Unknown. Final rule

5,826 words·~26 min read·/register/2003/06/17/03-15189·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2003-06-17.xml --- 68 116 Tuesday, June 17, 2003 Contents Agricultural Agricultural Marketing Service PROPOSED RULES Soybean promotion and research order: United Soybean Board; membership adjustment, 35825-35826 03-15270 Agricultural Agricultural Research Service NOTICES Meetings: Food safety research, education, and extension programs; stakesholders input; listening session, 35841-35843 03-15275 Agriculture Agriculture Department See Agricultural Marketing Service See Agricultural Research Service See Cooperative State Research, Education, and Extension Service See Federal Crop Insurance Corporation NOTICES Agency information collection activities; proposals, submissions, and approvals, 35838-35841 03-15271 Antitrust Antitrust Division NOTICES National cooperative research notifications:

IMS Global Learning Consortium, Inc., 35913 03-15181 Semiconductor Test Consortium, Inc., 35913 03-15182 Centers Centers for Disease Control and Prevention NOTICES Grants and cooperative agreements; availability, etc.: Bioterrorism, bacterial and fungal agents; public health preparedness and response; applied research partnerships, 35891-35892 03-15218 Human immunodeficiency virus (HIV)— Perinatal HIV Prevention in the US: National Organizations Working Toward Elimination, 35892-35894 03-15217 Submission for OMB review; comment request, 35894-35897 03-15214 03-15215 03-15216 Centers Centers for Medicare & Medicaid Services NOTICES Privacy Act:

Systems of records, 35897-35901 03-15120 Coast Guard Coast Guard RULES Merchant marine officers and seamen: Licensing and manning for officers of towing vehicles, 35801-35818 03-15225 Commerce Commerce Department See Foreign-Trade Zones Board See Industry and Security Bureau See National Oceanic and Atmospheric Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 35848-35849 03-15295 Privacy Act: Systems of records, 35849-35855 03-15207 03-15208 CITA Committee for the Implementation of Textile Agreements NOTICES Cotton, wool, and man-made textiles:

Philippines, 35869-35870 03-15272 Commodity Commodity Futures Trading Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 35870-35871 03-15204 Cooperative Cooperative State Research, Education, and Extension Service NOTICES Meetings: Food safety research, education, and extension programs; stakeholders input; listening session, 35841-35843 03-15275 Customs Customs and Border Protection Bureau NOTICES Customhouse broker license cancellation, suspension, etc.:

Key Custom's Brokerage, Inc. et al, 35907 03-15241 McCracken, Robert J. et al., 35907-35908 03-15243 Nogueras, Anthony, et al., 35908 03-15244 Vaccaro, Peter et al., 35908 03-15242 Drug Drug Enforcement Administration NOTICES *Applications, hearings, determinations, etc.:* AccuStandard, Inc., 35913-35915 03-15203 American Radiolabeled Chemicals, Inc., 35915 03-15194 Applied Science Labs, Inc., 35915 03-15196 Cedarburg Pharmaceucticals, LLS, 35915-35916 03-15197 Cerrilliant Corp., 35916-35917 03-15202 Lipomed, Inc., 35917-35918 03-15200 Mallinckrodit, Inc., 35918-35919 03-15199 National Center for Natural Products Research-NIDA MProject University of Mississippi, 35919 03-15201 Norac Co., Inc., 35919 03-15195 OraSure Technologies, Inc., 35919 03-15198 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Air pollution control; new motor vehicles and engines:

On-board diagnostic regulations, 35792-35801 03-14569 Air quality implementation plans; approval and promulgation; various States: Colorado; correction, 35790-35791 03-13715 Organization, functions, and authority delegations: Address change for submission of certain reports; Region VII, 35792 03-15257 PROPOSED RULES Air pollution control; new motor vehicles and engines: On-board diagnostic regulations, 35830-35832 03-14570 NOTICES Air quality; prevention of significant deterioration (PSD):

Permit determinations, etc.— Kendall New Century Development, IL, 35882 03-15258 Massachusetts, 35881-35882 03-15256 Committees; establishment, renewal, termination, etc.: Science Advisory Board, 35883-35884 03-15259 Reports and guidance documents; availability, etc.: Community involvement in supplemental environmental projects, 35884-35888 03-15260 FAA Federal Aviation Administration RULES Class E5 airspace Correction, 35947 C3-12817 PROPOSED RULES Airworthiness directives: Pratt & Whitney, 35826-35828 03-15224 NOTICES Passenger facility charges; applications, etc.:

Arcata Airport, CA, et al., 35939-35941 03-15297 FCC Federal Communications Commission RULES Radio broadcasting: Navigation devices; commercial availability, 35818-35822 03-15187 PROPOSED RULES Radio broadcasting: Navigation devices; commercial availability, 35833-35837 03-15188 Federal Crop Federal Crop Insurance Corporation NOTICES Grants and cooperative agreements; availability, etc.: Community Outreach and Assistance Partnership Program, 35843-35848 03-15205 Federal Emergency Federal Emergency Management Agency NOTICES Disaster and emergency areas:

American Samoa, 35908-35909 03-15248 Arkansas, 35909 03-15247 Mississippi, 35909-35910 03-15245 Tennessee, 35910 03-15246 Federal Energy Federal Energy Regulatory Commission NOTICES Electric rate and corporate regulation filings: Ameren Energy Generating Company, et al., 35873-35874 03-15267 Tractebel Property Management, Inc., et al., 35874-35875 03-15268 Environmental statements; notice of intent: Cheyenne Plains Gas Pipeline Co. et al., 35875-35877 03-15170 Columbia Gas Transmission Corp., 35877-35879 03-15169 Hydroelectric applications, 03-15173 35879-35881 03-15174 03-15175 *Applications, hearings, determinations, etc.:* Columbia Gas Transmission Corp., 35871 03-15178 Columbia Gulf Transmission Co., 35871 03-15179 Eastern Shore Natural Gas Co., 35871 03-15171 Great Lakes Gas Transmission L.P., 35872 03-15177 Overthrust Pipeline Co., 35872 03-15172 Public Utilities Commission of the State of California, 35872 03-15176 Federal Labor Federal Labor Relations Authority NOTICES Unfair labor practice proceeding; amicus curiae submissions, 35888-35889 03-15273 Fish Fish and Wildlife Service RULES Endangered and threatened species:

Critical habitat designations— Various plants from Oahu, HI, 35949-36406 03-11156 NOTICES Environmental statements; notice of intent: California; Trinity River Mainstem Fishery Restoration Program, 35910-35912 03-15219 Realty actions; sales, leases, etc.: San Bernard National Wildlife Refuge, TX; Noble Energy, Inc. pipeline right-of-way permit, 35912 03-15269 Food Food and Drug Administration NOTICES Reports and guidance documents; availability, etc.: Prescription Drug User Fee Act; reviewable units for fast track products; draft guidance, 35901-35903 03-15168 Prescription Drug User Fee Act; scientific feedback and interactions during development of fast track products; draft guidance, 35903 03-15167 MISSING FOR:

Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES *Applications, hearings, determinations, etc.:* California, 35855-35856 03-15290 Georgia Inflation Systems, Inc., 35856 03-15289 Ohio, 35856-35857 03-15291 Washington Inflation Systems, Inc., 35857 03-15288 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Food and Drug Administration See Health Resources and Services Administration NOTICES State assistance expeditures;

Federal financial participation (2003-2004 FY), 35889-35890 03-15274 Health Health Resources and Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 35904 03-15238 Grants and cooperative agreements; availability, etc.: Maternal and Child Health Federal Set-Aside Program; Sickle Cell Disease and Newborn Screening Program, 35904-35907 03-15183 Homeland Homeland Security Department See Coast Guard See Customs and Border Protection Bureau See Federal Emergency Management Agency Housing Housing and Urban Development Department NOTICES Grants and cooperative agreements; availability, etc.:

Discretionary grant programs (SuperNOFA); technical correction, 36425-36444 03-15370 Industry Industry and Security Bureau RULES Export administration regulations: Encryption clarifications and revisions, 35783-35787 03-15189 Interior Interior Department See Fish and Wildlife Service See Reclamation Bureau IRS Internal Revenue Service PROPOSED RULES Excise taxes: Communication services; distance sensitivity, 35828-35829 03-15283 NOTICES Meetings: Taxpayer Advocacy Panels, 03-15285 35945-35946 03-15286 International International Trade Commission NOTICES Import investigations:

Nework interface cards and access points for use in direct sequence spread spectrum wireless local area networks and products containing same, 35912-35913 03-15250 Justice Justice Department See Antitrust Division See Drug Enforcement Administration Labor Labor Department See Mine Safety and Health Administration Mine Mine Safety and Health Administration RULES Independent laboratories and non-MSHA product safety standards; testing and evaluation; alternate requirements, 36407-36423 03-15006 NASA National Aeronautics and Space Administration NOTICES Meetings:

Space Science Advisory Committee, 35920 03-15185 03-15186 National Archives National Archives and Records Administration PROPOSED RULES NARA facilities: Exhibition Hall; hours of operation, 35829 03-15190 National Highway National Highway Traffic Safety Administration NOTICES Motor vehicle defect proceedings; petitions, etc.: Lisoni & Lisoni, Attorneys at Law, et al.; petition denied, 35941-35944 03-15191 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management:

Atlantic highly migratory species— Atlantic bluefin tuna, 35822-35824 03-15287 NOTICES Agency information collection activities; proposals, submissions, and approvals, 35857-35858 03-15293 03-15294 Coastal zone management programs and estuarine sanctuaries: Consistency appeals— Islander East Pipeline Co., L.L.C., 35858-35859 03-15206 Permits: Marine mammals, 35859-35860 03-15296 Reports and guidance documents; availability, etc.: Coastal and Estuarine Land Conservation Program, 35860-35869 03-15292 National Science National Science Foundation NOTICES Antarctic Conservation Act of 1978; permit applications, etc., 35920-35921 03-15180 Nuclear Nuclear Regulatory Commission NOTICES Environmental statements; availability, etc.:

Teledyne Brown Engineering, Inc., 35921 03-15249 Meetings; Sunshine Act, 35921-35922 03-15347 Postal Postal Service NOTICES Postal programs: In-Person Proofing at Post Offices program, 35922-35923 03-15211 Reclamation Reclamation Bureau NOTICES Environmental statements; notice of intent: California; Trinity River Mainstem Fishery Restoration Program, 35910-35912 03-15219 Research Research and Special Programs Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 35944-35945 03-15279 SEC Securities and Exchange Commission RULES Securities:

Administrative proceedings, 35787-35790 03-15262 NOTICES Self-regulatory organizations; proposed rule changes: Chicago Stock Exchange, Inc., 35923-35925 03-15266 Government Securities Clearing Corp., 35925-35926 03-15264 National Association of Securities Dealers, Inc., 35926-35933 03-15265 Philadelphia Stock Exchange, Inc., 35933-35937 03-15263 SBA Small Business Administration NOTICES Disaster loan areas: American Samoa, 35937 03-15233 Florida, 35937 03-15237 Mississippi, 35937 03-15234 Missouri, 35937 03-15235 Oklahoma, 35937-35938 03-15236 Social Social Security Administration NOTICES Organization, functions, and authority delegations:

Office of Earnings, Enumeration and Administrative Systems, 35938-35939 03-15184 Surface Surface Transportation Board NOTICES Railroad operation, acquisition, construction, etc.: Alabama Gulf Coast Railway LLC, 35945 03-14976 Textile Textile Agreements Implementation Committee See Committee for the Implementation of Textile Agreements Transportation Transportation Department See Federal Aviation Administration See National Highway Traffic Safety Administration See Research and Special Programs Administration See Surface Transportation Board Treasury Treasury Department See Internal Revenue Service Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 35949-36406 03-11156 Part III Labor Department, Mine Safety and Health Administration, 36407-36423 03-15006 Part IV Housing and Urban Development Department, 36425-36444 03-15370 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 68 116 Tuesday, June 17, 2003 Rules and Regulations DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 734, 740, 742, 748, 770, and 774 [Docket No. 030529136-3136-01] RIN 0694-AC78 Export Administration Regulations:

Encryption Clarifications and Revisions AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule. SUMMARY: This rule amends the Export Administration Regulations

(EAR)to clarify when encryption commodities and software may be given *de minimis* treatment, when short-range wireless devices incorporating encryption may be given mass market or retail treatment, and to provide guidance on when exporters are required to submit encryption review requests. It also expands the authorizations according to which travelers departing the United States may take encryption for their personal use, and clarifies that specially designed medical equipment and software are not controlled as encryption or “information security” items under the EAR. Finally this rule implements changes to the Wassenaar Arrangement List of dual-use items (agreed upon in the September 2002 meeting and finalized in December 2002) that eliminate from Export Control Classification Number

(ECCN)5A002 certain types of “Personalized smart cards” and equipment specially designed and limited to controlling access to copyright protected data. EFFECTIVE DATE: June 17, 2003. FOR FURTHER INFORMATION CONTACT: Norman LaCroix, Acting Director, Information Technology Controls Division, Office of Strategic Trade and Foreign Policy Controls, Bureau of Industry and Security, U.S. Department of Commerce at

(202)482-4439. SUPPLEMENTARY INFORMATION Background This rule amends § 734.4(b) to clarify the *de minimis* eligibility of encryption items controlled for National Security (“NS”) or Anti-Terrorism (“AT”) reasons under the Export Administration Regulations (EAR), subject to the applicable notification or review requirements described in § 740.13(e) and § 742.15(b). As with other encryption items no longer subject to “EI” controls (such as items classified under Export Control Classification Numbers (ECCNs) 5A992, 5D992 or 5E992), this rule clarifies that ECCN 5D002 encryption source code that would be considered publicly available under § 734.3(b)(3) of the EAR (and the corresponding object code) is eligible for *de minimis* treatment once exporters have complied with the applicable notification requirement that releases such ECCN 5D002 software from “EI” controls. This rule also updates License Exception BAG and the Related Control notes to ECCN 5A002 relative to the Wassenaar Arrangement List of dual-use items, and in several sections of the EAR clarifies existing instructions related to encryption commodities and software pre-loaded onto laptops, handheld devices, computers or other equipment. This rule also adds a “checklist” on encryption and other “information security” functions to Supplement 5 to part 742 of the EAR, to help exporters more fully consider and identify controlled encryption and “information security” components within their products, when making classification decisions and assessing whether an encryption review by BIS is required. Consistent with the standing export control agreement among Wassenaar Arrangement member nations, this rule also adds a *nota bene* (“NB”) immediately following Note 1 in Category 5 part II that clarifies that commodities and software specially designed for medical end-use that incorporate encryption items listed in Category 5 part II are not controlled by Category 5, part II of the Commerce Control List. This rule thus clarifies that a commodity or software product that is specially designed for medical end-use is classified as EAR99, even if the medical product incorporates another product, part or component that would otherwise be classified as 5A002, 5D002, 5A992 or 5D992. This rule expands the scope of License Exception BAG by allowing U.S. citizens or permanent resident aliens of the United States to export encryption commodities and software for their personal use to any destination except Country Group E:1. Persons other than U.S. citizens or permanent resident aliens of the United States (except nationals of countries listed in Country Group E:1 of Supplement No. 1 to part 740 who are not U.S. citizens or permanent resident aliens of the United States) may also take such commodities and software as accompanying baggage for their personal use to any destination except Country Group E:1. This rule updates the provisions in 740.14(d) for “unaccompanied baggage” by permitting shipments of personal use encryption commodities and software subject to “EI” controls to the same destinations that are permitted for CB, MT, NS and NP controlled items. In the Related Control notes to ECCN 5A002, the previous restriction to “one-time” copy control of copyright protected audio/video data has been removed. Likewise, as is now the case for such playback audio/video data, software that is subject to the EAR but not specified on the Commerce Control List ( *i.e.* , items that are classified as EAR99) remains classified EAR99 when copy protected. Lastly, Related Control note

(a)is amended and divided into two sub-paragraphs. Although the Export Administration Act expired on August 20, 2001, Executive Order 13222 of August 17, 2001 (66 FR 44025, August 22, 2001), as extended by the notice of August 14, 2002 (67 FR 53721, August 16, 2002), continues the Regulations in effect under the International Emergency Economic Powers Act. Rulemaking Requirements 1. This final rule has been determined to be not significant for purposes of E.O. 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, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule involves a collection of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 *et seq.* ). This collection has been approved by the Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 45 minutes for a manual submission and 40 minutes for an electronic submission. 3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132. 4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this interim 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 and on proposals to further update the encryption provisions of the EAR 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, PO Box 273, Washington, DC 20044. List of Subjects 15 CFR Part 734 Administrative practice and procedure, Exports, Foreign trade, Reporting and recordkeeping requirements. 15 CFR Parts 740 and 748 Administrative practice and procedure, Advisory committees, Exports, Foreign trade, Reporting and recordkeeping requirements. 15 CFR Parts 742, 770, and 774 Exports, Foreign trade. Accordingly, parts 734, 740, 742, 748, 770, and 774 of the Export Administration Regulations (15 CFR parts 730-799) are amended as follows: PART 734—[AMENDED] 1. 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 November 9, 2001, 66 FR 56965, 3 CFR, 2001 Comp., p. 917; notice of August 14, 2002, 67 FR 53721, August 16, 2002. 2. Section 734.4 is amended by revising paragraph

(b)to read as follows: § 734.4 De minimis U.S. content.

(a)* * *

(b)There is no *de minimis* level for foreign-made items that incorporate U.S.-origin items controlled for “EI” reasons under ECCN 5A002, 5D002 or 5E002 on the Commerce Control List (Supplement No. 1 to part 774 the EAR). However, exporters may, as part of an encryption review request, ask that software controlled for EI reasons under ECCN 5D002 and eligible for export under the “retail” or “source code” provisions of license exception ENC, and parts and components controlled under ECCN 5A002, be made eligible for *de minimis* treatment. The review of *de minimis* eligibility will take U.S. national security interests into account. Other encryption items controlled for NS or AT reasons under ECCNs 5D002, 5A992, 5D992, and 5E992 are not eligible for *de minimis* treatment, unless exporters have complied with the applicable notification or review requirements described in § 740.13(e), § 742.15(b)(1), and § 742.15(b)(2) of the EAR. Encryption items controlled by ECCN 5A992, 5D992, or 5E992 and described in § 742.15(b)(3) of the EAR are not subject to these notification or review requirements. PART 740—[AMENDED] 3. 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.* ; sec. 901-911, Pub. L. 106-387; 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 14, 2002, 67 FR 53721, August 16, 2002. 4. Section 740.9 is amended by revising paragraph (a)(2)(i) to read as follows: § 740.9 Temporary imports, exports, and reexports (TMP).

(a)* * *

(2)* * *

(i)*Tools of trade.* Usual and reasonable kinds and quantities of tools of trade (commodities and software) for use by the exporter or employees of the exporter in a lawful enterprise or undertaking of the exporter. Eligible tools of trade may include, but are not limited to, such equipment and software as is necessary to commission or service goods, provided that the equipment or software is appropriate for this purpose and that all goods to be commissioned or serviced are of foreign origin, or if subject to the EAR, have been legally exported or reexported. The tools of trade must remain under the effective control of the exporter or the exporter's employee ( *see* part 772 of the EAR for a definition of “effective control”). All tools of trade may accompany the individual departing from the United States or may be shipped unaccompanied within one month before the individual's departure from the United States, or at any time after departure. No tools of the trade may be taken to Country Group E:2 ( *see* Supplement No.1 to part 740) or Sudan. For exports under this License Exception of laptops, handheld devices and other computers and equipment loaded with encryption commodities or software, refer to item interpretation 13 in § 770.2 of the EAR. 5. Section 740.14 is amended by revising “items” in the last sentence of paragraph (b)(4) to read “commodities and software” and by revising paragraphs

(d)and

(f)to read as follows: § 740.14 Baggage (BAG).

(d)*Special provision: unaccompanied baggage.* Individuals departing the United States may ship unaccompanied baggage, which is baggage sent from the United States on a carrier other than that on which an individual departs. Crew members of exporting carriers may not ship unaccompanied baggage. Unaccompanied shipments under this License Exception shall be clearly marked “BAGGAGE.” Shipments of unaccompanied baggage may be made at the time of, or within a reasonable time before or after departure of the consignee or owner from the United States. Personal baggage controlled for chemical and biological weapons (CB), missile technology (MT), national security (NS), encryption items

(EI)or nuclear nonproliferation

(NP)must be shipped within 3 months before or after the month in which the consignee or owner departs the United States. However, commodities controlled for CB, MT, NS, EI or NP may not be exported under this License Exception as unaccompanied baggage to Country Groups D:1, D:2, D:3, D:4, or E:1. ( *See* Supplement No. 1 of this part).

(f)*Special provisions: encryption commodities and software subject to EI controls on the Commerce Control List.*

(1)A U.S. citizen or permanent resident alien of the United States as defined by 8 U.S.C. 1101(a)(20) may use this license exception to export or reexport encryption commodities and software to any destination not in Country Group E:1 of Supplement No. 1 of this part.

(2)A person other than a U.S. citizen or permanent resident alien of the United States as defined by 8 U.S.C. 1101(a)(20) (except a national of a country listed in Country Group E:1 of Supplement No. 1 of this part who is not a U.S. citizen or permanent resident alien of the United States) may also use this license exception to export or reexport encryption commodities and software to any destination not in Country Group E:1 of Supplement No. 1 of this part. 6. Section 740.17 is amended by revising paragraph (b)(3)(iii)(H) to read as follows: § 740.17 Encryption Commodities and Software (ENC).

(b)* * *

(3)* * *

(iii)* * *

(H)Short-range wireless components and software that do not qualify as mass market. Commodities and software that would not otherwise be controlled under Category 5 (telecommunications and “information security”) of the Commerce Control List, but which are controlled under ECCN 5A002 or 5D002 only because they incorporate components or software that provide short-range wireless encryption functions ( *e.g.* , with an operating range typically not exceeding 100 meters), may be exported or reexported under the retail provisions of License Exception ENC, without review or reporting. PART 742—[AMENDED] 7. 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.* ; 18 U.S.C. 2510 *et seq.* ; 22 U.S.C. 3201 *et seq.* ; 42 U.S.C. 2139a; sec. 901-911, Pub. L. 106-387; sec. 221, Pub. L. 107-56; 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; notice of November 9, 2001, 66 FR 56965, 3 CFR, 2001 Comp., p. 917; notice of August 14, 2002, 67 FR 53721, August 16, 2002. 8. Section 742.15 is amended by revising the first two sentences of paragraph

(b)(1), and revising paragraph (b)(3)(ii) to read as follows: § 742.15 Encryption items.

(b)* * *

(1)*Notification requirement for specified encryption items.* You may export or reexport encryption items controlled under ECCN 5A992, 5D992 or 5E992 and identified in paragraphs (b)(1)(i) and (b)(1)(ii) of this section to most destinations without a license (NLR: No License Required), provided that you have submitted to BIS, by the time of export, the information described in paragraphs

(a)through

(e)of Supplement No. 6 of this part. For notifications submitted under paragraph (b)(1)(i) of this section, you must also provide specific information describing how your products qualify for mass market treatment under the criteria in the Cryptography Note (Note 3) of Category 5, Part 2, of the Commerce Control List (Supplement No. 1 to part 774 of the EAR). * * *

(3)* * *

(ii)*Mass market short-range wireless commodities or software.* Mass market commodities or software that would not otherwise be controlled under Category 5 (telecommunications and “information security”) of the Commerce Control List, but which are controlled under ECCN 5A992 or 5D992 only because they incorporate components or software that provide short-range wireless encryption functions ( *e.g.* , wireless products with an operating range typically not exceeding 100 meters). 9. Part 742 is amended by adding a new Supplement No. 5 to read as follows: SUPPLEMENT NO. 5 TO PART 742—CHECKLIST ON ENCRYPTION AND OTHER “INFORMATION SECURITY” FUNCTIONS 1. Does your product perform “cryptography”, or otherwise contain any parts or components that are capable of performing any of the following “information security” functions? (Mark with an “X” all that apply) a. __ encryption b. __ decryption only (no encryption) c. __ key management/public key infrastructure

(PKI)d. __ authentication ( *e.g.* , password protection, digital signatures) e. __ copy protection f. __ anti-virus protection g. __ other (please explain) :__________ h. __ NONE/NOT APPLICABLE 2. For items with encryption, decryption and/or key management functions (1.a, 1.b, 1.c above): a. What symmetric algorithms and key lengths ( *e.g.* , 56-bit DES, 112/168-bit Triple-DES, 128/256-bit AES/Rijndael) are implemented or supported? b. What asymmetric algorithms and key lengths ( *e.g.* , 512-bit RSA/Diffie-Hellman, 1024/2048-bit RSA/Diffie-Hellman) are implemented or supported? c. What encryption protocols ( *e.g.* , SSL, SSH, IPSEC or PKCS standards) are implemented or supported? d. What type of data is encrypted? 3. For products that contain an “encryption component”, can this encryption component be easily used by another product, or else accessed/re-transferred by the end-user for cryptographic use? PART 748—[AMENDED] 10. The authority citation for part 748 continues 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 14, 2002, 67 FR 53721, August 16, 2002. 11. Section 748.3 is amended by adding a sentence to the end of paragraph (a), and revising

(d)to read as follows: § 748.3 Classification requests, advisory opinions, and encryption review requests.

(a)*Introduction.* * * * A review of the questions provided in Supplement No. 5 to part 742 of the EAR may assist in determining whether you must submit an encryption review request (see paragraph

(d)of this section) for your particular item.

(d)*Review requests for encryption items.* A Department of Commerce review of 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 questions that provide initial guidance in determining whether you must submit an encryption review request for your item. Refer to Supplement No. 6 to part 742 of the EAR for a complete list of technical information that is required for encryption review requests. Refer also to § 742.15(b) of the EAR for instructions regarding mass market encryption commodities and software. Refer to § 740.17 of the EAR for the provisions of License Exception ENC. 12. Part 748, Supplement No. 1 is amended by revising the paragraph labeled “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 Review.* If you are requesting encryption review under License Exception ENC (§ 740.17 of the EAR) or “mass market” encryption provisions (§ 742.15(b)(2) of the EAR), mark the Box labeled “Classification Request” 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). 13. Part 748, Supplement No. 2 is amended by adding a new paragraph

(r)immediately following paragraph

(q)and reading as follows: SUPPLEMENT NO. 2 TO PART 748—UNIQUE LICENSE APPLICATION REQUIREMENTS

(r)*Encryption review requests.* Enter, in Block 9 (Special Purpose) of the BIS-748P, “License Exception ENC” if you are submitting an encryption review request for License Exception ENC (§ 740.17 of the EAR) or “mass market encryption” if you are submitting an encryption review request under the mass market encryption provisions (§ 742.15(b)(2) of the EAR). If you seek an encryption review for another reason, enter “encryption—other”. PART 770—[AMENDED] 14. The authority citation for part 770 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 14, 2002, 67 FR 53721, August 16, 2002. 15. Section 770.2 is amended by revising paragraph

(m)to read as follows: § 770.2 Item interpretations.

(m)*Interpretation 13: Encryption commodities and software controlled for EI reasons.* Encryption commodities and software controlled for EI reasons under ECCNs 5A002 and 5D002 may be pre-loaded on a laptop, handheld device or other computer or equipment and exported under the tools of trade provision of License Exception TMP or the personal use exemption under License Exception BAG, subject to the terms and conditions of such License Exceptions. This provision replaces the personal use exemption of the International Traffic and Arms Regulations

(ITAR)that existed for such software prior to December 30, 1996. Neither License Exception TMP nor License Exception BAG contains a reporting requirement. Like other “information security” “software”, components, “electronic assemblies” or modules, the control status of encryption commodities and software is determined in Category 5, part 2 even if they are bundled, commingled or incorporated in a computer or other equipment. However, commodities and software specially designed for medical end-use that incorporate an item in Category 5, part 2 are not controlled in Category 5, part 2. *See* Note 1 to Category 5, part 2 (“Information Security”) of Supplement No. 1 to Part 774 (the Commerce Control List) of the EAR. PART 774—[AMENDED] Supplement No. 1 to Part 774 (The Commerce Control List)—[Amended] 16. 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); 18 U.S.C. 2510 *et seq.* ; 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; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; sec. 901-911, Pub. L. 106-387; sec. 221, Pub. L. 107-56; 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 14, 2002, 67 FR 53721, August 16, 2002. 17. Supplement No. 1 to Part 774 (Commerce Control List), Category 5—Telecommunications and “Information Security”, following the heading II—“INFORMATION SECURITY” is amended by adding a new Nota Bene (“N.B.”) immediately following Note 1, and amending Export Control Classification Number

(ECCN)5A002 by revising the *Related Controls* paragraph of the List of Items Controlled section as set forth below: SUPPLEMENT NO. 1 TO PART 774—THE COMMERCE CONTROL LIST Category 5—Telecommunications and “Information Security” Part II. “Information Security'' **Note 1: * * *** **N.B. to Note 1:** Commodities and software specially designed for medical end-use that incorporate an item in Category 5, part 2 are not classified in any ECCN in Category 5, part 2. A. SYSTEMS, EQUIPMENT AND COMPONENTS **5A002 Systems, equipment, application specific “electronic assemblies”, modules and integrated circuits for “information security”, as follows** ( see **List of Items Controlled), and other specially designed components therefor.** List of Items Controlled Unit * * * *Related Controls: See also* 5A992. This entry does not control:

(a)“Personalized smart cards”:

(1)Where the cryptographic capability is restricted for use in equipment or systems excluded from control paragraphs

(b)through

(f)of this note; or

(2)For general public-use applications where the cryptographic capability is not user-accessible and it is specially designed and limited to allow protection of personal data stored within. Note that if a “personalized smart card” has multiple functions, the control status of each function is assessed individually;

(b)Receiving equipment for radio broadcast, pay television or similar restricted audience broadcast of the consumer type, without digital encryption except that exclusively used for sending the billing or program-related information back to the broadcast providers;

(c)Portable or mobile radiotelephones for civil use ( *e.g.* , for use with commercial civil cellular radio communications systems) that are not capable of end-to-end encryption;

(d)Equipment where the cryptographic capability is not user-accessible and which is specially designed and limited to allow any of the following:

(1)Execution of copy-protected “software”;

(2)Access to any of the following:

(a)Copy-protected contents stored on read-only media; *or*

(b)Information stored in encrypted form on media ( *e.g.* , in connection with the protection of intellectual property rights) where the media is offered for sale in identical sets to the public; *or*

(3)Copying control of copyright protected audio/video data;

(e)Cryptographic equipment specially designed and limited for banking use or money transactions;

(f)Cordless telephone equipment not capable of end-to-end encryption where the maximum effective range of unboosted cordless operation ( *e.g.* , a single, unrelayed hop between terminal and home basestation) is less than 400 meters according to the manufacturer's specifications. These items are controlled under ECCN 5A992. *Related Definitions:* * * * *Items:* * * * Dated: June 10, 2003. James J. Jochum, Assistant Secretary for Export Administration. [FR Doc. 03-15189 Filed 6-16-03; 8:45 am]

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