Commerce Relaxes EAR to Be More Like the ITAR
December 2007
It used to be that the International Traffic in Arms Regulations allowed a US citizen employee of a US exporter to carry export-license-required-technical data (technology) out of the country on his/her laptop while the EAR did not allow the same thing to happened. That has now changed.In the December 12, 2007 Federal Register, the Bureau of Industry and Security, Commerce has revised the Export Administration Regulations (EAR) to expand the export license exceptions Temporary Imports, Exports, and Reexports (TMP) and Baggage (BAG) to allow for certain exports and reexports of technology between two U.S. persons or their employees traveling or those that are temporarily assigned abroad.
The rule expands the availability of License Exceptions TMP and BAG but does not authorize any new release of technology. Any technology exported under the new rule may only be released to persons who may receive that same technology pursuant to other provisions of the EAR which means it will still be subject to restrictions applicable to technology exports and reexports.
The rule makes several changes to Section 740.9 which amends the “tools of trade” and the definition of U.S. persons which are applicable to export and report certain technology. Restrictions have also been added to prevent unauthorized export or reexport of technology which will require U.S. employers to demonstrate and document the reasons why the technology is needed by employees in business activities which are abroad. There will also be an additional requirement and guidance for the return or disposal of the technology, which will include an illustrative list of examples of technology that exists in a format that could facilitate a subsequent release of technology.
Section 740.14 amends the tools of trade provision which will 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 that they are U.S. persons, who are traveling or moving. The rule also provides a specific definition the above mentioned U.S. persons.
This rule also specifies certain restrictions applicable to the exports and reexports of certain types of encryption technology. The encryption technology will be controlled under ECCN 5E002 and will not be authorized under the new “tools of trade” and the new U.S. persons tools of trade will not authorize the export or reepxort of ECCN 5E002 technology to any destination found in the Country Group E:1 of Supplement No. 1 to part 740.
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