International Law Advisory - BIS Expands Authorization for Temporary Exports and Reexports to Sudan

The Department of the Commerce, Bureau of Industry and Security ("BIS") today issued a final rule, see 72 Fed. Reg. 10668-70 (February 28, 2008), amending the Export Administration Regulations ("EAR") to expand authorization for temporary exports and reexports to Sudan under EAR License Exception TMP (“Temporary Imports, Exports, and Reexports”), 15 C.F.R. Part 740.9.  As a consequence of changing priorities and policies of the US Government with respect to Sudan, the revision allows for the export and reexport of expanded types of “tools of trade” (i.e., usual and reasonable kinds and quantities of commodities, software, and technology for use in a lawful enterprise or undertaking by the exporter) for an additional number of end-uses.

Previously, TMP only allowed for the personally accompanied temporary export (and not the reexport) of a limited scope of commodities used only for humanitarian assistance (and not specific related support activities) in Sudan.  Part 740.9 of the EAR already permits exporters and reexporters to export certain computers, communications devices, and global satellite positioning instruments controlled by the EAR to employees and staff of certain organizations engaged in humanitarian work in Sudan, which ordinarily would require a license from BIS.

Under the new regulation for TMP, reexports are now authorized.  Additionally, exports and reexports of exempted items can continue to be accompanied personally (either hand carried or as checked baggage) or they can be sent to Sudan by an “eligible user” and via a method reasonably calculated to assure delivery to a permissible end user.  In other words, they can be shipped to Sudan to and by eligible users for eligible uses, which have been expanded by the regulatory changes.  TMP also now authorizes export or reexport of software to be used solely for servicing or in-kind replacement of software legally exported or reexported, which must remain loaded on exempted equipment while in Sudan. (Prior to this rule all such software had to be loaded on to the hardware prior to sending the hardware to Sudan.)  Finally, in addition to the items already authorized, TMP allows for the export and reexport of commodities with higher levels of performance capabilities as set forth below:

• Computers with adjusted peak performance (“APP”) controlled under Export Control Classification Number (“ECCN”) 4A994.b (but not exceeding an adjusted peak performance of 0.008 weighted teraFLOPS);

• Disk drives controlled under ECCN 4A991.d;

• Input/output control units controlled under ECCN 4A994.e (other than industrial controllers for chemical processing);

• Graphics accelerators controlled under ECCN 4A994.g;

• Color displays and monitors controlled under ECCN 4A994.h;

• “Software”' controlled under ECCNs 4D994 or 5D992 to be used on such commodities noted above;

• Telecommunications equipment controlled under ECCN 5A991 and “software” controlled under ECCN 5D992 to be used in the operation of  such equipment;

• Global positioning systems (GPS) or similar satellite receivers controlled under ECCN 7A994; and

• Parts and components that are controlled under ECCN 5A992, that are installed with, or contained in, all commodities noted above.

Certain restrictions are maintained by TMP.  First, permissible eligible users include non-governmental organizations or an individual staff member, employee, or contractor of such an organization.  Second, TMP is authorized only for purposes or end uses of: (i) an organization registered by the Department of the Treasury, Office of Foreign Assets Control (“OFAC”) to provide humanitarian or development assistance in Sudan pursuant to 31 CFR 538.521; (ii) an organization authorized by OFAC to take humanitarian and development actions in Sudan that otherwise would be prohibited by the Sudanese Sanctions Regulations (31 C.F.R. Part 538); and (iii) exempt activities, as provided by the Darfur Peace and Accountability Act and Executive Order 13412, and implemented by the Darfur Peace Agreement or the Comprehensive Peace Agreement, to take actions that would otherwise be prohibited to provide humanitarian and development assistance or relieve human suffering in Sudan.  Third,  TMP is subject to the existing restrictions of Part 740.9 regarding the requirements to return the temporary items to the United States (i.e., within one (1) year) or obtain permanent re-transfer, re-export, or disposal authorizations for the items in Sudan.

The revisions to the EAR are effective immediately and, although no formal notice and comment period has been established for the new rule, BIS has invited public comments on a continuing basis about TMP with respect to Sudan.  Should you have any questions about the new policy or any related export control issues, please contact Ed Krauland at 202.429.8083 or Jack Hayes at 202.429.6491 in our Washington, DC office.