One of the most common questions when applying for an export license through the Bureau of Industry and Security (BIS) is if the commodity contains technical information. An installation manual is often included with software exports. How about a student from a foreign university? What about the encryption IT project? Is it considered an export to employ a foreign national? Although exporting software and technology without restrictions is more complex, it can also be easier since the majority of technical data being exported or reexported is publicly available. In some cases, licenses may be required for the issue of origin and destination of receipts. This is an essential list taken from the Export Administration Regulations. It will help you determine if your organization falls under TSU and if you require a license.
Technology and Software Unrestricted, (TSU), and Exemptions
EAR SS 740.13 exempts technology and unrestricted from “exports and reexports operation technology and sales technology; software updates (bug fixes); mass-market software subject to General Software Note; encryption source code and corresponding object code that would be publically available under SS734.3 (b)(3) of the EAR). TSU’s cousin, the TSR (Technology and Software Restricted), does not have restrictions. The only countries that are restricted in TSU are those in Groups D, 5, and E:1 (Cuba and Iran, North Korea and Sudan), respectively. You will need to have one of the following listed in order to qualify for the exemption.
* Software and operation technology that is installed to export or reexport the product. It is used to operate, maintain, and repair it. The software and technology are permitted to be accompanied by materials. Software is only in object code and not in source codes.
* Data and sales technology exported or reimported during the sale, quotation, bid, or lease.
* Software updates, fixes bugs, upgrades, and other exports that do not involve functionally altering or improving the software.
* Data that is publicly available, including educational information, patent applications, and fundamental research, or open government data.
* Software that is mass-marketed and sold online, by telephone, or mail order, meets General Note requirements. This is encryption software. Restrictions apply to certain ECCNs.
* Only eligible foreign nationals (bonafide and full-time university employees) will not require a deemed Export License as long as they are permanent residents and not from D:5 Group countries. Also, the foreign national must confirm in writing that he/she doesn’t share the source code with any foreign nationals beyond tenure.
TSU Commodities: When is a license required
TSU is more complex than other exemptions to licenses, so some of their exceptions provide more detail on what charges will be required.
* Exports or reexports to E:1 countries (Cuba and Iran, North Korea Sudan, Syria, Sudan, Sudan, Syria) are prohibited, even in the case of foreign nationals
* Software and operation technology that is for development and production.
* A commodity with the ECCN 5D002 under EI, or encryption item. Encrypted software with symmetric keys longer than 64 bits that are mass-marketed.
* University licenses would be required if nationals aren’t permanent residents and are from a Group C:5 country.