[Federal Register Volume 87, Number 102 (Thursday, May 26, 2022)]
[Rules and Regulations]
[Pages 31948-31954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11282]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 740, 772, and 774

[Docket No. 220520-0118]
RIN 0694-AH56


Information Security Controls: Cybersecurity Items

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: BIS is finalizing changes to License Exception ACE and 
corresponding changes in the definition section of the Export 
Administration Regulations (EAR) in response to public comments to an 
October 21, 2021 interim rule. That rule established a new control on 
certain cybersecurity items for National Security (NS) and Anti-
terrorism (AT) reasons, as well as adding a new License Exception 
Authorized Cybersecurity Exports (ACE) that authorizes exports of these 
items to most destinations except in certain circumstances. These items 
warrant controls because these tools could be used for surveillance, 
espionage, or other actions that disrupt, deny or degrade the network 
or devices on it. This rule also corrects Export Control Classification 
Number (ECCN) 5D001 in the Commerce Control List.

DATES: This rule is effective May 26, 2022.

FOR FURTHER INFORMATION CONTACT: For questions regarding the Export 
Control Classification Numbers (ECCNs) included in this rule or License 
Exception ACE, contact Aaron Amundson at 202-482-0707 or email 
<a href="/cdn-cgi/l/email-protection#521333203d3c7c133f273c36213d3c12303b217c363d317c353d24"><span class="__cf_email__" data-cfemail="81c0e0f3eeefafc0ecf4efe5f2eeefc1e3e8f2afe5eee2afe6eef7">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Background

    In 2013, the Wassenaar Arrangement (WA) decided on new controls on 
cybersecurity items. The controls included hardware and software 
controls on the command and delivery platforms for ``intrusion 
software'', the technology for the ``development'', ``production'' or 
``use'' of the command and delivery platforms, and the

[[Page 31949]]

technology for the ``development'' of ``intrusion software''. On May 
20, 2015, BIS published a proposed rule (80 FR 28853) entitled 
``Wassenaar Arrangement 2013 Plenary Agreements Implementation: 
Intrusion and Surveillance Items,'' which proposed implementing these 
controls and sought comments on their impact.
    In response to the proposed rule, BIS received almost 300 comments 
that raised substantial concerns about the proposed rule's scope and 
the effect the proposed rule would have on legitimate cybersecurity 
research and incident response activities. BIS also conducted extensive 
outreach with the security industry, financial institutions, and 
government agencies that manage cybersecurity.
    Comments on the previously published proposed rule focused on three 
main issues. First, many commenters asserted that the entries were 
overly broad, captured more than was intended, and, as a technical 
matter, failed to accurately describe the items intended for control. 
Second, many commenters asserted that the rule as written imposed a 
heavy and unnecessary licensing burden on legitimate transactions that 
contribute to cybersecurity. Third, many commenters suggested that the 
proposed rule's control on technology for the ``development'' of 
``intrusion software'' could cripple legitimate cybersecurity research.
    Based on these comments, the United States decided against amending 
the proposed rule and instead returned to the WA in 2016 and 2017 to 
negotiate changes to the text. In December 2017, the WA published the 
changes that resulted from those negotiations. There were three 
significant changes: First, using ``command and control'' in the 
control language for both hardware and software addressed concerns from 
cybersecurity companies to more specifically control tools that can be 
used maliciously; second, adding a note to the control entry for 
technology for the ``development'' of ``intrusion software'' that 
excludes from the entry ``technology'' that is exchanged for 
``vulnerability disclosure'' or ``cyber incident response''; and third, 
adding a note to the ``software'' generation, command and control, or 
delivery entry that excludes from this entry products designed and 
limited to providing basic software updates and upgrades.
    On October 21, 2021 (86 FR 58205), the Bureau of Industry and 
Security (BIS) published an interim final rule (October 21 rule) that 
establishes new controls on certain cybersecurity items for National 
Security (NS) and Anti-terrorism (AT) reasons, along with a new License 
Exception, Authorized Cybersecurity Exports (ACE), that authorizes 
exports of these items to most destinations except in specified 
circumstances. That rule was published with a 45-day comment period, 
which ended on December 12, 2021, and a 90-day delayed effective date 
(January 19, 2022). A total of 12 comments were received. On January 
12, 2022 (87 FR 1670), BIS published a rule that further delayed the 
effective date of the interim final rule by 45 days (March 7, 2022). 
That action did not extend or reopen the comment period for BIS's 
previous request for comments on the interim final rule. Consistent 
with the comments received, this action amends the October 21 rule that 
became effective March 7, 2022.

Public Comments on the October 21 Rule

Comments Requesting Additional Guidance

    Several commenters stated that the new 5A001.j entry is complex and 
therefore presents compliance difficulties. One commenter asked whether 
5A001.j would control cybersecurity incident detection and monitoring 
software. Another commenter stated that 5A001.j systems have numerous 
components, all of which will need to be examined under the new entry. 
In response, BIS is providing additional information and guidance 
through ``Frequently Asked Questions'' (FAQs) on 5A001.j to clarify 
these interpretation issues. BIS does not expect 5A001.j to control a 
large number of products, and therefore believes these issues can be 
addressed in the FAQs.
    Several commenters recommended that BIS devote additional resources 
to conducting outreach to exporters about the interim final rule. One 
commenter recommended a decision tool for ACE like the one used for 
License Exception Strategic Trade Authorization (STA), as well as more 
FAQs. Another said BIS should put more resources towards outreach to 
the cybersecurity community. One commenter recommended developing 
additional guidelines to help exporters with the interim final rule. 
BIS agrees with these comments and is working on providing additional 
guidance along these lines.
    Several commenters asked for clarification of BIS's ``reason to 
know'' standard. One commenter said that the end-use based control uses 
the phrase ``knows or has reason to know'' and asked if this was 
supposed to be different from the ``knowledge'' standard. Others 
recommended BIS provide guidelines on when an exporter would have 
``reason to know'' something will be used for unauthorized 
surveillance. The terms ``know'' and ``reason to know'' use the same 
definition found in Sec.  772.1 of the EAR as the term ``knowledge,'' 
which is the one that should be used for this rule. BIS has published 
extensive ``Know Your Customer'' guidance in supplement no. 3 to part 
732 of the EAR and on its website. That information also applies to 
transactions under license exception ACE. BIS believes the current 
guidance is sufficient to address the questions raised by the 
commenters and declines to provide additional sector-specific guidance 
for this area beyond what is published on the website.

Comments Requiring Regulatory Changes

    Several commenters stated that the definition of `government end 
user' in ACE is vague and will be difficult to apply. Two commenters 
stated that there is some potential overlap between `government end 
users' and `favorable treatment cybersecurity end users'. BIS agrees 
with this recommendation and makes changes to the definition of 
`government end user' to be more specific and to clarify the meaning of 
this term.
    One commenter stated that the licensing requirement for people 
acting on behalf of a `government end user' will chill cross-border 
collaboration with cybersecurity researchers and bug bounty hunters 
because exporters will be required to check whether an individual has a 
government affiliation before communicating with them. The company 
recommends BIS either remove this requirement or modify it. BIS 
disagrees with this recommendation. The license requirement for people 
acting on behalf of a government is necessary to prevent people who are 
acting on behalf of a Country Group D government from obtaining 
`cybersecurity items' for activities contrary to U.S. national security 
and foreign policy interests. Removing this requirement would risk 
allowing Country Group D governments access to those items. BIS agrees 
that this means that exporters will in some cases have to check 
government affiliation of people and companies they work with. However, 
because of the limited scope and applicability of the license 
requirement, BIS believes the requirement will protect U.S. national 
security and foreign policy interests without unduly impacting 
legitimate cybersecurity activities.

[[Page 31950]]

    A couple of commenters stated that the definitions of 
``vulnerability disclosure'' and ``cyber incident response'' are too 
narrow. One commenter said that researchers share vulnerability 
information unrelated to remediation of a specific vulnerability or 
incident. Another said the definitions should include information that 
is not strictly ``necessary'' for vulnerability disclosure or cyber 
incident response activities, as well as information that is needed to 
prevent cyber incidents from happening. One commenter recommended 
expanding the exclusion to include preventative remediation and 
coordination activities. They recommend two possible solutions: (1) 
Amend FAQs to clarify that the carve-out covers routine sharing of 
exploits for cybersecurity purposes; or (2) amend the definition of 
fundamental research to include transferring exploit information for 
research purposes. BIS believes that many of the activities commenters 
mentioned as being subject to a license requirement, such as tactics 
and techniques of malicious actors, and identifying products that 
contain vulnerabilities, are not subject to this control and that 
therefore the scope of items that would require a license in this area 
is significantly smaller than the commenters asserted. Therefore, BIS 
is not amending the rule but will clarify the scope of license 
requirements in this area via guidance in FAQs.

Other Significant Comments

    One commenter suggested extending the comment period to January 5, 
2022. Another recommended delaying the effective date of the rule and 
conducting more extensive industry consultations and engagements. In 
response, BIS delayed the implementation date of the October 21 rule to 
March 7, 2022, and reached out to interested industry members of BIS's 
Technical Advisory Committees to prepare additional guidance and make 
clarifications that are in this final rule.
    Several commenters said the rule is complicated and will be 
difficult for people to understand and implement. In response, BIS has 
made several changes in this final rule to clarify the scope of 
controls. In addition, BIS delayed the implementation date of the 
October 21 rule to March 7, 2022, which allowed for the preparation of 
additional guidance to assist with compliance.
    One commenter said that the estimated yearly expense of compliance 
of $2,520 is a gross underestimation, because the complexity of the 
rule will increase the cost of compliance. However, none of the 
commenters provided data to substantiate this claim or provided another 
estimate. BIS consulted with its Technical Advisory Committees to 
develop the estimate yearly expense identified in this rule.

Specific Revisions

Section 740.17 License Exception Encryption Commodities, Software, and 
Technology (ENC)

    BIS is revising Sec.  740.17 by adding a new end-use restriction 
(Sec.  740.17(f)) equivalent to the end-use restriction in Sec.  
740.22(c)(4) of License Exception ACE, so that License Exception ENC is 
not authorized if the exporter, reexporter, or transferor ``knows'' or 
has ``reason to know'' at the time of export, reexport, or transfer 
(in-country), including deemed exports and reexports, that the 
following items will be used to affect the confidentiality, integrity 
or availability of information or information systems, without 
authorization by the owner, operator or administrator of the 
information system (including the information and processes within such 
systems): ``cryptanalytic items'', classified in ECCN 5A004.a, 
5D002.a.3.a or c.3.a, or 5E002; network penetration tools described in 
Sec.  740.17(b)(2)(i)(F), and ECCN 5E002 ``technology'' therefor; or 
automated network vulnerability analysis and response tools described 
in Sec.  740.17(b)(3)(iii)(A), and ECCN 5E002 ``technology'' therefor. 
This conforming change is necessary to avoid an unintended circumstance 
in which the Sec.  740.22(c)(4) License Exception ACE end-use 
restriction could be evaded by adding cryptographic or cryptanalytic 
functionality to the `cybersecurity item' and exporting, reexporting or 
transferring (in-country) the resulting `encryption item' subject to 
the EAR under License Exception ENC.

Section 740.22 License Exception Authorized Cybersecurity Exports (ACE)

    In response to public comments, BIS is revising Sec.  740.22. BIS 
is revising the definition of the term `Government end user' as defined 
in Sec.  740.22(b)(4) of License Exception ACE by adding a detailed 
illustrative list of end users that meet this definition. Included in 
the list are two types of government end users that are already defined 
in the EAR, ``more-sensitive government end users'' and ``less-
sensitive government end users''. BIS also added a note to define 
`partially operated or owned by a government or governmental authority' 
to guide the public in understanding this phrase, which is used in 
three of the listed `government end users' related to utilities; 
transportation hubs and services; and retail or wholesale firms engaged 
in the manufacture, distribution, or provision of items or services 
specified in the Wassenaar Arrangement Munitions List.
    BIS also revised the format of the restrictions in Sec.  740.22(c) 
by collapsing the levels and moving most of the text that was in notes 
to subordinate paragraphs within paragraph (c). Several people 
commented that the double negative structure of the restrictions 
paragraph was confusing. BIS believes the more simplified paragraph 
organization will alleviate the confusion.
    Finally, BIS is amending Sec.  740.22(c)(2)(i) to correct the text, 
which inadvertently increased the scope of the exception. As currently 
written, that paragraph allows (a) exports of `digital artifacts' to 
anyone in a Country Group D country that is also listed in Country 
Group A:6; and (b) exports of any `cybersecurity item' to police or 
judicial bodies to Country Group D countries that are also listed in 
Country Group A:6. However, BIS intended to only allow exports of 
`digital artifacts' to police or judicial bodies in Country Group D 
countries that are also listed in Country Group A:6 for purposes of 
criminal or civil investigations or prosecutions. These changes correct 
the text to reflect the intended scope.

Part 772--Definitions of Terms

    This rule amends the terms ``Less sensitive government end users'' 
and ``More sensitive government end users'' to indicate that the terms 
apply to cybersecurity items and are now referenced in License 
Exception ACE (Sec.  740.22).

Part 774--Commerce Control List: ECCN 5D001

    This rule corrects an error made to ECCN 5D001in the October 21, 
2021 interim rule. That rule inadvertently removed 5D001.e and this 
rule restores 5D001.e.

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. 
Sections 4801-4852. ECRA provides the legal basis for BIS's principal 
authorities and serves as the authority under which BIS issues this 
rule.

Executive Order Requirements

    This final rule has been designated a ``significant regulatory 
action'' under Executive Order 12866.

[[Page 31951]]

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

Paperwork Reduction Act Requirements

    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 (PRA) of 1995 (44 U.S.C. 3501 et seq.) 
unless a valid Office of Management and Budget (OMB) Control Number is 
displayed. While there is no collection of information associated with 
using License Exception ACE, this rule does involve a collection of 
information currently approved under Control Number 0694-0088, Multi-
Purpose Application. The current burden hour estimate for this 
collection is 29.6 minutes for a manual or electronic submission.
    For the existing ECCNs included in this rule (4D001, 4E001, 5A001, 
5A004, 5D001, 5E001), the 2020 data from the Automated Export System 
(AES) shows 980 shipments valued at $39,146,164. Of those shipments, 
120 shipments valued at $1,864,699 went to Country Group D:1 or D:5 
countries, which would make them ineligible for License Exception ACE. 
There were no shipments to Country Group E:1 or E:2. Under the 
provisions of this rule, the 120 shipments require a license 
application submission to BIS.
    As there is no specific ECCN data in AES for the new export 
controls in new ECCNs 4A005 and 4D004 or new paragraph 4E001.c, BIS has 
used other data to estimate the number of shipments of these new ECCNs 
that will require a license. Bureau of Economic Analysis (BEA) data 
from 2019 show a total dollar value of $55,657,000 for Telecom, 
Computer, and Information Technology Services exports. Multiplying this 
value by 12.1% (the percentage of all exports that are subject to an 
EAR license requirement as determined by using AES data) suggests that 
$6,734,497,000 of Telecom/Computer/IT exports are now subject to EAR 
license requirements. Based on AES data on the existing ECCNs affected 
by this rule, BIS estimates the average value of each shipment for the 
new ECCNs at about $40,000, and further estimates that 0.6% of all new 
ECCN shipments (1,010 shipments) are now eligible for License Exception 
ACE and 0.03% of all new ECCN shipments (50 shipments) require a 
license application submission.
    Therefore, the annual total estimated cost associated with the 
paperwork burden imposed by this rule (that is, the projected increase 
of license application submissions based on the additional shipments 
requiring a license) is estimated to be 170 new applications x 29.6 
minutes = 5,032/60 min = 84 hours x $30 = $2,520.
    BIS is in the process of updating this information collection to 
account for the increase in burden hours and costs posed by this rule. 
Comments on the methodology associated with calculating the cost or 
burden increases or any other aspect of this collection can be 
submitted via www.regulations.gov by searching for OMB Control Number 
0694-0088.

Administrative Procedure Act and Regulatory Flexibility Act 
Requirements

    Pursuant to Section 4821 of ECRA, this action is exempt from the 
Administrative Procedure Act (5 U.S.C. 553) requirements for notice of 
proposed rulemaking and opportunity for public participation. Further, 
no other law requires notice of proposed rulemaking or opportunity for 
public comment for this final rule. Because a notice of proposed 
rulemaking and an opportunity for public comment are not required 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.

List of Subjects

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.

    Accordingly, the interim rule amending 15 CFR parts 740, 772, and 
774, which was published on October 21, 2021 (86 FR 58205), is adopted 
as final with the following changes:

PART 740 [AMENDED]

0
1. The authority citation for part 740 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.; 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.


0
2. Section 740.17 is revised by adding paragraph (f) to read as 
follows:


Sec.  740.17   Encryption commodities, software, and technology (ENC).

* * * * *
    (f) End-use restrictions. Notwithstanding the other provisions and 
authorizations of this section, License Exception ENC is not authorized 
for any of the following items if the exporter, reexporter, or 
transferor ``knows'' or has ``reason to know'' at the time of export, 
reexport, or transfer (in-country), including deemed exports and 
reexports, that the item will be used to affect the confidentiality, 
integrity, or availability of information or information systems, 
without authorization by the owner, operator, or administrator of the 
information system (including the information and processes within such 
systems):
    (1) ``Cryptanalytic items,'' classified in ECCN 5A004.a, 
5D002.a.3.a or c.3.a, or 5E002;
    (2) Network penetration tools described in paragraph (b)(2)(i)(F) 
of this section, and ECCN 5E002 ``technology'' therefor; or
    (3) Automated network vulnerability analysis and response tools 
described in paragraph (b)(3)(iii)(A) of this section, and ECCN 5E002 
``technology'' therefor.

    Note to paragraph (f):  See also Sec.  740.22(c)(4).


0
3. Section 740.22 is revised to read as follows:


Sec.  740.22   Authorized Cybersecurity Exports (ACE).

    (a) Scope. License Exception ACE authorizes export, reexport, and 
transfer (in-country), including deemed exports and reexports, of 
`cybersecurity items,' as set forth in paragraph (b) of this section, 
subject to the restrictions set forth in paragraph (c) of this section. 
Deemed exports and reexports are authorized under this license 
exception, except for deemed exports or reexports to E:1 and E:2 
nationals as described in paragraph (c)(1) of this section, to certain 
`government end users' as described in paragraph (c)(2) of this 
section, and subject to the end use restrictions described in paragraph 
(c)(4) of this section. Even if License Exception ACE is not available 
for a particular transaction, other license exceptions may be 
available. For example, License Exception GOV (Sec.  740.11) authorizes 
certain exports to U.S. Government agencies and personnel. License 
Exception TMP (Sec.  740.9(a)(1)) authorizes the export, reexport, and 
transfer (in country) of tools of the trade in certain situations.
    (b) Definitions. The following terms and definitions are for the 
purpose of License Exception ACE only.

[[Page 31952]]

    (1) `Cybersecurity Items' are ECCNs 4A005, 4D001.a (for 4A005 or 
4D004), 4D004, 4E001.a (for 4A005, 4D001.a (for 4A005 or 4D004) or 
4D004), 4E001.c, 5A001.j, 5B001.a (for 5A001.j), 5D001.a (for 5A001.j), 
5D001.c (for 5A001.j or 5B001.a (for 5A001.j)), and 5E001.a (for 
5A001.j or 5D001.a (for 5A001.j)).
    (2) `Digital artifacts' are items (e.g., ``software'' or 
``technology'') found or discovered on an information system that show 
past or present activity pertaining to the use or compromise of, or 
other effects on, that information system.
    (3) `Favorable treatment cybersecurity end user' is any of the 
following:
    (i) A ``U.S. subsidiary'';
    (ii) Providers of banking and other financial services;
    (iii) Insurance companies; or
    (iv) Civil health and medical institutions providing medical 
treatment or otherwise conducting the practice of medicine, including 
medical research.
    (4) `Government end user,' for the purpose of this section, is a 
national, regional, or local department, agency, or entity that 
provides any governmental function or service, including entities or 
individuals who are acting on behalf of such an entity. This term does 
not include any `favorable treatment cybersecurity end user' listed in 
paragraph (b)(3) of this section. This term includes, but is not 
limited to:
    (i) International governmental organizations;
    (ii) Government operated research institutions;
    (iii) ``More-sensitive government end users'';
    (iv) ``Less-sensitive government end users'';
    (v) Utilities (including telecommunications service providers and 
internet service providers) that are wholly operated or owned by a 
government or governmental authority or `partially operated or owned by 
a government or governmental authority';
    (vi) Transportation hubs and services (e.g., airlines and airports; 
ships and ports; railways and rail stations; buses, trucking and 
highways) that are wholly operated or owned by a government or 
governmental authority or `partially operated or owned by a government 
or governmental authority'; and
    (vii) Retail or wholesale firms that are wholly operated or owned 
by a government or governmental authority or `partially operated or 
owned by a government or by a governmental authority', engaged in the 
manufacture, distribution, or provision of items or services specified 
in the Wassenaar Arrangement Munitions List.
    (5) For the purposes of this section, `partially operated or owned 
by a government or governmental authority' means that a foreign 
government or governmental authority beneficially owns or controls 
(whether directly or indirectly) 25 percent or more of the voting 
securities of the foreign entity, or a foreign government or 
governmental authority has the authority to appoint a majority of the 
members of the board of directors of the foreign entity.
    (c) Restrictions. License Exception ACE does not authorize deemed 
exports and reexports, exports, reexports, or transfers (in-country) of 
`cybersecurity items' as follows:
    (1) To a destination that is listed in Country Group E:1 or E:2 in 
supplement no.1 to this part.
    (2) To a `government end user', as defined in this section, of any 
country listed in Country Group D:1, D:2, D:3, D:4 or D:5 in supplement 
no. 1 to this part, except:
    (i) `Digital artifacts' (that are related to a cybersecurity 
incident involving information systems owned or operated by a 
`favorable treatment cybersecurity end user') to police or judicial 
bodies in Country Group D countries that are also listed in Country 
Group A:6 for purposes of criminal or civil investigations or 
prosecutions of such cybersecurity incidents; or
    (ii) To national computer security incident response teams in 
Country Group D countries that are also listed in Country Group A:6 of 
`cybersecurity items' for purposes of responding to cybersecurity 
incidents, for purposes of ``vulnerability disclosure'', or for 
purposes of criminal or civil investigations or prosecutions of such 
cybersecurity incidents.
    (3) The restrictions in paragraphs (c)(1) and (2) of this section 
also apply to activities, including exports, reexports, and transfers 
(in-country), related to ``vulnerability disclosure'' and ``cyber 
incident response''.

    Note 1 to paragraph (c)(3):  For paragraphs (c)(1) and (2) of 
this section, see Note 1 to ECCN 4E001 in the CCL (supplement no. 1 
to part 774 of the EAR) excluding ``vulnerability disclosure'' and 
``cyber incident response'' from control under 4E001.a or .c.

    (4) To a non-`government end user' located in any country listed in 
Country Group D:1 or D:5 of supplement no. 1 to this part, except:
    (i) Cybersecurity items classified under ECCNs 4A005, 4D001.a (for 
4A005 or 4D004), 4D004, 4E001.a (for 4A005, 4D001.a (for 4A005 or 
4D004) or 4D004) and 4E001.c, to any `favorable treatment cybersecurity 
end user'.
    (ii) ``Vulnerability disclosure'' or ``cyber incident response''.
    (iii) Deemed exports.
    (5) If the exporter, reexporter, or transferor ``knows'' or has 
``reason to know'' at the time of export, reexport, or transfer (in-
country), including deemed exports and reexports, that the 
`cybersecurity item' will be used to affect the confidentiality, 
integrity, or availability of information or information systems, 
without authorization by the owner, operator, or administrator of the 
information system (including the information and processes within such 
systems).

PART 772 [AMENDED]

0
4. The authority citation for part 772 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. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 
783.


0
5. Section 772.1 is amended by revising the definitions ``Less 
sensitive government end users'' and ``More sensitive government end 
users'' to read as follows:


Sec.  772.1   Definitions of terms as used in the Export Administration 
Regulations (EAR).

* * * * *
    Less sensitive government end users (as applied to encryption items 
and `cybersecurity items'). The following ``government end users'' (as 
defined in this section) are considered ``less sensitive'' for the 
purposes of License Exception ENC (Sec.  740.17 of the EAR) and License 
Exception ACE (Sec.  740.22 of the EAR):
    (1) Local/state/provincial ``government end users'' (departments, 
agencies, and entities), including local/state/provincial executive, 
legislative, judicial, police, fire, rescue, and public safety 
agencies.
    (2) National/federal/royal ``government end users'' (departments, 
agencies, and entities) providing the following civil government 
functions and services:
    (i) Census and statistics services;
    (ii) Civil public works infrastructure services (construction, 
maintenance, repair, regulation, and administration) as follows: 
Buildings, public transportation, roads and highways, trucking;
    (iii) Civil service administration and regulation, including human 
resources and personnel/labor management;
    (iv) Clean water infrastructure services (treatment, supply and 
testing);
    (v) Economic (trade/commerce/investment), business and industrial 
development, promotion, regulation and

[[Page 31953]]

administration, excluding the following end users/end uses:
    (A) Agencies, departments, boards, and councils for science and 
technology;
    (B) Research, development, and national laboratories (other than as 
specified in paragraphs (2)(xi) (measurements and standards services) 
and (2)(xii) (meteorology/weather/atmospheric services) of this 
definition); and
    (C) National telecommunications and information technology 
agencies, boards, councils, and development authorities (including 
national information center, and Information Communications Technology 
(ICT)/telecommunications infrastructure/spectrum planning, policy, 
regulation, and testing);
    (vi) Elections, balloting, and polling services;
    (vii) Energy regulation and administration, including oil, gas, and 
mining sectors;
    (viii) Environmental/natural resources regulation, administration, 
and protection, including wildlife, fisheries, and national parks;
    (ix) Food/agriculture regulation and administration;
    (x) Labor/community/social services planning, regulation, and 
administration, including: Housing and urban development, municipality 
and rural affairs;
    (xi) Measurements and standards services;
    (xii) Meteorology (weather, atmospheric) services;
    (xiii) National archives/museums;
    (xiv) Patents;
    (xv) Pilgrimage and religious affairs;
    (xvi) Postal services;
    (xvii) Public and higher education (excluding government research 
institutions and any agency, institution, or affiliate engaged in the 
manufacture or distribution of items or services controlled on the 
Wassenaar Munitions List);
    (xviii) Public health and medicine/pharmaceutical regulation and 
administration;
    (xix) Public libraries;
    (xx) Sports/culture (includes film, commercial broadcasting, and 
the arts) promotion, regulation, and administration; and
    (xxi) Travel/tourism promotion, regulation, and administration.
* * * * *
    More sensitive government end users (as applied to encryption items 
and `cybersecurity items'). The following national/federal/royal 
(departments, agencies, and entities) ``government end users'' (as 
defined in this section) providing the following government functions 
and services, are considered ``more sensitive'' for the purposes of 
License Exception ENC (Sec.  740.17 of the EAR) and License Exception 
ACE (Sec.  740.22 of the EAR):
    (1) Agencies, departments, boards, and councils for science and 
technology (including research, development, and state/national 
laboratories, but not including measurements and standards);
    (2) Currency and monetary authorities (including departments and 
offices of the national/federal/royal reserve);
    (3) Executive agents of state (including offices of president/vice 
president/prime minister, royal courts, national security councils, 
cabinet/council of ministers/supreme councils/executive councils, crown 
princes and other deputies of the rulers, departments and offices of 
political/constitutional/mainland affairs);
    (4) Legislative bodies responsible for the enactment of laws;
    (5) Import/export control, customs and immigration agencies, and 
entities;
    (6) Intelligence agencies and entities;
    (7) Judiciary (including supreme courts and other national/federal/
regional/royal high courts and tribunals);
    (8) Maritime, port, railway, and airport authorities;
    (9) Military and armed services (including national guard, coast 
guard, security bureaus, and paramilitary);
    (10) Ministries, departments, and garrisons of defense (including 
defense technology agencies);
    (11) Ministries and departments of finance and taxation (including 
national/federal/royal budget and revenue authorities);
    (12) Ministries and departments of foreign affairs/foreign 
relations/consulates/embassies;
    (13) Ministries of interior, internal/home/mainland affairs, and 
homeland security;
    (14) State/national telecommunications and information technology 
agencies, boards, councils, and development authorities (including 
national information/critical infrastructure data centers, and 
Information and Communications Technology (ICT)/telecommunications 
infrastructure/spectrum planning, policy, regulation, and testing);
    (15) Police, investigation and other law enforcement agencies, and 
entities (including digital crime/cybercrime/computer forensics, 
counter narcotics/counter terrorism/counter proliferation agencies);
    (16) Prisons; and
    (17) Public safety agencies and entities (including national/
federal/royal agencies and departments of civil defense, emergency 
management, and first responders).
* * * * *

PART 774 [AMENDED]

0
6. The authority citation for part 774 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.; 10 U.S.C. 8720; 10 U.S.C. 8730(e); 22 U.S.C. 
287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15 
U.S.C. 1824; 50 U.S.C. 4305; 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.


0
7. In supplement no. 1 to part 774, Category 5--Part 1, ECCN 5D001 is 
revised to read as follows:

Supplement No. 1 to Part 774--The Commerce Control List

* * * * *
5D001 ``Software'' as follows (see List of Items Controlled).

License Requirements

    Reason for Control: NS, SL, AT

 
                                              Country chart  (see Supp.
                Control(s)                       No. 1 to part 738)
 
NS applies to entire entry................  NS Column 1
SL applies to the entire entry as           A license is required for
 applicable for equipment, functions,        all destinations, as
 features, or characteristics controlled     specified in Sec.   742.13
 by 5A001.f.1.                               of the EAR. Accordingly, a
                                             column specific to this
                                             control does not appear on
                                             the Commerce Country Chart
                                             (Supplement No. 1 to Part
                                             738 of the EAR).
                                            Note to SL paragraph: This
                                             licensing requirement does
                                             not supersede, nor does it
                                             implement, construe or
                                             limit the scope of any
                                             criminal statute,
                                             including, but not limited
                                             to the Omnibus Safe Streets
                                             Act of 1968, as amended.
AT applies to entire entry................  AT Column 1
 

Reporting Requirements

    See Sec.  743.1 of the EAR for reporting requirements for 
exports under License Exceptions, and Validated End-User 
authorizations.

List Based License Exceptions

    (See Part 740 for a description of all license exceptions).


[[Page 31954]]


TSR: Yes, except for exports and reexports to destinations outside 
of those countries listed in Country Group A:5 (See Supplement No. 1 
to part 740 of the EAR) of ``software'' controlled by 5D001.a and 
``specially designed'' for items controlled by 5A001.b.5 and 
5A001.h, and N/A for ``software'' classified under ECCN 5D001.a (for 
5A001.j) or 5D001.c (for 5A001.j or 5B001.a (for 5A001.j)).
ACE: Yes for 5D001.a (for 5A001.j) and 5D001.c (for 5A001.j or 
5B001.a (for 5A001.j)), except to Country Group E:1 or E:2. See 
Sec.  740.22 of the EAR for eligibility criteria.

Special Conditions for STA

STA: License Exception STA may not be used to ship or transmit 
5D001.a ``software'' ``specially designed'' for the ``development'' 
or ``production'' of equipment, functions or features, specified by 
ECCN 5D001.a (for 5A001.j) and 5D001.c (for 5A001.j or 5B001.a (for 
5A001.j)) to any of the destinations listed in Country Group A:5 or 
A:6 (See Supplement No.1 to part 740 of the EAR); 5A001.b.3, .b.5 or 
.h; and for 5D001.b. for ``software'' ``specially designed'' or 
modified to support ``technology'' specified by the STA paragraph in 
the License Exception section of ECCN 5E001 to any of the 
destinations listed in Country Group A:6.

List of Items Controlled

Related Controls: See also 5D980 and 5D991.
Related Definitions: N/A
Items:

    a. ``Software'' ``specially designed'' or modified for the 
``development'', ``production'' or ``use'' of equipment, functions 
or features controlled by 5A001;
    b. [Reserved]
    c. Specific ``software'' ``specially designed'' or modified to 
provide characteristics, functions or features of equipment, 
controlled by 5A001 or 5B001;
    d. ``Software'' ``specially designed'' or modified for the 
``development'' of any of the following telecommunication 
transmission or switching equipment:
    d.1. [Reserved]
    d.2. Equipment employing a ``laser'' and having any of the 
following:
    d.2.a. A transmission wavelength exceeding 1,750 nm; or
    d.2.b. Employing analog techniques and having a bandwidth 
exceeding 2.5 GHz; or
    Note: 5D001.d.2.b does not control ``software'' ``specially 
designed'' or modified for the ``development'' of commercial TV 
systems.
    d.3. [Reserved]
    d.4. Radio equipment employing Quadrature-Amplitude-Modulation 
(QAM) techniques above level 1,024.
    e. ``Software'', other than that specified by 5D001.a or 
5D001.c, ``specially designed'' or modified for monitoring or 
analysis by law enforcement, providing all of the following:
    e.1. Execution of searches on the basis of ``hard selectors'' of 
either the content of communication or metadata acquired from a 
communications service provider using a `handover interface'; and
    Technical Notes:
    1. For the purposes of 5D001.e, a `handover interface' is a 
physical and logical interface, designed for use by an authorised 
law enforcement authority, across which targeted interception 
measures are requested from a communications service provider and 
the results of interception are delivered from a communications 
service provider to the requesting authority. The `handover 
interface' is implemented within systems or equipment (e.g., 
mediation devices) that receive and validate the interception 
request, and deliver to the requesting authority only the results of 
interception that fulfil the validated request.
    2. `Handover interfaces' may be specified by international 
standards (including but not limited to ETSI TS 101 331, ETSI TS 101 
671, 3GPP TS 33.108) or national equivalents.
    e.2. Mapping of the relational network or tracking the movement 
of targeted individuals based on the results of searches on content 
of communication or metadata or searches as described in 5D001.e.1.
    Note: 5D001.e does not apply to ``software'' ``specially 
designed'' or modified for any of the following:
    a. Billing purposes;
    b. Network Quality of Service (QoS);
    c. Quality of Experience (QoE);
    d. Mediation devices; or
    e. Mobile payment or banking use.
* * * * *

Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2022-11282 Filed 5-25-22; 8:45 am]
BILLING CODE 3510-33-P


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