2023-20128. Export Administration Regulations (EAR): Transfer of Access Information and Release of Software (Source Code and Object Code)

AGENCY:

Bureau of Industry and Security, Department of Commerce.

ACTION:

Final rule; technical correction.

SUMMARY:

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

DATES:

This rule is effective September 18, 2023.

FOR FURTHER INFORMATION CONTACT:

For questions on these technical corrections, contact Eileen Albanese, Director, Office of National Security and Technology Transfer Controls, Bureau of Industry and Security, Department of Commerce, Phone: [phone], Email: [e-mail].

SUPPLEMENTARY INFORMATION:

Background

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

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

Export Control Reform Act of 2018

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

Rulemaking Requirements

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves an information collection approved by OMB under control number 0694–0088, Simplified Network Application Processing System. BIS does not anticipate a change to the burden hours associated with this collection as a result of this rule. Information regarding the collection, including all supporting materials, can be accessed at https://www.reginfo.gov/​public/​do/​PRAMain.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

List of Subjects 15 CFR Part 734

• Administrative practice and procedure
• Exports
• Inventions and patents
• Research
• Science and technology

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

PART 734—SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS

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

Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 4601 et seq.;50 U.S.C. 1701 et seq.;E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13020, 61 FR 54079, 3 CFR, 1996 Comp., p. 219; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13637, 78 FR 16129, 3 CFR, 2014 Comp., p. 223; Notice of November 8, 2022, 87 FR 68015 (November 10, 2022).

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

§ 734.15

Release.

(a) Except as set forth in §§ 734.18 and 734.19, “technology” and “software” are “released” through:

* * * * *

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

§ 734.19

Transfer of access information.

* * * * *

Note 1 to § 734.19: For purposes of this section, a release of “software” includes source code and object code.

Thea D. Rozman Kendler,

Assistant Secretary for Export Administration.