BIS Final Rule Makes Certain Revisions to Encryption Export and Reexport Controls
The Bureau of Industry and Security (BIS) has issued a final rule which, effective December 9, 2004, makes certain revisions to 15 CFR Parts 732, 734, 740, 742, 744, and 772 with regard to encryption export and reexport controls.
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The following are highlights of the changes made by this final rule, as identified by BIS:
Elimination of separate request for de minimis eligibility for some encryption commodities and software. BIS' final rule removes the requirement to make a separate request for de minimis eligibility when submitting a review request for some encryption commodities and software under License Exception ENC. According to BIS, foreign made items incorporating U.S. origin encryption items that have met specified notification or review requirements under mass market, License Exception TSU or License Exception ENC procedures will be treated like foreign made items that incorporate other U.S. origin items, in determining de minimis eligibility.
Removal of certain reporting requirements for License Exception TMP. This final rule removes certain reporting requirements in License Exception TMP regarding beta test encryption software.
Reduction of notification requirements for exports/reexports of certain encryption software. BIS' final rule reduces the notification requirements for exports and reexports of certain "publicly available'' encryption software that has been posted to the Internet pursuant to License Exception TSU by removing the requirement to notify the U.S. Government of updates or modifications if the Internet location has not changed.
Simplification of License Exception ENC review requirements for exports/reexports of certain encryption items. In addition, this final rule simplifies License Exception ENC review requirements for exports and reexports of eligible encryption items, by implementing a uniform 30 day period for most encryption reviews and by clarifying the criteria by which licensing requirements to certain "government end-users'' are determined. In connection with this 30 day period associated with the initial U.S. Government technical review of an encryption item, this final rule authorizes BIS to, at any time, require additional technical information about an encryption item submitted for review and, if the information is not furnished, to suspend or revoke authorization to use License Exception ENC with respect to the item for which the information is sought.
Expanded list of countries to which encryption items may be sent immediately. The final rule also expands the list of countries to which certain encryption items may be sent immediately, once a review request is submitted to the U.S. Government. The list (Supplement No. 3 to Part 740) now covers all current members of the European Union (EU), to include those countries that joined the EU on May 1, 2004.
Certain License Exception ENC review requirements updated and clarified. BIS also states that the final rule updates and clarifies several encryption review requirements in License Exception ENC and clarifies the definition of the term "hold without action'' in the Export Administration Regulations (EAR).
Technical changes & revision of ENC Encryption Request Coordinator's email address. This final rule also makes some technical changes, and revises the e-mail address of the ENC Encryption Request Coordinator from enc@ncsc.mil to enc@nsa.gov to match the current e-mail address of that organization.
According to BIS, although this final rule is issued in final form and there is no formal comment period, comments on this final rule are welcomed on an ongoing basis.
BIS Contact - Norman LaCroix (202) 482-4439
BIS Final Rule (D/N 041022290-4290-01, FR Pub 12/09/04) available athttp://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-26992.pdf