[Federal Register Volume 88, Number 179 (Monday, September 18, 2023)]
[Rules and Regulations]
[Pages 63840-63841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20128]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 734

[Docket No. 230907-0214]
RIN 0694-AJ37


Export Administration Regulations (EAR): Transfer of Access 
Information and Release of Software (Source Code and Object Code)

AGENCY: Bureau of Industry and Security, Department of Commerce.

ACTION: Final rule; technical correction.

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SUMMARY: In this final rule, the Bureau of Industry and Security (BIS) 
amends the Export Administration Regulations (EAR) to make a technical 
correction that also serves to clarify provisions of the EAR pertaining 
to the release of ``software'' as set out in the sections on release 
and transfer of access information. This final rule clarifies an 
ambiguity in the EAR by adding a cross-reference addressing transfer of 
access information in the section on releases of ``technology'' and 
``software,'' as was originally intended. In addition, this final rule 
adds a clarifying note that, for purposes of transfer of access 
information, a release of ``software'' includes both source code and 
object code.

DATES: This rule is effective September 18, 2023.

FOR FURTHER INFORMATION CONTACT: For questions on these technical 
corrections, contact Eileen Albanese, Director, Office of National 
Security and Technology Transfer Controls, Bureau of Industry and 
Security, Department of Commerce, Phone: (202) 482-0092, Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    In this final rule, BIS amends the EAR to make a technical 
correction that also serves to clarify provisions of the EAR that 
pertain to the release of ``software.'' On June 3, 2016, BIS published 
the final rule, Revisions to Definitions in the Export Administration 
Regulations (81 FR 35568) (June 3 rule). The June 3 rule added 
provisions to address releases of ``technology'' and ``software'' under 
Sec.  734.15 and transfer of access information under Sec.  734.19. In 
Sec.  734.15, this final rule clarifies an ambiguity by adding a cross 
reference to Sec.  734.19. In Sec.  734.19, this final rule adds a new 
note to the section clarifying that for purposes of transfer of access 
information, a release of ``software'' includes source code and object 
code.

[[Page 63841]]

    The definition of the term ``software'' in Sec.  772.1 includes 
both source code and object code, and ``software'' is used as a defined 
term in Sec.  734.19. Accordingly, the note added in this rule will 
eliminate potential uncertainty that the Sec.  734.15 definition of 
``release'' limits Sec.  734.19 to only controlling transfers of access 
information that release source code, rather than both source code and 
object code.

Export Control Reform Act of 2018

    On August 13, 2018, the President signed into law the John S. 
McCain National Defense Authorization Act for Fiscal Year 2019, which 
included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-
4852). ECRA provides the legal basis for BIS's principal authorities 
and serves as the authority under which BIS issues this rule.

Rulemaking Requirements

    1. This rule has been determined to be not significant for purposes 
of Executive Order 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to or 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 regulation involves an 
information collection approved by OMB under control number 0694-0088, 
Simplified Network Application Processing System. BIS does not 
anticipate a change to the burden hours associated with this collection 
as a result of this rule. Information regarding the collection, 
including all supporting materials, can be accessed at https://www.reginfo.gov/public/do/PRAMain.
    3. This rule does not contain policies with federalism implications 
as that term is defined in Executive Order 13132.
    4. Pursuant to section 1762 of the Export Control Reform Act of 
2018, this action is exempt from the Administrative Procedure Act (5 
U.S.C. 553) requirements for notice of proposed rulemaking, opportunity 
for public participation, and delay in effective date.
    5. Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule by 5 U.S.C. 
553, or by any other law, the analytical requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. 
Accordingly, no regulatory flexibility analysis is required, and none 
has been prepared.

List of Subjects 15 CFR Part 734

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

    Accordingly, 15 CFR part 734 is corrected by making the following 
correcting amendments:

PART 734--SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS

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

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 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; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., 
p. 223; Notice of November 8, 2022, 87 FR 68015 (November 10, 2022).


0
2. Section 734.15 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec.  734.15  Release.

    (a) Except as set forth in Sec. Sec.  734.18 and 734.19, 
``technology'' and ``software'' are ``released'' through:
* * * * *

0
3. Section 734.19 is amended by adding a note at the end of the section 
to read as follows:


Sec.  734.19  Transfer of access information.

* * * * *
    Note 1 to Sec.  734.19: For purposes of this section, a release of 
``software'' includes source code and object code.

Thea D. Rozman Kendler,
Assistant Secretary for Export Administration.
[FR Doc. 2023-20128 Filed 9-15-23; 8:45 am]
BILLING CODE 3510-33-P