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Federal Register / Vol. 86, No. 58 / Monday, March 29, 2021 / Rules and Regulations regulatory flexibility analysis is required, and none has been prepared.

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3. Section 734.17 is amended by revising paragraph b2 to read as follows:

15 CFR Part 734

734.17 Export of encryption source code and object code software.

740.13 Technology and software unrestricted TSU.

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

List of Subjects
15 CFR Part 740
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 772
Exports.
15 CFR Part 774
Exports, Reporting and recordkeeping requirements.
Accordingly, parts 734, 740, 742, 772
and 774 of the Export Administration Regulations 15 CFR parts 730 through 774 are amended as follows:
PART 734AMENDED
1. The authority citation for part 734
is revised to read as follows:

Authority: 50 U.S.C. 48014852; 50 U.S.C.
4601 et seq.; 50 U.S.C. 1701 et seq.; E.O.
12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13020, 61 FR 54079, 3 CFR, 1996
Comp., p. 219; E.O. 13026, 61 FR 58767, 3
CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR
44025, 3 CFR, 2001 Comp., p. 783; E.O.
13637, 78 FR 16129, 3 CFR, 2014 Comp., p.
223; Notice of November 12, 2020, 85 FR
72897 November 13, 2020.

2. Section 734.4 is amended by revising the paragraph b subject heading and paragraphs b1
introductory text and b1i to read as follows:

734.4

De minimis U.S. content.

b Special requirements for certain Category 5, Part 2 items.
1 The U.S.-origin commodities or software, if controlled under ECCN
5A002, ECCN 5B002, equivalent or related software therefor classified under ECCN 5D002, and cryptanalytic items or digital forensics items investigative tools classified under ECCN 5A004 or 5D002, must have been:
i Publicly available encryption source code classified under ECCN
5D002 that has met the criteria specified in 742.15b, see 734.3b3 of the EAR. Such source code does not have to be counted as controlled U.S.-origin content in a de minimis calculation;

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b
2 Making such software available for transfer outside the United States, over wire, cable, radio, electromagnetic, photo optical, photoelectric or other comparable communications facilities accessible to persons outside the United States, including transfers from electronic bulletin boards, internet file transfer protocol and World Wide websites, unless the person making the software available takes precautions adequate to prevent unauthorized transfer of such code. See 742.15b of the EAR for additional requirements pursuant to which exports or reexports of encryption source code software are considered to be publicly available consistent with the provisions of 734.3b3. Publicly available encryption source code software and corresponding object code are not subject to the EAR, when the encryption source code software meets the additional requirements in 742.15b of the EAR.

PART 740AMENDED
4. The authority citation for part 740
continues to read as follows:

Authority: 50 U.S.C. 48014852; 50 U.S.C.
4601 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.

5. Section 740.9 is amended by revising paragraph c8 to read as follows:

740.9 Temporary Imports, Exports, Reexports, and Transfers in-country TMP.

c
8 Notification of beta test encryption software implementing non-standard cryptography. For beta test encryption software eligible under this license exception that provides or performs non-standard cryptography as defined in part 772 of the EAR, by the time of export or reexport you must submit the information described in paragraphs a through d of supplement No. 6 to part 742 of the EAR by email to BIS at crypt@
bis.doc.gov and to the ENC Encryption Request Coordinator at enc@nsa.gov.

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6. Section 740.13 is amended by revising paragraph d2 to read as follows:

d
2 Exclusions. The provisions of this paragraph d are not available for encryption software controlled for EI
reasons under ECCN 5D002 or for encryption software with symmetric key length exceeding 64-bits that qualifies as mass market encryption software under the criteria in the Cryptography Note Note 3 of Category 5, Part 2, of the CCL
supplement No. 1 to part 774 of the EAR. Once such mass market encryption software has been released from EI and NS controls pursuant to 740.17b of the EAR, it is controlled under ECCN 5D992.c and is thus outside the scope of License Exception TSU. See 740.17b of the EAR for exports and reexports of mass market encryption products controlled under ECCN 5D992.c.

7. Section 740.17 is amended by:
a. Revising the paragraph b subject heading;
b. Revising the first sentence of paragraph b introductory text;
c. Revising the last sentence of paragraph b3 introductory text;
d. Revising paragraph b3i introductory text;
e. Revising paragraph e3
introductory text; and f. Adding a note to paragraph e3
introductory text.
The revisions and addition read as follows:
740.17 Encryption Commodities, Software and Technology ENC.

b Classification request or selfclassification. For certain products described in paragraph b1 of this section that are self-classified, a selfclassification report in accordance with paragraph e3 of this section is required from specified exporters, reexporters and transferors; for products described in paragraph b1 of this section that are classified by BIS via a CCATS, a self-classification report is not required.
3 Thirty 30 days after a classification request is submitted to BIS
in accordance with paragraph d of this section and subject to the reporting requirements in paragraph e of this section, this paragraph authorizes exports, reexports, and transfers incountry of the items submitted for classification, as further described in
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