BIS Amends License Exceptions TMP and BAG to Allow for Certain Temporary Exports/Reexports of Technology
The Bureau of Industry and Security has issued a final rule, effective December 12, 2007, which expands the availability of License Exceptions Temporary Imports, Exports, and Reexports (TMP) and Baggage (BAG) to allow for certain temporary exports and reexports of technology by U.S. persons to U.S. persons or their employees traveling or temporarily assigned abroad, etc.
(Previously, License Exceptions TMP and BAG did not authorize temporary exports or reexports of technology because the scope of these license exceptions was limited to commodities and software.)
BIS states that this final rule does not authorize any new release of technology. Technology exported under License Exceptions TMP or BAG may only be released to persons who may receive that same technology pursuant to other provisions of the Export Administration Regulations (EAR).
Exporters and reexporters who wish to use the tools of trade provisions of License Exceptions TMP and BAG for the temporary export or reexport of technology subject to the EAR may do so, subject to certain restrictions specifically applicable to technology exports and reexports. These restrictions provide safeguards against the unauthorized risk of access to technology.
Highlights of Final Rule's Amendments to EAR
Highlights of the amendments made by this final rule to the EAR include (partial list):
15 CFR 740.9 (TMP)
- amending the "tools of trade" provisions in 15 CFR 740.9(a)(2)(i) to authorize the export or reexport by U.S. persons of certain technology to U.S. persons or their employees traveling or temporarily assigned abroad.
- adding a new paragraph (a)(2)(i)(C) to add a specific definition of U.S. persons applicable to paragraph (a)(2)(i) and a new paragraph (a)(3)(iv), establishing restrictions to prevent unauthorized export or reexport of technology.
- adding a new paragraph (a)(1)(i) to provide an additional requirement and guidance for the return or disposal of technology authorized under License Exception TMP. This paragraph also provides an illustrative list of examples of technology that exists in a format that could facilitate a subsequent release of technology.
15 CFR 740.14 (BAG)
- amending the "tools of trade" provisions in 15 CFR 740.14(b)(4) to authorize the export or reexport of certain technology to U.S. persons for use in the trade, occupation, employment, vocation, or hobby of the traveler or members of the U.S. person's household, provided they are also U.S. persons, who are traveling or moving.
- adding a new 15 CFR 740.14(b)(4)(i) to add a specific definition of U.S. person applicable to paragraph (b)(4) and a new paragraph (h) prohibiting the unauthorized export or reexport of technology.
15 CFR 772.1
- amending 15 CFR 772.1 to revise the definition of U.S. person.
Guidance for Encryption Technology
In order to provide clearer guidance to the public regarding which encryption items are authorized under License Exceptions TMP and BAG, the final rule also specifies certain restrictions applicable to the use of both License Exceptions TMP and BAG for exports and reexports of certain types of encryption technology.
First, encryption technology controlled under Export Control Classification Number (ECCN) 5E002 is not authorized for export or reexport under the amended "tools of trade" provisions of License Exception TMP.
Second, in License Exception BAG the new U.S. person "tools of trade" provisions do not authorize the export or reexport of ECCN 5E002 encryption technology to any destination listed in Country Group E:1 of 15 CFR Part 740, Supplement No. 1.
For the export or reexport of 5E002 technology by companies, their subsidiaries and employees, see License Exception Encryption Commodities and Software (ENC) set forth in 15 CFR 740.17.
-public comments on this regulation are welcome on a continuing basis
BIS contact - Timothy Mooney (202) 482-2440
BIS final rule (D/N 071114704-7749-01, FR Pub 12/12/07) available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-24077.pdf.