[Federal Register Volume 76, Number 5 (Friday, January 7, 2011)]
[Rules and Regulations]
[Pages 1059-1063]
[FR Doc No: 2010-32803]

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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 76, No. 5 / Friday, January 7, 2011 / Rules
and Regulations

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 732, 734, 740, 772, and 774

[Docket No. 100108014-0121-01]
RIN 0694-AE82

Publicly Available Mass Market Encryption Software and Other
Specified Publicly Available Encryption Software in Object Code

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Industry and Security (BIS) is removing from the
scope of items subject to the Export Administration Regulations (EAR)
``publicly available'' mass market encryption object code software with
a symmetric key length greater than 64-bits, and ``publicly available''
encryption object code classified under Export Control Classification
Number (ECCN) 5D002 on the Commerce Control List when the corresponding
source code meets the criteria specified under License Exception TSU.
This change is being made pursuant to a determination by BIS that,
because there are no regulatory restrictions on making such software
``publicly available,'' and because, once it is ``publicly available,''
by definition it is available for download by any end user without
restriction, removing it from the jurisdiction of the EAR will have no
effect on export control policy. This action will not result in the
decontrol of source code classified under ECCN 5D002, but it will
result in a simplification of the regulatory provisions for publicly
available mass market software and specified encryption software in
object code.

DATES: This rule is effective: January 7, 2011.

FOR FURTHER INFORMATION CONTACT: For questions of a technical nature,
contact: the Information Technology Division, Office of National
Security and Technology Transfer Controls at<PHONE_NUMBER> or by e-
mail<EMAIL_ADDRESS>    For questions of a general nature, contact: Sharron Cook, Office of
Exporter Services, Bureau of Industry and Security, U.S. Department of
Commerce at<PHONE_NUMBER> or by e-mail to<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Background

    This rule removes from the jurisdiction of the EAR mass market
encryption software and specified encryption object code that is
publicly available. Publicly available software, other than encryption
software, is not subject to the EAR. Certain publicly available
encryption software has remained subject to the jurisdiction of the EAR
since the mid-1990s, when commercial items incorporating encryption
functionality were transferred to the jurisdiction of the EAR (see
Sec.  734.3(b)(3) of the EAR). At that time, much less mass market
software was ``publicly available'' than is the case today. Because of
the much wider array of ``publicly available'' mass market and other
encryption software in object code, BIS recently reviewed the
provisions of the EAR that retained jurisdiction over such software.
Pursuant to this review, BIS determined that there are no regulatory
restrictions on making such software ``publicly available.'' Moreover,
because, once it is ``publicly available,'' it is, by definition,
available for download by any end user without restriction, removing it
from the jurisdiction of the EAR will have no effect on export control
policy. Removing these items from EAR jurisdiction will also result in
a simplification of the regulatory provisions. Accordingly, BIS
believes that its regulatory discretion should no longer be exercised
in a manner that such encryption software remains subject to the EAR.
    During its review, BIS noted that the EAR currently provide that
making certain encryption software ``publicly available'' by posting it
on the Internet where it may be downloaded by anyone does not establish
``knowledge'' of a prohibited export or reexport. Additionally, such
activity also does not trigger any ``red flags'' that impose an
affirmative duty to inquire under the ``Know Your Customer'' guidance
provided in the EAR (see 67 FR 38855, 38857, June 6, 2002). Therefore,
a person or company does not violate the EAR if it posts ``mass
market'' encryption software on the Internet for free and anonymous
download (i.e., makes it ``publicly available''), and the software is
downloaded by an anonymous person from anywhere in the world. In
addition, if the person or company ``publishes'' mass market encryption
software by another means, the person or company does not violate the
EAR.
    Through this rule, BIS removes two kinds of encryption software
from the jurisdiction of the EAR: (1) Publicly available encryption
software in object code with a symmetric key length greater than 64-
bits that has been determined to be mass market software under section
742.15(b) of the EAR and has been reclassified under ECCN 5D992; and
(2) publicly available encryption software in object code classified
under ECCN 5D002 when the corresponding source code meets the criteria
specified in section 740.13(e) of the EAR.
    Publicly available mass market encryption object code software:
Encryption software in object code that has been reviewed by BIS and
determined to be mass market software under the section 742.15(b)(3)
procedure, or software that does not require review but has been self-
classified by the exporter as mass market software under section
742.15(b)(1), is reclassified from Export Control Classification Number
(ECCN) 5D002 to ECCN 5D992 on the Commerce Control List (CCL)
(Supplement No. 1 to Part 774 of the EAR). ECCN 5D992 software is
controlled for anti-terrorism reasons, and requires a license for
export to Iran, Cuba, Syria, Sudan and North Korea (Country Group E:1
countries; see Supplement No. 1 to Part 740). The procedure to self-
classify qualifying mass market software under ECCN 5D992 requires both
the submission of an encryption registration to BIS in accordance with
section 742.15(b)(7), and the submission of an annual self-
classification report in

accordance with section 742.15(c). Meanwhile, for specified software
described in section 742.15(b)(3), the procedure to obtain ``mass
market'' classification under ECCN 5D992 requires both the submission
of an encryption registration and a classification request to BIS, in
accordance with section 742.15(b)(7).
    This rule amends the EAR to provide that, once the registration is
submitted and the encryption software is properly classified as ``mass
market'' under the relevant requirements of section 742.15(b), if the
software is then made ``publicly available,'' it is not subject to the
EAR. Software authorized for export and reexport under section
742.15(b)(1) pursuant to registration and self-classification must
still be included in the exporter's annual self-classification report
for the calendar year during which it was self-classified as ``mass
market'' software.
    Publicly available encryption object code corresponding to source
code made eligible for License Exception TSU. Section 740.13(e)(1) of
the EAR authorizes the export and reexport of encryption object code if
both the object code and the source code from which it is compiled
would be considered publicly available under section 734.3(b)(3) of the
EAR, were they not classified under ECCN 5D002. Section 740.13(e)(3)
requires that the source code or the location of the source code be
notified to the BIS and to the ENC Encryption Request Coordinator
before becoming eligible for License Exception TSU. As with the
publicly available mass market encryption software, such object code
may be exported to any destination, via anonymous download, without
violating the EAR. For the reasons discussed above, BIS's regulatory
discretion under the EAR should no longer be exercised in a manner that
renders such software subject to the EAR.
    Pursuant to section 734.2(b)(9)(ii) of the EAR, publicly available
encryption source code that is classified under ECCN 5D002 must be
notified to BIS and the ENC Encryption Request Coordinator under the
provisions of License Exception TSU (section 740.13(e)). This rule
amends this provision to state that the publicly available encryption
object code corresponding to publicly available source code eligible
for export under section 740.13(e) is no longer subject to the EAR.
    In addition, the requirements for encryption registration and
classification as described in section 742.15(b) pertain only to
``publicly available'' mass market encryption software with symmetric
key length exceeding 64 bits. ``Publicly available'' mass market
encryption software that does not meet the criterion of ``symmetric key
length exceeding 64 bits'' is not subject to the EAR; neither is any
``publicly available'' encryption software that is classified under
ECCN 5D992 for reasons other than a ``mass market'' determination.
Moreover, several types of mass market encryption software that remain
under the jurisdiction of the EAR--even when they are ``publicly
available''--are no longer subject to encryption registration and
classification requirements under section 742.15(b), including, since
October 2008, software performing ``ancillary cryptography.'' The
removal of the previous classification review requirement demonstrates
that there is no regulatory interest in maintaining EAR jurisdiction
over these products when they are ``publicly available.''
    The following specific revisions are made to the EAR:

Section 732.2 ``Steps Regarding Scope of the EAR''

    This rule revises paragraph (b) in section 732.2 and: (1) Replaces
the phrase ``controlled for EI reasons under ECCN 5D002'' with
``classified under ECCN 5D002;'' (2) replaces the phrase ``shall be
subject to the EAR'' with the phrase ``is subject to the EAR;'' (3)
removes the phrase ``and mass market encryption software with symmetric
key length exceeding 64-bits classified under ECCN 5D992;'' and (4)
adds the phrase, ``except for publicly available encryption object code
software classified under ECCN 5D002 when the corresponding source code
meets the criteria specified in Sec.  740.13(e) of the EAR.'' This
revision narrows the scope of publicly available software subject to
the EAR to include only encryption source code classified under ECCN
5D002. The sixth sentence of section 732.2 is removed by this rule, as
it is redundant.

Part 734 ``Scope of the EAR''

    This rule removes the phrase ``and object code'' in the last
sentence in paragraph (b)(9)(ii) and adds a new sentence at the end as
follows: ``Publicly available encryption software in object code that
corresponds to encryption source code made eligible for License
Exception TSU under section 740.13(e) is not subject to the EAR.'' In
section 734.3, this rule revises paragraph (b)(3) by replacing the
phrase ``controlled for `EI' reasons'' with ``classified'' and removing
the phrase ``and mass market encryption software with symmetric key
length exceeding 64-bits controlled under ECCN 5D992.'' In addition,
this rule adds the following sentence to the Note to paragraphs (b)(2)
and (b)(3): ``Publicly available encryption object code software
classified under ECCN 5D002 is not subject to the EAR when the
corresponding source code meets the criteria specified in Sec.
740.13(e) of the EAR.''
    In section 734.7, ``Published Information and Software,'' this rule
revises paragraph (c) by adding the modifier ``published'' before
``encryption software,'' replacing the word ``controlled'' with
``classified,'' and adding a reference to ``Supplement No. 1 to part
774 of the EAR'' for the Commerce Control List to add clarity to the
first sentence. This rule also adds the phrase ``except publicly
available encryption object code software classified under ECCN 5D002
when the corresponding source code meets the criteria specified in
Sec.  740.13(e) of the EAR,'' and removes the phrase ``and mass market
encryption software with symmetric key length exceeding 64-bits
controlled under ECCN 5D992'' to remove such software from being
subject to the EAR for reasons stated in the preamble to this rule.
This rule also replaces the word ``remain'' with the word ``remains''
in the first sentence of section 734.7 to maintain accurate grammar in
the revised sentence. This rule also makes consistent changes to
sections 734.8 (``Information resulting from fundamental research'')
and 734.9 (``Educational information'').
    This rule amends Supplement No. 1 to part 734 ``Questions and
Answers--Technology and Software Subject to the EAR'' by removing the
question and answer to G(3). The question and answer indicated an
exception to the published criteria in section 734.7. The exception
allowed software to become not subject to the EAR based on being
considered published, even if the cost of the software was higher than
the cost of reproduction and distribution. The exception required the
exporter to request this treatment via a classification request to BIS.
As the supplement is guidance, conflicts with regulatory text and no
known requests have come in for this treatment, BIS has decided to
delete it.

Section 740.13 ``Technology and Software--Unrestricted (TSU)''

    Section 740.13 is amended by removing the parenthetical phrase
``(and corresponding object code)'' from the title of paragraph (e),
because publicly available corresponding object code is not subject to
the EAR if the source code meets the criteria of 740.13(e) and is
publicly available. This rule also adds a

phrase to the first sentence of paragraph (e)(1) that reads ``subject
to the notification requirements of paragraph (e)(3) of this section''
to link the notification requirement with the authorization. This rule
removes the phrase ``without review'' in the first sentence of (e)(1),
because it is not necessary and may be confusing to state what actions
are not required to be eligible for this license exception. The first
sentence of (e)(1) is further amended by adding the descriptor
``publicly available'' in front of ``encryption source code,'' to be
more specific about what type of source code is eligible for this
license exception. In addition, this rule replaces the phrase ``if not
controlled by ECCN 5D002, would be considered publicly available under
Sec.  734.3(b)(3)'' with ``is subject to the EAR pursuant to Sec.
734.3(b)(3)'' to simplify the first sentence in paragraph (e)(1). For
consistency with the change making specified object code not subject to
the EAR, this rule removes the last sentence in paragraph (e)(1), which
stated ``This paragraph also authorizes the export and reexport of the
corresponding object code (i.e., that which is compiled from source
code that is authorized for export and reexport under this paragraph)
if both the object code and the source code from which it is compiled
would be considered publicly available under Sec.  734.3(b)(3) of the
EAR, if they were not controlled under ECCN 5D002.''

Section 772.1 ``Definitions of Terms as Used in the EAR''

    In section 772.1, the definition of the term ``commodity'' is
amended by removing the last two sentences, because they do not
contribute to defining the term ``commodity,'' and the concepts
concerning publicly available encryption software can be found in more
appropriate parts of the EAR, e.g., Part 734.

ECCN 5D002 ``Information Security--Software''

    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 last note
in the License Requirement section by replacing the word ``software''
with the words ``source code,'' and removing the parenthetical phrase
``(and corresponding object code).'' This amendment is made to conform
the text of the Note to the revisions made by this rule.
    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
12, 2010, 75 FR 50681 (August 16, 2010), has continued the Regulations
in effect under the International Emergency Economic Powers Act (50
U.S.C. 1701 et seq.).

Rulemaking Requirements

    1. This final 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 shall any person 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 two collections of information subject to the PRA. One of the
collections has been approved by OMB under control number 0694-0088,
``Multi Purpose Application,'' and carries a burden hour estimate of 58
minutes for a manual or electronic submission. The other collection has
been approved by OMB under control number 0694-0106, ``Reporting and
Recordkeeping Requirements under the Wassenaar Arrangement,'' and
carries a burden hour estimate of 21 minutes for a manual or electronic
submission. Send comments regarding these burden estimates or any other
aspect of these collections of information, including suggestions for
reducing the burden, to OMB Desk Officer, New Executive Office
Building, Washington, DC 20503; and to Jasmeet Seehra, OMB Desk
Officer, by e-mail at<EMAIL_ADDRESS>or by fax to
(202) 395-7285; and to the Office of Administration, Bureau of Industry
and Security, Department of Commerce, 14th and Pennsylvania Avenue, NW,
Room 6622, Washington, DC 20230.
    3. This rule does not contain policies with Federalism implications
as that term is defined under Executive Order 13132.
    4. 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 such notice and comment is contrary to the public interest. This
rule simplifies the regulatory provisions for publicly available mass
market software and specified encryption software in object code by
removing them from the jurisdiction of the EAR. BIS recognized that
there are no regulatory restrictions in making such software ``publicly
available,'' and once ``publicly available,'' such software is
available for download by any end user without restriction. Thus,
removing such ``publicly available'' items from the jurisdiction of the
EAR has no effect on export control policy and clarifies the scope of
existing BIS controls. The greater clarity that this rule provides will
encourage the exchange of publicly available mass market encryption
object code software and certain publicly available encryption object
code by the exporting community. In effect, this rule removes any
remaining uncertainty in the minds of exporters as to whether their
actions constitute violations of U.S. export control law. Thus,
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 direct 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.
    Further, no other law requires that a notice of proposed rulemaking
and an opportunity for public comment be given for this final rule.
Because a notice of proposed rulemaking and an opportunity for public
comment are not required to be given for this rule under the
Administrative Procedure Act or by any other law, the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. Therefore, this regulation is issued in final form.
Although there is no formal comment period, public comments on this
regulation are welcome on a continuing basis. Comments should be
submitted to Sharron Cook, Office of Exporter Services, Bureau of
Industry and Security, Department of Commerce, 14th and Pennsylvania
Ave., NW., Room 2705, Washington, DC 20230.

List of Subjects

15 CFR Part 732

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

15 CFR Part 734

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

15 CFR Part 740

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

15 CFR Part 772

    Exports.

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

0
Accordingly, Parts 732, 734, 740, 772, and 774 of the Export
Administration Regulations (15 CFR Parts 730 through 774) are amended
as follows:

PART 732--[AMENDED]

0
1. The authority citations for Part 732 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 12, 2010, 75
FR 50681 (August 16, 2010).

0
2. Section 732.2 is amended by revising paragraph (b) to read as
follows:

Sec.  732.2  Steps Regarding Scope of the EAR.

* * * * *
    (b) Step 2: Publicly available technology and software. This step
is relevant for both exports and reexports. Determine if your
technology or software is publicly available as defined and explained
at part 734 of the EAR. Supplement No. 1 to part 734 of the EAR
contains several practical examples describing publicly available
technology and software that are outside the scope of the EAR. The
examples are illustrative, not comprehensive. Note that encryption
software classified under ECCN 5D002 on the Commerce Control List
(refer to Supplement No.1 to Part 774 of the EAR) is subject to the EAR
even if publicly available, except for publicly available encryption
object code software classified under ECCN 5D002 when the corresponding
source code meets the criteria specified in Sec.  740.13(e) of the EAR.
* * * * *

PART 734--[AMENDED]

0
3. The authority citations for Part 734 continue 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 12, 2010, 75 FR 50681 (August 16, 2010);
Notice of November 4, 2010, 75 FR 68673 (November 8, 2010).

0
4. Section 734.2 is amended in the last sentence of paragraph
(b)(9)(ii) by removing the phrase ``and object code'' and adding a new
sentence at the end to read as follows:

Sec.  734.2  Important EAR terms and principles.

* * * * *
    (b) * * *
    (9) * * *
    (ii) * * * Publicly available encryption software in object code
that corresponds to encryption source code made eligible for License
Exception TSU under section 740.13(e) is not subject to the EAR.

0
5. Section 734.3 is amended by:
0
a. Revising paragraph (b)(3) introductory text;
0
b. Adding a new sentence to the end of the Note to paragraphs (b)(2)
and (b)(3) to read as follows:

Sec.  734.3  Items Subject to the EAR.

* * * * *
    (b) * * *
    (3) Publicly available technology and software, except software
classified under ECCN 5D002 on the Commerce Control List, that:
* * * * *
    Note to paragraphs (b)(2) and (b)(3) of this section: * * *
Publicly available encryption object code software classified under
ECCN 5D002 is not subject to the EAR when the corresponding source code
meets the criteria specified in Sec.  740.13(e) of the EAR.
* * * * *

0
6. Section 734.7 is amended by revising paragraph (c) to read as
follows:

Sec.  734.7  Published information and software.

* * * * *
    (c) Notwithstanding paragraphs (a) and (b) of this section, note
that published encryption software classified under ECCN 5D002 on the
Commerce Control List (Supplement No. 1 to part 774 of the EAR) remains
subject to the EAR, except publicly available encryption object code
software classified under ECCN 5D002 when the corresponding source code
meets the criteria specified in Sec.  740.13(e) of the EAR. See Sec.
740.13(e) of the EAR for eligibility requirements for exports and
reexports of publicly available encryption source code under License
Exception TSU.

0
7. Section 734.8 is amended by revising the last two sentences in
paragraph (a) to read as follows:

Sec.  734.8  Information resulting from fundamental research.

    (a) * * * Note that the provisions of this section do not apply to
encryption software classified under ECCN 5D002 on the Commerce Control
List (Supplement No. 1 to part 774 of the EAR), except publicly
available encryption object code software classified under ECCN 5D002
when the corresponding source code meets the criteria specified in
Sec.  740.13(e) of the EAR. See Sec.  740.13(e) of the EAR for
eligibility requirements for exports and reexports of publicly
available encryption source code under License Exception TSU.
* * * * *

0
8. Section 734.9 is amended by revising the last two sentences to read
as follows:

Sec.  734.9  Educational information.

    * * * Note that the provisions of this section do not apply to
encryption software classified under ECCN 5D002 on the Commerce Control
List, except publicly available encryption object code software
classified under ECCN 5D002 when the corresponding source code meets
the criteria specified in Sec.  740.13(e) of the EAR. See Sec.
740.13(e) of the EAR for eligibility requirements for exports and
reexports of publicly available encryption source code under License
Exception TSU.

Supplement No. 1 to Part 734 [Amended]

0
8. Supplement No. 1 to part 734 is amended by removing Question G(3)
and the answer to G(3).

PART 740--[AMENDED]

0
9. 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 12, 2010, 75 FR 50681 (August 16, 2010).

0
10. Section 740.13 is amended by revising paragraph (e) to read as
follows:

Sec.  740.13  Technology and software--unrestricted (TSU).

* * * * *
    (e) Publicly available encryption source code. (1) Scope and
eligibility. Subject to the notification requirements of paragraph
(e)(3) of this section, this paragraph (e) authorizes exports and
reexports of publicly available encryption source code classified under

ECCN 5D002 that is subject to the EAR (see Sec.  734.3(b)(3) of the
EAR). Such source code is eligible for License Exception TSU under this
paragraph (e) even if it is subject to an express agreement for the
payment of a licensing fee or royalty for commercial production or sale
of any product developed using the source code.
    (2) Restrictions. This paragraph (e) does not authorize:
    (i) Export or reexport of any encryption software classified under
ECCN 5D002 that does not meet the requirements of paragraph (e)(1),
even if the software incorporates or is specially designed to use other
encryption software that meets the requirements of paragraph (e)(1) of
this section; or
    (ii) Any knowing export or reexport to a country listed in Country
Group E:1 in Supplement No. 1 to part 740 of the EAR.
    (3) Notification requirement. You must notify BIS and the ENC
Encryption Request Coordinator via e-mail of the Internet location
(e.g., URL or Internet address) of the publicly available encryption
source code or provide each of them a copy of the publicly available
encryption source code. If you update or modify the source code, you
must also provide additional copies to each of them each time the
cryptographic functionality of the source code is updated or modified.
In addition, if you posted the source code on the Internet, you must
notify BIS and the ENC Encryption Request Coordinator each time the
Internet location is changed, but you are not required to notify them
of updates or modifications made to the encryption source code at the
previously notified location. In all instances, submit the notification
or copy to<EMAIL_ADDRESS>and to<EMAIL_ADDRESS>    Note to paragraph (e): Posting encryption source code on the
Internet (e.g., FTP or World Wide Web site) where it may be downloaded
by anyone neither establishes ``knowledge'' of a prohibited export or
reexport for purposes of this paragraph, nor triggers any ``red flags''
imposing a duty to inquire under the ``Know Your Customer'' guidance
provided in Supplement No. 3 to part 732 of the EAR. Publicly available
encryption object code software classified under ECCN 5D002 is not
subject to the EAR when the corresponding source code meets the
criteria specified in this paragraph (e), see Sec.  734.3(b)(3) of the
EAR.
* * * * *

PART 742--[AMENDED]

0
11. 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
12, 2010, 75 FR 50681 (August 16, 2010); Notice of November 4, 2010,
75 FR 68673 (November 8, 2010).

0
11. Section 742.15 is amended:
0
a. By revising the fourth sentence of paragraph (b) introductory text;
and
0
b. By adding a note to paragraph (b) introductory text to read as
follows:
* * * * *
    (b) * * * Exports and reexports authorized under paragraphs (b)(1)
and (b)(3) of this section (including of mass market encryption
software that would be considered publicly available under Sec.
734.3(b)(3) of the EAR) 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. * * *

    Note to introductory text of paragraph (b): Mass market
encryption software that would be considered publicly available
under Sec.  734.3(b)(3) of the EAR, and is authorized for export and
reexport under this paragraph (b), remains subject to the EAR until
the encryption registration and all applicable classification or
self-classification requirements set forth in this section are
fulfilled.

* * * * *

PART 772--[AMENDED]

0
11. The authority citation for part 772 continue 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
12, 2010, 75 FR 50681 (August 16, 2010).

Sec.  772.1  [Amended]

0
12. In Sec.  772.1, the definition of the term ``commodity'' is amended
by removing the last two sentences of the definition.

PART 774--[AMENDED]

0
13. 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 12, 2010, 75 FR 50681 (August 16, 2010).

0
14. In Supplement No. 1 to part 774 (the Commerce Control List),
Category 5, Part 2, Export Control Classification Number (ECCN) 5D002
is amended by adding the heading ``License Requirements'' after the
ECCN heading and revising the last note in the License Requirements
section to read as follows:

Supplement No. 1 to Part 774

* * * * *

5D002 Information Security--``Software as follows (see List of Items
Controlled).''

License Requirements

* * * * *

    Note: Encryption source code classified under this entry remains
subject to the EAR even when made publicly available in accordance
with part 734 of the EAR. However, publicly available encryption
object code software classified under ECCN 5D002 is not subject to
the EAR when the corresponding source code meets the criteria
specified in Sec.  740.13(e), see also Sec.  734.3(b)(3) of the EAR.

* * * * *

    Dated: December 20, 2010.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2010-32803 Filed 1-6-11; 8:45 am]
BILLING CODE 3510-33-P


[Federal Register Volume 87, Number 125 (Thursday, June 30, 2022)]
[Rules and Regulations]
[Pages 38996-38998]
[FR Doc No: 2022-13992]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR 165

[Docket Number USCG-2022-0496]
RIN 1625-AA00

Safety Zone; Caruso Affiliated Holdings Fireworks Event, Newport
Beach, California

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone near
Balboa Pier, Newport Beach Harbor, California, around the fireworks
launch barge during the loading of pyrotechnics, the transit of the
barge to the display location in vicinity of Southeast of Balboa Pier,
and for the duration of the fireworks display on July 4, 2022. This
temporary safety zone is necessary to protect waterway users from the
hazards of fireworks and harmful debris within the fall out zone during
the fireworks display within Newport Beach Harbor, CA. Entry of persons
or vessels into this temporary safety zone is prohibited unless
specifically authorized by the Captain of the Port, Los Angeles--Long
Beach, or her designated representative.

DATES: This rule is effective from 7 p.m. through 11 p.m. on July 4,
2022.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2022-0496 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rulemaking, call or email the LCDR Maria Wiener, U.S. Coast
Guard Sector Los Angeles--Long Beach; telephone<PHONE_NUMBER>, email
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive order
FR Federal Register
LLNR Light List Number
NPRM Notice of proposed rulemaking
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule. Publishing an NPRM would be impracticable in
this case due to the timing of the event. The event sponsor submitted
their completed application with short notice. As the Coast Guard
received late notification of the fireworks display vessels, it is
impracticable to publish an NPRM with a comment period and have
sufficient time to consider the comments before the scheduled event on
July 4, 2022.
    For the reasons stated above, we are issuing this rule, and under 5
U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for
making it effective less than 30 days after publication in the Federal
Register. Delaying the effective date of this rule would be contrary to
the public interest because action is necessary to protect persons and
property from the dangers associated with the fireworks event on July
4, 2022.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034; The Captain of the Port (COTP), Los Angeles--Long Beach has
determined that potential hazards associated with navigation safety may
arise. The fireworks display creates potential for hazards for any
person or vessel within a 100-foot radius around the fireworks launch
barge SWOB-20, during the loading of the pyrotechnics at Pacific
Tugboat Services, 1512 Pier C St., and during the transit of the
fireworks barge from Pacific Tugboat Services to the fireworks launch
area. There is also a 1,000-foot safety radius around the fireworks
launch barge 15 minutes prior to, and for the duration of the fireworks
display. Potential hazards include accidental discharge of fireworks,
dangerous projectiles, and falling hot embers or other debris. This
temporary safety zone is necessary to ensure the safety of, and reduce
the risk to, the public, and mariners in Newport Beach Harbor, CA.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone on July 4, 2022,
encompassing all navigable waters from the surface to the sea floor
within a 100-foot radius around the fireworks launch barge SWOB-20
during the loading of the pyrotechnics at Pacific Tugboat Services at
1512 Pier C St. The safety zone will continue during the transit of the
fireworks barge from Pacific Tugboat Services to the fireworks launch
site at approximate position: 33[deg]35.474' N; 117[deg]53.296' W, in
vicinity of Newport Beach Harbor, CA. The temporary safety zone will
then increase to 1,000-feet 15 minutes prior to, and for the duration
of the fireworks display, expected to commence at 9 p.m. and last
approximately 30 minutes. These coordinates are based on North American
Datum of 1984.
    No vessel or person is permitted to operate in the safety zone
without obtaining permission from the Captain of the Port (COTP) or the
COTP's designated representative. Sector Los Angeles--Long Beach may be
contacted on VHF-FM Channel 16 or<PHONE_NUMBER>. The general boating
public will be notified prior to the enforcement of the temporary
safety zone via Broadcast Notice to Mariners.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders (E.O.s) related to rulemaking. Below we summarize our
analyses based on a number of these statutes and E.O.s, and we discuss
First Amendment rights of protestors.

A. Regulatory Planning and Review

    E.O.s 12866 (``Regulatory Planning and Review'') and 13563
(``Improving Regulation and Regulatory Review'') direct agencies to
assess the costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits including potential economic, environmental,
public health and safety effects, distributive impacts, and equity.
E.O.13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. Executive Order 13771 (``Reducing Regulation and
Controlling Regulatory Costs''), directs agencies to reduce regulation
and control regulatory costs and provides that ``for every one new
regulation issued, at least two prior regulations be identified for
elimination, and that the cost of planned regulations be prudently

managed and controlled through a budgeting process.''
    This regulatory action determination is based on the size,
location, duration of the safety zone. Although this rule restricts
access to the waters encompassed by the safety zone, the duration of
the rule is only four hours and the local waterway users will be
notified via public Broadcast Notice to Mariners to ensure the safety
zone will result in minimum impact. Vessels should be able to transit
around the safety zone without interruption. The entities most likely
to be affected are waterfront facilities, commercial vessels, and
pleasure craft engaged in recreational activities.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator. Under section 213(a) of the Small Business
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want
to assist small entities in understanding this rule. If the rule would
affect your small business, organization, or governmental jurisdiction
and you have questions concerning its provisions or options for
compliance, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under E.O. 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in E.O. 13132.
    Also, this rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes. If you believe this rule has
implications for federalism or Indian tribes, please contact the person
listed in the FOR FURTHER INFORMATION CONTACT section above.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Environmental Planning COMDTINST 5090.1
(series), which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have
determined that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This rule involves a safety zone in an area in the
vicinity of Newport Beach Harbor, Newport, CA. Such actions are
categorically excluded from further review under paragraph 60(a) of
Appendix A, Table 1 of the Department of Homeland Security Directive
023-01-001-01, Rev. 01. An environmental analysis checklist supporting
this determination and Record of Environmental Consideration (REC) are
available in the docket where indicated under ADDRESSES. We seek any
comments or information that may lead to the discovery of a significant
environmental impact from this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 46 U.S.C. 70034, 70051

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

0
2. Add Sec.  165.T11-100 to read as follows:

Sec.  165.T11-100  Safety Zone; Caruso Affiliated Holdings; Newport
Beach, California.

    (a) Location. The following area is a safety zone: all navigable
waters from the surface to the sea floor within a 100-foot radius
around the fireworks launch barge SWOB-20, during the loading of the
pyrotechnics at Pacific Tugboat Services, 1512 Pier C St., and during
the transit of the fireworks barge from Pacific Tugboat Services to the
fireworks launch site in approximate position: 33[deg]35.474' N;
117[deg]53.296' W, in vicinity of Newport Beach Harbor, CA. The
temporary safety zone will then increase to 1,000-feet 15 minutes prior
to, and for the duration of the fireworks display, expected to commence
at 9:00

p.m. on July 4th, 2022, and last approximately 30 minutes. These
coordinates are based on North American Datum of 1983, World Geodetic
System, 1984.
    (b) Definitions. For the purposes of this section:
    Designated representative means a Coast Guard Patrol Commander,
including a Coast Guard coxswain, petty officer, or other officer
operating a Coast Guard vessel and a Federal, State, and local officer
designated by or assisting the Captain of the Port Los Angeles--Long
Beach (COTP) in the enforcement of the safety zone.
    (c) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, you may not enter the safety zone described in
paragraph (a) of this section unless authorized by the COTP or the
COTP's designated representative.
    (2) To seek permission to enter, hail Coast Guard Sector Los
Angeles--Long Beach on VHF-FM Channel 16 or call at<PHONE_NUMBER>.
Those in the safety zone must comply with all lawful orders or
directions given to them by the COTP or the COTP's designated
representative.
    (d) Enforcement period. This section will be enforced from 7 p.m.
to 11 p.m. on July 4, 2022. The firework display is scheduled to
commence at 9 p.m. This rule will be enforced during the loading,
transit and duration of the fireworks display, which will be
broadcasted via local Broadcast Notice to Mariners in accordance with
33 CFR 165.7.

    Dated: June 23, 2022.
K.L. Bernstein,
Captain, U.S. Coast Guard Acting Captain of the Port, Los Angeles Long
Beach.
[FR Doc. 2022-13992 Filed 6-29-22; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Notices]
[Page 2687]
[FR Doc No: 2023-00869]

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SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meetings

TIME AND DATE: 2:00 p.m. on Thursday, January 19, 2023.

PLACE: The meeting will be held via remote means and/or at the
Commission's headquarters, 100 F Street NE, Washington, DC 20549.

STATUS: This meeting will be closed to the public.

MATTERS TO BE CONSIDERED: Commissioners, Counsel to the Commissioners,
the Secretary to the Commission, and recording secretaries will attend
the closed meeting. Certain staff members who have an interest in the
matters also may be present.
    In the event that the time, date, or location of this meeting
changes, an announcement of the change, along with the new time, date,
and/or place of the meeting will be posted on the Commission's website
at https://www.sec.gov.
    The General Counsel of the Commission, or his designee, has
certified that, in his opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR
200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10),
permit consideration of the scheduled matters at the closed meeting.
    The subject matter of the closed meeting will consist of the
following topics:
    Institution and settlement of injunctive actions;
    Institution and settlement of administrative proceedings;
    Resolution of litigation claims; and
    Other matters relating to examinations and enforcement proceedings.
    At times, changes in Commission priorities require alterations in
the scheduling of meeting agenda items that may consist of
adjudicatory, examination, litigation, or regulatory matters.

CONTACT PERSON FOR MORE INFORMATION: For further information; please
contact Vanessa A. Countryman from the Office of the Secretary at (202)
551-5400.
    Authority: 5 U.S.C. 552b.

    Dated: January 12, 2023.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2023-00869 Filed 1-12-23; 4:15 pm]
BILLING CODE 8011-01-P