rule are discussed either topically or 
by section of the EAR, as applicable. This rule is the first step in 
the President's effort to reform U.S. encryption export controls to 
enhance national security by ensuring the continued competitiveness of 
U.S. encryption products, reducing paperwork requirements for less 
sensitive encryption items, making the process for submission more 
efficient, updating the control parameters for controlled encryption 
items and addressing the impact of export controls on electronic 
components having encryption functionality. The U.S. Government will 
also review other issues related to encryption controls, in keeping 
with national security requirements and multilateral regime 
commitments.

Review Request vs. Classification Request

    This rule replaces the term ``review request'' with 
``classification request'' in sections 740.17 and 742.15 so that the 
terminology used in the encryption regulations is consistent with the 
terminology used for other items on the Commerce Control List (CCL).

Submissions Requirements for Encryption Items

    Prior to this rule, the EAR required exporters to submit review 
requests to both BIS and the ENC Encryption Request Coordinator. This 
new rule will reduce the paperwork burden on applicants by removing the 
requirement for applicants to submit requests to the ENC Encryption 
Request Coordinator when the submission is made via Simplified Network 
Application Processing system (SNAP-R) for Encryption Registration and 
Encryption Classification Requests. Upon effectiveness of this rule, 
BIS will send encryption SNAP-R submissions to the ENC Encryption 
Request Coordinator. This change will decrease the paperwork burden on 
the applicants. However, all reports (i.e., the semi-annual sales 
report and the annual self-classification report) must continue to be 
submitted to both BIS and the ENC Encryption Request Coordinator.

Supplement No. 1 to Part 730--``Information Collection Requirements 
Under the Paperwork Reduction Act: OMB Control Numbers''

    This supplement is amended by removing the title for collection 
number 0694-104 and adding in its place ``Commercial Encryption Items 
under Commerce Jurisdiction.''

Section 734.4--De Minimis U.S. Content

    This rule makes changes to (b)(1)(ii), (b)(1)(iii) and (b)(2) to 
harmonize with changes to encryption procedures under sections 740.17 
and 742.15(b). Paragraph (v) is added to section 734.4(b)(1) to 
indicate that encryption commodities and software may be considered for 
de minimis treatment if such products were authorized for export under 
License Exception ENC after submission of an encryption registration 
pursuant to section 740.17(b)(1) of the EAR.

Section 738.4--Determining Whether a License Is Required

    This rule revises the third sentence in paragraph 
738.4(a)(2)(ii)(B) of the EAR by replacing ``review'' with ``encryption 
registration and classification'' to harmonize it with the new 
submission requirements for encryption items.

Section 740.17--License Exception ENC

    This rule revises the first sentence in sections 740.17 and 
740.17(b)(2) to describe more clearly the types of items eligible for 
export and reexport under License Exception ENC.

Section 740.17(a)--No Classification Request, Registration or Reporting 
Required

    This rule amends section 740.17(a) by removing references to 
``review'' and by adding references to the encryption registration, 
classification requests, self-classification reports and sales reports 
to harmonize it with the new submission requirements for encryption 
items. This amendment does not change any requirements or eligibility 
under section 740.17(a) of the EAR.

Immediate Authorization for Less Sensitive Encryption Items and Certain 
Mass Market Encryption Items With the Submission of an Encryption 
Registration and Subsequent Self-Classification Annual Report

    Prior to this rule, eligibility under section 740.17(b)(3) of 
License Exception ENC and mass market treatment under section 742.15(b) 
required prior submission of a review request and 30-day technical 
review for most encryption items. This system of authorization centered 
on product-by-product authorizations. The new system of authorization 
implemented by this rule is based on company authorizations that 
operate like a bulk license for the company's products. This rule 
establishes two new procedures--i.e., the company encryption 
registration and the annual self-classification report--that will allow 
the export without a 30-day technical review for less sensitive 
encryption items under License Exception ENC and less sensitive mass 
market encryption items. The company registration requirement is 
described in the new Supplement No. 5 to part 742 of the EAR. Special 
instructions for submitting an encryption registration using SNAP-R are 
in paragraph (r) of Supplement No. 2 to part 748 of the EAR. Because of 
this shift from product authorization to company authorization, the 
information in block 14 (applicant) of the encryption registration 
screen and the information in Supplement No. 5 to part 742 must pertain 
to the company that seeks authorization to export and reexport 
encryption items that are within the scope of this rule. An agent for 
the exporter, such as a law firm, should not list the agent's name in 
block 14. The agent may, however submit the encryption registration and 
list itself in block 15 (``other party authorized to receive license'') 
of the encryption registration screen in SNAP-R. The follow-on self-
classification report would be required to be submitted annually to BIS 
and the ENC Encryption Request Coordinator in February for items 
exported or reexported the previous calendar year (i.e., January 1 
through December 31) pursuant to the encryption registration and 
applicable sections 740.17(b)(1) or 742.15(b)(1) of the EAR.
    An encryption registration is only required for authorization under 
License Exception ENC sections 740.17(b)(1), 740.17(b)(2) and 
740.17(b)(3), and mass market encryption sections 742.15(b)(1) and 
742.15(b)(3) of the EAR. Exports and reexports described under sections 
740.17(a), 740.17(b)(4), 740.17(c) and

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742.15(b)(4) will continue to be authorized without the need for a 
submission. A company that exports under the authorizations described 
in this rule only needs to register once and does not need to resubmit 
its encryption registration unless the answers to the questions in 
Supplement No. 5 to part 742 changed during the previous calendar year. 
Because exporters of encryption items may not be the producers of those 
encryption items, they may not know the answers to some of the 
questions in Supplement No. 5 to part 742, BIS has included 
instructions in Supplement No. 5 to account for this situation.
    When an encryption registration is submitted via SNAP-R, SNAP-R 
will issue an Encryption Registration Number (ERN), which will start 
with an ``R'' and will be followed by 6 digits, e.g., R123456. This ERN 
authorizes under License Exception ENC exports or reexports of the 
commodities classified under ECCNs 5A002.a.1, .a.2, .a.5, .a.6, or 
.a.9, or ECCN 5B002, and equivalent or related software classified 
under ECCN 5D002, except any such commodities, software or components 
described in paragraphs (b)(2) or (b)(3) of section 740.17 of the EAR. 
The ERN also authorizes exports and reexports of commodities and 
software that are released from ``EI'' and ``NS'' controls under 
section 742.15(b)(1) and are classified under ECCNs 5A992 and 5D992, 
respectively. These authorizations require submission of a self-
classification report to BIS and the ENC Encryption Request 
Coordinator, in accordance with section 742.15(c) and Supplement No. 8 
to part 742 of the EAR. For encryption items authorized after the 
submission of an encryption registration under sections 740.17(b)(1) or 
742.15(b)(1), the filer may be required to provide relevant information 
about the encryption functionality of the items. BIS may request the 
filer to provide information described in Supplement No. 6 to part 742.
    Prior to this rule, when 30-day technical review and classification 
by BIS was required for these less sensitive encryption items which may 
now be self-classified under section 740.17(b) or 742.15(b), many 
producers of these items made their encryption classifications (CCATS) 
available for other parties to use when exporting or reexport their 
products. Under this rule, when an exporter or reexporter relies on the 
producer's self-classification (pursuant to the producer's encryption 
registration) or CCATS for an encryption item, the exporter or 
reexporter is not required to submit a separate encryption 
registration, classification request or self-classification report to 
BIS under section 740.17(b) or 742.15(b). Those who submit encryption 
registrations, classification requests and self-classification reports 
should either be knowledgeable enough about the encryption 
functionality to answer relevant questions pertaining to their 
submissions, or else possess the requisite authority or other means to 
ensure that such information will be made available to BIS upon 
request. Only License Exception ENC and mass market encryption 
authorizations under sections 740.17(b) and 742.15(b) to a company that 
has fulfilled the requirements of encryption registration (such as the 
producer of the item) authorize the export and reexport of the 
company's encryption items by all persons, wherever located, under 
these sections.

New License Exception ENC Eligibility for Most Encryption Technology, 
to Non-``Government End-Users'' Outside Country Group D:1 or E:1

    In section 740.17(b)(2)(iv)(B), encryption technology classified 
under ECCN 5E002 that are not technology for ``cryptanalytic items,'' 
``non-standard cryptography,'' or ``open cryptographic interfaces'' may 
now be exported and reexported under License Exception ENC to any non-
``government end-user'' located in a country not listed in Country 
Groups D:1 or E:1 of Supplement No. 1 to part 740. This change will 
eliminate redundant license approvals for expired technology licenses 
to the same end-users and provide exporters with a more predictable 
timeframe for authorization, while maintaining U.S. Government review 
of such technology under License Exception ENC. Previously, all such 
exports and reexports of ECCN 5E002 encryption technology to end-users 
other than U.S. subsidiaries and companies located or headquartered in 
a country listed in Supplement No. 3 to part 740 required a license. 
This revision will decrease encryption licensing arrangements (ELAs) 
and other license applications to export or reexport encryption 
technology by approximately 60%.

Technical Revisions to Sections 740.17(b)(2) and 740.17(b)(3)

    This rule updates the License Exception ENC specific list of 
restricted items in section 740.17(b)(2), and creates a new specific 
list of additional sensitive items in amended section 740.17(b)(3).
    This rule adds a new paragraph section 740.17(b)(2)(i)(A)(3) 
(formerly included in section 740.17(b)(2)(i)) to clarify that network 
infrastructure software and commodities and components providing 
satellite communications are included on the list of items subject to 
section 740.17(b)(2) if they provide transmission over satellite at 
data rates exceeding 10 Mbps with encryption key lengths exceeding 80 
bits for symmetric algorithms. The 10 Mbps parameter (formerly 
described in paragraph (b)(2)(i)(D)(1)) is included in paragraph 
(b)(2)(i)(A)(5) in this rule, for air-interface coverage at operating 
ranges beyond 1,000 meters.
    This rule amends the lists of items formerly at section 
740.17(b)(2)(iii)(A) and adds items to the new specific list in section 
740.17(b)(3). These amendments are consistent with determinations that, 
for national security reasons, encryption commodities and software that 
provide penetration capabilities that can be used to attack, deny, 
disrupt or otherwise impair the use of cyber infrastructure or networks 
require a license in order to be exported to ``government end users'' 
in countries other than countries listed in Supplement No. 3 to part 
740. This change is implemented in new paragraph section 
740.17(b)(2)(i)(F).
    In addition, for national security reasons, classification requests 
with a 30-day review period continue to be required for items that are 
not described in the updated section 740.17(b)(2) and that provide or 
perform vulnerability analysis, network forensics, or computer 
forensics characterized by any of the following: automated network 
analysis, visualization, or packet inspection for profiling network 
flow, network user or client behavior, or network structure/topology 
and adapting in real-time to the operating environment; or 
investigation of data leakage, network breaches, and other malicious 
intrusion activities through triage of captured digital forensic data 
for law enforcement purposes or in a similarly rigorous evidentiary 
manner. Therefore, this rule includes these items in the new specific 
list of items in section 740.17(b)(3)(iii).
    To clarify the previous provision related to ``public safety 
radio,'' this rule creates a new and expanded paragraph for public 
safety/first responder radios with the addition of section 
740.17(b)(2)(G). Former section 740.17(b)(2)(iii)(A) is removed by this 
rule. The new subparagraph (G) gives two examples of public safety/
first responder radio--Terrestrial Trunked Radio (TETRA) and ``P25'' 
standards. This is a clarification and does not change the license 
requirements or license exception eligibility for public safety/first 
responder radios.

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Revisions for Harmonization Purposes

    For national security reasons, this rule maintains all existing 
licensing requirements for exports and reexports of ``cryptanalytic 
items'' (i.e., cryptanalytic commodities, software, and technology.) 
This rule adds new note 3 to the introductory paragraph of section 
740.17(b)(2) and new section 740.17(b)(2)(ii) (formerly Sec.  
740.17(b)(2)(iv)) to clarify that exports and reexports of 
``cryptanalytic items'' require encryption registration and encryption 
classification requests, with no wait, to be eligible for License 
Exception ENC to non-``government end-users'' located or headquartered 
in countries listed in Supplement No. 3 to part 740, and that the 
export or reexport of cryptanalytic commodities and software (listed in 
new section 740.17(b)(2)(ii)) require submission of an encryption 
registration and a 30-day classification request before being eligible 
for License Exception ENC to non-``government end-users'' located or 
headquartered in a country not listed in Supplement No. 3 to part 740 
of the EAR. On account of the utmost sensitivity of cryptanalytic 
technology transfers, cryptanalytic ``technology'' classified under 
ECCN 5E002 is only License Exception ENC eligible to non-``government 
end-users'' located or headquartered in Supplement No. 3 to part 740 
countries.
    This rule adds a new section 740.17(b)(2)(iv) to describe specific 
encryption technology. Prior to this rule, all encryption technology 
under ECCN 5E002 required an encryption review, with no wait, for 
exports under License Exception ENC to any end-users located or 
headquartered in countries listed in Supplement No. 3 to part 740. 
These provisions are maintained in Notes 1 and 3 to the introductory 
paragraph of section (b)(2). New section 740.17(b)(2)(iv) 
differentiates between ``non-standard cryptography'' and other 
encryption technology. Section 740.17(b)(2)(iv)(A) maintains the 
authorization for ``non-standard cryptography'' classified under ECCN 
5E002 to be exported under License Exception ENC upon submission (i.e., 
no wait) of an encryption classification request, including the 
submission of the answers to questions contained in Supplement No. 5 
and Supplement No. 6 to part 742, to any end-user located or 
headquartered in a country listed in Supplement No. 3 to part 740 of 
the EAR. Section 740.17(b)(2)(iv)(B) authorizes the use of License 
Exception ENC for the export of technology other than technology for 
``cryptanalytic items,'' ``non-standard cryptography'' or ``open 
cryptographic interfaces'' to any non-``government end-user'' located 
in a country not listed in Country Group D:1 or E:1 of Supplement No. 1 
to part 740, 30-days after submission of an encryption registration and 
an encryption classification request.
    This rule also moves paragraphs in section 742.15 to align them 
with related paragraphs in section 740.17. For example, provisions for 
encryption components may be found in sections 740.17(b)(3)(i) and 
742.15(b)(3)(i).

``Encryption Components'' and ``Non-Standard Cryptography''--Sections 
740.17(b)(3) and 742.15(b)(3)

    The requirement for submission of an encryption classification 
request and information described in Supplement No. 6 to part 742, and 
a 30-day wait, while BIS performs its review of these submissions 
remains in effect for all ``encryption components,'' including mass 
market ``encryption components,'' and for encryption commodities, 
software and components not described in section 740.17(b)(2) that 
provide or perform ``non-standard cryptography,'' including mass market 
encryption commodities, software and components. ``Encryption 
components'' are defined in part 772, and this rule adds a new 
definition of ``non-standard cryptography'' in part 772. ``Encryption 
components'' are chips, chipsets, electronic assemblies and field 
programmable logic devices, cryptographic libraries, modules, 
development kits and toolkits, including for operating systems and 
cryptographic service providers and application-specific hardware or 
software development kits implementing cryptography. The requirements 
that these items continue to be subject to the 30-day encryption 
classification requests are set forth in sections 740.17(b)(3) and 
742.15(b)(3). BIS and other agencies continue to study and discuss the 
impact of export controls on encryption components, including system 
software libraries, toolkits and electronic components having 
encryption functionality.

Cryptographic Enabling Commodities, Software and Components

    This rule maintains the 30-day technical review requirement for 
commodities, software and components that activate or enable 
cryptographic functionality in encryption products which would 
otherwise remain disabled. Commodities, software and components for the 
cryptographic activation of most encryption products eligible for 
License Exception ENC (i.e., Sec. Sec.  740.17(b)(1), 740.17(b)(3)(ii) 
or 740.17(b)(3)(iii)) or mass market treatment (i.e., Sec. Sec.  
742.15(b)(1) or 742.15(b)(3)(ii)) are covered in sections 
740.17(b)(3)(iv) and 742.15(b)(3)(iv), respectively. Cryptographic 
activation items associated with restricted encryption commodities, 
software and components are covered under section 740.17(b)(2), as 
further explained by a note to paragraph (b)(2). Meanwhile, items 
described under sections 740.17(b)(3)(i) or 742.15(b)(3)(i) (including 
certain activation components and software) are covered by those 
sections as applicable.

Section 740.17(b)(4)--Exclusions From Classification Request and 
Encryption Registration Requirements

    This rule removes all references to ``ancillary cryptography'' by 
removing the last sentence in paragraph (b)(4)(i) and removing 
paragraph (b)(4)(iv). This rule also removes the empty placeholder 
paragraph (b)(4)(iii). Items that were covered by the ``ancillary 
cryptography'' provisions are now excluded from control under Category 
5 part 2 of the CCL with the addition of Note 4. An explanation of the 
changes to Note 4 are described in more detail below under the heading 
``Note 4 to Category 5, Part 2.''

Reporting Requirements Under License Exception ENC

    Prior to this rule, semi-annual (post-export) sales reporting was 
required for exports of most encryption commodities, software and 
components previously described in section 740.17(b)(3) to all 
destinations other than Canada, and for reexports from Canada, under 
License Exception ENC. This rule narrows the scope of this requirement 
to only apply to certain digital forensics items described under new 
section 740.17(b)(3)(iii). Therefore, this rule removes some of the 
exclusions from reporting requirement paragraphs that were formerly in 
paragraphs (A), (C), (H), (I) and (J) of section 740.17(e)(iii), 
because they are no longer necessary. When sales reporting is not 
required under License Exception ENC, companies need only maintain 
records as required by the EAR that can be reviewed by appropriate 
agencies of the U.S. Government upon request. The requirement for semi-
annual sales reporting to BIS and the ENC Encryption Request 
Coordinator of encryption items described in section 740.17(b)(2) is 
maintained. As a result of these changes, BIS expects that the number 
of semi-annual reports submitted to BIS annually will be reduced from 
400 to less than 100 submissions per year.

[[Page 36486]]

Section 742.15--Encryption Items

    This rule removes all references to ``ancillary cryptography'' by 
removing the last sentence formerly in paragraph (b)(3)(i) and removing 
paragraph (b)(3)(iii). This rule also removes the empty placeholder 
formerly in paragraph (b)(3)(ii). With the new harmonization of 
paragraphs between sections 740.17 and 742.15, paragraph (b)(3)(i) is 
redesignated as paragraph (b)(4)(i).
    This rule adds a new paragraph (b)(4)(ii) to exclude submission 
requirements under section 742.15 for reexports of US-origin mass 
market encryption commodities and software subject to the EAR or 
foreign origin products developed with or incorporating U.S.-origin 
mass market encryption source code, components or toolkits subject to 
the EAR, that have met the submission requirements in section 742.15. 
This paragraph is exactly the same as the paragraph in section 
740.17(b)(4)(ii), which excludes submission requirements for reexports 
of US-origin encryption items subject to the EAR or foreign products 
developed with or incorporating U.S.-origin encryption source code, 
components or toolkits subject to the EAR, that have met the submission 
requirements in License Exception ENC under section 740.17.

Supplement No. 5 to Part 742

    This rule removes all text of Supplement No. 5 to part 742 and 
replaces it with seven (7) questions of the ``Encryption 
Registration.'' As discussed above under the topic heading ``Immediate 
authorization for less sensitive encryption items and certain mass 
market encryption items with the submission of an encryption 
registration and subsequent self-classification annual report,'' an 
encryption registration is required for most exports under License 
Exception ENC, and to be eligible for mass market treatment under 
section 742.15(b)(1). The questions in Supplement No. 5 to part 742 ask 
for information about:
    (1) The point of contact information;
    (2) The company that exports the encryption items;
    (3) The categories of the company's products;
    (4) Whether the products incorporate or use proprietary, 
unpublished or non-standard cryptographic functionality;
    (5) Whether the exporting company will export ``encryption source 
code'';
    (6) Whether the products incorporate encryption components produced 
or furnished by non-U.S. sources or vendors; and
    (7) Whether the products are manufactured outside the United 
States.
    If the registrant is not the principal producer of encryption 
items, the registrant may answer questions 4 and 7 as ``not 
applicable.'' For all other questions, an answer must be given, or if 
the registrant is unsure of the answer, the registrant may state that 
it is unsure and explain why it is unsure of the answer to the 
question.

Supplement No. 6 to Part 742

    This rule reduces the instances when exporters are required to 
submit the information requested in Supplement No. 6 to part 742. Prior 
to this rule, exporters were required to submit the information in 
Supplement No. 6 to part 742 for every review request for License 
Exception ENC and mass market encryption products. With the publication 
of this rule, submission of the information in Supplement No. 6 to part 
742 is now only required in support of a 30-day encryption 
classification request for specified items under License Exception ENC 
and mass market commodities, software and components (i.e., restricted 
Sec.  740.17(b)(2) items, specified components and digital forensics 
items, products that provide or perform ``non-standard cryptography,'' 
and cryptographic enabling commodities and software). All other items 
under License Exception ENC and mass market items may receive immediate 
authorization with the submission of the encryption registration and 
annual self-classification report.
    The title of Supplement No. 6 to part 742 is renamed ``Technical 
Questionnaire for Encryption Items'' (formerly ``Guidelines for 
Submitting Review Requests for Encryption Items''). The text explaining 
how and where to submit a review request is removed because, as 
explained earlier in the preamble, this rule modifies submission 
requirements. This rule also harmonizes the text in Supplement No. 6 to 
part 742 with the new procedure of only submitting this information to 
BIS with classification requests, unless BIS specifically requests this 
information in support of an encryption registration or self-
classification report. Paragraph (b) is removed because a duplicate 
submission to the ENC Encryption Request Coordinator and BIS is no 
longer necessary. The information now only needs to be submitted to BIS 
via SNAP-R. Paragraph (f) is removed as a consequence of removing the 
review request procedure. Therefore, paragraphs (c), (d) and (e) are 
now redesignated as paragraphs (b), (c) and (d). Also, newly designated 
paragraph (b)(11) (formerly paragraph (c)(11)) is revised to remove 
outdated text.

Supplement No. 8 to Part 742--Self-Classification Report

    In order to protect the national security of the United States and 
verify the classification of encryption products exported pursuant to 
sections 740.17(b)(1) and 742.15(b)(1), this rule adds Supplement No. 8 
to part 742 ``Self-Classification Report'' to collect information about 
such encryption products. Supplement No. 8 to part 742 sets forth 
questions that must be answered about each encryption item exported 
pursuant to sections 740.17(b)(1) and 742.15(b)(1). The information 
requested is:
    (1) Name of product;
    (2) Model/series/part number;
    (3) Primary manufacturer;
    (4) ECCN (5A002, 5B002, 5D002, 5A992 or 5D992);
    (5) Encryption authorization (i.e., `ENC' for License Exception ENC 
or `MMKT' for mass market); and
    (6) Type descriptor to describe the product (chose one from a list 
of 49 options).
    The self-classification report must be submitted as an attachment 
to an e-mail to BIS and the ENC Encryption Request Coordinator. Reports 
to BIS must be submitted to a newly created e-mail address for these 
reports ([email protected]). Reports to the ENC Encryption 
Request Coordinator must be submitted to its existing e-mail address 
([email protected]). The report has very specific format requirements 
outlined in Supplement No. 8 to part 742. The information in the report 
must be provided in tabular or spreadsheet form, as an electronic file 
in comma separated values format (.csv), only. No other formats other 
than .csv will be accepted. In lieu of e-mail, submissions of disks and 
CDs may be mailed to BIS and the ENC Encryption Request Coordinator as 
specified in section 742.15(c)(2)(ii). A self-classification report for 
applicable encryption commodities, software and components exported or 
reexported during a calendar year (January 1 through December 31) must 
be received by BIS and the ENC Encryption Request Coordinator no later 
than February 1 the following year. If no information has changed since 
the previous report, an e-mail must be sent stating that nothing has 
changed since the previous report or a copy of the previously submitted 
report must be submitted. No self-classification report is required if 
no exports or reexports of applicable items pursuant to an encryption 
registration were made during the calendar year.

[[Page 36487]]

Part 748--Application and Documentation

    This rule revises the introductory paragraphs to sections 748.1(a) 
and (d) to replace references to ``encryption review requests'' with 
``encryption registration.'' The term ``encryption review request'' is 
removed and not replaced by ``encryption registration'' in section 
748.1(d)(1)(i) because submitting only one encryption registration per 
year is not a valid reason for eligibility to submit manual 
applications to BIS. SNAP-R issues a specific Encryption Registration 
Number (ERN) for each encryption registration electronically submitted 
to BIS via SNAP-R, which is used to authorize exports and reexports 
under sections 740.17(b) and 742.15(b).
    Section 748.3 is amended by revising the title and paragraphs (a) 
and (d) to coincide with the removal of review requests, addition of 
encryption registrations, and the narrowing of submission requirements.
    This rule revises the paragraph entitled ``Block 5: Type of 
Application'' in Supplement No. 1 to part 748 by replacing the term 
``encryption review'' with ``encryption registration'' in two cases. 
This rule also replaces a reference to ``classification request'' with 
``encryption registration'' in one case, because encryption 
registrations will have a newly created screen in SNAP-R.
    This rule also revises section 748.8(r) and paragraph (r) in 
Supplement No. 2 to part 748 to harmonize with the removal of review 
requests and new submission procedures for encryption registration and 
self-classification reports.
    BIS has created a new SNAP-R screen for encryption registrations. 
The instructions for submitting an encryption registration is found in 
paragraph (r)(1) of Supplement No. 2 to part 748. In block 5 (Type of 
Application) of SNAP-R, selecting ``encryption registration'' will 
result in the appearance of the new encryption registration screen. On 
that screen blocks 1-5, 14, 15, 24, and 25 are to be completed, and a 
PDF must be attached that provides answers to Supplement No. 5 to part 
742.
    For classification requests for License Exception ENC or mass 
market encryption under section 742.15, BIS has added a new check box 
for block 9 (Special Purpose) on the classification request screen of 
SNAP-R. The new check box states ``Check here if you are submitting 
information about encryption required by 740.17 or 742.15 of the EAR.'' 
When that box is checked, a drop down menu will display the following 
choices: License Exception ENC, Mass Market Encryption, or Encryption 
Other. This rule implements new procedures in paragraph (r)(2) of 
Supplement No. 2 to part 748 to address these changes in SNAP-R, as 
well as instructions about documents submitted with a classification 
request. In addition, there is an instruction to insert your most 
recent Encryption Registration Number (ERN) in Block 24 (Additional 
Information) of the encryption classification request.

Part 772--Definition of Terms

    This rule removes the term ``ancillary cryptography,'' the 
definition, nota bene, and related footnote from section 772.1 of the 
EAR, because the newly added Note 4 to Category 5, Part 2 removes the 
need for this definition.
    This rule also removes the definition for ``personalized smart 
card'' from section 772.1 because Note (a) of Export Control 
Classification Number (ECCN) 5A002, which used the term ``personalized 
smart card,'' has been replaced by new text that does not use the term.

Supplement No. 1 to Part 774--Commerce Control List

Note 4 to Category 5, Part 2

    This rule adds a new Note 4 to Category 5, Part 2 to exclude 
certain items incorporating or using ``cryptography'' from control 
under Category 5, Part 2. Specifically, the note excludes an item that 
incorporates or uses ``cryptography'' from Category 5, Part 2 control 
if the item's primary function or set of functions is not ``information 
security,'' computing, communications, storing information, or 
networking, and if the cryptographic functionality is limited to 
supporting such primary function or set of functions. The primary 
function is the obvious, or main, purpose of the item. It is the 
function which is not there to support other functions. The 
``communications'' and ``information storage'' primary function does 
not include items that support entertainment, mass commercial 
broadcasts, digital rights management or medical records management.
    The items excluded from Category 5, Part 2 controls by Note 4 have 
been determined not to be of national security concern due to their 
encryption functionality. Items that are covered by Note 4 should be 
evaluated under other categories of the CCL (Supplement No. 1 to part 
774 of the EAR) to determine if any other controls apply. For example, 
a camera system that incorporates encryption would be evaluated under 
Category 6 of the CCL; a chemical analysis software program that 
incorporates encryption would be evaluated under Category 2. If the 
result of this evaluation is that the item is not controlled under 
another category of the CCL (e.g., a refrigerator), the item is 
designated as EAR99.
    Note 4 to Category 5, Part 2 covers certain items that were 
previously excluded from control under ECCN 5A002 by one or more 
paragraphs of the exclusion Note to ECCN 5A002. Specifically, the scope 
of Note 4 includes items previously covered in paragraphs (b), (c) and 
(h) of the Note to ECCN 5A002. The exclusion Note to ECCN 5A002 
provides that the items listed in paragraph (a) through (i) to the Note 
are controlled under ECCN 5A992. With the addition of Note 4 to 
Category 5, Part 2 upon the effective date of this rule, the items 
previously covered in paragraphs (b), (c) and (h) of the exclusion Note 
to ECCN 5A002 are no longer controlled under Category 5, Part 2 (by 
virtue of the new Note 4, irrespective of the Note to ECCN 5A002), and 
are therefore classified under another category of the CCL or 
designated as EAR99.
    The scope of Note 4 is coextensive with the scope of the 
``ancillary cryptography'' provisions that were added to the EAR on 
October 3, 2008. Under that amendment, commodities and software that 
perform ``ancillary cryptography'' remained controlled under Category 
5, Part 2, but were exempted from review and reporting requirements 
under License Exception ENC (Sec.  740.17 of the EAR) and the mass 
market provisions of section 742.15 of the EAR.
    Items that were self-classified or classified by BIS as ``ancillary 
cryptography'' items after October 3, 2008 are, upon the effective date 
of this rule, no longer classified under Category 5, Part 2. In 
addition, items that were self-classified or classified by BIS under 
ECCN 5A992 or 5D992 based on former paragraphs (b), (c) or (h) of the 
note to ECCN 5A002 are, upon the effective date of this rule, no longer 
classified under Category 5, Part 2. Exporters should re-classify such 
items under other categories of the CCL or designate as EAR99, as 
appropriate.
    Examples of items that are excluded from Category 5, Part 2 by Note 
4 include, but are not limited to, the following: Piracy and theft 
prevention for software or music; games and gaming; household utilities 
and appliances; printing, reproduction, imaging and video recording or 
playback (not videoconferencing); business process modeling and

[[Page 36488]]

automation (e.g., supply chain management, inventory, scheduling and 
delivery); industrial, manufacturing or mechanical systems (e.g., 
robotics, heavy equipment, facilities systems such as fire alarm, 
HVAC); automotive, aviation, and other transportation systems; LCD TV, 
Blu-ray/DVD, video on demand (VoD), cinema, digital video recorders 
(DVRs)/personal video recorders (PVRs); on-line media guides, 
commercial content integrity and protection, HDMI and other component 
interfaces; medical/clinical--including diagnostic applications, 
patient scheduling, and medical data records confidentiality; academic 
instruction and testing/on-line training--tools and software; applied 
geosciences--mining/drilling, atmospheric sampling/weather monitoring, 
mapping/surveying, dams/hydrology; scientific visualization/simulation/
co-simulation (excluding such tools for computing, networking, or 
cryptanalysis); data synthesis tools for social, economic, and 
political sciences (e.g., economic, population, global climate change, 
public opinion polling, forecasting and modeling); software and 
hardware design IP protection; and computer aided design (CAD) software 
and other drafting tools.

ECCN 5A002

    This rule revises the Related Controls paragraph in ECCN 5A002 to 
reflect the deletion of paragraphs from the Note in the beginning of 
the Items paragraph of 5A002. The Note at the beginning of the Items 
paragraph of 5A002 is amended by: Replacing paragraph (a) to remove 
from 5A002 control certain smart card readers/writers, and to add 
definitions for `personal data' and `readers/writers;' removing 
paragraphs (b), (c) and (h) because they are now covered by newly added 
Note 4 to Category 5, Part 2; deleting ``other specially designed'' 
before components, and adding ``specially designed for information 
security'' to the end of 5A002.a to clarify the text; and deleting a 
parenthetical reference to ``GPS or GLONASS'' in the nota bene, 
following 5A002.a, to clarify the text.

Supplement No. 3 to Part 774--Statements of Understanding

    Because the length of Supplement No. 3 to part 774 is expanding, 
the need for paragraph designations is necessary. Therefore, this rule 
adds paragraph designations for each of the statements of 
understanding. This rule also adds a new statement of understanding 
that relates to Note 4 of Category 5, Part 2. The new statement of 
understanding is simply a copy of the text that previously appeared in 
note (h) of ECCN 5A002, which is removed by this rule, that provides 
the public a reference of the specific details about portable or mobile 
radiotelephones and similar client wireless devices that are now 
encompassed under the new Note 4 of Category 5, Part 2.

Grandfathering

    For encryption commodities, software and components described in, 
or otherwise meeting the specifications of sections 740.17(b) and 
742.15(b), effective June 25, 2010, such items reviewed and classified 
by BIS prior to June 25, 2010 are authorized for export and reexport 
under the applicable provisions of sections 740.17(b) and 742.15(b), as 
amended upon publication of this rule, using the CCATS previously 
issued by BIS, without any encryption registration (i.e., the 
information described in Supplement No. 5 to this part), new 
classification by BIS, self-classification reporting (i.e., the 
information described in Supplement No. 8 to part 742), or semi-annual 
sales reporting required under section 740.17(e) provided the 
cryptographic functionality of the item has not changed. These 
grandfathering provisions do not apply to particular commodities and 
software previously made eligible for License Exception ENC under 
former paragraph (b)(3) that are now listed in paragraph (b)(2) and 
therefore require a license to certain ``government end-users'' outside 
the countries listed in Supplement No. 3 to part 740. These 
grandfathering provisions also do not apply if the encryption 
functionality has changed since the encryption product was last 
classified by BIS, as specified in 740.17(d)(1)(iii) and 
742.15(b)(7)(i)(C).

Export Administration Act

    Since August 21, 2001, the Export Administration Act has been in 
lapse. However, the President, through Executive Order 13222 of August 
17, 2001 (3 CFR 2001 Comp. 783 (2002)), which has been extended by 
successive Presidential Notices, the most recent being that of August 
13, 2009 (74 FR 41325 (August 14, 2009)), has continued the Regulations 
in effect under the International Emergency Economic Powers Act (50 
U.S.C. 1701 et seq.).

Rulemaking Requirements

    1. This rule has been determined to be significant for purposes of 
Executive Order 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to nor be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This rule involves a 
collection of information that has been approved by the OMB under 
control number 0694-0088, ``Multi-Purpose Application,'' which carries 
a burden hour estimate of 58 minutes to prepare and submit form BIS-
748. Miscellaneous and recordkeeping activities account for 12 minutes 
per submission. This rule amends a collection that has been approved by 
the Office of Management and Budget under control number 0694-0104, 
``Commercial Encryption Items Under the Jurisdiction of the Department 
of Commerce'' by adding two new submissions: ``Encryption 
registration'' and ``self-classification report.'' Although the changes 
in this rule increase the number of collections under 0694-0104, the 
burden hour estimate is decreased from 7 hours to 1.9 hours per 
submission (manual or electronic). Send comments regarding these burden 
estimates or any other aspect of these collections of information, 
including suggestions for reducing the burden, to Jasmeet Seehra, OMB 
Desk Officer, by e-mail at [email protected] or by fax to 
(202) 395-7285; and to the Regulatory Policy Division, Bureau of 
Industry and Security, Department of Commerce, 14th and Pennsylvania 
Ave., NW., Room 2705, Washington, DC 20230.
    3. This rule does not contain policies with Federalism implications 
as that term is defined under Executive Order 13132.
    4. Pursuant to 5 U.S.C. 553(a)(1), the provisions of this rule 
amending the Commerce Control List (Note 4 to Category 5 part 2), the 
Statements of Understanding (Supplement No. 3 to Part 774), and the 
definitions provisions (Part 772) of the EAR are exempt from the 
provision of the Administrative Procedure Act (5 U.S.C. 553) (APA) 
requiring notice and an opportunity for public comment because this 
regulation involves a military and foreign affairs function of the 
United States. Immediate implementation of these amendments fulfills 
the United States' international obligation to the Wassenaar 
Arrangement on Export Controls for Conventional Arms and Dual Use Goods 
and Technologies (Wassenaar Arrangement or WA). The Wassenaar 
Arrangement contributes to international security and regional 
stability by promoting greater responsibility in transfers of

[[Page 36489]]

conventional arms and dual use goods and technologies, thus preventing 
destabilizing accumulations of such items. The Wassenaar Arrangement 
consists of 40 member countries that act on a consensus basis and this 
change was approved at the 2009 plenary session of the WA. Since the 
United States is a significant exporter of encryption items, 
implementation of this provision is necessary for the WA to achieve its 
purpose. Any delay in implementation will create a disruption in the 
movement of affected items globally because of the disharmony between 
export control regulations, resulting in tension between member 
countries. Export controls work best when all countries implement the 
same export controls in a timely manner. Any delay in implementation 
would injure the credibility of the United States in this and other 
multilateral regimes. If notice and comment precedes, rather than 
follows, the promulgation of this rule, the delays associated with 
soliciting comments will result in the inability of the United States 
to fulfill its commitment to the WA.
    For the other provisions of this rule, the Department has 
determined that there is good cause under 5 U.S.C. 553(b)(B) to waive 
the provisions of the Administrative Procedure Act requiring notice and 
the opportunity for public comment when doing so is contrary to the 
public interest. This rule expedites the process for eligibility for 
use of a license exception for the export of encryption items, while 
maintaining the effectiveness of authorizations previously issued. If 
this rule is delayed to allow for prior notice and opportunity for 
public comment, U.S. industry would continue to be subject to a more 
burdensome licensing process than necessary for the export of 
encryption items. Because this rule will ensure the competitiveness of 
U.S. industry, delaying the effectiveness of this rule is contrary to 
the public interest.
    For the reasons listed above, good cause exists to waive the 30-day 
delay in effectiveness otherwise required by the APA. Further, no other 
law requires that a notice of proposed rulemaking and an opportunity 
for public comment be given for this interim final rule. Accordingly, 
no regulatory flexibility analysis is required and none has been 
prepared. Although notice and opportunity for comment are not required, 
BIS is issuing this rule in interim final form and is seeking public 
comments on these revisions.
    The period for submission of comments will close August 24, 2010. 
BIS will consider all comments received before the close of the comment 
period in developing a final rule. Comments received after the end of 
the comment period will be considered if possible, but their 
consideration cannot be assured. BIS 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. BIS will return such comments and materials to the 
persons submitting the comments and will not consider them in the 
development of the final rule. All public comments on this interim rule 
must be in writing (including fax or e-mail) and will be a matter of 
public record, available for public inspection and copying. The Office 
of Administration, Bureau of Industry and Security, U.S. Department of 
Commerce, displays these public comments on BIS's Freedom of 
Information Act (FOIA) Web site at http://www.bis.doc.gov/foia. This 
office does not maintain a separate public inspection facility. If you 
have technical difficulties accessing this Web site, please call BIS's 
Office of Administration at (202) 482-0953 for assistance.

List of Subjects

15 CFR Part 730

    Administrative practice and procedure, Advisory committees, 
Exports, Reporting and recordkeeping requirements, Strategic and 
critical materials.

15 CFR Part 734

    Administrative practice and procedure, Exports, Inventions and 
patents, Research Science and technology.

15 CFR Parts 738 and 772

    Exports.

15 CFR Parts 740 and 748

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.

15 CFR Part 742

    Exports, Terrorism.

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

0
Accordingly, Parts 730, 734, 738, 740, 742, 748, 772 and 774 of the EAR 
(15 CFR Parts 730-774) are amended as follows:

PART 730--[AMENDED]

0
1. The authority citation for part 730 continues to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 2151 
note; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 
185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 15 U.S.C. 
1824a; 50 U.S.C. app. 5; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; 
E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 12002, 42 
FR 35623, 3 CFR, 1977 Comp., p. 133; E.O. 12058, 43 FR 20947, 3 CFR, 
1978 Comp., p. 179; E.O. 12214, 45 FR 29783, 3 CFR, 1980 Comp., p. 
256; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12854, 
58 FR 36587, 3 CFR, 1993 Comp., p. 179; E.O. 12918, 59 FR 28205, 3 
CFR, 1994 Comp., p. 899; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., 
p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 
12981, 60 FR 62981, 3 CFR, 1995 Comp., p. 419; E.O. 13020, 61 FR 
54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 
1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 
208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 
66 FR 49079, 3 CFR, 2001 Comp., p. 786; E.O. 13338, 69 FR 26751, May 
13, 2004; Notice of August 13, 2009, 74 FR 41325 (August 14, 2009); 
Notice of November 6, 2009, 74 FR 58187 (November 10, 2009).

0
2. Supplement No. 1 is amended by removing the title for collection 
number 0694-0104 and adding in its place ``Commercial Encryption Items 
under Commerce Jurisdiction.''

PART 734--[AMENDED]

0
3. The authority citation for part 734 continues to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 
FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 
783; Notice of August 13, 2009, 74 FR 41325 (August 14, 2009); 
Notice of November 6, 2009, 74 FR 58187 (November 10, 2009).

0
4. Section 734.4 is amended by revising paragraph (b)(1)(ii), 
(b)(1)(iii), and (b)(1)(iv), and adding a new paragraph (b)(1)(v), to 
read as follows:


Sec.  734.4  De minimis U.S. content.

* * * * *
    (b) * * *
    (1) * * *
    (ii) Authorized for License Exception ENC by BIS after 
classification pursuant to Sec.  740.17(b)(3) of the EAR;
    (iii) Authorized for License Exception ENC by BIS after 
classification pursuant to Sec.  740.17(b)(2) of the EAR, and the 
foreign made product will not be sent to any destination in Country 
Group E:1 in Supplement No. 1 to part 740 of the EAR;
    (iv) Authorized for License Exception ENC pursuant to Sec.  
740.17(b)(4) of the EAR; or

[[Page 36490]]

    (v) Authorized for License Exception ENC after submission of an 
encryption registration pursuant to Sec.  740.17(b)(1) of the EAR.
* * * * *

PART 738--[AMENDED]

0
5. The authority citation for part 738 continues to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 3201 et 
seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 
U.S.C. 6212; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 
783; Notice of August 13, 2009, 74 FR 41325 (August 14, 2009).

0
6. Section 738.4 is amended by revising the third and fourth sentences 
in paragraph (a)(2)(ii)(B) to read as follows:


Sec.  738.4  Determining whether a license is required.

    (a) * * *
    (2) * * *
    (ii) * * *
    (B) * * * For example, any applicable encryption registration and 
classification requirements described in Sec.  742.15(b) of the EAR 
must be met for certain mass market encryption items to effect your 
shipment using the symbol ``NLR.'' Proceed to parts 758 and 762 of the 
EAR for information on export clearance procedures and recordkeeping 
requirements. * * *
* * * * *

PART 740--[AMENDED]

0
7. The authority citation for part 740 continues to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., 
p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice 
of August 13, 2009, 74 FR 41325 (August 14, 2009).


0
8. Section 740.17 is revised to read as follows:


Sec.  740.17  Encryption commodities, software and technology (ENC).

    License Exception ENC authorizes export and reexport of systems, 
equipment, commodities and components therefor that are classified 
under ECCNs 5A002.a.1, a.2, a.5, a.6 or a.9, systems, equipment and 
components therefor classified under ECCN 5B002, and equivalent or 
related software and technology classified under ECCNs 5D002 or 5E002. 
This License Exception ENC does not authorize export or reexport to, or 
provision of any service in any country listed in Country Group E:1 in 
Supplement No. 1 to part 740 of the EAR, or release of source code or 
technology to any national of a country listed in Country Group E:1. 
Reexports and transfers under License Exception ENC are subject to the 
criteria set forth in paragraph (c) of this section. Paragraphs (b) and 
(d) of this section set forth information about encryption 
registrations and classifications required by this section. Paragraph 
(e) sets forth reporting required by this section. For items exported 
under paragraphs (b)(1), (b)(3)(i), (b)(3)(ii) or (b)(3)(iv) of this 
section and therefore excluded from paragraph (e) reporting 
requirements, exporters are reminded of the recordkeeping requirements 
in part 762 of the EAR and that they may be required to make such 
records available upon request. All classification requests, 
registrations, and reports submitted to BIS pursuant to this section 
for encryption items will be reviewed by the ENC Encryption Request 
Coordinator, Ft. Meade, MD.
    (a) No classification request, registration or reporting required.
    (1) Internal ``development'' or ``production'' of new products. 
License Exception ENC authorizes exports and reexports of items 
described in paragraph (a)(1)(i) of this section, to end-users 
described in paragraph (a)(1)(ii) of this section, for the intended 
end-use described in paragraph (a)(1)(iii) of this section without 
submission of encryption registration, classification request, self-
classification report or sales report to BIS.
    (i) Eligible items. Eligible items are those classified under ECCNs 
5A002.a.1, .a.2, .a.5, .a.6, or .a.9, ECCN 5B002, and equivalent or 
related software and technology classified under ECCNs 5D002 or 5E002.
    (ii) Eligible End-users. Eligible end-users are ``private sector 
end-users'' wherever located that are headquartered in a country listed 
in Supplement No. 3 of this part.

    Note to paragraph (a)(1)(ii): A ``private sector end-user'' is:
    (1) An individual who is not acting on behalf of any foreign 
government; or
    (2) A commercial firm (including its subsidiary and parent 
firms, and other subsidiaries of the same parent) that is not wholly 
owned by, or otherwise controlled by or acting on behalf of, any 
foreign government.

    (iii) Eligible End-use. The eligible end-use is internal 
``development'' or ``production'' of new products by those end-users.

    Note to paragraph (a)(1)(iii): All items produced or developed 
with items exported or reexported under this paragraph (a)(1) are 
subject to the EAR. These items may require the submission of a 
classification request or encryption registration before sale, 
reexport or transfer, unless otherwise authorized by license or 
license exception.

    (2) Exports and reexports to ``U.S. Subsidiaries.'' License 
Exception ENC authorizes export and reexport of systems, equipment, 
commodities and components therefor classified under ECCNs 5A002.a.1, 
.a.2, .a.5, .a.6, or .a.9, systems, equipment, and components therefor 
classified under ECCN 5B002, and equivalent or related software and 
technology classified under ECCNs 5D002 or 5E002, to any ``U.S. 
subsidiary,'' wherever located without submission of an encryption 
registration, classification request, self-classification report or 
sales report to BIS. License Exception ENC also authorizes export or 
reexport of such items by a U.S. company and its subsidiaries to 
foreign nationals who are employees, contractors or interns of a U.S. 
company or its subsidiaries if the items are for internal company use, 
including the ``development'' or ``production'' of new products, 
without prior review by the U.S. Government.

    Note to paragraph (a)(2): All items produced or developed with 
items exported or reexported under this paragraph (a)(2) are subject 
to the EAR. These items may require the submission of a 
classification request or encryption registration before sale, 
reexport or transfer to non-``U.S. subsidiaries,'' unless otherwise 
authorized by license or license exception.

    (b) Encryption registration required, with classification request 
or self-classification report. Exports and reexports authorized under 
paragraphs (b)(1), (b)(2) and (b)(3) of License Exception ENC require 
submission of an encryption registration in accordance with paragraph 
(d) of this section and the specific instructions of paragraph (r)(1) 
of Supplement No. 2 to part 748 of the EAR. In addition: for paragraph 
(b)(1) of this section a self-classification report in accordance with 
Sec.  742.15(c) of the EAR is also required from specified exporters 
and reexporters; for paragraphs (b)(2) and (b)(3) of this section, a 
thirty-day (30-day) classification request is required in accordance 
with paragraph (d) of this section. See paragraph (f) of this section 
for grandfathering provisions applicable to certain encryption items 
reviewed and classified by BIS under this license exception prior to 
June 25, 2010. Only License Exception ENC authorizations under this 
paragraph (b) to a company that has fulfilled the requirements of 
encryption registration (such as the producer of the item) authorize 
the

[[Page 36491]]

export and reexport of the company's encryption items by all persons, 
wherever located, under this license exception. When an exporter or 
reexporter relies on the producer's self-classification (pursuant to 
the producer's encryption registration) or CCATS for an encryption item 
eligible for export or reexport under License Exception ENC under 
paragraph (b)(1), (b)(2), or (b)(3) of this section, it is not required 
to submit an encryption registration, classification request or self-
classification report. Exporters are still required to comply with 
semi-annual sales reporting requirements under paragraph (e) of this 
section, even if relying on a CCATS issued to a producer for specified 
encryption items described in paragraphs (b)(2) and (b)(3)(iii) of this 
section.
    (1) Immediate authorization. Once an encryption registration is 
submitted to BIS in accordance with paragraph (d) of this section and 
an Encryption Registration Number (ERN) has been issued, this paragraph 
(b)(1) authorizes the exports or reexports of the associated 
commodities classified under ECCNs 5A002.a.1, .a.2, .a.5, .a.6, or 
.a.9, or ECCN 5B002, and equivalent or related software classified 
under ECCN 5D002, except any such commodities, software or components 
described in (b)(2) or (b)(3) of this section, subject to submission of 
a self-classification report in accordance with Sec.  742.15(c) of the 
EAR.
    (2) Classification request required. Thirty (30) days after the 
submission of a classification request with BIS in accordance with 
paragraph (d) of this section and subject to the reporting requirements 
in paragraph (e) of this section, this paragraph under License 
Exception ENC authorizes certain exports or reexports of the items 
submitted for classification, as further described in paragraphs 
(b)(2)(i), (b)(2)(ii) and (b)(2)(iv)(B) of this section.

    Note to introductory text of paragraph (b)(2): Immediately after 
the classification request is submitted to BIS in accordance with 
paragraph (d) of this section and subject to the reporting 
requirements in paragraph (e) of this section, this paragraph also 
authorizes exports or reexports of:
    1. All submitted encryption items described in this paragraph 
(b)(2), except ``cryptanalytic items,'' to any end-user located or 
headquartered in a country listed in Supplement No. 3 to this part;
    2. Encryption source code as described in paragraph (b)(2)(i)(B) 
to non-``government end-users'' in any country;
    3. ``Cryptanalytic items'' to non-``government end-users'', 
only, located or headquartered in a country listed in Supplement No. 
3 to this part; and
    4. Items described in paragraphs (b)(2)(iii) and (b)(2)(iv)(A) 
of this section, to specified destinations and end-users.

    (i) Cryptographic commodities, software and components. The 
following items to non-``government end-users'' located or 
headquartered in a country not listed in Supplement No. 3 to this part:
    (A) Network infrastructure software and commodities and components 
thereof (including commodities and software necessary to activate or 
enable cryptographic functionality in network infrastructure products) 
providing secure Wide Area Network (WAN), Metropolitan Area Network 
(MAN), Virtual Private Network (VPN), satellite, digital packet 
telephony/media (voice, video, data) over Internet protocol, cellular 
or trunked communications meeting any of the following with key lengths 
exceeding 80-bits for symmetric algorithms:
    (1) Aggregate encrypted WAN, MAN, VPN or backhaul throughput 
(including communications through wireless network elements such as 
gateways, mobile switches, and controllers) greater than 90 Mbps;
    (2) Wire (line), cable or fiber-optic WAN, MAN or VPN single-
channel input data rate exceeding 154 Mbps;
    (3) Transmission over satellite at data rates exceeding 10 Mbps;
    (4) Media (voice/video/data) encryption or centralized key 
management supporting more than 250 concurrent encrypted data channels, 
or encrypted signaling to more than 1,000 endpoints, for digital packet 
telephony/media (voice/video/data) over Internet protocol 
communications; or
    (5) Air-interface coverage (e.g., through base stations, access 
points to mesh networks, and bridges) exceeding 1,000 meters, where any 
of the following applies:
    (i) Maximum transmission data rates exceeding 10 Mbps (at operating 
ranges beyond 1,000 meters);
    (ii) Maximum number of concurrent full-duplex voice channels 
exceeding 30; or
    (iii) Substantial support is required for installation or use;
    (B) Encryption source code that would not be eligible for export or 
reexport under License Exception TSU because it is not publicly 
available as that term is used in Sec.  740.13(e)(1) of the EAR;
    (C) Encryption software, commodities and components therefor, that 
have any of the following:
    (1) Been designed, modified, adapted or customized for ``government 
end-user(s)'';
    (2) Cryptographic functionality that has been modified or 
customized to customer specification; or
    (3) Cryptographic functionality or ``encryption component'' (except 
encryption software that would be considered publicly available, as 
that term is used in Sec.  740.13(e)(1) of the EAR) that is user-
accessible and can be easily changed by the user;
    (D) Encryption commodities and software that provide functions 
necessary for quantum cryptography, as defined in ECCN 5A002 of the 
Commerce Control List;
    (E) Encryption commodities and software that have been modified or 
customized for computers classified under ECCN 4A003;
    (F) Encryption commodities and software that provide penetration 
capabilities that are capable of attacking, denying, disrupting or 
otherwise impairing the use of cyber infrastructure or networks;
    (G) Public safety/first responder radio (e.g., implementing 
Terrestrial Trunked Radio (TETRA) and/or Association of Public-Safety 
Communications Officials International (APCO) Project 25 (P25) 
standards);
    (ii) Cryptanalytic commodities and software. Commodities and 
software classified as ``cryptanalytic items'' to non-``government end-
users'' located or headquartered in countries not listed in Supplement 
No. 3 to this part;
    (iii) ``Open cryptographic interface'' items. Items that provide an 
``open cryptographic interface'', to any end-user located or 
headquartered in a country listed in Supplement No. 3 to this part.
    (iv) Specific encryption technology. Specific encryption technology 
as follows:
    (A) Technology for ``non-standard cryptography.'' Encryption 
technology classified under ECCN 5E002 for ``non-standard 
cryptography,'' to any end-user located or headquartered in a country 
listed in Supplement No. 3 to this part;
    (B) Other technology. Encryption technology classified under ECCN 
5E002 except technology for ``cryptanalytic items,'' ``non-standard 
cryptography'' or any ``open cryptographic interface,'' to any non-
``government end-user'' located in a country not listed in Country 
Group D:1 or E:1 of Supplement No. 1 to part 740 of the EAR.

    Note to paragraph (b)(2): Commodities, software, and components 
that allow the end-user to activate or enable cryptographic 
functionality in encryption products which would otherwise remain 
disabled, are controlled according to the functionality of the 
activated encryption product.


[[Page 36492]]


    (3) Classification request required for specified commodities, 
software and components. Thirty (30) days after a classification 
request is submitted to BIS in accordance with paragraph (d) of this 
section and subject to the reporting requirements in paragraph (e) of 
this section, this paragraph authorizes exports or reexports of the 
items submitted for classification, as further described in this 
paragraph (b)(3), to any end-user, provided the item does not perform 
the functions, or otherwise meet the specifications, of any item 
described in paragraph (b)(2) of this section.

    Note to introductory text of paragraph (b)(3): Immediately after 
the classification request is submitted to BIS in accordance with 
paragraph (d) of this section and subject to the reporting 
requirements in paragraph (e) of this section, this paragraph also 
authorizes exports or reexports of the items described in this 
paragraph (b)(3) to any end-user located or headquartered in a 
country listed in Supplement No. 3 to this part.

    (i) Specified components classified under ECCN 5A002.a.1, .a.5 or 
.a.6 and equivalent or related software classified under ECCN 5D002 not 
described by paragraph (b)(2) of this section, as follows:
    (A) Chips, chipsets, electronic assemblies and field programmable 
logic devices;
    (B) Cryptographic libraries, modules, development kits and 
toolkits, including for operating systems and cryptographic service 
providers (CSPs);
    (C) Application-specific hardware or software development kits 
implementing cryptography.
    (ii) Encryption commodities, software and components not described 
by paragraph (b)(2) of this section, that provide or perform ``non-
standard cryptography'' as defined in part 772 of the EAR.
    (iii) Encryption commodities and software not described by 
paragraph (b)(2) of this section, that provide or perform vulnerability 
analysis, network forensics, or computer forensics functions 
characterized by any of the following:
    (A) Automated network analysis, visualization, or packet inspection 
for profiling network flow, network user or client behavior, or network 
structure/topology and adapting in real-time to the operating 
environment; or
    (B) Investigation of data leakage, network breaches, and other 
malicious intrusion activities through triage of captured digital 
forensic data for law enforcement purposes or in a similarly rigorous 
evidentiary manner.
    (iv) Cryptographic enabling commodities and software. Commodities 
and software and components that activate or enable cryptographic 
functionality in encryption products which would otherwise remain 
disabled, where the product or cryptographic functionality is not 
otherwise described in paragraphs (b)(2) or (b)(3)(i) of this section.
    (4) Exclusions from classification request, encryption registration 
and self-classification reporting requirements. License Exception ENC 
authorizes the export and reexport of the commodities and software 
described in this paragraph (b)(4) without the submission of a 
classification request, encryption registration or self-classification 
report to BIS, except that paragraph (b)(4)(ii) of this section does 
not authorize exports from the United States of foreign products 
developed with or incorporating U.S.-origin encryption source code, 
components, or toolkits.
    (i) Short-range wireless encryption functions. Commodities and 
software that are not otherwise controlled in Category 5, but are 
nonetheless classified under ECCN 5A002, 5B002 or 5D002 only because 
they incorporate components or software that provide short-range 
wireless encryption functions (e.g., with a nominal operating range not 
exceeding 100 meters according to the manufacturer's specifications, 
designed to comply with the Institute of Electrical and Electronic 
Engineers (IEEE) 802.11 wireless LAN standard or the IEEE 802.15.1 
standard).

    Note to paragraph (b)(4)(i): An example of what this paragraph 
authorizes for export without classification, registration or self-
classification reporting is a laptop computer that without 
encryption would be classified under ECCN 4A994, and the Category 5, 
Part 2-controlled components of the laptop only implement short-
range wireless encryption functionality. On the other hand, this 
paragraph (b)(4)(i) does not apply to any commodities or software 
that would still be classified under an ECCN in Category 5 even if 
the short-range wireless encryption functionality were removed. For 
example, certain access points, gateways and bridges are classified 
under ECCN 5A991 without encryption functionality, and components 
for mobile communication equipment are classified under ECCN 5A991.g 
without encryption functionality. Such items, when implementing 
cryptographic functionality controlled by Category 5, Part 2 are not 
excluded from encryption classification, registration or self-
classification reporting by this paragraph.

    (ii) Foreign products developed with or incorporating U.S.-origin 
encryption source code, components, or toolkits. Foreign products 
developed with or incorporating U.S.-origin encryption source code, 
components or toolkits that are subject to the EAR, provided that the 
U.S.-origin encryption items have previously been classified or 
registered and authorized by BIS and the cryptographic functionality 
has not been changed. Such products include foreign-developed products 
that are designed to operate with U.S. products through a cryptographic 
interface.
    (c) Reexport and transfer. U.S. or foreign distributors, resellers 
or other entities who are not original manufacturers of encryption 
commodities and software are permitted to use License Exception ENC 
only in instances where the export or reexport meets the applicable 
terms and conditions of this section. Transfers of encryption items 
listed in paragraph (b)(2) of this section to ``government end-users,'' 
or for government end-uses, within the same country are prohibited, 
unless otherwise authorized by license or license exception.
    (d) Encryption registration and classification request procedures.
    (1) Submission requirements and instructions. To submit an 
encryption registration or classification request to BIS, you must 
submit an application to BIS in accordance with the procedures 
described in Sec. Sec.  748.1 and 748.3 of the EAR and the instructions 
in paragraph (r) of Supplement No. 2 to part 748 ``Unique Application 
and Submission Requirements,'' along with other required information as 
follows:
    (i) Encryption registrations in support of encryption 
classification requests and self-classification reports. You must 
submit the applicable information as described in Supplement No. 5 to 
part 742 of the EAR and follow the specific instructions of paragraph 
(r)(1) of Supplement No. 2 to part 748 of the EAR, if any of the 
following apply:
    (A) This is your first time submitting an encryption classification 
request under paragraphs (b)(2) or (b)(3) of this section since August 
24, 2010;
    (B) You are making an encryption item eligible for export and 
reexport (including as defined for encryption software in Sec.  
734.2(b)(9) of the EAR) under paragraph (b)(1) of this section for the 
first time since August 24, 2010; or
    (C) If you have not otherwise provided BIS the information 
described in Supplement No. 5 to part 742 during the current calendar 
year and your answers to the questions in Supplement No. 5 to part 742 
have changed since the last time you provided answers to the questions.
    (ii) Technical information submission requirements. In addition to 
the encryption registration requirements of paragraph (d)(1)(i) of this 
section, for all submissions of encryption classification requests for 
items described under

[[Page 36493]]

paragraph (b)(2) or (b)(3) of this section, you must also provide BIS 
the applicable information described in paragraphs (a) through (d) of 
Supplement No. 6 to part 742 of the EAR (Technical Questionnaire for 
Encryption Items). For items authorized after submission of an 
encryption registration under paragraph (b)(1) of this section, you may 
be required to provide BIS this Supplement No. 6 to part 742 
information on an as-needed basis, upon request by BIS.
    (iii) Changes in encryption functionality following a previous 
classification. A new product encryption classification request (under 
paragraphs (b)(2) or (b)(3) of this section) or self-classification 
report (under paragraph (b)(1) of this section) is required if a change 
is made to the cryptographic functionality (e.g., algorithms) or other 
technical characteristics affecting License Exception ENC eligibility 
(e.g., encrypted throughput) of the originally classified product. 
However, a new product classification request or self-classification 
report is not required when a change involves: The subsequent bundling, 
patches, upgrades or releases of a product; name changes; or changes to 
a previously reviewed encryption product where the change is limited to 
updates of encryption software components where the product is 
otherwise unchanged.
    (2) Action by BIS.
    (i) Encryption registrations for paragraph (b) of this section. 
Upon submission to BIS of an encryption registration in accordance with 
paragraph (d)(1) of this section and acceptance of the application by 
SNAP-R, BIS will issue the Encryption Registration Number (ERN) via 
SNAP-R, which will constitute authorization for exports and reexports 
of eligible items under paragraph (b)(1) of this license exception.
    (ii) For items requiring classification by BIS under paragraphs 
(b)(2) and (b)(3) of this section.
    (A) For classifications that require a thirty (30) day waiting 
period, if BIS has not, within thirty-days (30-days) from registration 
in SNAP-R of your complete classification request, informed you that 
your item is not authorized for License Exception ENC, you may export 
or reexport under the applicable provisions of License Exception ENC.
    (B) Upon completion of its classification, BIS will issue a 
Commodity Classification Automated Tracking System (CCATS) to you.
    (C) Hold Without Action (HWA) for classification requests. BIS may 
hold your classification request without action if necessary to obtain 
additional information or for any other reason necessary to ensure an 
accurate classification. Time on such ``hold without action'' status 
shall not be counted towards fulfilling the thirty-day (30-day) 
processing period specified in this paragraph.
    (iii) BIS may require you to supply additional relevant technical 
information about your encryption item(s) or information that pertains 
to their eligibility for License Exception ENC at any time, before or 
after the expiration of the thirty-day (30-day) processing period 
specified in this paragraph and in paragraphs (b)(2) and (b)(3) of this 
section, or after any registrations as required in paragraph (b)(1) of 
this section. If you do not supply such information within 14 days 
after receiving a request for it from BIS, BIS may return your 
classification request(s) without action or otherwise suspend or revoke 
your eligibility to use License Exception ENC for that item(s). At your 
request, BIS may grant you up to an additional 14 days to provide the 
requested information. Any request for such an additional number of 
days must be made prior to the date by which the information was 
otherwise due to be provided to BIS, and may be approved if BIS 
concludes that additional time is necessary.
    (e) Reporting requirements.
    (1) Semi-annual reporting requirement. Semi-annual reporting is 
required for exports to all destinations other than Canada, and for 
reexports from Canada for items described under paragraphs (b)(2) and 
(b)(3)(iii) of this section. Certain encryption items and transactions 
are excluded from this reporting requirement, see paragraph (e)(1)(iii) 
of this section. For information about what must be included in the 
report and submission requirements, see paragraphs (e)(1)(i) and 
(e)(1)(ii) of this section respectively.
    (i) Information required. Exporters must include for each item, the 
Commodity Classification Automated Tracking System (CCATS) number and 
the name of the item(s) exported (or reexported from Canada), and the 
following information in their reports:
    (A) Distributors or resellers. For items exported (or reexported 
from Canada) to a distributor or other reseller, including subsidiaries 
of U.S. firms, the name and address of the distributor or reseller, the 
item and the quantity exported or reexported and, if collected by the 
exporter as part of the distribution process, the end-user's name and 
address;
    (B) Direct Sales. For items exported (or reexported from Canada) 
through direct sale, the name and address of the recipient, the item, 
and the quantity exported; or
    (C) Foreign manufacturers and products that use encryption items. 
For exports (i.e., from the United States) or direct transfers (e.g., 
by a ``U.S. subsidiary'' located outside the United States) of 
encryption components, source code, general purpose toolkits, equipment 
controlled under ECCN 5B002, technology, or items that provide an 
``open cryptographic interface,'' to a foreign developer or 
manufacturer headquartered in a country not listed in Supplement No. 3 
to this part when intended for use in foreign products developed for 
commercial sale, the names and addresses of the manufacturers using 
these encryption items and, if known, when the product is made 
available for commercial sale, a non-proprietary technical description 
of the foreign products for which these encryption items are being used 
(e.g., brochures, other documentation, descriptions or other 
identifiers of the final foreign product; the algorithm and key lengths 
used; general programming interfaces to the product, if known; any 
standards or protocols that the foreign product adheres to; and source 
code, if available).
    (ii) Submission requirements. For exports occurring between January 
1 and June 30, a report is due no later than August 1 of that year. For 
exports occurring between July 1 and December 31, a report is due no 
later than February 1 the following year. These reports must be 
provided in electronic form. Recommended file formats for electronic 
submission include spreadsheets, tabular text or structured text. 
Exporters may request other reporting arrangements with BIS to better 
reflect their business models. Reports may be sent electronically to 
BIS at [email protected] and to the ENC Encryption Request Coordinator 
at [email protected], or disks and CDs containing the reports may be sent to 
the following addresses:
    (A) Department of Commerce, Bureau of Industry and Security, Office 
of National Security and Technology Transfer Controls, 14th Street and 
Pennsylvania Ave., NW., Room 2705, Washington, DC 20230, Attn: 
Encryption Reports, and
    (B) Attn: ENC Encryption Request Coordinator, 9800 Savage Road, 
Suite 6940, Ft. Meade, MD 20755-6000.
    (iii) Exclusions from reporting requirement. Reporting is not 
required for the following items and transactions:
    (A) [Reserved]

[[Page 36494]]

    (B) Encryption commodities or software with a symmetric key length 
not exceeding 64 bits;
    (C) Encryption items exported (or reexported from Canada) via free 
and anonymous download;
    (D) Encryption items from or to a U.S. bank, financial institution 
or its subsidiaries, affiliates, customers or contractors for banking 
or financial operations;
    (E) Items listed in paragraph (b)(4) of this section, unless it is 
a foreign item described in paragraph (b)(4)(ii) of this section that 
has entered the United States;
    (F) Foreign products developed by bundling or compiling of source 
code;
    (2) Key length increases. Reporting is required for commodities and 
software that, after having been classified and authorized for License 
Exception ENC in accordance with paragraphs (b)(2) or (b)(3) of this 
section, are modified only to upgrade the key length used for 
confidentiality or key exchange algorithms. Such items may be exported 
or reexported under the previously authorized provision of License 
Exception ENC without a classification resubmission.
    (i) Information required.
    (A) A certification that no change to the encryption functionality 
has been made other than to upgrade the key length for confidentiality 
or key exchange algorithms.
    (B) The original Commodity Classification Automated Tracking System 
(CCATS) authorization number issued by BIS and the date of issuance.
    (C) The new key length.
    (ii) Submission requirements.
    (A) The report must be received by BIS and the ENC Encryption 
Request Coordinator before the export or reexport of the upgraded 
product; and
    (B) The report must be e-mailed to [email protected] and 
[email protected].
    (f) Grandfathering. The following provisions apply to encryption 
items reviewed and classified by BIS under this license exception prior 
to June 25, 2010:
    (1) Items described in paragraphs (b)(1) or (b)(3) of this section. 
For encryption commodities, software and components described in (or 
otherwise meeting the specifications of) paragraphs (b)(1) or (b)(3) of 
this section effective June 25, 2010, such items reviewed and 
classified by BIS prior to June 25, 2010 are authorized for export and 
reexport to eligible end-users and destinations under the applicable 
paragraph (b)(1) or (b)(3) of this license exception using the CCATS 
previously issued by BIS, without any encryption registration (i.e., 
the information described in Supplement No. 5 to part 742 of the EAR), 
new classification by BIS, self-classification reporting (i.e., the 
information described in Supplement No. 8 to part 742 of the EAR), or 
semi-annual sales reporting required under section 740.17(e) provided 
the cryptographic functionality of the item has not changed. See 
paragraph (d)(1)(iii) of this section regarding changes in encryption 
functionality following a previous classification.
    (2) Items described in paragraph (b)(2) of this section.
    (i) Commodities, software and components described in paragraph 
(b)(2)(i) of this section. For encryption commodities, software and 
components described in (or otherwise meeting the specifications of) 
paragraph (b)(2)(i) of this section effective June 25, 2010, such items 
reviewed and classified by BIS prior to June 25, 2010 are authorized 
for export and reexport to eligible end-users and destinations under 
paragraph (b)(2) of this license exception using the CCATS previously 
issued by BIS, without any encryption registration (i.e., the 
information described in Supplement No. 5 to part 742 of the EAR) and 
new classification by BIS, provided the previous CCATS established 
License Exception ENC Sec.  740.17(b)(2) treatment for the item and the 
cryptographic functionality of the item has not changed. See paragraph 
(d)(1)(iii) of this section regarding changes in encryption 
functionality following a previous classification. An encryption 
registration and updated classification must be submitted to BIS for 
items described in paragraph (b)(2)(i) of this section effective June 
25, 2010 if the items were not previously classified under Sec.  
740.17(b)(2), even if the cryptographic functionality has not changed.
    (ii) Cryptoanalytic items, open cryptographic interface items, and 
encryption technology. For items described in (or otherwise meeting the 
specifications of) paragraphs (b)(2)(ii), (b)(2)(iii) or (b)(2)(iv) of 
this section effective June 25, 2010, such items reviewed and 
classified by BIS prior to June 25, 2010 are authorized for export and 
reexport to eligible end-users and destinations under paragraph (b)(2) 
of this license exception using the CCATS previously issued by BIS, 
without any encryption registration (i.e., the information described in 
Supplement No. 5 to part 742 of the EAR), new classification by BIS, or 
self-classification reporting (i.e., the information described in 
Supplement No. 8 to part 742 of the EAR), provided the cryptographic 
functionality of the item has not changed. See paragraph (d)(1)(iii) of 
this section regarding changes in encryption functionality following a 
previous classification.

PART 742--[AMENDED]

0
9. The authority citation for part 742 continues to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 
U.S.C. 7210; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058, 
43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 
CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., 
p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 
13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential 
Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; 
Notice of August 13, 2009, 74 FR 41325 (August 14, 2009); Notice of 
November 6, 2009, 74 FR 58187 (November 10, 2009).



0
10. Section 742.15 is amended by revising the Note to paragraph (a), 
revising paragraph (b), and adding paragraphs (c) and (d) to read as 
follows:


Sec.  742.15  Encryption Items.

* * * * *
    (a) * * *

    Note to paragraph (a): Pursuant to Note 3 to Category 5 Part 2 
of the Commerce Control List in Supplement No. 1 to Part 774, mass 
market encryption commodities and software may be released from 
``EI'' and ``NS'' controls by submitting an encryption registration 
in accord with Sec.  742.15(b) of the EAR. Once an encryption 
registration has been submitted to BIS and accepted in SNAP-R as 
indicated by the issuance of an Encryption Registration Number 
(ERN), then the commodities and software are classified under ECCNs 
5A992 and 5D992 respectively and are no longer subject to ``EI'' and 
``NS'' controls.

    (b) Encryption registration required, with classification request 
or self-classification report, for mass market encryption commodities, 
software and components with encryption exceeding 64 bits. To be 
eligible for export and reexport under this paragraph (b), encryption 
commodities, software and components must qualify for mass market 
treatment under the criteria in the Cryptography Note (Note 3) of 
Category 5, Part 2 (``Information Security''), of the Commerce Control 
List (Supplement No. 1 to part 774 of the EAR), and employ a key length 
greater than 64 bits for the symmetric algorithm (or, for commodities 
and software not implementing any symmetric algorithms, employing a key 
length greater than 768 bits for asymmetric algorithms or greater than 
128 bits for elliptic curve algorithms). Encryption items that are 
described in Sec. Sec.  740.17(b)(2) or (b)(3)(iii) of the EAR do not 
qualify for mass market

[[Page 36495]]

treatment. This paragraph (b) does not authorize export or reexport to, 
or provision of any service in any country listed in Country Group E:1 
in Supplement No. 1 to part 740 of the EAR. Exports and reexports 
authorized under paragraphs (b)(1) and (b)(3) of this section must be 
supported by an encryption registration in accordance with paragraph 
(b)(7) of this section and the specific instructions of paragraph 
(r)(1) of Supplement No. 2 to part 748 of the EAR. In addition, 
paragraphs (b)(1) and (b)(3) of this section set forth requirements 
pertaining to the classification of mass market encryption commodities 
and software. See paragraph (d) of this section for grandfathering 
provisions applicable to certain encryption items reviewed and 
classified by BIS under this section prior to June 25, 2010. All 
classification requests, registrations, and reports submitted to BIS 
pursuant to this section for encryption items will be reviewed by the 
ENC Encryption Request Coordinator, Ft. Meade, MD. Only mass market 
encryption authorizations under this paragraph (b) to a company that 
has fulfilled the requirements of encryption registration (such as the 
producer of the item) authorize the export and reexport of the 
company's encryption items by all persons, wherever located, under this 
section. When an exporter or reexporter relies on the producer's self-
classification (pursuant to the producer's encryption registration) or 
CCATS for a mass market encryption item, it is not required to submit 
an encryption registration, classification request or self-
classification report.
    (1) Immediate mass market authorization. Once an encryption 
registration is submitted to BIS in accordance with paragraph (b)(7) of 
this section and an Encryption Registration Number (ERN) has been 
issued, this paragraph (b)(1) authorizes the exports or reexports of 
the associated mass market encryption commodities and software 
classified under ECCNs 5A992 or 5D992 using the symbol ``NLR'', except 
any such commodities, software or components described in (b)(3) of 
this section, subject to submission a self-classification report in 
accordance with paragraph (c) of this section.
    (2) [Reserved]
    (3) Classification request required for specified mass market 
commodities, software and components. Thirty-days (30-days) after the 
submission of a classification request to BIS in accordance with 
paragraph (b)(7) of this section, this paragraph (b)(3) authorizes 
exports and reexports of the mass market items submitted for 
classification, using the symbol ``NLR'', provided the items qualify 
for mass market treatment as described in paragraph (b) of this section 
and are classified by BIS under ECCNs 5A992 or 5D992:

    Note to introductory text of paragraph (b)(3): Once a mass 
market classification request is accepted in SNAP-R, you may export 
and reexport the encryption commodity or software under License 
Exception ENC as ECCN 5A002 or 5D002, whichever is applicable, to 
any end-user located or headquartered in a country listed in 
Supplement No. 3 to part 740 as authorized by Sec.  740.17(b) of the 
EAR, while the mass market classification request is pending review 
with BIS.

    (i) Specified mass market encryption components as follows:
    (A) Chips, chipsets, electronic assemblies and field programmable 
logic devices;
    (B) Cryptographic libraries, modules, development kits and 
toolkits, including for operating systems and cryptographic service 
providers (CSPs);
    (C) Application-specific hardware or software development kits 
implementing cryptography.
    (ii) Mass market encryption commodities, software and components 
that provide or perform ``non-standard cryptography'' as defined in 
part 772 of the EAR.
    (iii) [Reserved]
    (iv) Mass market cryptographic enabling commodities and software. 
Commodities and software and components that themselves qualify for 
mass market treatment, and activate or enable cryptographic 
functionality in mass market encryption products which would otherwise 
remain disabled, where the product or cryptographic functionality is 
not otherwise described in paragraph (b)(3)(i) of this section.
    (4) Exclusions from mass market classification request, encryption 
registration and self-classification reporting requirements. The 
following commodities and software do not require a submission of an 
encryption registration, classification request or self-classification 
report to BIS for export or reexport as mass market products:
    (i) Short-range wireless encryption functions. Commodities and 
software that are not otherwise controlled in Category 5, but are 
nonetheless classified under ECCN 5A992 or 5D992 only because they 
incorporate components or software that provide short-range wireless 
encryption functions (e.g., with a nominal operating range not 
exceeding 100 meters according to the manufacturer's specifications, 
designed to comply with the Institute of Electrical and Electronic 
Engineers (IEEE) 802.11 wireless LAN standard or the IEEE 802.15.1 
standard).

    Note to paragraph (b)(4)(i): An example of what this paragraph 
authorizes for export without classification, registration or self-
classification reporting is a laptop computer that without 
encryption would be classified under ECCN 4A994, and the Category 5, 
Part 2-controlled components of the laptop only implement short-
range wireless encryption functionality. On the other hand, this 
paragraph (b)(4)(i) does not apply to any commodities or software 
that would still be classified under an ECCN in Category 5 even if 
the short-range wireless encryption functionality were removed. For 
example, certain access points, gateways and bridges are classified 
under ECCN 5A991 without encryption functionality, and components 
for mobile communication equipment are classified under ECCN 5A991.g 
without encryption functionality. Such items, when implementing 
cryptographic functionality controlled by Category 5, Part 2 are not 
excluded from encryption classification, registration or self-
classification reporting by this paragraph.

    (ii) Foreign products developed with or incorporating U.S.-origin 
encryption source code, components, or toolkits. Foreign products 
developed with or incorporating U.S.-origin encryption source code, 
components or toolkits that are subject to the EAR, provided that the 
U.S.-origin encryption items have previously been classified or 
registered and authorized by BIS and the cryptographic functionality 
has not been changed. Such products include foreign-developed products 
that are designed to operate with U.S. products through a cryptographic 
interface.
    (5) [Reserved]
    (6) Examples of mass market encryption products. Subject to the 
requirements of the Cryptography Note (Note 3) in Category 5, Part 2, 
of the Commerce Control List, mass market encryption products include, 
but are not limited to, general purpose operating systems and desktop 
applications (e.g., e-mail, browsers, games, word processing, database, 
financial applications or utilities) designed for use with computers 
classified as ECCN 4A994 or designated as EAR99, laptops, or hand-held 
devices; commodities and software for client Internet appliances and 
client wireless LAN devices; home use networking commodities and 
software (e.g., personal firewalls, cable modems for personal 
computers, and consumer set top boxes); and portable or mobile civil 
telecommunications commodities and software (e.g., personal data 
assistants (PDAs), radios, or cellular products).
    (7) Mass market encryption registration and classification request 
procedures.

[[Page 36496]]

    (i) Submission requirements and instructions. To submit an 
encryption registration or classification request to BIS for certain 
mass market encryption items under this paragraph (b), you must submit 
an application to BIS in accordance with the procedures described in 
Sec. Sec.  748.1 and 748.3 of the EAR and the instructions in paragraph 
(r) of Supplement No. 2 to part 748 ``Unique Application and Submission 
Requirements'', along with other required information as follows:
    (A) Encryption registration in support of mass market encryption 
classification requests and self-classification reports. You must 
submit the applicable information as described in Supplement No. 5 to 
this part and follow the specific instructions of paragraph (r)(1) of 
Supplement No. 2 to part 748 of the EAR, if any of the following apply:
    (1) This is your first time submitting an encryption classification 
request under paragraph (b)(3) of this section since August 24, 2010;
    (2) You are making a mass market encryption product eligible for 
export and reexport (including as defined for encryption software in 
Sec.  734.2(b)(9) of the EAR) under paragraph (b)(1) of this section 
for the first time since August 24, 2010; or
    (3) If you have not otherwise provided BIS the information 
described in Supplement No. 5 to this part during the current calendar 
year and your answers to the questions in Supplement No. 5 to this part 
have changed since the last time you provided answers to the questions.
    (B) Technical information submission requirements. In addition to 
the registration requirements of paragraph (b)(7)(i)(A) of this 
section, for all submissions of encryption classification requests for 
mass market products described under paragraph (b)(3) of this section, 
you must also provide BIS the applicable information described in 
paragraphs (a) through (d) of Supplement No. 6 to this part (Technical 
Questionnaire for Encryption Items). For mass market products 
authorized after the submission of an encryption registration under 
paragraph (b)(1) of this section, you may be required to provide BIS 
this information described in Supplement No. 6 to this part on an as-
needed basis, upon request by BIS.
    (C) Changes in encryption functionality following a previous 
classification. A new mass market encryption classification request 
(under paragraph (b)(3) of this section) or self-classification (under 
paragraph (b)(1) of this section) is required if a change is made to 
the cryptographic functionality (e.g., algorithms) or other technical 
characteristics affecting mass market eligibility (e.g., performance 
enhancements to provide network infrastructure services, or 
customizations to end-user specifications) of the originally classified 
product. However, a new product classification request or self-
classification is not required when a change involves: the subsequent 
bundling, patches, upgrades or releases of a product; name changes; or 
changes to a previously reviewed encryption product where the change is 
limited to updates of encryption software components where the product 
is otherwise unchanged.
    (ii) Action by BIS.
    (A) Encryption registrations for mass market encryption items. Upon 
submission to BIS of an encryption registration in accordance with 
paragraph (b)(7)(i) of this section and acceptance of the application 
by SNAP-R, BIS will issue the Encryption Registration Number (ERN) via 
SNAP-R, which will constitute authorization under this paragraph (b). 
Immediately upon receiving your ERN from BIS, you may export and 
reexport mass market encryption products described in paragraph (b)(1) 
of this section using the symbol ``NLR''.
    (B) For mass market items requiring classification by BIS under 
paragraph (b)(3) of this section.
    (1) For mass market encryption classifications that require a 
thirty (30)-day waiting period, if BIS has not, within thirty (30) days 
from acceptance in SNAP-R of your complete classification request, 
informed you that your item is not authorized as a mass market item, 
you may export and reexport under the applicable provisions of this 
paragraph (b). If, during the course of its review, BIS determines that 
your encryption items do not qualify for mass market treatment under 
the EAR, or are otherwise classified under ECCN 5A002, 5B002, 5D002 or 
5E002, BIS will notify you and will review your items for eligibility 
under License Exception ENC (see Sec.  740.17 of the EAR for review and 
reporting requirements for encryption items under License Exception 
ENC).
    (2) Upon completion of its review, BIS will issue a Commodity 
Classification Automated Tracking System (CCATS) to you.
    (3) Hold Without Action (HWA) for mass market classification 
requests. BIS may hold your mass market classification request without 
action if necessary to obtain additional information or for any other 
reason necessary to ensure an accurate classification. Time on such 
``hold without action'' status shall not be counted towards fulfilling 
the thirty-day (30-day) processing period specified in this paragraph.
    (C) BIS may require you to supply additional relevant technical 
information about your encryption item(s) or information that pertains 
to their eligibility as mass market products at any time, before or 
after the expiration of the thirty-day (30-day) processing period 
specified in this paragraph and in paragraph (b)(3) of this section, or 
after any registrations as required in paragraph (b)(1) of this 
section. If you do not supply such information within 14 days after 
receiving a request from BIS, BIS may return your classification 
request without action or otherwise suspend or revoke your eligibility 
to use mass market authorization for that item. At your request, BIS 
may grant you up to an additional 14 days to provide the requested 
information. Any request for such an additional number of days must be 
made prior to the date by which the information was otherwise due to be 
provided to BIS and may be approved if BIS concludes that additional 
time is necessary.
    (c) Self-classification reporting for certain encryption 
commodities, software and components. This paragraph (c) sets forth 
requirements for self-classification reporting to BIS and the ENC 
Encryption Request Coordinator (Ft. Meade, MD) of encryption 
commodities, software and components exported or reexported pursuant to 
encryption registration under Sec. Sec.  740.17(b)(1) or 742.15(b)(1) 
of the EAR. Reporting is required, effective June 25, 2010.
    (1) When to report. Your self-classification report for applicable 
encryption commodities, software and components exported or reexported 
during a calendar year (January 1 through December 31) must be received 
by BIS and the ENC Encryption Request Coordinator no later than 
February 1 the following year.
    (2) How to report. Encryption self-classification reports must be 
sent to BIS and the ENC Encryption Request Coordinator via e-mail or 
regular mail. In your submission, specify the export timeframe that 
your report spans and identify points of contact to whom questions or 
other inquiries pertaining to the report should be directed. Follow 
these instructions for your submissions:
    (i) Submissions via e-mail. Submit your encryption self-
classification report electronically to BIS at [email protected] 
and to the ENC Encryption Request Coordinator at

[[Page 36497]]

[email protected], as an attachment to an e-mail. Identify your e-mail with 
subject ``Self-classification report for ERN 
R'', using your 
most recent ERN in the subject line (so as to correspond your 
encryption self-classification report to your most recent encryption 
registration ERN).
    (ii) Submissions on disks and CDs. The self-classification report 
may be sent to the following addresses, in lieu of e-mail:
    (A) Department of Commerce, Bureau of Industry and Security, Office 
of National Security and Technology Transfer Controls, 14th Street and 
Pennsylvania Ave., NW., Room 2705, Washington, DC 20230, Attn: 
Encryption Reports, and
    (B) Attn: ENC Encryption Request Coordinator, 9800 Savage Road, 
Suite 6940, Ft. Meade, MD 20755-6000.
    (3) Information to report. Your encryption self-classification 
report must include the information described in paragraph (a) of 
Supplement No. 8 to this part for each applicable encryption commodity, 
software and component exported or reexported pursuant to an encryption 
registration under Sec. Sec.  740.17(b)(1) or 742.15(b)(1) of the EAR. 
If no information has changed since the previously submitted report, 
you must either send an e-mail stating that nothing has changed since 
the previous report or submit a copy of the previously submitted 
report.
    (4) File format requirements. The information described in 
paragraph (a) of Supplement No. 8 to this part must be provided to BIS 
and the ENC Encryption Request Coordinator in tabular or spreadsheet 
form, as an electronic file in comma separated values format (.csv) 
adhering to the specifications set forth in paragraph (b) of Supplement 
No. 8 to this part.
    (d) Grandfathering. For mass market encryption commodities, 
software and components described in (or otherwise meeting the 
specifications of) paragraph (b) of this section effective June 25, 
2010, such items reviewed and classified by BIS as mass market products 
prior to June 25, 2010 are authorized for export and reexport under 
paragraph (b) of this section using the CCATS previously issued by BIS, 
without any encryption registration (i.e., the information described in 
Supplement No. 5 to this part), new classification by BIS, or self-
classification reporting (i.e., the information described in Supplement 
No. 8 to this part), provided the cryptographic functionality of the 
item has not changed. See paragraph (b)(7)(i)(C) of this section 
regarding changes in encryption functionality following a previous 
classification.


0
11. Supplement No. 5 is revised to read as follows:

Supplement No. 5 to Part 742--Encryption Registration

    Certain classification requests and self-classification reports for 
encryption items must be supported by an encryption registration, i.e., 
the information as described in this Supplement, submitted as a support 
documentation attachment to an application in accordance with the 
procedures described in Sec. Sec.  740.17(b), 740.17(d), 742.15(b), 
748.1, 748.3 and Supplement No. 2 to part 748 of the EAR.
    (1) Point of Contact Information
    (a) Contact Person
    (b) Telephone Number
    (c) Fax Number
    (d) E-mail address
    (e) Mailing Address
    (2) Company Overview (approximately 100 words).
    (3) Identify which of the following categories apply to your 
company's technology/families of products:
    (a) Wireless
    (i) 3G cellular
    (ii) 4G cellular/WiMax/LTE
    (iii) Short-range wireless/WLAN
    (iv) Satellite
    (v) Radios
    (vi) Mobile communications, n.e.s.
    (b) Mobile applications
    (c) Computing platforms
    (d) Multimedia over IP
    (e) Trusted computing
    (f) Network infrastructure
    (g) Link layer encryption
    (h) Smartcards or other identity management
    (i) Computer or network forensics
    (j) Software
    (i) Operating systems
    (ii) Applications
    (k) Toolkits/ASICs/components
    (l) Information security including secure storage
    (m) Gaming
    (n) Cryptanalytic tools
    (o) ``Open cryptographic interface'' (or other support for user-
supplied or non-standard cryptography)
    (p) Other (identify any not listed above)
    (q) Not Applicable (Not a producer of encryption or information 
technology items)
    (4) Describe whether the products incorporate or use proprietary, 
unpublished or non-standard cryptographic functionality, including 
encryption algorithms or protocols that have not been adopted or 
approved by a duly recognized international standards body. (If unsure, 
please explain.)
    (5) Will your company be exporting ``encryption source code''?
    (6) Do the products incorporate encryption components produced or 
furnished by non-U.S. sources or vendors? (If unsure, please explain.)
    (7) With respect to your company's encryption products, are any of 
them manufactured outside the United States? If yes, provide 
manufacturing locations. (Insert ``not applicable'', if you are not the 
principal producer of encryption products.)

0
12. Supplement No. 6 is revised to read as follows;

Supplement No. 6 to Part 742--Technical Questionnaire for Encryption 
Items

    (a) For all encryption items:
    (1) State the name(s) of each product being submitted for 
classification or other consideration (as a result of a request by BIS) 
and provide a brief non-technical description of the type of product 
(e.g., routers, disk drives, cell phones, and chips) being submitted, 
and provide brochures, data sheets, technical specifications or other 
information that describes the item(s).
    (2) Indicate whether there have been any prior classifications or 
registrations of the product(s), if they are applicable to the current 
submission. For products with minor changes in encryption 
functionality, you must include a cover sheet with complete reference 
to the previous review (Commodity Classification Automated Tracking 
System (CCATS) number, Encryption Registration Number (ERN), Export 
Control Classification Number (ECCN), authorization paragraph) along 
with a clear description of the changes.
    (3) Describe how encryption is used in the product and the 
categories of encrypted data (e.g., stored data, communications, 
management data, and internal data).
    (4) For `mass market' encryption products, describe specifically to 
whom and how the product is being marketed and state how this method of 
marketing and other relevant information (e.g., cost of product and 
volume of sales) are described by the Cryptography Note (Note 3 to 
Category 5, Part 2).
    (5) Is any ``encryption source code'' being provided (shipped or 
bundled) as part of this offering? If yes, is this source code publicly 
available source code, unchanged from the code obtained from an open 
source Web site, or is it proprietary ``encryption source code?''
    (b) For classification requests and other submissions for an 
encryption

[[Page 36498]]

commodity or software, provide the following information:
    (1) Description of all the symmetric and asymmetric encryption 
algorithms and key lengths and how the algorithms are used, including 
relevant parameters, inputs and settings. Specify which encryption 
modes are supported (e.g., cipher feedback mode or cipher block 
chaining mode).
    (2) State the key management algorithms, including modulus sizes 
that are supported.
    (3) For products with proprietary algorithms, include a textual 
description and the source code of the algorithm.
    (4) Describe the pre-processing methods (e.g., data compression or 
data interleaving) that are applied to the plaintext data prior to 
encryption.
    (5) Describe the post-processing methods (e.g., packetization, 
encapsulation) that are applied to the cipher text data after 
encryption.
    (6) State all communication protocols (e.g., X.25, Telnet, TCP, 
IEEE 802.11, IEEE 802.16, SIP * * *) and cryptographic protocols and 
methods (e.g., SSL, TLS, SSH, IPSEC, IKE, SRTP, ECC, MD5, SHA, X.509, 
PKCS standards * * *) that are supported and describe how they are 
used.
    (7) Describe the encryption-related Application Programming 
Interfaces (APIs) that are implemented and/or supported. Explain which 
interfaces are for internal (private) and/or external (public) use.
    (8) Describe the cryptographic functionality that is provided by 
third-party hardware or software encryption components (if any). 
Identify the manufacturers of the hardware or software components, 
including specific part numbers and version information as needed to 
describe the product. Describe whether the encryption software 
components (if any) are statically or dynamically linked.
    (9) For commodities or software using Java byte code, describe the 
techniques (including obfuscation, private access modifiers or final 
classes) that are used to protect against decompilation and misuse.
    (10) State how the product is written to preclude user modification 
of the encryption algorithms, key management and key space.
    (11) Describe whether the product meets any of the Sec.  
740.17(b)(2) criteria. Provide specific data for each of the parameters 
listed, as applicable (e.g., maximum aggregate encrypted user data 
throughput, maximum number of concurrent encrypted channels, and 
operating range for wireless products).
    (12) For products which incorporate an ``open cryptographic 
interface'' as defined in part 772 of the EAR, describe the 
cryptographic interface.
    (c) For classification requests for hardware or software 
``encryption components'' other than source code (i.e., chips, 
toolkits, executable or linkable modules intended for use in or 
production of another encryption item) provide the following additional 
information:
    (1) Reference the application for which the components are used in, 
if known;
    (2) State if there is a general programming interface to the 
component;
    (3) State whether the component is constrained by function; and
    (4) Identify the encryption component and include the name of the 
manufacturer, component model number or other identifier.
    (d) For classification requests for ``encryption source code'' 
provide the following information:
    (1) If applicable, reference the executable (object code) product 
that was previously classified by BIS or included in an encryption 
registration to BIS;
    (2) Include whether the source code has been modified, and the 
technical details on how the source code was modified; and
    (3) Upon request, include a copy of the sections of the source code 
that contain the encryption algorithm, key management routines and 
their related calls.


0
13. Supplement No. 8 is added to read as follows:

Supplement No. 8 to Part 742--Self-Classification Report for Encryption 
Items

    This supplement provides certain instructions and requirements for 
self-classification reporting to BIS and the ENC Encryption Request 
Coordinator (Ft. Meade, MD) of encryption commodities, software and 
components exported or reexported pursuant to encryption registration 
under License Exception ENC (Sec.  740.17(b)(1) only) or ``mass 
market'' (Sec.  742.15(b)(1) only) provisions of the EAR. See Sec.  
742.15(c) of the EAR for additional instructions and requirements 
pertaining to this supplement, including when to report and how to 
report.
    (a) Information to report. The following information is required in 
the file format as described in paragraph (b) of this supplement, for 
each encryption item subject to the requirements of this supplement and 
Sec. Sec.  740.17(b)(1) and 742.15(b)(1) of the EAR:
    (1) Name of product (50 characters or less).
    (2) Model/series/part number (50 characters or less.) If necessary, 
enter `NONE' or `N/A'.
    (3) Primary manufacturer (50 characters or less). Enter `SELF' if 
you are the primary manufacturer of the item. If there are multiple 
manufacturers for the item but none is clearly primary, either enter 
the name of one of the manufacturers or else enter `MULTIPLE'. If 
necessary, enter `NONE' or `N/A'.
    (4) Export Control Classification Number (ECCN), selected from one 
of the following:

(i) 5A002
(ii) 5B002
(iii) 5D002
(iv) 5A992
(v) 5D992

    (5) Encryption authorization type identifier, selected from one of 
the following, which denote eligibility under License Exception ENC 
(Sec.  740.17(b)(1), only) or as `mass market' (Sec.  742.15(b)(1), 
only):

(i) ENC
(ii) MMKT

    (6) Item type descriptor, selected from one of the following:

(i) Access point
(ii) Cellular
(iii) Computer
(iv) Computer forensics
(v) Cryptographic accelerator
(vi) Data backup and recovery
(vii) Database
(viii) Disk/drive encryption
(ix) Distributed computing
(x) E-mail communications
(xi) Fax communications
(xii) File encryption
(xiii) Firewall
(xiv) Gateway
(xv) Intrusion detection
(xvi) Key exchange
(xvii) Key management
(xviii) Key storage
(xix) Link encryption
(xx) Local area networking (LAN)
(xxi) Metropolitan area networking (MAN)
(xxii) Modem
(xxiii) Network convergence or infrastructure n.e.s.
(xxiv) Network forensics
(xxv) Network intelligence
(xxvi) Network or systems management (OAM/OAM&P)
(xxvii) Network security monitoring
(xxviii) Network vulnerability and penetration testing
(xxix) Operating system
(xxx) Optical networking
(xxxi) Radio communications
(xxxii) Router
(xxxiii) Satellite communications
(xxxiv) Short-range wireless n.e.s.

[[Page 36499]]

(xxxv) Storage area networking (SAN)
(xxxvi) 3G/4G/LTE/WiMAX
(xxxvii) Trusted computing
(xxxviii) Videoconferencing
(xxxix) Virtual private networking (VPN)
(xl) Voice communications n.e.s.
(xli) Voice over Internet protocol (VoIP)
(xlii) Wide area networking (WAN)
(xliii) Wireless local area networking (WLAN)
(xliv) Wireless personal area networking (WPAN)
(xlv) Commodities n.e.s.
(xlvi) Components n.e.s.
(xlvii) Software n.e.s.
(xlviii) Test equipment n.e.s.
(xlix) OTHER

    (b) File format requirements.
    (1) The information described in paragraph (a) of this supplement 
must be provided in tabular or spreadsheet form, as an electronic file 
in comma separated values format (.csv), only. No file formats other 
than .csv will be accepted, as your encryption self-classification 
report must be directly convertible to tabular or spreadsheet format, 
where each row (and all entries within a row) properly correspond to 
the appropriate encryption item.

    Note to paragraph (b)(1): An encryption self-classification 
report data table created and stored in spreadsheet format (e.g., 
file extension .xls, .numbers, .qpw, .wb*, .wrk, and .wks) can be 
converted and saved into a comma delimited file format directly from 
the spreadsheet program. This .csv file is then ready for 
submission.

    (2) Each line of your encryption self-classification report (.csv 
file) must consist of six entries as further described in this 
supplement.
    (3) The first line of the .csv file must consist of the following 
six entries (i.e., match the following) without alteration or 
variation: PRODUCT NAME, MODEL NUMBER, MANUFACTURER, ECCN, 
AUTHORIZATION TYPE, ITEM TYPE.

    Note to paragraph (b)(3): These first six entries (i.e., first 
line) of a encryption self-classification report in .csv format 
correspond to the six column headers (i.e., first row) of a 
spreadsheet data file.

    (4) Each subsequent line of the .csv file must correspond to a 
single encryption item (or a distinguished series of products) as 
described in paragraph (c) of this supplement.
    (5) Each line must consist of six entries as described in paragraph 
(a)(1), (a)(2), (a)(3), (a)(4), (a)(5), and (a)(6) of this supplement. 
No entries may be left blank. Each entry must be separated by a comma 
(,). Certain additional instructions are as follows:
    (i) Line entries (a)(1) (`PRODUCT NAME') and (a)(4) (`ECCN') must 
be completed with relevant information.
    (ii) For entries (a)(2) (`MODEL NUMBER') and (a)(3) 
(`MANUFACTURER'), if these entries do not apply to your item or 
situation you may enter `NONE' or `N/A'.
    (iii) For entries (a)(5) (`AUTHORIZATION TYPE'), if none of the 
provided choices apply to your situation, you may enter `OTHER'.
    (6) Because of .csv file format requirements, the only permitted 
use of a comma is as the necessary separator between line entries. You 
may not use a comma for any other reason in your encryption self-
classification report.
    (c) Other instructions.
    (1) The information provided in accordance with this supplement and 
Sec. Sec.  740.17(b)(1), 742.15(b)(1) and 742.15(c) of the EAR must 
identify product offerings as they are typically distinguished in 
inventory, catalogs, marketing brochures and other promotional 
materials.
    (2) For families of products where all the information described in 
paragraph (a) of this supplement is identical except for the model/
series/part number (entry (a)(2)), you may list and describe these 
products with a single line in your .csv file using an appropriate 
model/series/part number identifier (e.g., `300' or `3xx') for entry 
(a)(2), provided each line in your .csv file corresponds to a single 
product series (or product type) within an overall product family.
    (3) For example, if Company A produces, markets and sells both a 
`100' (`1xx') and a `300' (`3xx') series of product, in its encryption 
self-classification report (.csv file) Company A must list the `100' 
product series in one line (with entry (a)(2) completed as `100' or 
`1xx') and the `300' product series in another line (with entry (a)(2) 
completed as `300' or `3xx'), even if the other required information is 
common to all products in the `100' and `300' series.

PART 748--[AMENDED]

0
14. The authority citations for part 748 continue to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 
FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 13, 2009, 74 
FR 41325 (August 14, 2009).


0
15. Section 748.1 is amended by:
0
a. Revising the first two sentences of the introductory text to 
paragraph (a);
0
b. Revising introductory text to paragraph (d); and
0
c. Revising paragraph (d)(1)(i), to read as follows:


Sec.  748.1  General provisions.

    (a) Scope. In this part, references to the Export Administration 
Regulations or EAR are references to 15 CFR chapter VII, subchapter C. 
The provisions of this part involve requests for classifications and 
advisory opinions, export license applications, encryption 
registration, reexport license applications, and certain license 
exception notices subject to the EAR. * * *
* * * * *
    (d) Electronic Filing Required. All export and reexport license 
applications (other than Special Comprehensive License or Special Iraq 
Reconstruction License applications), encryption registrations, license 
exception AGR notifications, and classification requests and their 
accompanying documents must be filed via BIS's Simplified Network 
Application Processing system (SNAP-R), unless BIS authorizes 
submission via the paper forms BIS 748-P (Multipurpose Application 
Form), BIS-748P-A (Item Appendix) and BIS-748P-B, (End-User Appendix). 
Only original paper forms may be used. Facsimiles or reproductions are 
not acceptable.
    (1) * * *
    (i) BIS has received no more than one submission (i.e. the total 
number of export license applications, reexport license applications, 
license exception AGR notifications, and classification requests) from 
that party in the twelve months immediately preceding its receipt of 
the current submission;
* * * * *

0
16. Section 748.3 is amended by revising the section heading and 
paragraphs (a) and (d) to read as follows:


Sec.  748.3  Classification requests, advisory opinions, and encryption 
registrations.

* * * * *
    (a) Introduction. You may ask BIS to provide you with the correct 
Export Control Classification Number down to the paragraph (or 
subparagraph) level, if appropriate. BIS will advise you whether or not 
your item is subject to the EAR and, if applicable, the appropriate 
ECCN. This type of request is commonly referred to as a 
``Classification Request.'' If requested, for a given end-use, end-
user, and/or destination, BIS will advise you whether a license is 
required, or likely to be granted, for a particular transaction. Note 
that these responses do not bind BIS to issuing a license in the 
future. This type of request, along with requests for guidance 
regarding other interpretations of the EAR, is commonly referred to as 
an ``Advisory Opinion.'' The encryption provisions in

[[Page 36500]]

the EAR require the submission of an encryption registration or 
classification request in accordance with Sec.  740.17(d) of the EAR in 
order for certain items to be eligible for export and reexport under 
License Exception ENC (see Sec.  740.17 of the EAR) or to be released 
from ``EI'' controls (see Sec. Sec.  742.15(b)(1) and 742.15(b)(3) of 
the EAR).
* * * * *
    (d) Classification requests and encryption registration for 
encryption items. A classification request or encryption registration 
associated with encryption items transferred from the U.S. Munitions 
List consistent with Executive Order 13026 of November 15, 1996 (3 CFR, 
1996 Comp., p. 228) and pursuant to the Presidential Memorandum of that 
date may be required to determine eligibility under License Exception 
ENC or for release from ``EI'' controls. Refer to Supplement No. 5 to 
part 742 of the EAR for information that must be included in the 
encryption registration, which must be submitted in support of certain 
encryption classification requests and self-classification reports. 
Refer to Supplement No. 6 to part 742 of the EAR for a complete list of 
technical information that is required for encryption classification 
requests. Refer to Sec.  742.15(c) and Supplement No. 8 to part 742 of 
the EAR for information that is required to be submitted in a self-
classification report. Refer to Sec.  742.15(b) of the EAR for 
instructions regarding mass market encryption commodities and software, 
including encryption registration, self-classifications and 
classification requests. Refer to Sec.  740.17 of the EAR for the 
provisions of License Exception ENC, including encryption registration, 
self-classifications, classification requests and sales reporting. All 
classification requests, registrations, and reports submitted to BIS 
pursuant to Sec. Sec.  740.17 and 742.15(b) of the EAR for encryption 
items will be reviewed by the ENC Encryption Request Coordinator, Ft. 
Meade, MD.


0
17. Section 748.8 is amended by removing from paragraph (r) the phrase 
``Encryption review requests.'' and adding in its place ``Encryption 
classification requests and encryption registrations.''


0
18. Supplement No. 1 is amended by revising the paragraph for block 5 
to read as follows:

Supplement No. 1 to Part 748--BIS-748P, BIS-748P-A: Item Appendix, and 
BIS-748P-B: End-User Appendix; Multipurpose Application Instructions

* * * * *
    Block 5: Type of Application. Export. If the items are located 
within the United States, and you wish to export those items, mark the 
Box labeled ``Export'' with an (X). Reexport. If the items are located 
outside the United States, mark the Box labeled ``Reexport'' with an 
(X). Classification. If you are requesting BIS to classify your item 
against the Commerce Control List (CCL), mark the Box labeled 
``Classification Request'' with an (X). Encryption Registration. If you 
are requesting encryption registration under License Exception ENC 
(Sec.  740.17 of the EAR) or ``mass market'' encryption provisions 
(Sec.  742.15(b) of the EAR), mark the Box labeled ``Encryption 
Registration'' with an (X). Special Comprehensive License. If you are 
submitting a Special Comprehensive License application in accordance 
with the procedures described in part 752 of the EAR, mark the Box 
labeled ``Special Comprehensive License'' with an (X).
* * * * *

0
19. Supplement No. 2 is amended by revising paragraph (r) to read as 
follows:

Supplement No. 2 to Part 748--Unique Application and Submission 
Requirements

* * * * *
    (r) Encryption registrations and classification requests. Failure 
to follow the instructions in this paragraph may delay consideration of 
your encryption classification request or encryption registration.
    (1) Encryption registration. Fill out blocks 1-4, 14, 15, 24, and 
25 pursuant to the instructions in Supplement No. 1 to this Part. Leave 
blocks 6, 7, 8, 9-13, and 16-23 blank. In Block 5 (Type of 
Application), place an ``X'' in the box marked ``Encryption 
Registration''.
    (2) Classification Requests. Fill out blocks 1-4, 14, 15, 22, and 
25 pursuant to the instructions in Supplement No. 1 to this Part. Leave 
blocks 6, 7, 8, 10-13, 18-21, and 23 blank. Follow the directions 
specified for the blocks indicated below.
    (i) In Block 5 (Type of Application), place an ``X'' in the box 
marked ``classification'' or ``commodity classification'' if submitting 
electronically for classification requests.
    (ii) In Block 9 (Special Purpose).
    (A) If submitting via SNAP-R, check the box ``check here if you are 
submitting information about encryption required by 740.17 or 742.15 of 
the EAR.''
    (B) From the drop down menu in SNAP-R, choose:
    (1) ``License Exception ENC'' if you are submitting an encryption 
classification request for specified License Exception ENC provisions 
(Sec. Sec.  740.17(b)(2) or (b)(3) of the EAR);
    (2) ``Mass Market Encryption'' if you are submitting an encryption 
classification request for certain mass market encryption items (Sec.  
742.15(b)(3) of the EAR).
    (3) ``Encryption--other'' if you are submitting an encryption 
classification, for another reason.
    (iii) In Block 24 (Additional Information), insert your most recent 
Encryption Registration Number (ERN).
* * * * *

PART 772--[AMENDED]

0
20. The authority citation for part 772 continues to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 
13, 2009, 74 FR 41325 (August 14, 2009).


0
21. Section 772.1 is amended by:
0
a. Removing the definition, nota bene and footnote No. 1 for 
``ancillary cryptography'';
0
b. Removing the definition for ``personalized smart card''; and
0
c. Adding in alphabetical order the definition for ``non-standard 
cryptography'', to read as follows:


Sec.  772.1  Definitions of Terms.

* * * * *
    Non-standard cryptography. Means any implementation of 
``cryptography'' involving the incorporation or use of proprietary or 
unpublished cryptographic functionality, including encryption 
algorithms or protocols that have not been adopted or approved by a 
duly recognized international standards body (e.g., IEEE, IETF, ISO, 
ITU, ETSI, 3GPP, TIA, and GSMA) and have not otherwise been published.
* * * * *

PART 774--[AMENDED]

0
22. The authority citation for part 774 continues to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et 
seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 
U.S.C. 6212; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 
783; Notice of August 13, 2009, 74 FR 41325 (August 14, 2009).


0
23. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 5 Telecommunications and ``Information Security'', Part II 
Information Security is amended by:

[[Page 36501]]

0
a. Revising the Nota Bene to the Note 3 (Cryptography Note); and
0
b. Adding a new Note 4 to the beginning of Category 5 part II, to read 
as follows:

Supplement No. 1 to Part 774--The Commerce Control List

* * * * *

CATEGORY 5--TELECOMMUNICATIONS AND ``INFORMATION SECURITY'' Part II. 
``INFORMATION SECURITY''

* * * * *
    N.B. to Note 3 (Cryptography Note): You must submit a 
classification request or encryption registration to BIS for mass 
market encryption commodities and software eligible for the 
Cryptography Note employing a key length greater than 64 bits for the 
symmetric algorithm (or, for commodities and software not implementing 
any symmetric algorithms, employing a key length greater than 768 bits 
for asymmetric algorithms or greater than 128 bits for elliptic curve 
algorithms) in accordance with the requirements of Sec.  742.15(b) of 
the EAR in order to be released from the ``EI'' and ``NS'' controls of 
ECCN 5A002 or 5D002.

    Note 4: Category 5, Part 2 does not apply to items incorporating 
or using ``cryptography'' and meeting all of the following:
    a. The primary function or set of functions is not any of the 
following:
    1. ``Information security'';
    2. A computer, including operating systems, parts and components 
therefor;
    3. Sending, receiving or storing information (except in support 
of entertainment, mass commercial broadcasts, digital rights 
management or medical records management); or
    4. Networking (includes operation, administration, management 
and provisioning);
    b. The cryptographic functionality is limited to supporting 
their primary function or set of functions; and
    c. When necessary, details of the items are accessible and will 
be provided, upon request, to the appropriate authority in the 
exporter's country in order to ascertain compliance with conditions 
described in paragraphs a. and b. above.

* * * * *

0
24. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 5 Telecommunications and ``Information Security'', Part 2 
Information Security, ECCN 5A002 is amended by revising the Related 
Controls and the Items paragraph of the List of Items Controlled 
section, to read as follows:

5A002 ``Information security'' systems, equipment and components 
therefor, as follows (see List of Items Controlled).
* * * * *

List of Items Controlled

Unit: * * *
Related Controls: (1) 5A002 does not control the commodities listed in 
paragraphs (a), (d), (e), (f), (g) and (i) in the Note in the items 
paragraph of this entry. These commodities are instead classified under 
ECCN 5A992, and related software and technology are classified under 
ECCNs 5D992 and 5E992 respectively. (2) After encryption registration 
to or classification by BIS, mass market encryption commodities that 
meet eligibility requirements are released from ``EI'' and ``NS'' 
controls. These commodities are classified under ECCN 5A992.c. See 
Sec.  742.15(b) of the EAR.
Related Definitions: * * *
Items:

    Note: 5A002 does not control any of the following. However, 
these items are instead controlled under 5A992:
    (a) Smart cards and smart card `readers/writers' as follows:
    (1) A smart card or an electronically readable personal document 
(e.g., token coin, e-passport) that meets any of the following:
    a. The cryptographic capability is restricted for use in 
equipment or systems excluded from 5A002 by Note 4 in Category 5--
Part 2 or entries (b) to (i) of this Note, and cannot be 
reprogrammed for any other use; or
    b. Having all of the following:
    1. It is specially designed and limited to allow protection of 
`personal data' stored within;
    2. Has been, or can only be, personalized for public or 
commercial transactions or individual identification; and
    3. Where the cryptographic capability is not user-accessible;
    Technical Note: `Personal data' includes any data specific to a 
particular person or entity, such as the amount of money stored and 
data necessary for authentication.
    (2) `Readers/writers' specially designed or modified, and 
limited, for items specified by (a)(1) of this Note.
    Technical Note: `Readers/writers' include equipment that 
communicates with smart cards or electronically readable documents 
through a network.
    (b) [Reserved]
    N.B.: See Note 4 in Category 5--Part 2 for items previously 
specified in 5A002 Note (b).
    (c) [Reserved]
    N.B.: See Note 4 in Category 5--Part 2 for items previously 
specified in 5A002 Note (c).
    (d) Cryptographic equipment specially designed and limited for 
banking use or `money transactions';
    Technical Note: The term `money transactions' includes the 
collection and settlement of fares or credit functions.
    (e) Portable or mobile radiotelephones for civil use (e.g., for 
use with commercial civil cellular radio communication systems) that 
are not capable of transmitting encrypted data directly to another 
radiotelephone or equipment (other than Radio Access Network (RAN) 
equipment), nor of passing encrypted data through RAN equipment 
(e.g., Radio Network Controller (RNC) or Base Station Controller 
(BSC));
    (f) Cordless telephone equipment not capable of end-to-end 
encryption where the maximum effective range of unboosted cordless 
operation (i.e., a single, unrelayed hop between terminal and home 
base station) is less than 400 meters according to the 
manufacturer's specifications;
    (g) Portable or mobile radiotelephones and similar client 
wireless devices for civil use, that implement only published or 
commercial cryptographic standards (except for anti-piracy 
functions, which may be non-published) and also meet the provisions 
of paragraphs b. to d. of the Cryptography Note (Note 3 in Category 
5--Part 2), that have been customized for a specific civil industry 
application with features that do not affect the cryptographic 
functionality of these original non-customized devices; or
    (h) [Reserved]
    N.B.: See Note 4 in Category 5--Part 2 for items previously 
specified in 5A002 Note (h).
    (i) Wireless ``personal area network'' equipment that implement 
only published or commercial cryptographic standards and where the 
cryptographic capability is limited to a nominal operating range not 
exceeding 30 meters according to the manufacturer's specifications.

    a. Systems, equipment, application specific ``electronic 
assemblies'', modules and integrated circuits for ``information 
security'', as follows, and components therefor specially designed for 
``information security'':
    N.B.: For the control of Global Navigation Satellite Systems (GNSS) 
receiving equipment containing or employing decryption, see ECCN 7A005.
    a.1. Designed or modified to use ``cryptography'' employing digital 
techniques performing any cryptographic function other than 
authentication or digital signature and having any of the following:

    Technical Notes: 1. Authentication and digital signature 
functions include their associated key management function.
    2. Authentication includes all aspects of access control where 
there is no encryption of files or text except as directly related 
to the protection of passwords, Personal Identification Numbers 
(PINs) or similar data to prevent unauthorized access.
    3. ``Cryptography'' does not include ``fixed'' data compression 
or coding techniques.


    Note: 5A002.a.1 includes equipment designed or modified to use 
``cryptography'' employing analog principles when implemented with 
digital techniques.

    a.1.a. A ``symmetric algorithm'' employing a key length in excess 
of 56-bits; or

[[Page 36502]]

    a.1.b. An ``asymmetric algorithm'' where the security of the 
algorithm is based on any of the following:
    a.1.b.1. Factorization of integers in excess of 512 bits (e.g., 
RSA);
    a.1.b.2. Computation of discrete logarithms in a multiplicative 
group of a finite field of size greater than 512 bits (e.g., Diffie-
Hellman over Z/pZ); or
    a.1.b.3. Discrete logarithms in a group other than mentioned in 
5A002.a.1.b.2 in excess of 112 bits (e.g., Diffie-Hellman over an 
elliptic curve);
    a.2. Designed or modified to perform cryptanalytic functions;
    a.3. [Reserved]
    a.4. Specially designed or modified to reduce the compromising 
emanations of information-bearing signals beyond what is necessary for 
health, safety or electromagnetic interference standards;
    a.5. Designed or modified to use cryptographic techniques to 
generate the spreading code for ``spread spectrum'' systems, not 
controlled in 5A002.a.6., including the hopping code for ``frequency 
hopping'' systems;
    a.6. Designed or modified to use cryptographic techniques to 
generate channelizing codes, scrambling codes or network identification 
codes, for systems using ultra-wideband modulation techniques and 
having any of the following:
    a.6.a. A bandwidth exceeding 500 MHz; or
    a.6.b. A ``fractional bandwidth'' of 20% or more;
    a.7. Non-cryptographic information and communications technology 
(ICT) security systems and devices evaluated to an assurance level 
exceeding class EAL-6 (evaluation assurance level) of the Common 
Criteria (CC) or equivalent;
    a.8. Communications cable systems designed or modified using 
mechanical, electrical or electronic means to detect surreptitious 
intrusion;
    a.9. Designed or modified to use `quantum cryptography.'

    Technical Notes: 1. `Quantum cryptography' A family of 
techniques for the establishment of a shared key for 
``cryptography'' by measuring the quantum-mechanical properties of a 
physical system (including those physical properties explicitly 
governed by quantum optics, quantum field theory, or quantum 
electrodynamics).
    2. `Quantum cryptography' is also known as Quantum Key 
Distribution (QKD).


0
25. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 5 Telecommunications and ``Information Security'', Part 2 
Information Security, ECCN 5A992 is amended by revising paragraph c. in 
the items paragraph of the List of Items Controlled section, to read as 
follows:

5A992 Equipment not controlled by 5A002.
* * * * *

List of Items Controlled

* * * * *
Items:
* * * * *
    c. Commodities that BIS has received an encryption registration or 
that have been classified as mass market encryption commodities in 
accordance with Sec.  742.15(b) of the EAR.
* * * * *

0
26. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 5 Telecommunications and ``Information Security'', Part 2 
``Information Security'', ECCN 5D002 is amended by revising the Related 
Controls paragraph in the List of Items Controlled section, to read as 
follows:
``5D002 ``Software'' as follows (see List of Items Controlled).
* * * * *

List of Items Controlled

* * * * *
Related Controls: (1) This entry does not control ``software'' 
``required'' for the ``use'' of equipment excluded from control under 
the Related Controls paragraph or the Technical Notes in ECCN 5A002 or 
``software'' providing any of the functions of equipment excluded from 
control under ECCN 5A002. This software is classified as ECCN 5D992. 
(2) After an encryption registration has been submitted to BIS or 
classification by BIS, mass market encryption software that meet 
eligibility requirements are released from ``EI'' and ``NS'' controls. 
This software is classified under ECCN 5D992.c. See Sec.  742.15(b) of 
the EAR.
* * * * *

0
27. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 5 Telecommunications and ``Information Security'', Part 2 
Information Security, ECCN 5D992 is amended by revising paragraph c. of 
the Items paragraph of the List of Items Controlled section, to read as 
follows:
5D992 ``Information Security'' ``software'' not controlled by 5D002.
* * * * *

List of Items Controlled

* * * * *
Items:
* * * * *
    c. ``Software'' that BIS has received an encryption registration or 
that have been classified as mass market encryption software in 
accordance with Sec.  742.15(b) of the EAR.
* * * * *

0
28. Supplement No. 3 is revised to read as follows:

Supplement No. 3 to Part 774--Statements of Understanding

    (a) Statement of Understanding--medical equipment. Commodities that 
are ``specially designed for medical end-use'' that ``incorporate'' 
commodities or software on the Commerce Control List (Supplement No. 1 
to part 774 of the EAR) that do not have a reason for control of 
Nuclear Nonproliferation (NP), Missile Technology (MT), or Chemical & 
Biological Weapons (CB) are designated by the number EAR99 (i.e., are 
not elsewhere specified on the Commerce Control List).

    Notes to paragraph a: (1) ``Specially designed for medical end-
use'' means designed for medical treatment or the practice of 
medicine (does not include medical research).
    (2) Commodities or software are considered ``incorporated'' if 
the commodity or software is: Essential to the functioning of the 
medical equipment; customarily included in the sale of the medical 
equipment; and exported or reexported with the medical equipment.
    (3) Except for such software that is made publicly available 
consistent with Sec.  734.3(b)(3) of the EAR, commodities and 
software ``specially designed for medical end-use'' remain subject 
to the EAR.
    (4) See also Sec.  770.2(b) interpretation 2, for other types of 
equipment that incorporate items on the Commerce Control List that 
are subject to the EAR.
    (5) For computers used with medical equipment, see also ECCN 
4A003 note 2 regarding the ``principal element'' rule.
    (6) For commodities and software specially designed for medical 
end-use that incorporate an encryption or other ``information 
security'' item subject to the EAR, see also Note 1 to Category 5, 
Part II of the Commerce Control List.

    (b) Statement of Understanding--Source Code. For the purpose of 
national security controlled items, ``source code'' items are 
controlled either by ``software'' or by ``software'' and ``technology'' 
controls, except when such ``source code'' items are explicitly 
decontrolled.
    (c) Category 5--Part 2--Note 4 Statement of Understanding. All 
items previously described by Notes (b), (c) and (h) to 5A002 are now 
described by Note 4 to Category 5--Part 2. Note (h) to 5A002 prior to 
June 25, 2010 stated that the following was not controlled by 5A002:
    Equipment specially designed for the servicing of portable or 
mobile radiotelephones and similar client wireless devices that meet 
all the

[[Page 36503]]

provisions of the Cryptography Note (Note 3 in Category 5, Part 2), 
where the servicing equipment meets all of the following:
    (1) The cryptographic functionality of the servicing equipment 
cannot easily be changed by the user of the equipment;
    (2) The servicing equipment is designed for installation without 
further substantial support by the supplier; and
    (3) The servicing equipment cannot change the cryptographic 
functionality of the device being serviced.

    Dated: June 17, 2010.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2010-15072 Filed 6-24-10; 8:45 am]
BILLING CODE 3510-33-P