When applying for an export license through the Bureau of Industry and Security (BIS), one of the common questions would be if the commodity contains technical data. If you export software, chances are it is accompanied with an installation manual. What about a foreign student at a university and an encryption IT project? Would employing a foreign national be considered an export? Exporting unrestricted technology and software is more complex, but can be simpler since most of the technical data that is being exported or reexported is publicly available information. There are cases where issue of destination and national origin of receipts are an issue, and those circumstances licenses would be needed. A basic list is created here, taken from the Export Administration Regulations (EAR) to help determine what falls under TSU, if you need a license or not for your organization.
Technology and Software Unrestricted (TSU) and Exemptions
Under EAR § 740.13, the exemptions of technology and software unrestricted apply to "exports and reexports of operation technology and software; sales technology and software; software updates (bug fixes); "mass market" software subject to the General Software Note; and encryption source code (and corresponding object code) that would be considered publicly available under §734.3(b)(3) of the EAR." Unlike TSU's cousin, the TSR (Technology and Software Restricted), there are not restrictions based on reasons for control of National Security and the only restricted countries in TSU are in Groups D:5 and Group E:1 (Cuba, Iran, North Korea, Sudan and Syria). To qualify the exemption, you will only need one of the listed below to be eligible.
· Operation technology and software that is installed for export or reexport to minimally operate, maintain and repair the product. Materials accompanying the technology and software are considered training materials and are allowed. The software is in object code only and not in source code.
· Sales technology and data exported or reimported in the sell, quotation, bid, lease or offer.
· Software updates, "fix bugs", upgrades other export that would not involve in functionally altering or enhancing the software.
· Publicly available data that included educational information, patent applications, fundamental research or unrestricted government research.
· Mass marketed software that is sold online, telephone, mail order and meet General Note requirements,which is certain encryption software (restrictions on certain ECCNs apply)
· Eligible foreign nationals ("bona fide" and regular full-time university employees) would not need a deemed export license as long they are a permanent resident, not from a D:5 Group country and that the foreign national confirms in writing that he/she does not share the source code with other foreign nationals, even beyond tenure.
When a License is Required for TSU Commodities
Since TSU is more complicated that some other license exemptions, some of their exceptions are more detailed on to what will need a license.
· Any export or reexport to an E: 1 country (Cuba, Iran, North Korea, Sudan and Syria) even in cases of foreign nationals
· Operation technology and software that is for development and production.
· Commodity with the ECCN number 5D002 under "EI" or encryption item, and encrypted software with symmetric key length longer than 64-bits that is considered to be mass marketed.
· Universities would need to have licenses if nationals are not permanent residences and are from a Group D: 5 country.
Amy Breeman-Rhodes is owner and consultant with BreemanRhodes Consulting LLC, offering Administrative International Trade Support to businesses in the supply chain industry with business development and import and export compliance needs. She is a US Licensed Customs Broker and Export Compliance Professional (ECoP) with over 18 years working in the import/export industry. Visit her website at http://www.breemanrhodesconsultingllc.com and her professional blog at http://breemanrhodes.wordpress.com
Amy is also an avid runner, running races from 5k to marathons and writes articles on running tips and plans.
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