Yes, there is a “Tools of the Trade” License Exception under the EAR

In recent months we have received inquiries from several companies about compliance issues related to company employees hand carrying various types of computers, software and other kinds of tooling to be used for overseas field missions or company business at a foreign subsidiary.  With heightened awareness of fines and penalties associated with export control violations, U.S. companies seem to be increasingly concerned about what their employees are carrying with them for foreign field operations and overseas business trips. The concern is understandable, however we would like to remind our clients and friends that there is a license exception for Temporary Exports covering “tools of the trade” that can be used to calm fears about potential violations of the EAR. Specifically, under Part 740.9 of the Export Administration Regulations it states:

License Exception TMP authorizes exports, re-exports, and transfers (in-country) of items for temporary use abroad (including use in or above international waters) if the commodities and software are tools of trade for use by the exporter or employees of the exporter at destinations other than Country Group E:1; for Sudan, see paragraph (a)(2) of this section. [Another words, tools of the trade, even those that require a license are eligible for license exception TMP if taken anywhere in the world except Sudan, Iran, North Korea, Syria and Cuba.] The tools of trade must remain under the “effective control” of the exporter or the exporter’s employee at all times. 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, re-exported, 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.

The conclusion drawn from the above is that in most cases your company should really have little to no concern about company employees hand carrying or even exporting, without a license dual use BIS jurisdiction products that normally require a license provided the exports are intended for their own use as tools of the trade. As long as such commodities or software are maintained under the effective control of the your company employee no license is required to export dual use goods worldwide with the exception of country Group E and I don’t think your employees will be going to Group E countries any time in the near future. No need to spend countless hours classifying that dual use computer, technical measuring instrument, software or other electronic tool etc when it is being exported as a trade tool. As long as the items are returned to the USA within 12 months your employees are covered using license exception TMP and there is no need to panic about what dual use commodities or software they are bringing with them in their bag for a business trip. For more information on proper use of license exception TMP and its application to your unique situation contact TSI Global Consulting at 210-757-0618.

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