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Notification Requirements for
"Publicly Available" Encryption Source Code

EAR citations on this page may be found in the
December 9, 2004 Encryption Rule
on the Government Printing Office Web site

Step 1: Read the relevant portions of the Export Administration Regulations (EAR).

This guidance is designed to help you provide notice before proceeding to export encryption source code that would be considered publicly available (see Section 734.3(b)(3) of the EAR) under License Exception TSU, and should be used in conjunction with the relevant portion of the Export Administration Regulations (EAR).

Section 740.13(e) of the EAR is the principal regulatory reference regarding the export of "publicly available" encryption source code using License Exception TSU. This section describes the notification that you must submit in order to export (e.g., post to the Internet) and reexport encryption source code that is controlled under ECCN 5D002 and which would be considered publicly available under Section 734.3(b)(3) of the EAR.Such encryption source code (and its corresponding object code, provided the object code would also be considered publicly available) may be exported and reexported without review, provided you submit to BIS (and to the ENC Encryption Request Coordinator) either written notification of the Internet location (e.g., URL or Internet address) or a copy of the source code by the time of export.

Encryption source code that would be considered publicly available is eligible for this provision of License Exception TSU even if it is subject to an express agreement for the payment of a license fee or royalty for commercial production or sale of any product developed using the source code. Corresponding object code resulting from the compiling of such source code is also eligible for License Exception TSU if it is also made publicly available. Encryption software controlled under ECCN 5D002 that would not be considered publicly available, but which incorporates or is specially designed to use encryption software that would be considered publicly available, is not eligible for export or reexport under this provision (Section 740.13(e)) of License Exception TSU.

Step 2: Submit notice of the URL location (or a copy of the source code) to BIS and the ENC Encryption Request Coordinator.

You must provide BIS written notification of the Internet location (e.g., URL or Internet address) of the source code (or else a copy of the source code) by the time of export. Submit the notification to BIS by and a copy to the ENC Encryption Request Coordinator.

[Note: The links in this paragraph will automatically generate an email to both.]
Alternatively, you can submit your notification by mail to the addresses listed at the bottom of this guidance page.

Formatting instructions for notifications by to both BIS and the ENC Encryption Request Coodinator:

In the SUBJECT line of your email, enter: "TSU NOTIFICATION"
[Note: This has already been done for you if you click on any of the e-mail links above.]

In the body of your email, enter the following information:

SUBMISSION TYPE: Type in "TSU"
SUBMITTED BY:
SUBMITTED FOR: (Name of company or person exporting the encryption item)
POINT OF CONTACT:
PHONE and/or FAX:
MANUFACTURER: (If relevant)
PRODUCT NAME/MODEL #:
ECCN: 5D002

NOTIFICATION: Provide the URL or Internet address of the source code, or else a copy of the source code.

Alternative formatting instructions for notifications by FAX or mail:

If your encryption source code is too large to serve as an email attachment, you may print a copy of your email as a cover sheet and fax the additional documents to BIS at (202) 219-9179 or -9182. You may fax a complementary copy to the Information Technology Controls Division (ITCD) at 202-501-0784. Alternatively you may mail a copy of your source code on disk to BIS to the following address:

U.S. Department of Commerce
Bureau of Industry and Security
Office of National Security and Technology Transfer Controls (NSTTC)
14th Street and Pennsylvania Avenue, NW
Room 2705
Washington, D.C. 20230
Attn: "TSU Notification"

For notifications by FAX or mail, you must also send a copy to:

Attn: ENC Encryption Request Coordinator
9800 Savage Road, Suite 6940
Ft. Meade, MD 20755-6000


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