[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
AGENCY: Department of State.
ACTION: Final rule.
This rule amends Part 123 to add a new Section 123.27 to reduce the burden on individual users of cryptographic products by providing an exemption for the temporary export for personal use of products covered by Category XIII(b)(1) when the product remains in the possession of the exporter or the possession of another U.S. citizen or lawful permanent resident traveling with him/her. For purposes of this exemption, a product is considered to be in the possession of the exporter if the exporter takes normal precautions to ensure the security of the product by locking the product in a hotel room, safe, or other comparably secure location; and, while in transit, the exporter keeps the product in his/her carry-on luggage or locked in baggage accompanying the exporter which has been checked with the carrier.
This amendment involves a foreign affairs function of the United States and thus is excluded from the procedures of Executive Order 12866 (58 FR 51735) and 5 U.S.C. 553 and 554.
However, interested parties are invited to submit written comments to the Department of State, Director, Office of Defense Trade Controls, Attn: Regulatory Change, Personal Use Cryptographic Products, Room 200, SA-6, Washington, DC 20520-0602.
This rule affects collection of information subject to the Paperwork Reduction Act (44 U.S.C. 3501 et seq), and will serve to reduce the burden on exporters by adding an exemption which will remove the current requirement for a license.
Paperwork Reduction Act
The record-keeping requirement contained in section 123.27(b) has been approved by OMB and has a control number of 1405-0103. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.
List of Subjects
22 CFR Part 123
Arms and munitions, Exports, Reporting and recordkeeping requirements.
22 CFR Part 126
Arms and munitions, Exports.
Accordingly, for the reasons set forth in the preamble, title 22, chapter I, subchapter M, of the Code of Federal Regulations, is amended as set forth below:
PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES
1. The authority citation for part 123 continues to read as follows:
Authority: Secs. 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); E.O. 11958, 42 FR 4311, 3 CFR 1977 Comp. 79; 22 U.S.C. 2658.
2. A new Sec. 123.27 is added to read as follows:
Sec. 123.27 Temporary export for personal use of Category XIII(b)(1) cryptographic products.
(a) District Directors of Customs may permit a U.S. citizen or a U.S. person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) to temporarily export from the United States without a license not more than one each of any unclassified Category XIII(b)(1) cryptographic hardware product and not more than a single copy of each type of unclassified Category XIII(b)(1) cryptographic software product provided that:
(1) The software product(s) are to be used only on a simultaneously temporarily exported Category XIII(b)(1) hardware product or a simultaneously exported item on the Commerce Control List (CCL); and
(2) The cryptographic products covered by Category XIII(b)(1) are not destined for export to a destination listed in Sec. 126.1 of the ITAR (22 CFR 126.1) which is prohibited by a United Nations Security Council Resolution or to which the export (or for which the issuance of a license for the export) would be prohibited by a U.S. statute (e.g., by Section 40 of the Arms Export Control Act, 22 U.S.C. 2780, to countries that have been determined to have repeatedly provided support for acts of international terrorism--currently Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria); and
(3)(i) The encryption products remain in the possession of the exporting person or the possession of another U.S. citizen or lawful permanent resident traveling with him/her, are for their exclusive use and not for copying, demonstration, marketing, sale, re-export or transfer of ownership or control. The export of cryptographic products identified in Category XIII(b)(1) in any other circumstances, for example, those in which a person contemplates sales, marketing, or demonstration must be licensed in accordance with policies and procedures established in this subchapter.
(ii) Special definition. For purposes of paragraph (a)(3)(i) of this section, a product is considered to be in the possession of the exporter if:
(A) The exporter takes normal precautions to ensure the security of the product by locking the product in a hotel room, safe, or other comparably secure location; and
(B) While in transit, the exporter keeps the product in his/her carry-on luggage or locked in baggage accompanying the exporter which has been checked with the carrier; and
(4) At the time of export from the U.S. and import into the U.S., the cryptographic products are with the individual's accompanying baggage or effects. They may not be exported or imported in unaccompanied baggage, mailed or transmitted by any other means (e.g., electronically); and, the cryptographic products must be returned to the U.S. at the completion of the stay abroad; and
(5) The exporter, upon request of a U.S. Customs officer, will submit the products to inspection at the time of export and/or import.
(b) Use of this exemption requires the exporter, in lieu of filing a Shippers' Export Declaration, to maintain, for a period of 5 years from the date of each temporary export, a record of that temporary export and the subsequent import. Included in this record must be a self certification that the individual complied with the conditions of paragraph (a) of this section and a self certification that he/she has no reason to believe that any of the temporarily exported cryptographic products were stolen, lost, copied, sold or otherwise compromised or transferred while abroad. The record should include the following information: A description of the unclassified cryptographic products; the countries entered, including the dates of entry and exit for each foreign country; and, the dates of temporary export from and subsequent import into the United States.
(c) In any instance where a product exported under this exemption is stolen, lost, copied, sold or otherwise compromised or transferred while abroad, the exporting person must, within 10 days of his/her return to the United States, report the incident to the Department of State, Office of Defense Trade Controls, Washington, D.C. 20520-0602. Also, any person who knows or has reason to know that cryptographic products exported under this exemption are being transferred, exported, or used for any other activity which must be licensed or otherwise authorized in writing by the Department of State, should immediately inform the Department of State, Office of Defense Trade Controls, Washington D.C. 20520-0602.
PART 126--GENERAL POLICIES AND PROVISIONS
1. The authority citation for part 126 continues to read as follows:
Authority: Secs. 2, 38, 40, 42 and 71, Arms Export Control Act, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791 and 2797); E.O. 11958, 41 FR 4311; E.O. 11322, 32 FR 119; 22 U.S.C. 2658; 22 U.S.C. 287c; E.O. 12918, 59 FR 28205.
2. Section 126.1(a) is amended by designating the three sentences of the undesignated paragraph as the third, fourth and fifth sentences of paragraph (a) and by adding a new sixth sentence at the end of paragraph (a) to read as follows:
Sec. 126.1 Prohibited exports and sales to certain countries.
(a) * * * With regard to Sec. 123.27 the exemption does not apply with respect to articles originating in or for export to countries prohibited by a United Nations Security Council Resolution or to which the export (or for which the issuance of a license for the export) would be prohibited by a U.S. statute (e.g., by Section 40 of the Arms Export Control Act, 22 U.S.C. 2780, to countries that have been determined to have repeatedly provided support for acts of international terrorism, i.e., Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria).* * * * *
Dated: November 17, 1995.
Lynn E. Davis,
Under Secretary for Arms Control and International Security Affairs.
[FR Doc. 96-3190 Filed 2-15-96; 8:45 am]BILLING CODE 4710-25-M