Title 15—Commerce and Foreign Trade--Volume 1
PART 740—LICENSE EXCEPTIONS
§ 740.1   Introduction.
In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C.
(a) Scope. A “License Exception” is an authorization contained in this part that allows you to export or reexport under stated conditions, items subject to the Export Administration Regulations (EAR) that would otherwise require a license under General Prohibition One, Two, Three, or Eight, as indicated under one or more of the Export Control Classification Numbers (ECCNs) in the Commerce Control List (CCL) in supplement no. 1 to part 774 of the EAR and items subject to the EAR that would require a license based on the embargo policies described in part 746 of the EAR. If your export or reexport is subject to General Prohibition Six for embargoed destinations, refer to part 746 of the EAR to determine the availability of any License Exceptions. Special commodity controls apply to short supply items. License Exceptions for items listed on the CCL as controlled for Short Supply reasons are found in part 754 of the EAR. If your export or reexport is subject to General Prohibition Five, consult part 744 of the EAR. If your export or reexport is subject to General Prohibitions Four, Seven, Nine, or Ten, then no License Exceptions apply. Any license exception authorizing reexports also authorizes in-country transfers, provided the terms and conditions for reexports under that license exception are met.
(b) Certification. By using any of the License Exceptions you are certifying that the terms, provisions, and conditions for the use of the License Exception described in the EAR have been met. Please refer to part 758 of the EAR for clearance of shipments and documenting the use of License Exceptions.
(c) License Exception symbols. Each License Exception bears a three letter symbol that will be used for export clearance purposes (see paragraph (d) of this section).
(d) Electronic Export Information (EEI) filing. You must enter on any required EEI filing the correct License Code that corresponds to the appropriate license exception symbol (e.g., LVS, GBS, CIV) and the correct Export Control Classification Number (ECCN) (e.g., 4A003, 5A002) for all exports of items under a license exception. Items temporarily in the United States meeting the provisions of License Exception TMP, under § 740.9(b)(3), are excepted from this requirement. See § 758.1 of the EAR and 15 CFR part 30 of the FTR for EEI requirements.
(e) Destination Control Statement. You may be required to enter an appropriate Destination Control Statement on commercial documents in accordance with Destination Control Statement requirements of § 758.6 of the EAR.
(f) Recordkeeping. Records of transactions involving exports under any of the License Exceptions must be maintained in accordance with the recordkeeping requirements of part 762 of the EAR.
§ 740.2   Restrictions on all License Exceptions.
(a) You may not use any License Exception if any one or more of the following apply:
(1) Your authorization to use a License Exception has been suspended or revoked, or your intended export does not qualify for a License Exception.
(2) The export or reexport is subject to one of the ten General Prohibitions, is not eligible for a License Exception, and has not been authorized by BIS.
(3) The item is primarily useful for surreptitious interception of wire, oral, or electronic communications, or related software, controlled under ECCNs 5A001.f.1, 5A980, 5D001 (for 5A001.f.1 or for 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1))), or 5D980, unless the item is consigned to and for the official use of an agency of the U.S. Government (see § 740.11(b)(2)(ii) of this part, Governments (GOV)). No license exceptions apply for 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1)) or for 5E980.
(4) The item being exported or reexported is subject to the license requirements described in § 742.7 of the EAR and the export or reexport is not:
(i) Being made to Australia, India, Japan, New Zealand, or a NATO (North Atlantic Treaty Organization) member state (see NATO membership listing in § 772.1 of the EAR):
(ii) Authorized by § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. government);
(iii) Authorized by § 740.14(e) of the EAR; or
(iv) Authorized by § 740.20 of the EAR (License Exception STA).
(5)(i) The item is controlled for missile technology (MT) reasons. Only the following license exceptions may be used to export MT-controlled items to destinations other than those identified in Country Groups D:4 or D:5 (see supplement no. 1 to part 740 of the EAR):
(A) License Exception TMP (§ 740.9(a)(1), (a)(3) through (8), and (a)(10), (b)(1) through (b)(3), and Notes 2, 3, and 4 to paragraph (b) of the EAR);
(B) License Exception RPL (§ 740.10 of the EAR);
(C) License Exception GOV (§ 740.11(b)(2) of the EAR);
(D) License Exception TSU (§ 740.13(a) through (c), and (g) of the EAR);
(E) License Exception AVS (§ 740.15(b)(1) through (b)(4), (c)(1), (2), (e), and (f) of the EAR); and
(F) License Exception APR for (§ 740.16(c) through (f) of the EAR).
(ii) The item is controlled for missile technology (MT) reasons. Only the following license exceptions may be used to export MT-controlled items described in paragraphs (a)(5)(ii)(A) and (B) of this section to destinations identified in Country Groups D:4 or D:5 (see supplement no. 1 to part 740 of the EAR), provided the terms and conditions in parts 740 and 746 as applicable are met:
(A) MT-controlled items described in ECCNs 6A008, 7A001, 7A002, 7A004, 7A101, 7A102, 7A103, 7A104, 7A105, 7B001, 7D001, 7D002, 7D003, 7D101, 7D102, 7E003, 7E101 or 9A515, may be exported, reexported, or transferred (in-country) as part of a spacecraft, manned aircraft, land vehicle or marine vehicle or in quantities appropriate for replacement parts for such applications under § 740.9(a)(4) (License Exception TMP for kits consisting of replacement parts), § 740.10 (License Exception RPL), § 740.13 (License Exception TSU), or § 740.15(b) (License Exception AVS for equipment and spare parts for permanent use on a vessel, aircraft or spacecraft, excluding paragraph (b)(2)(ii)), and
(B) MT-controlled commodities described in ECCNs 2A001 or 2A101 may be exported, reexported, or transferred (in-country) under § 740.9(a)(4) (License Exception TMP) or § 740.10 (License Exception RPL) as one-for-one replacement for equipment previously legally exported, reexported, or transferred (in-country).
(6) The export or reexport is to a sanctioned destination (Cuba, Iran, North Korea, Syria, Crimea region of Ukraine, and the so-called Donetsk People's Republic (DNR) and Luhansk People's Republic (LNR) regions of Ukraine) or a license is required based on a limited sanction (Russia or Belarus) unless a license exception or portion thereof is specifically listed in the license exceptions paragraph pertaining to a particular sanctioned country in part 746 of the EAR.
(7) With the exception of License Exception GOV (§ 740.11(b)(2)), license exceptions are not available for the following 6E001 or 6E002 technology:
(i) Technology required for the “development” or “production” of photon detector, microbolometer detector, pyroelectric, or multispectral detector, infrared focal plane arrays (IRFPAs), described in ECCN 6A002, having a peak response within the wavelength range exceeding 900 nm but not exceeding 30,000 nm, excluding lead sulfide or lead selenide IRFPAs having a peak response within the wavelength range exceeding 1,000 nm but not exceeding 5,000 nm and not exceeding 16 detector elements; or
(ii) Technology required for the “development” or “production” of third generation or greater ( e.g., Electron Bombarded Active Pixel Sensor (EBAPS)) image intensifier tubes described in ECCN 6A002.
(8) The item is controlled under ECCNs 2A983, 2A984, 2D983, 2D984, 2E983 or 2E984 and the License Exception is other than:
(i) RPL, under the provisions of § 740.10, including § 740.10(a)(3)(v), which prohibits exports and reexports of replacement parts to countries in Country Group E:1 (see Supplement 1 to part 740));
(ii) GOV, restricted to eligibility under the provisions of § 740.11(b)(2)(ii); or
(iii) TSU, under the provisions of § 740.13(a) and (c).
(9)(i) The item is controlled under ECCN 3B001.a.4, c, d, f.1, f.5, f.6, k to n, p.2, p.4, r, 3B002.c, 3B993, 3B994, or associated software and technology in ECCN 3D001, 3D002, 3D003, 3D992, 3D993, 3D994, 3E001, 3E992, 3E993, or 3E994 and is being exported, exported from abroad, reexported, or transferred (in-country) to or within either Macau or a destination specified in Country Group D:5 of supplement no. 1 to this part, and the license exception is other than License Exception GOV, restricted to eligibility under the provisions of § 740.11(b).
(ii) The item is identified in paragraph (a)(9)(ii)(A) or (B) of this section and is being exported, reexported, or transferred (in-country) to or within a destination specified in Country Group D:1, D:4, or D:5, excluding any destination also specified in Country Groups A:5 or A:6, or to an entity headquartered in or whose ultimate parent is headquartered in, Macau or a destination specified in Country Group D:5, wherever located, and the license exception is other than: TMP, restricted to eligibility under the provisions of § 740.9(a)(6); NAC/ACA, under the provisions of § 740.8; RPL, under the provisions of § 740.10; GOV, restricted to eligibility under the provisions of § 740.11(b); TSU under the provisions of § 740.13(a) and (c); HBM under the provisions of § 740.25; AIA under the provisions of § 740.27 (for ECCN 4E091 to entities headquartered in countries listed in paragraph (a) of supplement no. 5 to part 740 and located in destinations other than Macau or Country Group D:5); or ACM under the provisions of § 740.28. Items restricted to eligibility only for the foregoing license exceptions are:
(A) Controlled under ECCNs 3A090, 4A090, 4E091, or associated software and technology in 3D001, 3E001, 4D090, and 4E001;
(B) An integrated circuit, “electronic assembly” or “component” or related software or technology specified in ECCNs 3A001.z; 3D001 (for “software” for commodities controlled by 3A001.z, 3A090); 3E001 (for “technology” for commodities controlled by 3A001.z); 4A003.z; 4A004.z; 4A005.z; 4D001 (for “software” for commodities controlled by 4A003.z, 4A004.z, and 4A005.z); and 4E001 (for “technology” for commodities controlled by 4A003.z, 4A004.z, 4A005.z); 5A002.z; 5A004.z; 5A992.z; 5D002.z; 5D992.z; 5E002 (for “technology” for commodities controlled by 5A002.z or 5A004.z); “software” specified by 5D002 (for 5A002.z or 5A004.z commodities)); 5E992 (for “technology” for commodities controlled by 5A992.z or “software” controlled by 5D992.z).
ECCN 3A090.c requires a license for exports, reexports, and transfers (in-country) to or within Macau or destinations specified in Country Group D:5, but is still included within the scope of this paragraph because it generally shares the same EAR license exception eligibility as other 3A090 commodities, except for NAC/ACA, under the provisions of § 740.8., which ECCN 3A090.c is not eligible. An export, reexport, or transfer (in-country) of an ECCN 3A090.c commodity to a destination specified in Country Groups D:1 or D:4 that is not specified in Country Group D:5, may be made under the No License Required (NLR) designation, provided no part 744 or 746 license requirements are applicable.
(10) The commodity being exported or reexported is subject to the license requirements of § 742.11 of the EAR.
(11) The item is a “military commodity” subject to ECCN 0A919, except that such military commodities may be reexported in accordance with § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. Government).
(12) The item is described in a 9x515 or “600 series” ECCN and is destined to, shipped from, or was manufactured in a destination listed in Country Group D:5 or Hong Kong (see Supplement No. 1 to part 740 of the EAR), except that:
(i) 9x515 or “600 series” items destined to, or in, Country Group D:5 are eligible for License Exception GOV (§ 740.11(b)(2) of the EAR); and
(ii) 1A613.c or .d items destined to, or in, Country Group D:5 are eligible for License Exception TMP (§ 740.9(a)(11) of the EAR) or License Exception BAG (§ 740.14(h)(2) of the EAR).
(13) “600 series” items that are controlled for missile technology (MT) reasons may not be exported, reexported, or transferred (in-country) under License Exception STA (§ 740.20 of the EAR). Items controlled under ECCNs 9D610.b, 9D619.b, 9E610.b, or 9E619.b or .c are not eligible for license exceptions except for License Exception GOV (§ 740.11(b)(2) of the EAR). Only the following license exceptions may be used to export “600 series” items to destinations other than those identified in Country Group D:5 or Hong Kong (see Supplement No. 1 to part 740 of the EAR):
(i) License Exception LVS (§ 740.3 of the EAR);
(ii) License Exception TMP (§ 740.9 of the EAR);
(iii) License Exception RPL (§ 740.10 of the EAR);
(iv) License Exception TSU (§ 740.13(a), (b), (f) and (g) of the EAR);
(v) License Exception GOV (§ 740.11(b) or (c) of the EAR);
(vi) License Exception BAG (§ 740.14); and
(vii) License Exception STA under § 740.20(c)(1) of the EAR, provided all of the applicable terms and conditions, including those specific to the “600 series” are met.
(14) Items classified under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521 may only be authorized by License Exception GOV (§ 740.11(b)(2)(ii)) or an item-specific license exception identified in supplement no. 5 to part 774 for a particular ECCN 0Y521 item.
Item-specific license exception availability is specific to each ECCN 0Y521 entry in supplement no. 5 to part 774 and may not be used for any other ECCN 0Y521 entries in the supplement. The U.S. Government makes a determination at the time items are classified under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521 regarding whether any license exceptions will be available, in addition to License Exception GOV (§ 740.11(b)(2)(ii)).
(15) If they are sold under a contract that includes $14,000,000 or more of “600 Series Major Defense Equipment” (as defined in § 772.1), exports of “600 series” items to a country not listed in Country Group A:5 (see supplement no. 1 to part 740 of the EAR), are not eligible for any license exception except to U.S. Government end users under License Exception GOV (§ 740.11(b) of the EAR).
(16) If they are sold under a contract that includes $25,000,000 or more of “600 Series Major Defense Equipment” (as defined in § 772.1), exports of “600 series” items to a country listed in Country Group A:5 (see supplement no. 1 to part 740 of the EAR), are not eligible for any license exception except to U.S. Government end users under License Exception GOV (§ 740.11(b) of the EAR).
(17) A party to the transaction, as described in § 748.5 of the EAR, is listed on the Unverified List in supplement no. 6 to part 744, see § 744.15 of the EAR.
(18) 9x515 items that are controlled for missile technology (MT) reasons may not be exported, reexported, or transferred (in-country) under License Exception STA (§ 740.20 of the EAR).
(19) The exporter or reexporter to Hong Kong of any item subject to the EAR and controlled on the CCL for NS, MT, NP Column 1, or CB reasons has not received one of the following with respect to the item:
(i) A copy of an import license issued to the Hong Kong importer by the Government of the Hong Kong Special Administrative Region, pursuant to the Hong Kong Import and Export (Strategic Commodities) Regulations, that covers all items to be exported or reexported pursuant to that license exception for which a Hong Kong import license is required and that is valid on the date of the export or reexport that is subject to the EAR; or
(ii) A copy of a written statement issued by the Government of the Hong Kong Special Administrative Region that no import license is required to import into Hong Kong the item(s) to be exported or reexported. The statement may have been issued directly to the Hong Kong importer or it may be a written statement available to the general public. The statement may be used for more than one export or reexport to Hong Kong so long as it remains an accurate statement of Hong Kong law.
(20) The reexporter from Hong Kong of any item subject to the EAR controlled on the CCL for NS, MT, NP column 1, or CB reasons has not received one of the following with respect to the item:
(i) An export license issued by the Government of the Hong Kong Special Administrative Region, pursuant to the Hong Kong Import and Export (Strategic Commodities) Regulations, that covers all items to be reexported pursuant to that license exception for which a Hong Kong export license is required and that is valid on the date of the reexport that is subject to the EAR; or
(ii) A copy of a written statement issued by the Government of the Hong Kong Special Administrative Region that no Hong Kong export license is required for the item(s) to be rexported. The statement may have been issued directly to the Hong Kong reexporter or it may be a written statement available to the general public. The statement may be used for more than one reexport from Hong Kong so long as it remains an accurate statement of Hong Kong law.
(21) The reexport or transfer (in-country) of firearms classified under ECCNs 0A501, 0A502, 0A506, 0A507, or 0A508 with either an ITAR-defined “foreign defense article” (22 CFR 120.39) that is not subject to Department of State jurisdiction that is incorporated into the firearm or “knowledge” that an ITAR-defined “defense article” (22 CFR 120.31) will be subsequently incorporated into the firearm, where the “(foreign) defense article” is described in USML Category I(h)(2). In such instances, no license exceptions are available except for License Exception GOV (§ 740.11(b)(2)(ii)).
(22) The item being exported, reexported, or transferred (in-country) is eligible for § 740.24 and the license exception is other than IEC, TMP, RPL, GOV, or TSU, subject to the limitations in this paragraph (a)(22). License Exception IEC is available as specified in § 740.24. License Exception TMP is restricted to eligibility under the provisions of § 740.9(a)(3) and (a)(6); RPL is restricted to eligibility under the provisions of § 740.10; GOV is restricted to eligibility under the provisions of § 740.11(b); and TSU is restricted to eligibility under the provisions of § 740.13(a) and (c).
(23) Exports, reexports, or transfers (in-country) of semi-automatic firearms or shotguns controlled under ECCNs 0A506, 0A507, or 0A508 sold under a contract or otherwise part of an export that includes $4,000,000 or more of such items are not eligible for any license exceptions except to personnel and agencies of the U.S. Government under License Exception GOV (§ 740.11(b) of the EAR), for official use by an agency of NATO, or where a license exception would otherwise be available for the export, reexport, or transfer (in-country) of such items to a destination specified in Country Groups A:5 or A:6 (see supplement no. 1 to part 740 of the EAR) except Mexico, South Africa, or Turkey.
(24) Exporters of items controlled under ECCNs 0A501, 0A502, 0A504, 0A505, 0A506, 0A507, 0A508, or 0A509 wishing to use an EAR license exception for such items must first have the consignee obtain and provide to the exporter an import certification or equivalent document, if the importing country requires one, prior to using an EAR license exception.
(25) No license exception is available for the export, reexport, or transfer (in-country) to or within Pakistan of items controlled under ECCNs 1B999, 2A992, 2B999 (except 2B999.h.2), 3A992, 3A999, or 6A996 (see § 742.6(a)(12) of the EAR), apart from TMP (limited to 740.9(a)(1), (a)(4), (a)(5), (a)(10), (b)(2), and (b)(3)), RPL (740.10), or GOV (740.11(a), (b), or (d)).
Items subject to the exclusive export control jurisdiction of another agency of the U.S. Government may not be authorized by a license exception or any other authorization under the EAR. If your item is subject to the exclusive jurisdiction of another agency of the U.S. Government, you must determine your export licensing requirements pursuant to the other agency's regulations. See § 734.3(b) and supplement no. 3 to part 730 of the EAR for other U.S. Government departments and agencies with export control responsibilities.
(b) All License Exceptions are subject to revision, suspension, or revocation, in whole or in part, without notice to protect U.S. national security or foreign policy interests. BIS may stop a shipment or an export, reexport, or (in-country) transaction at any stage of its progress, e.g., in order to prevent an unauthorized export, reexport, or transfer (in-country). If a shipment is already en route, BIS may order the return or unloading of the shipment at any port of call.
(c) BIS may by informing the exporter, suspend or revoke any License Exception in order to comply with U.S. Wassenaar obligations. In addition, BIS may inform an exporter, that before using any License Exception, a notice be submitted with BIS concerning the proposed export.
(d) See § 746.3 for restrictions on certain transfers within Iraq of items exported or reexported to Iraq pursuant to a License Exception.
§ 740.3   Shipments of limited value (LVS).
(a) Scope. License Exception LVS authorizes the export and reexport in a single shipment of eligible commodities as identified by “LVS - $(value limit)” on the CCL.
(b) Eligible destinations. This License Exception is available for all destinations in Country Group B (see supplement no. 1 to this part), provided that the net value of the commodities included in the same order and controlled under the same ECCN entry on the CCL does not exceed the amount specified in the LVS paragraph for that entry. However, License Exception LVS is not available for 0x5zz items (except 0A504.g) when destined for countries in “CARICOM” or countries in Country Group D:5.
(c) Definitions —(1) Order. The term order as used in this § 740.3 means a communication from a person in a foreign country, or that person's representative, expressing an intent to import commodities from the exporter. Although all of the details of the order need not be finally determined at the time of export, terms relating to the kinds and quantities of the commodities to be exported, as well as the selling prices of these commodities, must be finalized before the goods can be exported under License Exception LVS.
(2) Net value: for LVS shipments. The actual selling price of the commodities that are included in the same order and are controlled under the same entry on the CCL, less shipping charges, or the current market price of the commodities to the same type of purchaser in the United States, whichever is the larger. In determining the actual selling price or the current market price of the commodity, the value of containers in which the commodity is being exported may be excluded. The value for LVS purposes is that of the controlled commodity that is being exported, and may not be reduced by subtracting the value of any content that would not, if shipped separately, be subject to licensing. Where the total value of the containers and their contents must be shown on Shipper's Export Declarations under one Schedule B Number, the exporter, in effecting a shipment under this License Exception, must indicate the “net value” of the contained commodity immediately below the description of the commodity.
(3) Single shipment. All commodities moving at the same time from one exporter to one consignee or intermediate consignee on the same exporting carrier even though these commodities will be forwarded to one or more ultimate consignees. Commodities being transported in this manner will be treated as a single shipment even if the commodities represent more than one order or are in separate containers.
(d) Additional eligibility requirements and restrictions —(1) Eligible orders. To be eligible for this License Exception, orders must meet the following criteria:
(i) Orders must not exceed the applicable “LVS” dollar value limits. An order is eligible for shipment under LVS when the “net value” of the commodities controlled under the same entry on the CCL does not exceed the amount specified in the “LVS” paragraph for that entry. An LVS shipment may include more than one eligible order.
(ii) Orders may not be split to meet the applicable LVS dollar limits. An order that exceeds the applicable LVS dollar value limit may not be misrepresented as two or more orders, or split among two or more shipments, to give the appearance of meeting the applicable LVS dollar value limit. However an order that meets all the LVS eligibility requirements, including the applicable LVS dollar value limit, may be split among two or more shipments.
(iii) Orders must be legitimate. Exporters and consignees may not, either collectively or individually, structure or adjust orders to meet the applicable LVS dollar value limits.
(2) Restriction on annual value of LVS orders. The total value of exports per calendar year to the same ultimate or intermediate consignee of commodities classified under a single ECCN may not exceed 12 times the LVS value limit for that ECCN; however, there is no restriction on the number of shipments provided that value is not exceeded. This annual value limit applies to shipments to the same ultimate consignee even though the shipments are made through more than one intermediate consignee. There is no restriction on the number of orders that may be included in a shipment, except that the annual value limit per ECCN must not be exceeded.
(3) Orders where two or more LVS dollar value limits apply. An order may include commodities that are controlled under more than one entry on the CCL. In this case, the net value of the entire order may exceed the LVS dollar value for any single entry on the CCL. However, the net value of the commodities controlled under each ECCN entry shall not exceed the LVS dollar value limit specified for that entry.
(4) Prohibition against evasion of license requirements. Any activity involving the use of this License Exception to evade license requirements is prohibited. Such devices include, but are not limited to, the splitting or structuring of orders to meet applicable LVS dollar value limits, as prohibited by paragraphs (d)(1) (ii) and (iii) of this section.
(5) Exports and reexports of encryption components or spare parts. For components or spare parts controlled for “EI” reasons under ECCN 5A002, exports and reexports under this License Exception must be destined to support a commodity previously authorized for export or reexport.
(e) Reexports. Commodities may be reexported under this License Exception, provided that they could be exported from the United States to the new country of destination under LVS.
(f) Reporting requirements. See § 743.1 of the EAR for reporting requirements for exports of certain commodities under License Exception LVS.
§ 740.4   Shipments to Country Group B countries (GBS).
License Exception GBS authorizes exports and reexports to Country Group B (see Supplement No. 1 to part 740), except Sudan and Ukraine, of those commodities where the Commerce Country Chart (Supplement No. 1 to part 738 of the EAR) indicates a license requirement to the ultimate destination for national security reasons only and identified by “GBS—Yes” on the CCL. See § 743.1 of the EAR for reporting requirements for exports of certain commodities under License Exception GBS.
§ 740.5   [Reserved]
§ 740.6   Technology and software under restriction (TSR).
(a) Scope. License Exception TSR permits exports and reexports of technology and software where the Commerce Country Chart (Supplement No. 1 to part 738 of the EAR) indicates a license requirement to the ultimate destination for national security reasons only and identified by “TSR—Yes” in entries on the CCL, provided the software or technology is destined to Country Group B, except Sudan and Ukraine. (See Supplement No. 1 to part 740.) A written assurance is required from the consignee before exporting or reexporting under this License Exception.
(1) Required assurance for export of technology. You may not export or reexport technology under this License Exception until you have received from the importer a written assurance that, without a BIS license or License Exception, the importer will not:
(i) Reexport or release the technology to a national of a country in Country Groups D:1, E:1, or E:2; or
(ii) Export to Country Groups D:1, E:1, or E:2 the direct product of the technology, if such foreign produced direct product is subject to national security controls as identified on the CCL (See General Prohibition Three, § 736.2(b)(3) of the EAR); or
(iii) If the direct product of the technology is a complete plant or any major components of a plant, export to Country Groups D:1, E:1, or E:2 of the direct product of the plant or major components thereof, if such foreign produced direct product is subject to national security controls as identified on the CCL or is “subject to the ITAR” (see 22 CFR parts 120 through 130).
(iv) Reexport to a destination in Country Group D:5, a destination subject to the Regional Stability control under ECCN 3A999, or Macau or release the technology to a national of such destinations, if the technology is controlled under ECCN 3E069.
(2) Required assurance for export of software. You may not export or reexport software under this License Exception until you have received from the importer a written assurance that, without a BIS license or License Exception, the importer will neither:
(i) Reexport or release the software or the source code for the software to a national of a country in Country Groups D:1, E:1, or E:2; nor
(ii) Export to Country Groups D:1, E:1, or E:2 the direct product of the software, if such foreign produced direct product is subject to national security controls as identified on the CCL. (See General Prohibition Three, § 736.2(b)(3) of the EAR).
(3) Form of written assurance. The required assurance may be made in the form of a letter or any other written communication from the importer, including communications via facsimile, or the assurance may be incorporated into a licensing agreement that specifically includes the assurances. An assurance included in a licensing agreement is acceptable only if the agreement specifies that the assurance will be honored even after the expiration date of the licensing agreement. If such a written assurance is not received, License Exception TSR is not applicable and a license is required. The license application must include a statement explaining why assurances could not be obtained.
(4) Other License Exceptions. The requirements in this License Exception do not apply to the export of technology or software under other License Exceptions, or to the export of technology or software included in an application for the foreign filing of a patent, provided the filing is in accordance with the regulations of the U.S. Patent Office.
(b) Reporting requirements. See § 743.1 of the EAR for reporting requirements for exports of certain items under License Exception TSR. Note that reports are not required for release of technology or source code subject to the EAR to foreign nationals in the U.S. under the provisions of License Exception TSR.
§ 740.7   Computers (APP).
(a) Scope —(1) Commodities. License Exception APP authorizes exports, reexports and transfers (in-country) of computers, including “electronic assemblies” and specially designed components therefor controlled by ECCN 4A003 exported or reexported separately or as part of a system for consumption in Computer Tier countries as provided by this section. When evaluating your computer to determine License Exception APP eligibility, use the APP parameter to the exclusion of other technical parameters in ECCN 4A003.
(2) Technology and software. License Exception APP authorizes exports of technology and software controlled by ECCNs 4D001 and 4E001 specially designed or modified for the “development,” “production,” or “use” of computers, including “electronic assemblies” and specially designed components therefor classified in ECCN 4A003 to Computer Tier countries as provided by this section.
(b) Restrictions. (1) Related equipment controlled under ECCN 4A003.g, z.2, or z.4 may not be exported or reexported under this license exception when exported or reexported separately from eligible computers authorized under this license exception.
(2) Access and release restrictions. (i) [Reserved]
(ii) Technology and source code. Technology and source code eligible for License Exception APP may not be released to nationals of Cuba, Iran, North Korea, or Syria.
(3) Computers and software eligible for License Exception APP may not be reexported or transferred (in country) without prior authorization from BIS, i.e., a license, a permissive reexport, another License Exception, or “No License Required”. This restriction must be conveyed to the consignee, via the Destination Control Statement, see § 758.6 of the EAR. Additionally, the end-use and end-user restrictions in paragraph (b)(5) of this section must be conveyed to any consignee in Computer Tier 3.
(4) You may not use this License Exception to export or reexport items that you know will be used to enhance the APP beyond the eligibility limit allowed to your country of destination.
(5) License Exception APP does not authorize exports, reexports and transfers (in-country) for nuclear, chemical, biological, or missile end-users and end-uses subject to license requirements under §§ 744.2, 744.3, 744.4, and 744.5 of the EAR. Such exports, reexports and transfers (in-country) will continue to require a license and will be considered on a case-by-case basis. Reexports and transfers (in-country) to these end-users and end-uses in eligible countries are strictly prohibited without prior authorization.
(6) Foreign nationals in an expired visa status are not eligible to receive deemed exports of technology or source code under this License Exception. It is the responsibility of the exporter to ensure that, in the case of deemed exports, the foreign national maintains a valid U.S. visa, if required to hold a visa from the United States.
(c) Computer Tier 1 destinations —(1) Eligible destinations. The destinations that are eligible to receive exports and reexports under paragraph (c) of this section include: Albania, Antigua and Barbuda, Argentina, Aruba, Australia, Austria, Bahamas (The), Bangladesh, Barbados, Belgium, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei, Bulgaria, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo (Democratic Republic of the), Congo (Republic of the), Costa Rica, Cote d'Ivoire, Croatia, Curaçao, Cyprus, Czech Republic, Denmark, Dominica, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Fiji, Finland, France, Gabon, Gambia (The), Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hungary, Iceland, Indonesia, Ireland, Italy, Jamaica, Japan, Kenya, Kiribati, Korea (Republic of), Latvia, Lesotho, Liberia, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Marshall Islands, Mauritius, Mexico, Micronesia (Federated States of), Monaco, Mozambique, Namibia, Nauru, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Rwanda, St. Kitts & Nevis, St. Lucia, St. Vincent and the Grenadines, Sao Tome & Principe, Samoa, San Marino, Senegal, Seychelles, Sierra Leone, Singapore, Sint Maarten (the Dutch two-fifths of the island of Saint Martin), Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden, Switzerland, Taiwan, Tanzania, Togo, Tonga, Thailand, Timor-Leste, Trinidad and Tobago, Turkey, Tuvalu, Uganda, United Kingdom, Uruguay, Vatican City, Venezuela, Western Sahara, Zambia, and Zimbabwe.
(2) Eligible commodities. All computers, including electronic assemblies and specially designed components therefore are eligible for export or reexport under License Exception APP to Tier 1 destinations, subject to the restrictions in paragraph (b) of this section.
(3) Eligible technology and software. (i) Technology and software described in paragraph (a)(2) of this section for computers of unlimited APP are eligible for export, reexport, transfer (in-country) under License Exception APP to countries listed in Country Group A:5, see supplement no. 1 to this part; and
(ii) “Development” and “production” technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 175 Weighted TeraFLOPS (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
(iii) “Use” technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 500 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
(d) Computer Tier 3 destinations —(1) Eligible destinations. Eligible destinations under paragraph (d) of this section are: Afghanistan, Algeria, Andorra, Angola, Armenia, Azerbaijan, Bahrain, Belarus, Bosnia & Herzegovina, Burma, Cambodia, China (People's Republic of), Comoros, Djibouti, Egypt, Georgia, India, Iraq, Israel, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Libya, Macau, Macedonia (The Former Yugoslav Republic of), Mauritania, Moldova, Mongolia, Montenegro, Morocco, Oman, Pakistan, Qatar, Russia, Saudi Arabia, Serbia, Sudan, Tajikistan, Tunisia, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Vanuatu, Vietnam, and Yemen.
(2) Eligible commodities. None.
(3) Eligible technology and source code. (i) “Development” and “production” technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 50 Weighted TeraFLOPs (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) of this section.
(ii) “Use” technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 140 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) of this section.
(e) Reporting requirements. See § 743.1 of the EAR for reporting requirements of certain items under License Exception APP.
§ 740.8   Notified Advanced Computing (NAC) and Advanced Computing Authorized (ACA).
(a) Eligibility requirements. License Exception NAC authorizes the export and reexport of any item classified in ECCN 3A090 (except for 3A090.c), 4A090, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, 5A992.z, 5D002.z, or 5D992.z, except for items designed or marketed for use in a datacenter and meeting the parameters of 3A090.a, to Macau and Country Group D:5 or an entity headquartered in or whose ultimate parent is headquartered in, Macau or a destination specified in Country Group D:5, wherever located. License Exception ACA authorizes the export, reexport, and transfer (in-country) of any item classified in ECCN 3A090 (except for 3A090.c), 4A090, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, 5A992.z, 5D002.z, or 5D992.z, except for items designed or marketed for use in a datacenter and meeting the parameters of 3A090.a, to or within any destination worldwide (except Macau, a destination specified in Country Group D:5, or an entity headquartered in, or whose ultimate parent is headquartered in, Macau or a destination specified in Country Group D:5, wherever located), as well as transfers (in-country) within Macau and destinations specified in Country Group D:5. These license exceptions may be used provided the export, reexport, or transfer (in-country) meets all of the applicable criteria identified under this paragraph (a) and none of the restrictions in paragraph (b) of this section.
(1) Written purchase order. Prior to any exports, reexports, and transfers (in-country) made pursuant to License Exceptions NAC or ACA you must obtain a written purchase order unless specifically exempted in this paragraph. Commercial samples are not subject to this purchase order requirement, but such transactions may be obligated to comply with paragraph (a)(2) of this section.
(2) NAC Notification to BIS —(i) Notification requirement. Prior to any exports or reexports to Macau or a destination specified in Country Group D:5 or to an entity headquartered in, or with an ultimate parent headquartered in, Macau or a destination specified in Country Group D:5, wherever located, the exporter or reexporter must notify BIS in accordance with the procedures set forth in paragraph (c) of this section.
(ii) Multiple exports and reexports. For multiple exports or reexports under License Exception NAC to the same end user and for the same item(s), the exporter or reexporter need only notify BIS prior to the first export or reexport, as long as the total dollar value and quantity of the shipments do not exceed the amounts stated on the notification. The dollar value and quantity on the notification do not need to match the dollar value and quantity on the purchase order; the notification's quantity and dollar value amounts may be based on estimates of future sales. However, prior to export or reexport you must have a purchase order for every shipment made against the NAC notification. BIS will provide further information on the notification process in the policy guidance tab on the BIS website.
(3) In relation to License Exception ENC and ECCNs 5A002.z, 5A004.z, or 5D002.z. For exports, reexports, or transfer (in-country) of ECCNs 5A002.z, 5A004.z, or 5D002.z, all License Exception Encryption commodities, software, and technology (ENC) requirements under § 740.17 of this part must also be met for eligibility under License Exceptions NAC or ACA.
(b) Restrictions. No exports, reexports, or transfers (in-country) may be made under License Exception NAC or ACA that are subject to a license requirement under part 744 or 746 of the EAR, except for a license required under § 744.23(a)(3) for reexports or exports to any destination other than those specified in Country Groups D:1, D:4, or D:5 (excluding any destination also specified in Country Groups A:5 or A:6) for an entity that is headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5.
(c) NAC Prior notification procedures —(1) Procedures. At least twenty-five calendar days prior to exports or reexports using License Exception NAC, you must provide prior notification under License Exception NAC by submitting a completed application in SNAP-R in accordance with § 748.1 of the EAR. The following blocks must be completed, as appropriate: Blocks 1, 2, 3, 4, 5 (by marking box 5 export license or reexport license), 9, 14, 16, 17, 18, 19, 21, 22(a), (d), (e), (f), (g), (h), (i), (j), 23, 24, and 25 according to the instructions described in supplement no. 1 to part 748 of the EAR. Box 9 under special purpose must include NAC. The application must include certain information to allow for BIS to determine if the item in question otherwise meets the criteria for an item eligible for License Exception NAC. Required information to include in the NAC submission is as follows:
(i) Total Processing Performance of the item, as defined in ECCN 3A090;
(ii) Performance density of the item, as defined in ECCN 3A090;
(iii) Data sheet or other documentation showing how the item is designed and marketed (in particular, whether it is designed or marketed for datacenter use);
(iv) All NAC and license approvals to the end-user in the past 12 months;
(v) Memory bandwidth of the item(s); and
(vi) Whether the items are destined for use in a computing cluster, and, if so:
(A) The computing power of the computing cluster, measured in the aggregate TPP of all chips used in the cluster once the cluster is complete; and
(B) Whether the cluster will be:
( 1 ) Exclusively for internal use by a company headquartered in the United States or a destination specified in Country Group A:5 or A:6, or
( 2 ) Used by any other companies not headquartered in A:5 or A:6, or by external parties such as through cloud services.
(2) Action by BIS for NAC notifications. After the notification has been registered in SNAP-R and within twenty-five calendar days after registration, BIS will inform you if a license is required. If BIS has not contacted you, then System for Tracking Export License Applications (STELA) ( https://snapr.bis.doc.gov/stela ) will, on the twenty-fifth calendar day following the date of registration, provide either confirmation that you can use License Exception NAC and a NAC confirmation number to be submitted in AES or confirmation that you cannot use License Exception NAC and you must apply for a license to continue with the transaction.
(3) Status of pending NAC notification requests. Log into BIS's STELA for information about the status of your pending NAC notification or to verify the status in BIS's Simplified Network Applications Processing Redesign (SNAP-R) System. STELA will provide the date the NAC notification is registered. BIS may alternatively provide such confirmation of NAC status by email, telephone, fax, courier service, or other means.
(4) Actions that delay processing of NAC notifications. Below are circumstances that will delay the processing of your NAC notification, i.e., temporarily stop the twenty-five day processing clock for NAC notification:
(i) Lapse in appropriations.
(ii) Catastrophic event (e.g., an extreme weather event that impacts government services).
(iii) Multi-day processing system failure.
§ 740.9   Temporary imports, exports, reexports, and transfers (in-country) (TMP).
This License Exception authorizes various temporary exports and reexports; exports and reexports of items temporarily in the United States; and exports and reexports of beta test software.
(a) Temporary exports, reexports, and transfers (in-country). License Exception TMP authorizes exports, reexports, and transfers (in-country) of items for temporary use abroad (including use in or above international waters) subject to the conditions specified in this paragraph (a). No item may be exported, reexported, or transferred (in-country) under this paragraph (a) if an order to acquire the item, such as a purchase order, has been received before shipment; with prior knowledge that the item will stay abroad beyond the terms of this License Exception; or when the item is for subsequent lease or rental abroad. The references to various countries and country groups in these TMP-specific provisions do not limit or amend the prohibitions in § 740.2 of the EAR on the use of license exceptions generally, such as for exports of 9x515 or “600 series” items to destinations in Country Group D:5. This paragraph (a) does not authorize any export of a commodity controlled under ECCNs 0A501.a or .b, 0A506 or 0A507, or shotguns with a barrel length less than 18 inches controlled under ECCN 0A502 or 0A508 to, or any export of such an item that was imported into the United States from, a country in Country Group D:5 (supplement no. 1 to this part), or from Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or Uzbekistan. The only provisions of this paragraph (a) that are eligible for use to export such items are paragraph (a)(5) of this section (“Exhibition and demonstration”) and paragraph (a)(6) of this section (“Inspection, test, calibration, and repair”). In addition, this paragraph (a) may not be used to export more than 75 firearms per shipment. In accordance with the requirements in § 758.1(b)(9) and (g)(4) of the EAR, the exporter or its agent must provide documentation that includes the serial number, make, model, and caliber of each firearm being exported by filing these data elements in an EEI filing in AES. In accordance with the exclusions in License Exception TMP under paragraph (b)(5) of this section, the entry clearance requirements in § 758.1(b)(9) do not permit the temporary import of: Firearms controlled in ECCNs 0A501.a or .b, 0A506, or 0A507 that are shipped from or manufactured in a Country Group D:5 country, or that are shipped from or manufactured in Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or Uzbekistan (except for any firearm model designation (if assigned) controlled by ECCNs 0A501, 0A506, or 0A507 that is specified under annex A in supplement no. 4 to this part); or shotguns with a barrel length less than 18 inches controlled in ECCNs 0A502 or 0A508 that are shipped from or manufactured in a Country Group D:5 country, or from Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or Uzbekistan, because of the exclusions in License Exception TMP under paragraph (b)(5) of this section.
(1) Tools of trade. Exports, reexports, or transfers (in-country) of commodities and software as tools of trade for use by the exporter or employees of the exporter may be made only to destinations other than Country Group E:1 and for MT controlled commodities or software may be made only to destinations other than Country Groups D:4 and D:5. The tools of trade must remain under the “effective control” of the exporter or the exporter's employee. Eligible items are usual and reasonable kinds and quantities of tools of trade for use in a lawful enterprise or undertaking of the exporter. Tools of trade include, but are not limited to, commodities and software as is necessary to commission or service items, provided that the commodity or software is appropriate for this purpose and that all items to be commissioned or serviced are of foreign origin, or if subject to the EAR, have been lawfully exported, reexported, or transferred. Tools of trade may accompany the individual departing from the United States or may be shipped unaccompanied within one month before the individual's departure from the United States, or at any time after departure. Software used as a tool of trade must be protected against unauthorized access. Examples of security precautions to help prevent unauthorized access include the following:
(i) Use of secure connections, such as Virtual Private Network connections, when accessing IT networks for activities that involve the transmission and use of the software authorized under this license exception;
(ii) Use of password systems on electronic devices that store the software authorized under this license exception; and
(iii) Use of personal firewalls on electronic devices that store the software authorized under this license exception.
(2) [Reserved]
(3) “Technology,” regardless of media or format, may be exported, reexported, or transferred (in-country) by or to a U.S. person, or a foreign person employee of a U.S. person traveling or on temporary assignment abroad, subject to the following restrictions:
(i) Foreign persons may only export, reexport, transfer (in country) or receive such “technology” as they are authorized to receive through a license, license exception other than TMP or because no license is required.
(ii) “Technology” exported, reexported, or transferred under this authorization may only be possessed or used by a U.S. person or authorized foreign person. Sufficient security precautions must be taken to prevent the unauthorized release of the “technology.” Such security precautions may include encryption of the “technology,” the use of secure network connections, such as Virtual Private Networks, the use of passwords or other access restrictions on the electronic device or media on which the “technology” is stored, and the use of firewalls and other network security measures to prevent unauthorized access.
(iii) The individual is an employee of the U.S. Government or is directly employed by a U.S. person and not, e.g., by a foreign subsidiary.
(iv) “Technology” authorized under this exception may not be used for foreign production purposes or for technical assistance unless authorized through a license or license exception other than TMP.
(4) Kits consisting of replacement parts or components. Kits consisting of replacement parts or components may be exported, reexported, or transferred (in-country) to all destinations except Country Group E:1 (see supplement no. 1 to part 740 of the EAR), provided that:
(i) The parts and components would qualify for shipment under paragraph (a)(4)(iii) of this section if exported as one-for-one replacements;
(ii) The kits remain under effective control of the exporter or an employee of the exporter; and
(iii) All parts and components in the kit are returned, except that one-for-one replacements may be made in accordance with the requirements of License Exception RPL and the defective parts and components returned (see Parts, Components, Accessories and Attachments in § 740.10(a) of this part).
(5) Exhibition and demonstration. This paragraph (a)(5) authorizes exports, reexports, and transfers (in-country) of commodities and software for exhibition or demonstration in all destinations except Country Group E:1 (see supplement no. 1 to this part) provided that the exporter maintains ownership of the commodities and software while they are abroad and provided that the exporter, an employee of the exporter, or the exporter's designated sales representative retains “effective control” over the commodities and software while they are abroad. The commodities and software may not be used when abroad for more than the minimum extent required for effective demonstration. The commodities and software may not be exhibited or demonstrated at any one site for longer than 120 days after installation and debugging, unless authorized by BIS. However, before or after an exhibition or demonstration, pending movement to another site, return to the United States or the foreign reexporter, or BIS approval for other disposition, the commodities and software may be placed in a bonded warehouse or a storage facility provided that the exporter retains “effective control” over their disposition. The export documentation for this type of transaction must show the exporter as ultimate consignee, in care of the person who will have control over the commodities and software abroad.
(6) Inspection, test, calibration, and repair. Commodities to be inspected, tested, calibrated, or repaired abroad may be exported, reexported, and transferred (in-country) under this paragraph (a)(6) to all destinations except Country Group E:1.
(7) Containers. Containers for which another license exception is not available and that are necessary for shipment of commodities may be exported, reexported, and transferred (in-country) under this paragraph (a)(7). However, this paragraph does not authorize the export of the container's contents, which, if not exempt from licensing, must be separately authorized for export under either a license exception or a license.
(8) Assembly in Mexico. Commodities may be exported to Mexico under Customs entries that require return to the United States after processing, assembly, or incorporation into end products by companies, factories, or facilities participating in Mexico's in-bond industrialization program (IMMEX) under this paragraph (a)(8), provided that all resulting end-products (or the commodities themselves) are returned to the United States as soon as practicable but no later than four years after the date of export or reexport.
(9) News media. (i) Commodities necessary for news-gathering purposes (and software necessary to use such commodities) may be temporarily exported, reexported, or transferred (in-county) for accredited news media personnel ( i.e., persons with credentials from a news-gathering or reporting firm) to or within Belarus, Cuba, North Korea, Russia, and Syria (see supplement no. 1 to part 740), or the Crimea region of Ukraine and covered regions of Ukraine (as specified in § 746.6) if the commodities:
(A) Are retained under “effective control” of the exporting news-gathering firm in the country of destination;
(B) Remain in the physical possession of the news media personnel in the country of destination. The term physical possession for purposes of this paragraph (a)(9) means maintaining effective measures to prevent unauthorized access (e.g., securing equipment in locked facilities or hiring security guards to protect the equipment); and
(C) Are removed with the news media personnel at the end of the trip.
(ii) When exporting under this paragraph (a)(9) from the United States, the exporter must email a copy of the packing list or similar identification of the exported commodities, to bis.compliance@bis.doc.gov specifying the destination and estimated dates of departure and return. The Office of Export Enforcement (OEE) may check returns to assure that the provisions of this paragraph (a)(9) are being used properly.
(iii) Commodities or software necessary for news-gathering purposes that accompany news media personnel to all other destinations shall be exported, reexported, or transferred (in-country) under paragraph (a)(1), tools of trade, of this section if owned by the news gathering firm, or if they are personal property of the individual news media personnel. Note that paragraphs (a)(1), tools of trade, and (a)(9), news media, of this section do not preclude independent accredited contract personnel, who are under control of news-gathering firms while on assignment, from using these provisions, provided that the news gathering firm designates an employee of the contract firm to be responsible for the equipment.
(10) Temporary exports to a U.S. person's foreign subsidiary, affiliate, or facility abroad. Components, parts, tools, accessories, or test equipment exported by a U.S. person to a subsidiary, affiliate, or facility owned or controlled by the U.S. person, if the components, parts, tools, accessories, or test equipment are to be used to manufacture, assemble, test, produce, or modify items, provided that such components, parts, tools, accessories or test equipment are not transferred (in-country) or reexported from such subsidiary, affiliate, or facility, alone or incorporated into another item, without prior authorization by BIS.
(11) Personal protective “equipment” classified under ECCN 1A613.c or .d and individual protection “equipment” classified under ECCN 1A607.f —(i) Temporary exports, reexports, or in-country transfers to countries not identified in Country Group D:5. U.S. persons may temporarily export or reexport one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries not identified in Country Group D:5, provided that:
(A) The items are with the U.S. person's baggage or effects, whether accompanied or unaccompanied (but not mailed); and
(B) The items are for that U.S. person's exclusive use and not for transfer of ownership unless reexported or transferred (in-country) to another U.S. person.
(ii) Temporary exports, reexports, or transfers (in-country) to countries identified in Country Group D:5 —(A) Iraq. U.S. persons may temporarily export or reexport one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to Iraq, for personal use, provided that the requirements in paragraph (a)(11)(i) of this section are met. In addition, the U.S. person must be affiliated with the U.S. Government and traveling on official business or traveling in support of a U.S. Government contract, or the U.S. person must be traveling to Iraq under a direct authorization by the Government of Iraq and engaging in activities for, on behalf of, or at the request of, the Government of Iraq. Documentation regarding direct authorization from the Government of Iraq shall include an English translation.
(B) Other countries in Country Group D:5. U.S. persons may temporarily export or reexport one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries in Country Group D:5 (except Iraq), for personal use, provided that the requirements in paragraph (a)(11)(i) of this section are met, and the U.S. person is affiliated with the U.S. Government traveling on official business or is traveling in support of a U.S. Government contract.
(iii) Items exported, reexported, or transferred (in-country) under this paragraph (a)(11), if not consumed or destroyed in the normal course of authorized temporary use abroad, must be returned to the United States or other country from which the items were so transferred as soon as practicable but no later than four years after the date of export, reexport or transfer (in-country).
(12) U.S. persons. For purposes of this § 740.9, a U.S. person is defined as follows: an individual who is a citizen of the United States, an individual who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(2) or an individual who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). U.S. person also means any juridical person organized under the laws of the United States, or any jurisdiction within the United States (e.g., corporation, business association, partnership, society, trust, or any other entity, organization or group that is authorized to do business in the United States).
(13) Destinations. Destination restrictions apply to temporary exports, reexports, or transfers (in-country) to and for use on any vessel, aircraft or territory under ownership, control, lease, or charter by any country specified in any authorizing paragraph of this section, or any national thereof.
(14) Return or disposal of items. With the exception of items described in paragraphs (a)(8) and (11) of this section, all items exported, reexported, or transferred (in-country) under this section must, if not consumed or destroyed in the normal course of authorized temporary use abroad, be returned to the United States or other country from which the items were so transferred as soon as practicable but no later than one year after the date of export, reexport, or transfer (in-country). Items not returned shall be disposed of or retained in one of the following ways:
(i) Permanent export, reexport, or transfer (in-country). An exporter or reexporter who wants to sell or otherwise dispose of the items abroad, except as permitted by this or other applicable provision of the EAR, must apply for a license in accordance with §§ 748.1, 748.4 and 748.6 of the EAR. (Part 748 of the EAR contains more information about license applications.) The application must be supported by any documents that would be required in support of an application for export license for shipment of the same items directly from the United States to the proposed destination.
(ii) Use of a license. An outstanding license may also be used to dispose of items covered by the provisions of this paragraph (a), provided that the outstanding license authorizes direct shipment of the same items to the same new ultimate consignee or end-user.
(iii) Authorization to retain item abroad beyond one year. An exporter, reexporter or transferor who wants to retain an item at the temporary location beyond one year must apply for a license in accordance with §§ 748.1, 748.4 and 748.6 of the EAR to BIS at least 90 days prior to the expiration of the one-year period. The application must include the name and address of the exporter, the date the items were exported, a brief product description, and the justification for the extension. If BIS approves the extension, the applicant will receive authorization for an extension not to exceed four years from the date of initial export, reexport, or transfer. Any request for retaining the items abroad for a period exceeding four years must be made in accordance with the requirements of paragraph (a)(14)(i) of this section.
(b) Exports of items temporarily in the United States. No provision of this paragraph (b), other than paragraph (b)(3), (4), or (5), may be used to export firearms controlled by ECCN 0A501.a, .b, 0A506, 0A507, or shotguns with a barrel length less than 18 inches controlled in ECCN 0A502 or 0A508.
(1) Items moving in transit through the United States. Subject to the following conditions, the provisions of this paragraph (b)(1) authorize export of items moving in transit through the United States under a Transportation and Exportation (T.&E.) customs entry or an Immediate Exportation (I.E.) customs entry made at a U.S. Customs and Border Protection Office.
(i) Items controlled for national security (NS) reasons, nuclear proliferation (NP) reasons, chemical and biological weapons (CB), or missile technology reasons (MT) reasons may not be exported to Country Group D:1, D:2, D:3, or D:4 (see supplement no. 1 to part 740), respectively, under this paragraph (b)(1).
(ii) Items may not be exported to Country Group E:1 under this section.
(iii) The following may not be exported from the United States under this paragraph (b)(1):
(A) Commodities shipped to the United States under an International Import Certificate, Form BIS-645P;
(B) Chemicals controlled under ECCN 1C350; or
(C) Horses for export by sea (refer to short supply controls in part 754 of the EAR).
(iv) The authorization to export in paragraph (b)(1) shall apply to all shipments from Canada moving in transit through the United States to any foreign destination, regardless of the nature of the commodities or software or their origin, notwithstanding any other provision of this paragraph (b)(1).
(2) Items imported for marketing, or for display at U.S. exhibitions or trade fairs. Subject to the following conditions, the provisions of this paragraph (b)(2) authorize the export of items that were imported into the United States for marketing, or for display at an exhibition or trade fair and were either entered under bond or permitted temporary free import under bond providing for their export and are being exported in accordance with the terms of that bond.
(i) Items may be exported to the country from which imported into the United States. However, items originally imported from Cuba may not be exported unless the U.S. Government had licensed the import from that country.
(ii) Items may be exported to any destination other than the country from which imported except:
(A) Items imported into the United States under an International Import Certificate;
(B) Exports to Country Group E:1 (see supplement no. 1 to part 740); or
(C) Exports to Country Groups D:1, D:2, D:3, or D:4 (see supplement no. 1 to part 740) of items controlled for national security (NS) reasons, nuclear nonproliferation (NP) reasons, chemical and biological weapons (CB) reasons, or missile technology (MT) reasons, respectively.
(3) Return of foreign-origin items. A foreign-origin item may be returned under this license exception to the country from which it was imported if its characteristics and capabilities have not been enhanced while in the United States, except that no foreign-origin items may be returned to Cuba.
(4) Return of shipments refused entry. Shipments of items refused entry by the U.S. Customs and Border Protection, the Food and Drug Administration, or other U.S. Government agency may be returned to the country of origin, except to:
(i) A destination in Cuba; or
(ii) A destination from which the shipment has been refused entry because of the Foreign Assets Control Regulations of the Treasury Department, unless such return is licensed or otherwise authorized by the Treasury Department, Office of Foreign Assets Control (31 CFR parts 500-599).
(5) Exports of firearms and certain shotguns temporarily in the United States. This paragraph (b)(5) authorizes the export of no more than 75 firearms per shipment controlled by ECCN 0A501.a or .b, 0A506, 0A507, or shotguns with a barrel length less than 18 inches controlled in ECCN 0A502 or 0A508 that are temporarily in the United States for a period not exceeding one year, provided that:
(i) The firearms were not shipped from or manufactured in a U.S. arms embargoed country, i.e., destination listed in Country Group D:5 in supplement no. 1 to this part;
(ii) The firearms were not shipped from or manufactured in Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or Uzbekistan, except for any firearm model controlled by 0A501, 0A506, or 0A507 that is specified under annex A in supplement no. 4 to this part; and
(iii) The firearms are not ultimately destined to a U.S. arms embargoed country, i.e., destination listed in Country Group D:5 in supplement no. 1 to this part;
(iv) When the firearms entered the U.S. as a temporary import, the temporary importer or its agent:
(A) Provided the following statement to U.S. Customs and Border Protection: “This shipment will be exported in accordance with and under the authority of License Exception TMP (15 CFR 740.9(b)(5))”;
(B) Provided to U.S. Customs and Border Protection an invoice or other appropriate import-related documentation (or electronic equivalents) that includes a complete list and description of the firearms being temporarily imported, including their model, make, caliber, serial numbers, quantity, and U.S. dollar value; and
(C) Provided (if temporarily imported for a trade show, exhibition, demonstration, or testing) to U.S. Customs and Border Protection the relevant invitation or registration documentation for the event and an accompanying letter that details the arrangements to maintain effective control of the firearms while they are in the United States; and
(v) In addition to the export clearance requirements of part 758 of the EAR, the exporter or its agent must provide the import documentation related to paragraph (b)(5)(iv)(B) of this section to U.S. Customs and Border Protection at the time of export.
In addition to complying with all applicable EAR requirements for the export of commodities described in paragraph (b)(5) of this section, exporters and temporary importers should contact U.S. Customs and Border Protection (CBP) at the port of temporary import or export, or at the CBP website, for the proper procedures for temporarily importing or exporting firearms controlled in ECCNs 0A501.a or .b, 0A506, or 0A507, or shotguns with a barrel length less than 18 inches controlled in ECCN 0A502 or 0A508, including regarding how to provide any data or documentation required by BIS.
A commodity withdrawn from a bonded warehouse in the United States under a ‘withdrawal for export’ customs entry is considered as ‘moving in transit’. It is not considered as ‘moving in transit’ if it is withdrawn from a bonded warehouse under any other type of customs entry or if its transit has been broken for a processing operation, regardless of the type of customs entry.
Items shipped on board a vessel or aircraft and passing through the United States from one foreign country to another may be exported without a license provided that (a) while passing in transit through the United States, they have not been unladen from the vessel or aircraft on which they entered, and (b) they are not originally manifested to the United States.
A shipment originating in Canada or Mexico that incidentally transits the United States en route to a delivery point in the same country does not require a license.
(c) Exports of beta test software —(1) Scope. The provisions of this paragraph (c) authorize exports and reexports to eligible countries of beta test software intended for distribution to the general public.
(2) Eligible countries. Encryption software controlled under ECCN 5D002 is not eligible for export or reexport to a country in Country Group E:1 under the provisions of this paragraph (c). All other beta test software is eligible for export or reexport to all destinations, except Cuba and Iran under the provisions of this paragraph (c).
(3) Eligible software. All software that is controlled by the Commerce Control List (supplement no.1 to part 774 of the EAR), and under Commerce licensing jurisdiction, is eligible for export and reexport, subject to the restrictions of this paragraph (c). Encryption software controlled for “EI” reasons under ECCN 5D002 is eligible for export and reexport under this paragraph (c), provided that the exporter has submitted the information described in paragraph (c)(8) of this section by the time of export. Final encryption products produced by the testing consignee are subject to any applicable provisions in § 742.15(b) of the EAR (for mass market encryption commodities and software with symmetric key length exceeding 64-bits) or § 740.17 of the EAR (License Exception ENC), including review and reporting requirements.
(4) Conditions for use. Exports or reexports of beta test software programs under the provisions of this paragraph (c) must meet all of the following conditions:
(i) The software producer intends to market the software to the general public after completion of the beta testing, as described in the General Software Note (see supplement no. 2 to part 774 of the EAR) or the Cryptography Note in Category 5, Part 2 (“Information Security”) of the Commerce Control List (see supplement no.1 to part 774 of the EAR);
(ii) The software producer provides the software to the testing consignee free-of-charge or at a price that does not exceed the cost of reproduction and distribution; and
(iii) The software is designed for installation by the end-user without further substantial support from the supplier.
(5) Importer Statement. Prior to exporting or reexporting any eligible software under this paragraph (c), the exporter or reexporter must obtain the following statement from the testing consignee, which may be included in a contract, non-disclosure agreement, or other document that identifies the importer, the software to be exported, the country of destination, and the testing consignee.
“We certify that this beta test software will only be used for beta testing purposes, and will not be rented, leased, sold, sublicensed, assigned, or otherwise transferred. Further, we certify that we will not transfer or export any product, process, or service that is the direct product of the beta test software.”
(6) Use limitations. Only testing consignees that provide the importer statement required by paragraph (c)(5) of this section may execute any beta test software that was exported or reexported to them under the provisions of this paragraph (c).
(7) Return or disposal of software. All beta test software exported must be destroyed abroad or returned to the exporter within 30 days of the end of the beta test period as defined by the software producer or, if the software producer does not define a test period, within 30 days of completion of the consignee's role in the test. Among other methods, this requirement may be satisfied by a software module that will destroy the software and all its copies at or before the end of the beta test period.
(8) Notification of beta test encryption software implementing “non-standard cryptography.” For beta test encryption software eligible under this license exception that provides or performs “non-standard cryptography” as defined in part 772 of the EAR, by the time of export or reexport you must submit the information described in paragraphs (a) through (d) of supplement No. 6 to part 742 of the EAR by email to BIS at crypt@bis.doc.gov and to the ENC Encryption Request Coordinator at enc@nsa.gov.
§ 740.10   License Exception Servicing and replacement of parts and equipment (RPL).
License Exception RPL authorizes exports and reexports associated with one-for-one replacement of parts, components, accessories, and attachments. License Exception RPL also authorizes exports and reexports of certain items currently “subject to the EAR” to or for, or to replace, a defense article described in an export or reexport authorization issued under the authority of the Arms Export Control Act. It does not, however, authorize the export or reexport of defense articles subject to the ITAR, i.e., described on the United States Munitions List (22 CFR 121.1).
(a) Parts, components, accessories, and attachments —(1) Scope. The provisions of this paragraph (a) authorize the export and reexport of one-for-one replacement parts, components, accessories, and attachments for previously exported equipment or other end items.
(2) One-for-one replacement of parts, components, accessories, or attachments. (i) The terms replacement parts, components, accessories, or attachments as used in this section mean parts, components, accessories, or attachments needed for the immediate repair of equipment or other end items, including replacement of defective or worn parts or components. (These terms include ‘subassemblies,’ but do not include test instruments or operating supplies. The term ‘ subassembly’ means a number of parts or components assembled to perform a specific function or functions within a commodity. One example would be printed circuit boards with components mounted thereon. This definition does not include major subsystems such as those composed of a number of ‘subassemblies.’) Items that improve or change the basic design characteristics, e.g., as to accuracy, capability, performance or productivity, of the equipment or other end item upon which they are installed, are not deemed to be replacement parts, components, accessories, or attachments. For kits consisting of replacement parts or components, consult § 740.9(a)(4) of this part.
(ii) Parts, components, accessories, and attachments may be exported only to replace, on a one-for-one basis, parts, components, accessories, or attachments, respectively, contained in commodities that were: Lawfully exported from the United States; lawfully reexported; or made in a foreign country incorporating authorized parts, components, accessories, or attachments “subject to the EAR” (see § 734.2(a) of the EAR). “600 series” parts, components, accessories and attachments may be exported only to replace, on a one-for-one basis, parts, components, accessories, or attachments that were: lawfully exported from the United States, or lawfully reexported. The conditions of the original U.S. authorization must not have been violated. Accordingly, the export of replacement parts, components, accessories, and attachments may be made only by the party who originally exported or reexported the commodity to be repaired, or by a party that has confirmed the existence of appropriate authority for the original transaction.
(iii) The parts, components, accessories, or attachments to be replaced must either be destroyed abroad or returned promptly to the person who supplied the replacements, or to a foreign firm that is under the effective control of that person.
(3) Exclusions to License Exception RPL. (i) No replacement parts, components, accessories, or attachments may be exported to repair a commodity exported under a license or other authorization if that license or other authorization included a condition that any subsequent replacements may be exported only under a license.
(ii) No parts, components, accessories, or attachments may be exported to be held abroad as spares for future use. Replacements may be exported to replace spares that were authorized to accompany the export of equipment or other end items as those spares are used in the repair of the equipment or other end item. This allows maintenance of the stock of spares at a consistent level as the parts, components, accessories, or attachments are used.
(iii) No parts, components, accessories, or attachments may be exported to any destination, except the countries listed in supplement no. 3 to part 744 of the EAR (Countries Not Subject to Certain Nuclear End Use Restrictions in § 744.2(a)), if the item is to be incorporated into or used in nuclear weapons, nuclear explosive devices, nuclear testing related to activities described in § 744.2(a) of the EAR, the chemical processing of irradiated special nuclear or source material, the production of heavy water, the separation of isotopes of source and special nuclear materials, or the fabrication of nuclear reactor fuel containing plutonium, as described in § 744.2(a) of the EAR.
(iv) No replacement parts, components, accessories, or attachments may be exported to countries in Country Group E:1 (see supplement no. 1 to this part) (countries designated by the Secretary of State as supporting acts of international terrorism) if the commodity to be repaired is an “aircraft” (as defined in § 772.1 of the EAR) or is controlled for national security (NS) reasons.
(v) No replacement parts, components, accessories, or attachments may be exported to countries in Country Group E:1 (see supplement no. 1 to this part) if the commodity to be repaired is explosives detection equipment classified under ECCN 2A983 or related software classified under ECCN 2D983.
(vi) No replacement parts, components, accessories, or attachments may be exported to countries in Country Group E:1 (see supplement no. 1 to this part) if the commodity to be repaired is concealed object detection equipment classified under ECCN 2A984 or related software classified under ECCN 2D984.
(vii) The conditions described in this paragraph (a)(3) relating to replacement of parts, components, accessories, or attachments do not apply to reexports to a foreign country of parts, components accessories, or attachments as replacements in foreign-origin products, if at the time the replacements are furnished, the foreign-origin product is eligible for export to such country under any of the license exceptions in this part or the exceptions in § 734.4 of the EAR ( De minimis U.S. content).
(viii) “Parts,” “components,” “accessories,” and “attachments” classified in 9x515 or “600 series” ECCNs may not be exported or reexported to a destination listed in Country Group D:5 (see supplement no. 1 to this part).
(4) Reexports. (i) Parts, components, accessories, and attachments exported from the United States may be reexported to a new country of destination, provided that the conditions established in paragraphs (a)(2) and (3) of this section are met. A party reexporting one-for-one replacement parts, components, accessories, or attachments “subject to the EAR” shall ensure that the commodities being repaired were shipped to their present location in accordance with U.S. law and continue to be lawfully used, and that either before or promptly after reexport of the replacement parts, components, accessories, or attachments, the replaced commodities and software are either destroyed or returned to the United States, or to the foreign firm in Country Group B (see supplement no. 1 to this part) that shipped the replacement parts.
(ii) The conditions described in paragraph (a)(3) relating to replacement of “parts,” “components,” “accessories,” or “attachments” (excluding 9x515 and “600 series” ECCNs) do not apply to reexports to a foreign country of “parts,” “components,” “accessories,” or “attachments” as replacements in foreign-origin products, if at the time the replacements are furnished, the foreign-origin product is eligible for export to such country under any of the License Exceptions in this part or the foreign-origin product is not subject to the EAR pursuant to § 734.4.
(b) Servicing and replacement —(1) The provisions of this paragraph (b) authorize the export and reexport to any destination, except for 9x515 or “600 series” items to destinations identified in Country Group D:5 (see supplement no. 1 to this part) or otherwise prohibited under the EAR, of commodities and software that were sent to the United States or to a foreign party for servicing and replacement of commodities and software “subject to the EAR” (see § 734.2(a) of the EAR) that are defective or that an end user or ultimate consignee has found unacceptable. The export of firearms controlled by ECCNs 0A501.a or .b, 0A506, or 0A507 or shotguns with a barrel length less than 18 inches controlled in ECCN 0A502 or 0A508 temporarily in the United States for servicing and replacement may be exported under paragraph (b)(2) or (3) of this section only if the additional requirements in paragraph (b)(4) of this section are also met.
(2) Commodities and software sent to a United States or foreign party for servicing.
(i) Definition. “Servicing” as used in this section means inspection, testing, calibration or repair, including overhaul and reconditioning. The servicing shall not have improved or changed the basic characteristics (e.g., the accuracy, capability, performance, or productivity) of the commodity or software as originally authorized for export or reexport.
(ii) Return of serviced commodities and software. When the serviced commodity or software is returned, it may include any replacement or rebuilt parts, components, accessories, or attachments necessary to its repair and may be accompanied by any spare parts, components, tools, accessories, attachments or other items sent with it for servicing.
(iii) Commodities and software imported from Country Group D:1 except the People's Republic of China (PRC). Commodities and software legally exported or reexported to a consignee in Country Group D:1 (except the People's Republic of China (PRC)) (see supplement no. 1 to this part) that are sent to the United States or a foreign party for servicing may be returned to the country from which it was sent, provided that both of the following conditions are met:
(A) The exporter making the shipment is the same person or firm to whom the original license was issued; and
(B) The end use and the end user of the serviced commodities or software and other particulars of the transaction, as set forth in the application and supporting documentation that formed the basis for issuance of the license have not changed.
(iv) Terrorist supporting countries. No repaired commodity or software may be exported or reexported to countries in Country Group E:1 (see supplement no. 1 to this part).
(3) Replacements for defective or unacceptable equipment “subject to the EAR.”
(i) Subject to the following conditions, commodities or software may be exported or reexported to replace defective or otherwise unusable (e.g., erroneously supplied) items.
(A) The commodity or software is “subject to the EAR” (see § 734.2(a) of the EAR).
(B) The commodity or software to be replaced must have been previously exported or reexported in its present form under a license or authorization granted by BIS or an authorization, e.g., a license or exemption, issued under the authority of the Arms Export Control Act.
(C) No commodity or software may be exported or reexported to replace equipment that is worn out from normal use, nor may any commodity or software be exported to be held in stock abroad as spare equipment for future use.
(D) The replacement item may not improve the basic characteristic, e.g., as to accuracy, capability, performance, or productivity, of the equipment as originally authorized, e.g., under a license, license exception or an exemption, for export or reexport.
(E) No shipment may be made to countries in Country Group E:1 (see supplement no. 1 to this part), or to any other destination to replace defective or otherwise unusable equipment owned or controlled by, or leased or chartered to, a national of any of those countries.
(F) Commodities or “software” “subject to the EAR” and classified in 9x515 or “600 Series” ECCNs may not be exported or reexported to a destination identified in Country Group D:5 (see supplement no. 1 to this part).
(ii) In addition to the general conditions in paragraph (b)(3)(i) of this section, the following conditions apply to exports or reexports of replacements for defective or unacceptable commodities or software “subject to the EAR” (see § 734.2(a) of the EAR) to a destination in Country Group B or Country Group D:1 (see supplement no. 1 to this part):
(A) By making such an export or reexport, the exporter represents that all the requirements of this paragraph (b) have been met and undertakes to destroy or return the replaced parts as provided in paragraph (b)(3)(ii)(C) of this section.
(B) The defective or otherwise unusable equipment must be replaced free of charge, except for transportation and labor charges. If exporting to the countries listed in Country Group D:1 (except the PRC), the exporter shall replace the commodity or software within the warranty period or within 12 months of its shipment to the ultimate consignee in the country of destination, whichever is shorter.
(C) The commodity or software to be replaced must either be destroyed abroad or returned to the United States, or to a foreign firm in Country Group B that is under the effective control of the exporter, or to the foreign firm that is providing the replacement part or equipment. The destruction or return must be effected before, or promptly after, the replacement item is exported from the United States.
(D) A party reexporting replacements for defective or unacceptable U.S.-origin equipment must ensure that the commodities or software being replaced were shipped to their present location in accordance with U.S. law and continue to be legally used. See § 764.7 of the EAR for exports or reexports to the installed base in Libya.
(4) This paragraph (b)(4) authorizes the export of firearms controlled by ECCNs 0A501.a or .b, 0A506, 0A507 or shotguns with a barrel length less than 18 inches controlled in ECCNs 0A502 or 0A508 that are temporarily in the United States for servicing or replacement for a period not exceeding one year or the time it takes to service or replace the commodity, whichever is shorter, provided that the requirements of paragraph (b)(2) or (3) of this section are met and:
(i) The firearms were not shipped from or manufactured in Russia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Ukraine, or Uzbekistan, except for any firearm model controlled by 0A501, 0A506, or 0A507 that is specified under Annex A in Supplement No. 4 to this part;
(ii) When the firearms entered the U.S. as a temporary import, the temporary importer or its agent:
(A) Provided the following statement to U.S. Customs and Border Protection: “This shipment will be exported in accordance with and under the authority of License Exception RPL (15 CFR 740.10(b))”;
(B) Provided to U.S. Customs and Border Protection an invoice or other appropriate import-related documentation (or electronic equivalents) that includes a complete list and description of the firearms being temporarily imported, including their model, make, caliber, serial numbers, quantity, and U.S. dollar value; and
(C) Provided (if temporarily imported for servicing or replacement) to U.S. Customs and Border Protection the name, address and contact information (telephone number and/or email) of the organization or individual in the U.S. that will be receiving the item for servicing or replacement; and
(iii) In addition to the export clearance requirements of part 758 of the EAR, the exporter or its agent must provide the import documentation related to paragraph (b)(4)(iii)(B) of this section to U.S. Customs and Border Protection at the time of export.
In addition to complying with all applicable EAR requirements for the export of commodities described in this paragraph (b)(4), exporters and temporary importers should contact U.S. Customs and Border Protection (CBP) at the port of temporary import or export, or at the CBP website, for the proper procedures for temporarily importing or exporting firearms controlled in ECCN 0A501.a or .b, 0A506, 0A507 or shotguns with a barrel length less than 18 inches controlled in ECCN 0A502 or 0A508, including regarding how to provide any data or documentation required by BIS.
(c) Special recordkeeping requirements: ECCNs 2A983, 2A984, 2D983 and 2D984, and “600 Series” ECCNs. (1) In addition to the other recordkeeping requirements set forth elsewhere in the EAR, exporters are required to maintain records, as specified in this section, for any items exported or reexported pursuant to License Exception RPL to repair, replace, or service previously lawfully exported or reexported items classified under ECCNs 2A983, 2A984, 2D983 and 2D984 or a “600 Series” ECCN. The following information must be maintained for each such export or reexport transaction:
(i) A description of the item replaced, repaired or serviced;
(ii) The type of repair or service;
(iii) Certification of the destruction or return of item replaced;
(iv) Location of the item replaced, repaired or serviced;
(v) The name and address of those who received the items for replacement, repair, or service;
(vi) Quantity of items shipped; and
(vii) Country of ultimate destination.
(2) Records maintained pursuant to this section may be requested at any time by an appropriate BIS official as set forth in § 762.7 of the EAR. Records that must be included in the annual or semi-annual reports of exports and reexports of “600 Series” items under the authority of License Exception RPL are described in §§ 743.4 and 762.2(b) of the EAR.
§ 740.11   Governments, international organizations, international inspections under the Chemical Weapons Convention, and the International Space Station (GOV).
This License Exception authorizes exports and reexports for international nuclear safeguards; U.S. government agencies or personnel; agencies of cooperating governments; international inspections under the Chemical Weapons Convention; and the International Space Station. Commodities listed in ECCNs 0A501, 0A506, 0A507, 0A508, and 0A509 are eligible only for transactions described in paragraphs (b)(2)(i) and (ii) of this section. Any item listed in a 0x5zz ECCN for export, reexport, or transfer (in-country) to an E:1 country is eligible only for transactions described in paragraphs (b)(2)(i) and (ii) solely for U.S. Government official use of this section.
(a) International safeguards —(1) Scope. The International Atomic Energy Agency (IAEA) is an international organization that establishes and administers safeguards, including Additional Protocols, designed to ensure that special nuclear materials and other related nuclear facilities, equipment, and material are not diverted from peaceful purposes to non-peaceful purposes. European Atomic Energy Community (Euratom) is an international organization of European countries with headquarters in Luxembourg. Euratom establishes and administers safeguards designed to ensure that special nuclear materials and other related nuclear facilities, equipment, and material are not diverted from peaceful purposes to non-peaceful purposes. This paragraph (a) authorizes exports and reexports of commodities or software to the IAEA and Euratom, and reexports by IAEA and Euratom for official international safeguard use, as follows:
(i) Commodities or software consigned to the IAEA at its headquarters in Vienna, Austria or its field offices in Toronto, Ontario, Canada or in Tokyo, Japan for official international safeguards use.
(ii) Commodities or software consigned to the Euratom Safeguards Directorate in Luxembourg, Luxembourg for official international safeguards use.
(iii) Commodities or software consigned to IAEA or Euratom may be reexported to any country for IAEA or Euratom international safeguards use provided that IAEA or Euratom maintains control of or otherwise safeguards the commodities or software and returns the commodities or software to the locations described in paragraphs (a)(1)(i) and (a)(1)(ii) of this section when they become obsolete, are no longer required, or are replaced.
(iv) Commodity or software shipments may be made by persons under direct contract with IAEA or Euratom, or by Department of Energy National Laboratories as directed by the Department of State or the Department of Energy.
(v) The monitoring functions of IAEA and Euratom are not subject to the restrictions on prohibited safeguarded nuclear activities described in § 744.2(a)(3) of the EAR.
(vi) When commodities or software originally consigned to IAEA or Euratom are no longer in IAEA or Euratom official safeguards use, such commodities may be disposed of by destruction or by reexport or transfer in accordance with the EAR.
(2) Restrictions. (i) Items on the Sensitive List (see supplement no. 6 to part 774 of the EAR) may not be exported, reexported, or transferred (in-country) under this paragraph (a), except to the countries listed in Country Group A:5 (See supplement no.1 to part 740 of the EAR).
(ii) Items on the Very Sensitive List (see supplement no. 7 to part 774 of the EAR) may not be exported, reexported, or transferred (in-country) under this paragraph (a).
(iii) Encryption items controlled for EI reasons under ECCNs 5A002, 5A004, 5D002, or 5E002 may not be exported, reexported, or transferred (in-country) under this paragraph (a). See § 740.17 of the EAR (License Exception ENC) for possible alternative license exception authorization.
(iv) Without prior authorization from the Bureau of Industry and Security, nationals of countries in Country Group E:1(see supplement no. 1 to this part) may not physically or computationally access computers that have been enhanced by “electronic assemblies,” which have been exported or reexported under License Exception GOV and have been used to enhance such computers by aggregation of processors so that the APP of the aggregation exceeds the APP parameter set forth in ECCN 4A003.b.
(v) “600 series” items may not be exported or reexported under this paragraph (a), except to the countries listed in Country Group A:5 (see supplement no.1 to this part).
(b) United States Government —(1) Scope. The provisions of this paragraph (b) authorize exports, reexports, and transfers (in-country) to personnel and agencies of the U.S. Government and certain exports by, for or at the direction of the Department of Defense or the Department of Energy. “Agency of the U.S. Government” includes all civilian and military departments, branches, missions, government-owned corporations, and other agencies of the U.S. Government but does not include such national agencies as the American Red Cross or international organizations in which the United States participates such as the Organization of American States. Therefore, shipments may not be made to these non-governmental national or international agencies, except as provided in paragraph (b)(2)(i) of this section for U.S. representatives to these organizations. For purposes of paragraphs (b)(2)(ii), (b)(2)(iii)(B) and (C) of this section, BIS has determined that a Space Act Agreement (SAA) to which the National Aeronautics Space Agency (NASA) is a party meets the criteria of these paragraphs for being authorized by law and subject to control by the President by other means.
(2) Eligibility —(i) Items for personal use by personnel and agencies of the U.S. Government. This provision is available for items in quantities sufficient only for the personal use of members of the U.S. Armed Forces or civilian personnel of the U.S. Government (including U.S. representatives to public international organizations), and their immediate families and household employees. Items for personal use include household effects, food, beverages, and other daily necessities.
(ii) Exports, reexports, and transfers (in-country) made by or consigned to a department or agency of the U.S. Government. This paragraph authorizes exports, reexports, and transfers of items when made by or consigned to a department or agency of the U.S. Government solely for its official use or for carrying out any U.S. Government program with foreign governments or international organizations that is authorized by law and subject to control by the President by other means. This paragraph does not authorize a department or agency of the U.S. Government to make any export, reexport, or transfer that is otherwise prohibited by other administrative provisions or by statute. Contractor support personnel of a department or agency of the U.S. Government are eligible for this authorization when in the performance of their duties pursuant to the applicable contract or other official duties. 'Contractor support personnel' for the purpose of this provision means those persons who provide administrative, managerial, scientific or technical support under contract to a U.S. Government department or agency ( e.g., contractor employees of Federally Funded Research Facilities or Systems Engineering and Technical Assistance contractors). The term 'contractor support personnel' for purposes of this paragraph (b)(2)(ii) is limited to those individuals who are providing such support within a U.S. Government owned or operated facility or under the direct supervision of a U.S. government employee ( i.e., an individual directly employed by the U.S. Government). Private security contractors are not 'contractor support personnel' for purposes of this paragraph (b)(2)(ii) because although they may work within a U.S. Government owned or operated facility, such contractors do not provide administrative, managerial, scientific or technical support under contract to the U.S. Government. This authorization is not available when a department or agency of the U.S. Government acts as a transmittal agent on behalf of a non-U.S. Government person, either as a convenience or in satisfaction of security requirements.
(iii) Exports, reexports, and transfers (in-country) made for or on behalf of a department or agency of the U.S. Government. (A) This paragraph authorizes exports, reexports, and transfers (in-country) of items solely for use by a department or agency of the U.S. Government, when:
( 1 ) The items are destined to a U.S. person; and
( 2 ) The item is exported, reexported, or transferred (in-country) pursuant to a contract between the exporter and a department or agency of the U.S. Government;
(B) This paragraph authorizes exports, reexports, and transfers (in-country) of items to implement or support any U.S. Government cooperative program, project, agreement, or arrangement with a foreign government or international organization or agency that is authorized by law and subject to control by the President by other means, when:
( 1 ) The agreement is in force and in effect, or the arrangement is in operation;
( 2 ) The exporter, reexporter, or transferor obtains a written authorization from the Secretary or agency head of the U.S. Government department or agency responsible for the program, agreement, or arrangement, or his or her designee, authorizing the exporter, reexporter, or transferor to use this license exception. The written authorization must include the scope of items to be shipped under this license exception; the end users and consignees of the items; and any restrictions on the export, reexport, or transfer (in-country) (including any restrictions on the foreign release of technology);
( 3 ) The exporter, reexporter, or transferor has a contract with a department or agency of the U.S. Government for the provision of the items in furtherance of the agreement, or arrangement; and
( 4 ) The items being exported, reexported, or transferred (in-country) are not controlled for Chemical Weapons Convention (CW) or proliferation of chemical and biological weapons (CB) reasons;
(C) This paragraph authorizes the 'temporary' export, reexport, or transfer (in-country) of an item in support of any foreign assistance or sales program authorized by law and subject to the control of the President by other means, when:
( 1 ) The item is provided pursuant to a contract between the exporter, reexporter, or transferor and a department or agency of the U.S. Government; and
( 2 ) The exporter, reexporter, or transferor obtains a written authorization from the Secretary or agency head of the U.S. Government department or agency responsible for the program, or his or her designee, authorizing the exporter, reexporter, or transferor to use this license exception. The written authorization must include the scope of items to be shipped under this license exception; the end users and consignees of the items; and any restrictions on the export, reexport, or transfer (in-country) (including any restrictions on the foreign release of technology);
'Temporary,' for purposes of paragraph (b)(2)(iii)(C) of this section, means that four years from the date of an item's initial export, reexport, or transfer (in-country), it must be returned to the exporter, reexporter, or transferor or its disposition otherwise authorized (e.g., pursuant to a license or another license exception) in accordance with the EAR.
Items controlled for NS, MT, CB, NP, FC, or AT reasons may not be exported, reexported, or transferred (in-country) to, or for the use of military, police, intelligence entities, or other sensitive end users (e.g., contractors or other governmental parties performing functions on behalf of military, police, or intelligence entities) of a government in a Country Group E:1 or E:2 country.
(D) This paragraph authorizes the export, reexport, or transfer of commodities or software at the direction of the U.S. Department of Defense for an end use in support of an Acquisition and Cross Servicing Agreement (ACSA), when:
( 1 ) The ACSA is between the U.S. Government and a foreign government or an international organization and is in force and in effect;
( 2 ) The exporter, reexporter, or transferor has a contract with the department or agency of the U.S. government in furtherance of the ACSA; and
( 3 ) The exporter, reexporter, or transferor obtains a written authorization from the Secretary or agency head of the U.S. Government department or agency responsible for the ACSA, or his or her designee, authorizing the exporter, reexporter, or transferor to use this license exception. The written authorization must include the scope of items to be shipped under this license exception; the end-users and consignees of the items; and any restrictions on the export, reexport, or transfer (in-country);
(E) This paragraph authorizes the export, reexport, or transfer (in-country) of Government Furnished Equipment (GFE) made by a U.S. Government contractor, when:
( 1 ) The GFE will not be provided to any foreign person;
( 2 ) The export, reexport, or transfer (in-country) is pursuant to a contract with a department or agency of the U.S. Government; and
( 3 ) Shipment documents must include the following statement: “Property of [insert U.S. Government department, agency, or service]. Property may not enter the trade of the country to which it is shipped. Authorized under License Exception GOV. U.S. Government point of contact: [Insert name and telephone number].”
(F) Electronic Export Information. Electronic Export Information (EEI) must be filed in the Automated Export System (AES) for any export made pursuant to paragraph (b)(iii) of this section. The EEI must identify License Exception GOV as the authority for the export and indicate that the applicant has received the relevant documentation from the contracting U.S. Government department, agency, or service. The Internal Transaction Number assigned by AES must be properly annotated on shipping documents (bill of lading, airway bill, other transportation documents, or commercial invoice).
(G) The exporter, reexporter, or transferor must obtain an authorization, if required, before any item previously exported, reexported, or transferred (in-country) under this paragraph is resold, transferred, reexported, transshipped, or disposed of to an end user for any end use, or to any destination other than as authorized by this paragraph (e.g., property disposal of surplus items outside of the United States), unless:
( 1 ) The transfer is pursuant to a grant, sale, lease, loan, or cooperative project under the Arms Export Control Act or the Foreign Assistance Act of 1961, as amended; or
( 2 ) The item has been destroyed or rendered useless beyond the possibility of restoration.
(iv) Items exported at the direction of the U.S. Department of Defense or the Department of Energy. This paragraph authorizes items to be exported, reexported, or transferred (in-country) pursuant to an official written request or directive from a department or agency of the U.S. Department of Defense or the Department of Energy.
(v) This paragraph authorizes items sold, leased, or loaned by the U.S. Department of Defense to a foreign country or international organization pursuant to the Arms Export Control Act or the Foreign Assistance Act of 1961 when the items are delivered to representatives of such a country or organization in the United States and exported, reexported, or transferred on a military aircraft or naval vessel of that government or organization or via the Defense Transportation Service.
(vi) This paragraph authorizes transfer of technology in furtherance of a contract between the exporter and an agency of the U.S. Government, if the contract provides for such technology and the technology is not “development” or “production” technology for “600 series” items.
(vii) This paragraph authorizes the export, reexport, or transfer (in-country) of microelectronics items in furtherance of a contract between the exporter, reexporter, or transferor and a department or agency of the U.S. Government, if the contract provides for such export, reexport, or transfer (in-country) of the microelectronics item by the exporter, reexporter, or transferor.
(c) Cooperating Governments and the North Atlantic Treaty Organization —(1) Scope. The provisions of this paragraph (c) authorize exports, reexports, and transfers (in-country) of the items listed in paragraph (c)(2) of this section to agencies of cooperating governments or agencies of the North Atlantic Treaty Organization (NATO). 'Agency of a cooperating government' includes all civilian and military departments, branches, missions, and other governmental agencies of a cooperating national government. 'Cooperating governments' are the national governments of countries listed in Country Group A:1 (see supplement no. 1 to this part) and the national governments of Singapore and Taiwan.
Civil intergovernmental organizations (such as the European Space Agency (ESA)) where the membership is limited to national governments that are 'cooperating governments' are also considered 'cooperating governments' for purposes of paragraph (c)(1) of this section. If the membership of the civil intergovernmental organization includes any national governments or other organizations that are not 'cooperating governments,' such civil intergovernmental organizations are not considered 'cooperating governments' for purposes of paragraph (c)(1) of this section. For example, civil intergovernmental organizations such as the European Aviation Safety Agency (EASA), the United Nations, and the World Bank do not fall within paragraph (c)(1) of this section because their membership includes governments that are not 'cooperating governments.'
(2) Eligibility —(i) Items for official use within national territory by agencies of cooperating governments. This license exception is available for all items consigned to and for the official use of any ‘agency of a cooperating government’ within the territory of any cooperating government, except items excluded by paragraph (c)(3) of this section.
(ii) Items for official use by agencies of cooperating governments for military purposes or NATO. With the exception of items excluded by paragraph (c)(3) of this section, this license exception is available for all items consigned to and for the official use of:
(A) A military end user of or for the military end use of cooperating governments, or
(B) An agency of NATO.
(iii) Diplomatic and consular missions of a cooperating government. This license exception is available for all items consigned to and for the official use of a diplomatic or consular mission of a cooperating government located in any country in Country Group B (see supplement no. 1 to this part), except items excluded by paragraph (c)(3) of this section.
(3) Exclusions. The following items may not be exported, reexported, or transferred (in-country) under this paragraph (c):
(i) Items on the Sensitive List (see supplement no. 6 to part 774 of the EAR), except to or for the use by governments of countries listed in Country Group A:5 (see supplement no. 1 to this part) or an agency of NATO;
(ii) Items on the Very Sensitive List (see supplement no. 7 to part 774 of the EAR);
(iii) Encryption items controlled for EI reasons under ECCNs 5A002, 5A004, 5D002, or 5E002 (see § 740.17 of the EAR for License Exception ENC);
(iv) Regional stability items controlled under ECCNs 6A002.a.1.c, 6E001 “technology” according to the General Technology Note for the “development” of equipment in 6A002.a.1.c, and 6E002 “technology” according to the General Technology Note for the “production” of equipment in 6A002.a.1.c.;
(v) “600 series” items, except to or for the use by governments of countries listed in Country Group A:5 (see supplement no. 1 to this part) or an agency of NATO;
(vi) Items controlled for nuclear nonproliferation (NP) reasons;
(vii) Items listed as not eligible for License Exception STA in § 740.20(b)(2)(ii) of the EAR; or
(viii) Cybersecurity items as defined in § 740.22(b)(1) of the EAR.
(d) International inspections under the Chemical Weapons Convention (CWC or Convention). (1) The Organization for the Prohibition of Chemical Weapons (OPCW) is an international organization that establishes and administers an inspection and verification regime under the Convention designed to ensure that certain chemicals and related facilities are not diverted from peaceful purposes to non-peaceful purposes. This paragraph (d) authorizes exports and reexports to the OPCW and exports and reexports by the OPCW for official international inspection and verification use under the terms of the Convention as follows:
(i) Commodities and software consigned to the OPCW at its headquarters in The Hague for official international OPCW use for the monitoring and inspection functions set forth in the Convention, and technology relating to the maintenance, repair, and operation of such commodities and software. The OPCW must maintain “effective control” of such commodities, software and technology.
(ii) Controlled technology relating to the training of the OPCW inspectorate.
(iii) Controlled technology relating to a CWC inspection site, including technology released as a result of:
(A) Visual inspection of U.S.-origin equipment or facilities by foreign nationals of the inspection team;
(B) Oral communication of controlled technology to foreign nationals of the inspection team in the U.S. or abroad; and
(C) The application to situations abroad of personal knowledge or technical experience acquired in the U.S.
(2) Exclusions. The following items may not be exported or reexported under the provisions of this paragraph (d):
(i) Inspection samples collected in the U.S. pursuant to the Convention;
(ii) Commodities and software that are no longer in OPCW official use. Such items must be transferred in accordance with the EAR.
(iii) “600 series” items, except to the countries listed in Country Group A:5 (see supplement no. 1 to this part).
(3) Confidentiality. The application of the provisions of this paragraph (d) is subject to the condition that the confidentiality of business information is strictly protected in accordance with applicable provisions of the EAR and other U.S. laws regarding the use and transfer of U.S. goods and services.
(4) Restrictions. Without prior authorization from the Bureau of Industry and Security, nationals of countries in Country Group E:1 (see supplement no. 1 to this part) may not physically or computationally access computers that have been enhanced by “electronic assemblies,” which have been exported or reexported under License Exception GOV and have been used to enhance such computers by aggregation of processors so that the APP of the aggregation exceeds the APP parameter set forth in ECCN 4A003.b.
(e) International Space Station (ISS) —(1) Scope. The ISS is a research facility in a low-Earth orbit approximately 190 miles (350 km) above the surface of the Earth. The ISS is a joint project among the space agencies of the United States, Russia, Japan, Canada, Europe and Italy. This paragraph (e) authorizes exports and reexports required on short notice of certain commodities subject to the EAR that are classified under ECCN 9A004 to launch sites for supply missions to the ISS.
(2) Eligible commodities. Any commodity subject to the EAR that is classified under ECCN 9A004 and that is required for use on the ISS on short notice.
This license exception is not available for the export or reexport of “parts,” “components,” “accessories,” and “attachments” to overseas manufacturers for the purpose of incorporation into other items destined for the ISS.
For purposes of this paragraph (e), ‘short notice’ means the exporter is required to have a commodity manifested and at the scheduled launch site for hatch-closure (final stowage) no more than forty-five (45) days from the time the exporter or reexporter received complete documentation. ‘Complete documentation’ means the exporter or reexporter received the technical description of the commodity and purpose for use of the commodity on the ISS. ‘Hatch-closure (final stowage)’ means the final date specified by a launch provider by which items must be at a specified location in a launch country in order to be included on a mission to the ISS. The exporter or reexporter must receive the notification to supply the commodity for use on the ISS in writing. That notification must be kept in accordance with paragraph (e)(8) of this section and the Recordkeeping requirements in part 762 of the EAR.
(3) Eligible destinations. Eligible destinations are France, Japan, Kazakhstan, and Russia. To be eligible, a destination needs to have a launch for a supply mission to the ISS scheduled by a country participating in the ISS.
(4) Requirement for commodities to be launched on an eligible space launch vehicle (SLV). Only commodities that will be delivered to the ISS using United States, Russian, ESA (French), or Japanese space launch vehicles (SLVs) are eligible under this authorization. Commodities to be delivered to the ISS using SLVs from any other countries are excluded from this authorization.
(5) Authorizations —(i) Authorization to retain commodity at or near launch site for up to six months. If there are unexpected delays in a launch schedule for reasons such as mechanical failures in a launch vehicle or weather, commodities exported or reexported under this paragraph (e) may be retained at or near the launch site for a period of six (6) months from the time of initial export or reexport before the commodities must be destroyed, returned to the exporter or reexporter, or be the subject of an individually validated license request submitted to BIS to authorize further disposition of the commodities.
(ii) Authorization to retain commodity abroad at launch country beyond six months. If, after the commodity is exported or reexported under this authorization, a delay occurs in the launch schedule that would exceed the 6-month deadline in paragraph (e)(5)(i) of this section, the exporter or reexporter or the person in control of the commodities in the launch country may request a one-time 6-month extension by submitting written notification to BIS requesting a 6-month extension and noting the reason for the delay. If the requestor is not contacted by BIS within 30 days from the date of the postmark of the written notification and if the notification meets the requirements of this subparagraph, the request is deemed granted. The request must be sent to BIS at the address listed in part 748 of the EAR and should include the name and address of the exporter or reexporter, the name and address of the person who has control of the commodity, the date the commodities were exported or reexported, a brief product description, and the justification for the extension. To retain a commodity abroad beyond the 6-month extension period, the exporter, reexporter or person in control of the commodity must request authorization by submitting a license application in accordance with §§ 748.1, 748.4 and 748.6 of the EAR to BIS 90 days prior to the expiration of the 6-month extension period.
(iii) Items not delivered to the ISS because of a failed launch. If the commodities exported or reexported under this paragraph (e) of this section are not delivered to the ISS because a failed launch causes the destruction of the commodity prior to its being delivered, exporters and reexporters must make note of the destruction of the commodities in accordance with the recordkeeping requirements under paragraph (e)(8)(ii) of this section and part 762 of the EAR.
(6) Reexports to an alternate launch country. If a mechanical or weather related issue causes a change from the scheduled launch country to another foreign country after a commodity was exported or reexported, then that commodity may be subsequently reexported to the new scheduled launch country, provided all of the terms and conditions of paragraph (e) of this section are met, along with any other applicable EAR provisions. In such instances, the 6-month time limitation described in paragraph (e)(5)(i) of this section would start over again at the time of the subsequent reexport transaction. Note that if the subsequent reexport may be made under the designation No License Required (NLR) or pursuant to an authorization under the EAR, a reexporter does not need to rely on the provisions contained in this paragraph (e).
(7) Eligible recipients. Only persons involved in the launch of commodities to the ISS may receive and have access to commodities exported or reexported pursuant to this paragraph (e), except that:
(i) No commodities may be exported, reexported, or transferred (in-country) under paragraph (e) to any national of an E:1 country (see supplement no. 1 to this part), and
(ii) No person may receive commodities authorized under paragraph (e) of this section who is subject to an end-user or end-use control described in part 744 of the EAR, including the entity list in supplement no. 4 to part 744.
(8) Recordkeeping requirements. Exporters and reexporters must maintain records regarding exports or reexports made using this paragraph (e) of this section as well as any other applicable recordkeeping requirements under part 762 of the EAR.
(i) Exporters and reexporters must retain a record of the initial written notification they received requesting these commodities be supplied on short notice for a supply mission to the ISS, including the date the exporter or reexporter received complete documentation (i.e., the day on which the 45-day clock begins).
(ii) Exporters and reexporters must maintain records of the date of any exports or reexports made using this paragraph (e) and the date on which the commodities were launched into space for delivery to the ISS. If the commodities are not delivered to the ISS because of a failed launch whereby the item is destroyed prior to being delivered to the ISS, this must be noted for recordkeeping purposes.
(iii) The return or destruction of defective or worn out parts or components is not required. However, if defective or worn out parts or components originally exported or reexported pursuant to this paragraph (e) are returned from the ISS, then those parts and components may be either: returned to the original country of export or reexport; destroyed; or reexported or transferred (in-country) to a destination that has been designated by NASA for conducting a review and analysis of the defective or worn part or component. Documentation for this activity must be kept for recordkeeping purposes. No commodities that are subject to the EAR may be returned, under the provisions of this paragraph, to a country listed in Country Group E:1 (see supplement no. 1 to this part) or to any person if that person is subject to an end-user or end-use control described in part 744 of the EAR. For purposes of paragraph (e) of this section, a ‘defective or worn out’ part or component is a part or component that no longer performs its intended function.
§ 740.12   Gift parcels and humanitarian donations (GFT).
(a) Gift parcels —(1) Scope. The provisions of paragraph (a) authorize exports and reexports of gift parcels by an individual (donor) addressed to an individual, or a religious, charitable or educational organization (donee) located in any destination for the use of the donee or the donee's immediate family (and not for resale). The gift parcel must be provided free of charge to the donee. However, payment by the donee of any handling charges or of any fees levied by the importing country (e.g., import duties, taxes, etc.) is not considered to be a cost to the donee for purposes of this definition of “gift parcel.” 1
1 Many foreign countries permit the entry, duty-free, of gift parcels that conform to regulations regarding contents and marking. To secure this advantage, the sender should show the words “U.S.A. Gift Parcel” on the addressee side of the package and on any required customs declarations. Information regarding the foreign postal regulations is available at local post offices. Senders of gift parcels who wish information regarding import duties of a foreign country should contact the nearest Commercial Office, Consulate or Embassy of the country concerned.
(2) Commodity, value and other limitations —(i) Item limitations —(A) Prohibited items. ( 1 ) For Cuba no items listed on the Commerce Control List other than items listed in § 740.19(b) of the EAR may be included in a gift parcel.
( 2 ) For all destinations, no items controlled for chemical and biological weapons (CB), missile technology (MT), national security (NS), nuclear proliferation (NP) or encryption items (EI) reasons on the Commerce Control List (supplement no. 1 to part 774 of the EAR) may be included in a gift parcel.
( 3 ) Items prohibited for destinations in Country Group D:1 or E:2. For destinations in Country Group D:1 or E:2, military wearing apparel may not be included in a gift parcel regardless of whether all distinctive U.S. military insignia, buttons, and other markings are removed.
( 4 ) Gold bullion, gold taels, and gold bars are prohibited as are items intended for resale or reexport.
(B) Eligible items. For all destinations, eligible items are food (including vitamins); medicines, medical supplies and devices (including hospital supplies and equipment and equipment for the handicapped); receive-only radio equipment for reception of commercial/civil AM/FM and short wave publicly available frequency bands, and batteries for such equipment; clothing; personal hygiene items; seeds; veterinary medicines and supplies; fishing equipment and supplies; soap-making equipment; as well as all other items of a type normally sent as gifts between individuals (including items listed in § 740.19(b) of the EAR) except for those items prohibited in paragraph (a)(2)(i)(A) of this section. Items in gift parcels must be in quantities normally given as gifts between individuals.
(ii) Import requirements. The commodities must be acceptable in type and quantity by the recipient country for import as gifts. Commodities exceeding the import limits may not be included in gift parcels.
(iii) Frequency. (A) Except for gift parcels of food to Cuba, not more than one gift parcel may be sent from the same donor to the same donee in any one calendar month.
(B) There is no frequency limit on gift parcels of food to Cuba.
(C) Parties seeking authorization to exceed the frequency limit due to compelling humanitarian concerns (e.g., for certain gifts of medicine) should submit a license application in accordance with §§ 748.1, 748.4 and 748.6 of the EAR to BIS with complete justification.
(iv) Value. The combined total domestic retail value of all commodities and software in a single gift parcel may not exceed $800. This limit does not apply to food sent in a gift parcel to Cuba.
(v) Ineligible recipients. (A) No gift parcel may be sent to any of the following officials of the Cuban government: Ministers and Vice-Ministers; members of the Council of State; members of the Council of Ministers; members and employees of the National Assembly of People's Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub-Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors and deputy editors of Cuban state-run media organizations and programs, including newspapers, television, and radio; or members and employees of the Supreme Court (Tribuno Supremo Nacional).
(B) No gift parcel may be sent to any member of the Politburo.
(C) No gift parcel may be sent to organizations administered or controlled by the Cuban Government or the Cuban Communist Party.
(3) How to export gift parcels. (i) A gift parcel must be sent directly to the donee by the individual donor, or for such donor by a commercial or other gift-forwarding service or organization. Each gift parcel must show, on the outside wrapper, the name and address of the donor, as well as the name and address of the donee, regardless of whether sent by the donor or by a forwarding service.
(ii) Each parcel must have the notation “GIFT—Export License Not Required” written on the addressee side of the package and the symbol “GFT” written on any required customs declaration.
(b) Humanitarian donations —(1) Scope. The provisions of paragraph (b) authorize exports or reexports by groups or organizations of donations to meet basic human needs when those groups or organizations have experience in maintaining a verifiable system of distribution that ensures delivery to the intended beneficiaries.
(2) Basic human needs. Basic human needs are defined as those requirements essential to individual well-being: health, food, clothing, shelter, and education. These needs are considered to extend beyond those of an emergency nature and those that meet direct needs for mere subsistence.
(3) Eligible donors. Eligible donors are U.S. charitable organizations that have an established record of involvement in donative programs and experience in maintaining and verifying a system of distribution to ensure delivery of commodities and software to the intended beneficiaries. Eligible distribution arrangements may consist of any one or more of the following:
(i) A permanent staff maintained in the recipient country to monitor the receipt and distribution of the donations to the intended beneficiaries;
(ii) Periodic spot-checks in the recipient country by members of the exporter's staff; or
(iii) An agreement to utilize the services of a charitable organization that has a monitoring system in place.
(4) Donations. To qualify for export under the provisions of this paragraph (b), the items must be provided free of charge to the beneficiary. The payment by the beneficiary, however, of normal handling charges or fees levied by the importing country (e.g., import duties, taxes, etc.) is not considered to be a cost to the beneficiary for purposes of this paragraph (b).
(5) Ineligible commodities and software. The following commodities and software are not eligible:
(i) Commodities and software controlled for national security, chemical or biological weapons, and nuclear nonproliferation, missile technology or crime control reasons (see supplement no. 1 to part 774 of the EAR);
(ii) Exports for large-scale projects of the kind associated with comprehensive economic growth, such as dams and hydroelectric plants; or
(iii) Exports to Cuba of medical items excluded by § 746.2(b)(1) of the EAR.
(6) Eligible items. Eligible commodities and software are those listed in supplement no. 2 to part 740.
(7) Additional recordkeeping requirements. In addition to the recordkeeping requirements in part 762 of the EAR, donors must keep records containing the following information:
(i) The donor organization's identity and past experience as an exporter of goods to meet basic human needs;
(ii) Past and current countries to which the donative programs have been and are being directed, with particular reference to donative programs in embargoed destinations;
(iii) Types of projects and commodities involved in the donative programs;
(iv) Specific class(es) of beneficiaries of particular donated goods intended to be exported under this License Exception; and
(v) Information concerning the source of funding for the donative programs and the projected annual value of exports of humanitarian donations.
§ 740.13   Technology and software—unrestricted (TSU).
This license exception authorizes 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 release of technology and source code in the United States by U.S. universities to their bona fide and full time regular employees. Note that encryption software subject to the EAR is not subject to the General Software Note (see paragraph (d)(2) of this section).
(a) Operation technology and software —(1) Scope. The provisions of paragraph (a) permit exports and reexports of operation technology and software. “Operation technology” is the minimum technology necessary for the installation, operation, maintenance (checking), or repair of those commodities or software that are lawfully exported or reexported under a license, a License Exception, or NLR. The “minimum necessary” operation technology does not include technology for development or production and includes use technology only to the extent required to ensure safe and efficient use of the commodity or software. Individual entries in the software and technology subcategories of the CCL may further restrict the export or reexport of operation technology. This paragraph (a) authorizes training, provided the training is limited to the operation, maintenance and repair technology identified in this paragraph.
(2) Provisions and destinations —(i) Provisions. Operation software may be exported or reexported provided that both of the following conditions are met:
(A) The operation software is the minimum necessary to operate equipment authorized for export or reexport; and
(B) The operation software is in object code.
(ii) Destinations. Operation software and technology may be exported or reexported to any destination to which the equipment for which it is required has been or is being legally exported or reexported.
(b) Sales technology —(1) Scope. The provisions of paragraph (b) authorize exports and reexports of sales technology. “Sales technology” is data supporting a prospective or actual quotation, bid, or offer to sell, lease, or otherwise supply any item.
(2) Provisions and destinations —(i) Provisions. Sales technology may be exported or reexported provided that:
(A) The technology is a type customarily transmitted with a prospective or actual quotation, bid, or offer in accordance with established business practice; and
(B) Neither the export nor the reexport will disclose the detailed design, production, or manufacture technology, or the means of reconstruction, of either the quoted item or its product. The purpose of this limitation is to prevent disclosure of technology so detailed that the consignee could reduce the technology to production.
(ii) Destinations. Sales technology may be exported or reexported to any destination.
Neither this section nor its use means that the U.S. Government intends, or is committed, to approve a license application for any commodity, plant, software, or technology that may be the subject of the transaction to which such quotation, bid, or offer relates. Exporters are advised to include in any quotations, bids, or offers, and in any contracts entered into pursuant to such quotations, bids, or offers, a provision relieving themselves of liability in the event that a license (when required) is not approved by the Bureau of Industry and Security.
(c) Software updates. The provisions of paragraph (c) authorize exports and reexports of software updates that are intended for and are limited to correction of errors (“fixes” to “bugs”) in software lawfully exported or reexported (original software). Such software updates may be exported or reexported only to the same consignee to whom the original software was exported or reexported, and such software updates may not enhance the functional capacities of the original software. Such software updates may be exported or reexported to any destination to which the software for which they are required has been legally exported or reexported.
(d) General Software Note: mass market software —(1) Scope. The provisions of paragraph (d) authorize exports and reexports of mass market software subject to the General Software Note (see supplement no. 2 to part 774 of the EAR; also referenced in this section). 2
2 Pursuant to 15 CFR § 30.37(f) of the Foreign Trade Regulations (FTR), Electronic Export Information (EEI) via the Automated Export System (AES) is required for mass-market software.
(2) Exclusions. The provisions of this paragraph (d) are not available for encryption software controlled for “EI” reasons under ECCN 5D002 or for encryption software with symmetric key length exceeding 64-bits that qualifies as mass market encryption software under the criteria in the Cryptography Note (Note 3) of Category 5, Part 2, of the CCL (supplement No. 1 to part 774 of the EAR). (Once such mass market encryption software has been released from “EI” and “NS” controls pursuant to § 740.17(b) of the EAR, it is controlled under ECCN 5D992.c and is thus outside the scope of License Exception TSU.) See § 740.17(b) of the EAR for exports and reexports of mass market encryption products controlled under ECCN 5D992.c. The provisions of this paragraph (d) are also not available for any software that is controlled for missile technology (MT) reasons.
(3) Provisions and destinations —(i) Destinations. Mass market software is available to all destinations except destinations in Country Group E:1 (see supplement no. 1 to this part).
(ii) Provisions. Mass market treatment is available for software that is generally available to the public by being:
(A) Sold from stock at retail selling points, without restriction, by means of:
( 1 ) Over the counter transactions;
( 2 ) Mail order transactions; or
( 3 ) Telephone call transactions; and
(B) Designed for installation by the user without further substantial support by the supplier.
(e) [Reserved]
(f) Release of technology and source code in the U.S. by U.S. universities to their bona fide and full time regular employees —(1) Scope. This paragraph authorizes the release in the United States of “technology” and source code that is subject to the EAR by U.S. universities to foreign nationals who are their bona fide and full time regular employees.
(2) Eligible foreign nationals (i.e., bona fide and full time regular employees of U.S. universities). This exception is only available if:
(i) The employee's permanent residence throughout the period of employment is in the U.S.;
(ii) The employee is not a national of a destination listed in Country Group D:5 (see supplement no. 1 to part 740 of the EAR); and
(iii) The university informs the individual in writing that the “technology” or source code may not be transferred to other foreign nationals without prior U.S. Government authorization. The obligation not to transfer technology extends beyond the tenure of employment at the university.
(3) Regular employee. A regular employee means:
(i) An individual permanently and directly employed by the university; or
(ii) An individual in a long-term contractual relationship with the university where the individual works at the university's facilities; works under the university's direction and control; works full time and exclusively for the university; executes nondisclosure certifications for the university; and where the staffing agency that has seconded the individual has no role in the work the individual performs (other than providing that individual for that work) and the staffing agency would not have access to any controlled technology (other than where specifically authorized by a license or where a license exception is available).
(4) Exclusions. (i) No “technology” or source code may be released to a foreign national who is subject to a part 744 end-use or end-user control or where the release would otherwise be inconsistent with part 744; and
(ii) No “technology” controlled for “EI” (encryption) reasons or “technology” or source code controlled for “MT” (Missile Technology) reasons may be released under this paragraph (f).
(g) Copies of technology previously authorized for export to same recipient. This paragraph authorizes the export, reexport, or transfer (in-country) of copies of technology previously authorized for export, reexport, or transfer (in-country) to the same recipient. This paragraph also authorizes the export, reexport, or transfer (in-country) of revised copies of such technology provided the following three conditions are met:
(1) The item that the technology pertains to is the identical item;
(2) The revisions to the technology are solely editorial and do not add to the content of technology previously exported, reexported, or transferred (in-country) or authorized for export, reexport, or transfer (in-country) to the same recipient; and
(3) The exporter, reexporter, or transferor has no reason to believe the same recipient has used the technology in violation of the original authorization.
(h) Special recordkeeping requirements: ECCNs 2D983, 2D984, 2E983 and 2E984. In addition to any other recordkeeping requirements set forth elsewhere in the EAR, exporters are required to maintain records, as specified in this paragraph, when exporting operation software or technology controlled under ECCNs 2D983, 2D984, 2E983, and 2E984, respectively, under License Exception TSU. Records maintained pursuant to this section may be requested at any time by an appropriate BIS official as set forth in § 762.7 of the EAR. The following information must be specially maintained for each export or reexport transaction, under License Exception TSU, of operation software and technology controlled by ECCNs 2D983, 2D984, 2E983, and 2E984:
(1) A description of the software or technology exported or reexported, including the ECCN, as identified on the CCL;
(2) A description of the equipment for which the software or technology is intended to be used, including the ECCN, as indentified on the CCL;
(3) The intended end-use of the software or technology;
(4) The name and address of the end-user;
(5) The quantity of software shipped; and
(6) The location of the equipment for which the software or technology is intended to be used, including the country of destination.
§ 740.14   Baggage (BAG).
(a) Scope. This License Exception authorizes individuals leaving the United States either temporarily (i.e., traveling) or longer-term (i.e., moving) and crew members of exporting or reexporting carriers to take to any destination, as personal baggage, the classes of commodities, software and technology described in this section.
(b) Eligibility. Individuals leaving the United States may export or reexport any of the following commodities or software for personal use of the individuals or members of their immediate families traveling with them to any destination or series of destinations. Individuals leaving the United States who are U.S. persons, as defined in paragraph (b)(4)(i), may export or reexport technology as a tool of trade under paragraph (b)(4) for their personal use or for the personal use of members of their immediate families who are traveling or moving with them, provided they are also U.S. persons, as defined in paragraph (b)(4)(i), to any destination or series of destinations. Technology exports and reexports authorized under paragraph (b)(4) of this section may be made as actual shipments, transmissions, or releases. Individuals leaving the United States temporarily (i.e., traveling) must bring back items exported and reexported under this License Exception unless they consume the items abroad or are otherwise authorized to dispose of them under the EAR. Crew members may export or reexport only commodities and software described in paragraphs (b)(1) and (b)(2) of this section to any destination.
(1) Personal effects. Usual and reasonable kinds and quantities for personal use of wearing apparel, articles of personal adornment, toilet articles, medicinal supplies, food, souvenirs, games, and similar personal effects, and their containers.
(2) Household effects. Usual and reasonable kinds and quantities for personal use of furniture, household effects, household furnishings, and their containers.
(3) Vehicles. Usual and reasonable kinds and quantities of vehicles, such as passenger cars, station wagons, trucks, trailers, motorcycles, bicycles, tricycles, perambulators, and their containers.
(4) Tools of trade. Usual and reasonable kinds and quantities of tools, instruments, or equipment and their containers and also technology for use in the trade, occupation, employment, vocation, or hobby of the traveler or members of the household who are traveling or moving. For special provisions regarding firearms and ammunition, see paragraph (e) of this section. For special provisions regarding encryption commodities and software subject to EI controls, see paragraph (f) of this section. For a special provision that specifies restrictions regarding the export or reexport of technology under this paragraph (b)(4), see paragraph (g) of this section. For special provisions regarding personal protective equipment under ECCN 1A613.c or .d, see paragraph (h) of this section.
(i) For purposes of this paragraph (b), U.S. person is defined as follows: an individual who is a citizen of the United States, an individual who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(2) or an individual who is a protected individual as defined by 8 U.S.C. 1324b(a)(3).
(ii) [Reserved]
(c) Limits on eligibility. The export of any item is limited or prohibited, if the kind or quantity is in excess of the limits described in this section. In addition, the items must be:
(1) Owned by the individuals (or by members of their immediate families) or by crew members of exporting carriers on the dates they depart from the United States;
(2) Intended for and necessary and appropriate for the use of the individuals or members of their immediate families traveling with them, or by the crew members of exporting carriers;
(3) Not intended for sale or other disposal; and
(4) Not exported under a bill of lading as cargo if exported by crew members.
(d) Special provision: unaccompanied baggage. Individuals departing the United States may ship unaccompanied baggage, which is baggage sent from the United States on a carrier other than that on which an individual departs. Crew members of exporting carriers may not ship unaccompanied baggage. Unaccompanied shipments under this License Exception shall be clearly marked “BAGGAGE.” Shipments of unaccompanied baggage may be made at the time of, or within a reasonable time before or after departure of the consignee or owner from the United States. Personal baggage controlled for chemical and biological weapons (CB), missile technology (MT), national security (NS), encryption items (EI) or nuclear nonproliferation (NP) must be shipped within 3 months before or after the month in which the consignee or owner departs the United States. However, commodities controlled for CB, MT, NS, EI or NP may not be exported under this License Exception as unaccompanied baggage to Country Groups D:1, D:2, D:3, D:4, or E:1. (See supplement no. 1 of this part).
(e) Special provisions for firearms and ammunition. (1) A United States citizen or a permanent resident alien leaving the United States may export or reexport shotguns with a barrel length of 18 inches or over controlled under ECCN 0A502 and 0A508 and shotgun shells controlled under ECCN 0A505.b and .c under this License Exception, subject to the following limitations:
(i) Not more than three firearms may be taken on any one trip (this includes shotguns in ECCNs 0A502 or 0A508, as well as firearms in ECCNs 0A501, 0A506, or 0A507).
(ii) The shotguns and shotgun shells must be with the person's baggage.
(iii) The shotguns and shotgun shells must be for the person's exclusive use for legitimate hunting or lawful sporting purposes, scientific purposes, or personal protection, and not for resale or other transfer of ownership or control. Accordingly, except as provided in (e)(2) of this section, shotguns may not be exported permanently under this License Exception. All shotguns and unused shotgun shells must be returned to the United States. Note that since certain countries may require an Import Certificate or a U.S. export license before allowing the import of a shotgun, you should determine the import requirements of your country of destination in advance.
(2) A nonresident alien leaving the United States may export or reexport under this License Exception only such shotguns and shotgun shells as he or she brought into the United States under the provisions of the Department of Justice Regulations (27 CFR 478.115(d)).
(3) A United States citizen or a permanent resident alien leaving the United States may export under this License Exception firearms, “parts,” “components,” “accessories,” or “attachments” controlled under ECCNs 0A501, 0A506, 0A507, and 0A509 and ammunition controlled under ECCN 0A505.a, subject to the following limitations:
(i) Not more than three firearms may be taken on any one trip (this includes firearms in ECCNs 0A501, 0A506, or 0A507, as well as shotguns in ECCNs 0A502 or 0A508), and no more than 1,000 rounds of ammunition may be taken on any one trip.
(ii) “Parts,” “components,” “accessories,” and “attachments” exported pursuant to this paragraph (e)(3) must be of a kind and limited to quantities that are reasonable for the activities described in paragraph (e)(3)(iv) of this section or that are necessary for routine maintenance of the firearms being exported.
(iii) The commodities must be with the person's baggage.
(iv) The commodities must be for the person's exclusive use and not for resale or other transfer of ownership or control. Accordingly, except as provided in paragraph (e)(4) of this section, firearms, “parts,” “components,” “accessories,” “attachments,” and ammunition, may not be exported permanently under this License Exception. All firearms, “parts,” “components,” “accessories,” or “attachments” controlled under ECCN 0A501, 0A506, 0A507, and 0A509 and all unused ammunition controlled under ECCN 0A505.a exported under this License Exception must be returned to the United States.
(v) Travelers leaving the United States temporarily are required to declare the firearms, “parts,” “components,” “accessories,” “attachments,” and ammunition being exported under this License Exception to a Customs and Border Protection (CBP) officer prior to departure from the United States and present such items to the CBP officer for inspection, confirming that the authority for the export is License Exception BAG and that the exporter is compliant with its terms.
(4) A nonimmigrant alien leaving the United States may export or reexport under this License Exception only such firearms controlled under ECCN 0A501, 0A506, 0A507, and ammunition controlled under ECCN 0A505 as he or she brought into the United States under the relevant provisions of Department of Justice regulations at 27 CFR part 478.
(5) Destination eligibility under this License Exception for items controlled under ECCNs 0A501, 0A502, 0A504, 0A505, 0A506, 0A507, 0A508, or 0A509 is limited to countries other than those in Country Group D:5 (except for Zimbabwe) and “CARICOM” countries.
(f) Special provisions: encryption commodities and software subject to EI controls on the Commerce Control List. (1) A U.S. citizen or permanent resident alien of the United States as defined by 8 U.S.C. 1101(a)(20) may use this license exception to export or reexport encryption commodities and software to any destination not in Country Group E:1 of supplement no. 1 of this part.
(2) A person other than a U.S. citizen or permanent resident alien of the United States as defined by 8 U.S.C. 1101(a)(20) (except a national of a country listed in Country Group E:1 of supplement no. 1 of this part who is not a U.S. citizen or permanent resident alien of the United States) may also use this license exception to export or reexport encryption commodities and software to any destination not in Country Group E:1 of supplement no. 1 of this part.
(g) Special provision: restrictions for Export or Reexport of Technology. This authorization for the export or reexport of technology under the tools of trade provisions of paragraph (b)(4) of this section may be used only if:
(1) The technology is to be used overseas solely by individuals or members of their immediate families traveling with them provided they are U.S. persons as defined in paragraph (b)(4)(i).
(2) The exporting or reexporting party and the recipient take adequate security precautions to protect against unauthorized access to the technology while the technology is being transmitted and used overseas. Examples of security precautions to help prevent unauthorized access include the following:
(i) Use of secure connections, such as Virtual Private Network connections when accessing IT networks for e-mail and other business activities that involve the transmission and use of the technology authorized under this license exception;
(ii) Use of password systems on electronic devices that will store the technology authorized under this license exception; and
(iii) Use of personal firewalls on electronic devices that will store the technology authorized under this license exception.
(3) The technology authorized under these provisions may not be used for foreign production purposes or for technical assistance unless authorized by BIS;
(4) Any encryption item controlled under ECCN 5E002 is not exported or reexported to any destination listed in Country Group E:1 of supplement no. 1 of this part.
(h) Special provisions: personal protective equipment classified under ECCN 1A613.c or .d —(1) Exports, reexports, or in-country transfers to countries not identified in Country Group D:5. U.S. persons may export, reexport, or transfer (in-country) one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries not identified in Country Group D:5, provided that:
(i) The items are with the U.S. person's baggage or effects, whether accompanied or unaccompanied (but not mailed); and
(ii) The items are for that person's exclusive use and not for transfer of ownership unless reexported or transferred (in-country) to another U.S. person.
(2) Exports, reexports, or in-country transfers to countries identified in Country Group D:5 —(i) Iraq. U.S. persons may export, reexport, or transfer (in-country) one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to Iraq, for personal use, provided that the requirements in paragraph (h)(1) of this section are met. In addition, the U.S. person must be affiliated with the U.S. Government and traveling on official business or traveling in support of a U.S. Government contract, or the U.S. person must be traveling to Iraq under a direct authorization by the Government of Iraq and engaging in activities for, on behalf of, or at the request of, the Government of Iraq. Documentation regarding direct authorization from the Government of Iraq shall include an English translation.
(ii) Other countries in Country Group D:5. U.S. persons may export, reexport, or transfer (in-country) one set of body armor classified under ECCN 1A613.d (which may include one helmet classified under ECCN 1A613.c) or one set of chemical or biological agent protective gear classified under ECCN 1A607.f (which may include one additional filter canister classified under ECCN 1A607.x) to countries in Country Group D:5 (except Iraq), for personal use, provided that the requirements in paragraph (h)(1) of this section are met, and the U.S. person is affiliated with the U.S. Government traveling on official business or is traveling in support of a U.S. Government contract.
Body armor controlled under ECCN 1A005 is eligible for this License Exception under paragraph (b) of this section.
§ 740.15   Aircraft, vessels and spacecraft (AVS).
This License Exception authorizes departure from the United States of foreign registry civil aircraft on temporary sojourn in the United States and of U.S. civil aircraft for temporary sojourn abroad; the export of equipment and spare parts for permanent use on a vessel or aircraft; exports to vessels or planes of U.S., Australian, Canadian, or UK (the United Kingdom) registry and U.S., Australian, Canadian, or UK Airlines' installations or agents; the export or reexport of cargo that will transit Cuba on an aircraft or vessel on temporary sojourn; and the export of spacecraft and components for fundamental research. Generally, no License Exception symbol is necessary for export clearance purposes; however, when necessary, the symbol “AVS” may be used.
(a) Aircraft on temporary sojourn —(1) Foreign registered aircraft. An operating civil aircraft of foreign registry that has been in the United States on a temporary sojourn may depart from the United States under its own power for any destination, provided that:
(i) No sale or transfer of operational control of the aircraft to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part) has occurred while in the United States;
(ii) The aircraft is not departing for the purpose of sale or transfer of operational control to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part); and
(iii) It does not carry from the United States any item for which an export license is required and has not been granted by the U.S. Government.
(2) U.S. registered aircraft. (i) A civil aircraft of U.S. registry operating under an Air Carrier Operating Certificate, Commercial Operating Certificate, or Air Taxi Operating Certificate issued by the Federal Aviation Administration (FAA) or conducting flights under operating specifications approved by the FAA pursuant to 14 CFR part 129, or an air ambulance of U.S. registry operating under 14 CFR part 135, may depart from the United States under its own power for any destination, provided that:
(A) The aircraft does not depart for the purpose of sale, lease or other disposition of operational control of the aircraft, or its equipment, parts, accessories, or components to a foreign country or any national thereof;
(B) The aircraft's U.S. registration will not be changed while abroad;
(C) The aircraft is not to be used in any foreign military activity while abroad; and
(D) The aircraft does not carry from the United States any item for which a license is required and has not been granted by the U.S. Government.
(ii) Any other operating civil aircraft of U.S. registry may depart from the United States under its own power for any destination, except to or a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part) (flights to these destinations require a license), provided that:
(A) The aircraft does not depart for the purpose of sale, lease or other disposition of operational control of the aircraft, or its equipment, parts, accessories, or components to a foreign country or any national thereof;
(B) The aircraft's U.S. registration will not be changed while abroad;
(C) The aircraft is not to be used in any foreign military activity while abroad;
(D) The aircraft does not carry from the United States any item for which an export license is required and has not been granted by the U.S. Government; and
(E) The aircraft will be operated while abroad by a U.S. licensed pilot, except that during domestic flights within a foreign country, the aircraft may be operated by a pilot currently licensed by that foreign country.
(3) Criteria. The following ten criteria each must be met if the flight is to qualify as a temporary sojourn. To be considered a temporary sojourn, the flight must not be for the purpose of sale or transfer of operational control. An export is for the transfer of operational control unless the exporter retains each of the following indicia of control:
(i) Hiring of cockpit crew. Right to hire and fire the cockpit crew.
(ii) Dispatch of aircraft. Right to dispatch the aircraft.
(iii) Selection of routes. Right to determine the aircraft's routes (except for contractual commitments entered into by the exporter for specifically designated routes).
(iv) Place of maintenance. Right to perform or obtain the principal maintenance on the aircraft, which principal maintenance is conducted outside a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), under the control of a party who is not a national of any of these countries. (The minimum necessary in-transit maintenance may be performed in any country).
(v) Location of spares. Spares are not located in a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
(vi) Place of registration. The place of registration is not changed to a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
(vii) Transfer of technology. No technology is transferred to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), except the minimum necessary for in-transit maintenance to perform flight line servicing required to depart safely.
(viii) Color and logos. The aircraft does not bear the livery, colors, or logos of a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
(ix) Flight number. The aircraft does not fly under a flight number issued to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part) as such number appears in the Official Airline Guide.
(x) Lease or charter. The aircraft is not leased to or chartered by a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
(4) Reexports. Civil aircraft legally exported from the United States may be reexported under this section, provided the restrictions described in this paragraph (a) are met.
An aircraft exported or reexported to a country pursuant to this paragraph (a) may not remain in that country for more than seven consecutive days before it departs for a country to which it may be exported without a license or the United States.
(b) Equipment and spare parts for permanent use on a vessel or aircraft, and ship and plane stores —(1) Vessel. Equipment and spare parts for permanent use on a vessel, when necessary for the proper operation of such vessel, may be exported or reexported for use on board a vessel of any registry, except a vessel registered in Country Group D:1 (see supplement no. 1 to part 740), Cuba, or owned or controlled by, or under charter or lease to any of these countries or their nationals. In addition, other equipment and services for necessary repair to fishing and fishery support vessels of Country Group D:1 may be exported for use on board such vessels when admitted into the United States under governing international fishery agreements.
(2) Aircraft. (i) Equipment and spare parts, for permanent use on an aircraft, when necessary for the proper operation of such aircraft, may be exported or reexported for use on board an aircraft of any registry, except an aircraft registered in, owned or controlled by, or under charter or lease to a country included in Country Group D:1, Cuba, or a national of any of these countries.
(ii) This paragraph (b)(2)(ii) authorizes exports, reexports, and transfers (in-country) to any country that is identified in Country Group A:2 and supplement no. 3 to part 746 of ECCNs 7A101 through 7A103 when the commodities are for use in or for the “production” of civil manned aircraft.
(3) Ship and plane stores. Usual and reasonable kinds and quantities of the following commodities may be exported for use or consumption on board an aircraft or vessel of any registry during the outgoing and immediate return flight or voyage.
(i) Deck, engine, and steward department stores, provisions, and supplies for both port and voyage requirements;
(ii) Medical and surgical supplies;
(iii) Food stores;
(iv) Slop chest articles;
(v) Saloon stores or supplies.
(4) Cuba. Only items designated as EAR99 or controlled on the Commerce Control List (CCL) (supplement no. 1 to part 774 of the EAR) only for anti-terrorism reasons ( i.e., anti-terrorism must be the only reason for control that applies to the item as set forth in the Export Control Classification Number (ECCN) that controls the item) are eligible for export or reexport to Cuba pursuant to this paragraph (b).
(c) Shipments to U.S. or Canadian vessels, planes and airline installations or agents —(1) Exports to vessels or planes of U.S., Australian, Canadian, or UK registry. Export may be made of the commodities set forth in paragraph (c)(3) of this section, for use by or on a specific vessel or plane of U.S., Australian, Canadian, or UK registry located at any seaport or airport outside the United States, Australia, Canada, or the UK except a port in Cuba or Country Group D:1 (excluding the PRC), (see supplement no. 1 to part 740) provided that such commodities are all of the following: 3
3 Where a license is required, see §§ 748.1, 748.4 and 748.6 of the EAR.
(i) Ordered by the person in command or the owner or agent of the vessel or plane to which they are consigned;
(ii) Intended to be used or consumed on board such vessel or plane and necessary for its proper operation;
(iii) In usual and reasonable kinds and quantities during times of extreme need; and
(iv) Shipped as cargo for which Electronic Export Information (EEI) is filed to the Automated Export System (AES) in accordance with the requirements of the Foreign Trade Regulations (FTR) (15 CFR part 30), except EEI is not required to be filed when any of the commodities, other than fuel, is exported by U.S. airlines to their own aircraft abroad for their own use, see 15 CFR 30.37(o) of the FTR.
(2) Exports to U.S., Australian, Canadian, or UK airline's installation or agent. Exports of the commodities set forth in paragraph (c)(3) of this section, except fuel, may be made to a U.S., Australian, Canadian, or UK airline's 4 installation or agent in any foreign destination except Cuba or Country Group D:1 (excluding the PRC), (see supplement no. 1 to part 740) provided such commodities are all of the following:
4 See part 772 of the EAR for definitions of United States, Australia, Canadian, and UK airlines.
(i) Ordered by a U.S., Australian, Canadian, or UK airline and consigned to its own installation or agent abroad;
(ii) Intended for maintenance, repair, or operation of aircraft registered in either the U.S., Australia, Canada, or UK and necessary for the aircraft's proper operation, except where such aircraft is located in, or owned, operated or controlled by, or leased or chartered to, Cuba or Country Group D:1 (excluding the PRC) (see supplement no. 1 to part 740) or a national of such country;
(iii) In usual and reasonable kinds and quantities; and
(iv) Shipped as cargo for which Electronic Export Information (EEI) is filed to the Automated Export System (AES) in accordance with the requirements of the Foreign Trade Regulations (FTR) (15 CFR part 30), except EEI is not required to be filed when any of these commodities is exported by U.S. airlines to their own installations and agents abroad for use in their aircraft operations, see 15 CFR 30.37(o) of the FTR.
(3) Applicable commodities. This paragraph (c) applies to the following commodities, subject to the provisions in paragraph (c)(1) and (c)(2) of this section:
(i) Deck, engine, and steward department stores, provisions, and supplies for both port and voyage requirements;
(ii) Medical and surgical supplies;
(iii) Food stores;
(iv) Slop chest articles;
(v) Saloon stores or supplies; and
(vi) Equipment and spare parts.
(d) Vessels on temporary sojourn —(1) Foreign flagged vessels. A foreign flagged vessel in the United States may depart from the United States under its own power for any destination, provided that:
(i) No sale or transfer of operational control of the vessel to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part) has occurred while in the United States;
(ii) The vessel is not departing for the purpose of sale or transfer of operational control to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part); and
(iii) The vessel does not carry from the United States any item for which a license is required and has not been granted by the U.S. Government.
(2) U.S. flagged vessels. A U.S. flagged vessel may depart from the United States under its own power for any destination, provided that:
(i) The vessel does not depart for the purpose of sale, lease, or transfer of operational control of the vessel, or its equipment, parts, accessories, or components, to a foreign country or any national thereof;
(ii) The vessel's U.S. flag will not be changed while abroad;
(iii) The vessel will not be used in any foreign military activity while abroad;
(iv) The vessel will not carry from the United States any item for which a license is required and has not been granted by the U.S. Government;
(v) Spares for the vessel are not located in a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part);
(vi) Technology is not transferred to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), except the minimum necessary in-transit maintenance to perform servicing required to depart and enter a port safely; and
(vii) The vessel does not bear the livery, colors, or logos of a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
(3) Criteria for temporary sojourn of vessels. The following criteria must be met if a voyage is to be considered a temporary sojourn under this paragraph (d). To be considered a temporary sojourn, the voyage must not be for the purpose of sale or transfer of operational control. A transfer of operational control occurs unless the exporter or reexporter retains each of the following indicia of control:
(i) Hiring of crew. Right to hire and fire the crew.
(ii) Dispatch of vessel. Right to dispatch the vessel.
(iii) Selection of routes. Right to determine the vessel's routes (except for contractual commitments entered into by the exporter for specifically designated routes).
(iv) Place of maintenance. Right to perform or obtain the principal maintenance on the vessel, which principal maintenance is conducted outside a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), under the control of a party who is not a national of any of these countries. (The minimum necessary in-transit maintenance may be performed in any country).
(v) Lease or charter. The vessel is not leased to or chartered by a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
(4) Reexports. Vessels subject to the EAR may be reexported under this section on temporary sojourn, provided that:
(i) The vessel does not depart for the purpose of sale, lease, or transfer of operational control of the vessel, or its equipment, parts, accessories, or components, to a foreign country or any national thereof;
(ii) The vessel's flag will not be changed while abroad;
(iii) The vessel will not be used in any foreign military activity while abroad;
(iv) The vessel will not carry any item for which a license is required and has not been granted by the U.S. Government;
(v) Spares for the vessel are not located in a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part);
(vi) Technology is not transferred to a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part), except the minimum necessary in-transit maintenance to perform servicing required to depart and enter a port safely; and
(vii) The vessel does not bear the livery, colors, or logos of a national of a destination in Country Group E:1 or E:2 (see supplement no. 1 to this part).
(5) No vessels may be exported or reexported under this License Exception to a country in Country Group E:1.
(6) Cuba, eligible vessels and purposes. For Cuba, only cargo vessels for hire for use in the transportation of items are eligible for this paragraph (d).
A vessel exported or reexported to a country pursuant to this paragraph (d) may not remain in that country for more than 14 consecutive days before it departs for a country to which it may be exported without a license or the United States.
(e) Intransit cargo. Cargo laden on board an aircraft or vessel may transit Cuba provided:
(1) The aircraft or vessel is exported or reexported on temporary sojourn to Cuba pursuant to paragraph (a) or (d) of this section or a license from BIS; and
(2) The cargo departs with the aircraft or vessel at the end of its temporary sojourn to Cuba, is not removed from the aircraft or vessel for use in Cuba and is not transferred to another aircraft or vessel while in Cuba.
(f) Spacecraft for launch. This paragraph (e) authorizes the export by accredited U.S. institutions of higher learning of commodities subject to the EAR fabricated only for fundamental research purposes when all of the following conditions are met:
(1) The export is to an accredited institution of higher learning, a governmental research center, or an established government funded private research center located in a country other than Country Group D:5 (see supp. no. 1 to this part) and involves exclusively nationals of such countries;
(2) All the information about the commodity, including its design, and all of the resulting information obtained through fundamental research involving the commodity will be published and shared broadly within the scientific community, and is not restricted for proprietary reasons or specific U.S. government access and dissemination controls or other restrictions accepted by the institution or its researchers on publication of scientific and technical information resulting from the project or activity (see § 734.11 of the EAR); and
(3) If the commodity is for permanent export, the platform or system into which the commodity will be incorporated must be a scientific, research, or experimental satellite and must be exclusively concerned with fundamental research and may only be launched into space from countries and by nationals of countries not identified in Country Group D:5.
§ 740.16   Additional permissive reexports (APR).
This License Exception allows the following reexports:
(a) Reexports from Country Group A:1. Reexports may be made from countries in Country Group A:1, provided that:
(1) The reexport is made in accordance with the conditions of an export authorization from the government of the reexporting country;
(2) The commodities being reexported are not controlled for NP, CB, MT, SI, or CC reasons; described in ECCNs 0A919, 3A001.b.2, b.3 (except those that are being reexported for use in civil telecommunications applications), or .z, 6A002, or 6A003; or commodities classified under a 0x5zz ECCN; and
(3) The reexport is destined to either:
(i) A country in Country Group B that is not also included in Country Group D:2, D:3, or D:4; and the commodity being reexported is both controlled for national security reasons and not controlled for export to Country Group A:1; or
(ii) A country in Country Group D:1 (National Security) (see Supplement No. 1 to part 740), other than North Korea and the commodity being reexported is controlled for national security reasons.
(b) Reexports to and among specified countries. (1) Eligible commodities may be reexported to and among destinations in Country Group A:1 for use or consumption within a destination in Country Group A:1 (see supplement no. 1 to part 740), or for reexport from such country in accordance with other provisions of the EAR.
(2) Commodities not eligible for reexport under paragraph (b)(1) of this section are:
(i) Commodities controlled for nuclear nonproliferation or missile technology reasons;
(ii) Commodities in 3A001.b.2, b.3 (except those that are being reexported for use in civil telecommunications applications), or .z;
(iii) “Military commodities” described in ECCN 0A919;
(iv) Commodities described in ECCN 0A504 that incorporate an image intensifier tube;
(v) Commodities described in ECCN 6A002; or
(vi) Commodities classified under a 0x5zz ECCN.
(3) Cameras described in ECCNs 6A003 may be exported or reexported to and among countries in Country Group A:1 (see supplement no. 1 to this part) if:
(i) Such cameras are fully packaged for use as consumer ready civil products; or
(ii) Such cameras with not more than 111,000 elements are to be embedded in civil products.
(c) Reexports to a destination to which direct shipment from the United States is authorized under an unused outstanding license may be made under the terms of that license. Such reexports shall be recorded in the same manner as exports are recorded, regardless of whether the license is partially or wholly used for reexport purposes. (See part 762 of the EAR for recordkeeping requirements.)
(d) Reexports of any item from Australia, Canada, or the United Kingdom that, at the time of reexport, may be exported directly from the United States to the new country of destination under any License Exception.
(e) Reexports (return) to the United States of any item. If the reexporting party requests written authorization because the government of the country from which the reexport will take place requires formal U.S. Government approval, such authorization will generally be given.
(f) Reexports from a foreign destination to Australia, Canada, or the United Kingdom of any item if the item could be exported to Australia, Canada, or the United Kingdom without a license.
(g) [Reserved]
(h) Shipments of foreign-made products that incorporate U.S.-origin components may be accompanied by U.S.-origin controlled spare parts, provided that they do not exceed 10 percent of the value of the foreign-made product, subject to the restrictions in § 734.4 of the EAR.
(i) [Reserved]
(j) Reexports of items controlled by NP Column 1 (see supplement no. 1 to part 774 of the EAR) to, among, and from countries described in Country Group A:4 (see supplement no. 1 to part 740), except:
(1) Reexports from countries that are not identified in Country Group A:1 of items that are controlled for NS reasons to destinations in Country Group D:1; and
(2) Reexports to destinations in Country Group E:2 and Country Group D:2.