What major changes did this rule make?

This rule amended Section 742.10 (15 CFR 742.10) of the Export Administration Regulations (15 CFR Parts 730-774) to revise the general licensing policy of denial to one of case-by-case review for exports and reexports to Sudan of certain telecommunications equipment and associated computers, software, and technology, including items that are useful for the development of civil telecommunications network infrastructure. It also revised License Exception Consumer Communications Devices (CCD), Section 740.19 of the EAR (15 CFR 740.19), which previously applied only to Cuba, to authorize exports and reexports of such devices to Sudan, either for sale or donation. This rule also made conforming changes to License Exception Temporary Imports, Export, Reexports and Transfers (in-country) (TMP) (Section 740.9 of the EAR (15 CFR 740.9). Finally, it removed a license requirement for reexports to Sudan of certain telecommunications software.

Why did BIS make these changes?

BIS made these changes to reflect the U.S. Government's commitment to the advancement of the free flow of information to, from, and within Sudan.

Do these changes affect the sanctions against Sudan?

No. Due to Sudan's designation as a "State Sponsor of Terrorism" by the Secretary of State, the Department of Commerce's Bureau of Industry and Security (BIS) maintains license requirements with a general policy of denial for exports and reexports of most items on the Commerce Control List to most end users in Sudan. Revised License Exception CCD permits exports and reexports of certain eligible commodities and software on the CCL to Sudan that previously required a license. Items designated as "EAR99" (subject to the EAR but not described on the Commerce Control List) continue to be eligible for export and reexport to Sudan without a license in the absence of end-use or end-user concerns set forth in Part 744 of the EAR. The changes made pursuant to the rule implement the U.S. Government's policy objective of facilitating communication and the free flow of information among the Sudanese people.

Due to the sanctions, do export/reexport transactions of items covered under License Exception CCD also require separate authorization from the Department of the Treasury’s Office of Foreign Assets Control (OFAC)?

Because OFAC and BIS share jurisdiction over certain exports and reexports to Sudan, these changes have been made in coordination with OFAC, which simultaneously has issued parallel amendments to the Sudanese Sanctions Regulations, 31 CFR part 538. Please see OFAC FAQs for further information pertaining to the Department of Treasury changes. [Most items that qualify for export or reexport to Sudan under revised License Exception CCD also qualify for export and reexport to Sudan under OFAC's new general license, as set forth in 31 CFR 538.533, published contemporaneously with the new BIS rule. Therefore, in most cases, you do not need a specific license from OFAC for the export or reexport of items described in License Exception CCD.] Exporters should review both 31 CFR 538.533 and License Exception CCD to ensure compliance with applicable export license requirements.

How do license exceptions relate to license requirements for Sudan in the Export Administration Regulations?

Most items described on the Commerce Control List require authorization in the form of a license from BIS for export or reexport to Sudan under Section 742.10 of the EAR, the provision that establishes license requirements and related license review policies for exports and reexports to Sudan. License Exception CCD is an example of an authorization that allows persons to export or reexport certain enumerated consumer communications devices subject to the EAR to Sudan that would otherwise require a license from BIS. If a license exception is available for a contemplated export or reexport to Sudan, the licensing requirements specified in Section 742.10 do not apply. The availability of License Exception CCD, however, is restricted to exports and reexports under certain defined circumstances. Please review Section 740.2 of the EAR, which contains restrictions on the availability of all license exceptions, including License Exception CCD. You should also review the General Prohibitions set forth in Part 736 and the license requirements and policies set forth in Part 744 (end-use and end-user concerns). Persons who are unfamiliar with the structure of the EAR or the relationship of license exceptions to license requirements generally may wish to consult the BIS online training room

http://www.bis.doc.gov/index.php/compliance-a-training/export-administration-regulations-training/online-training-room?id=284.

How do you define “consumer” as it relates to items that qualify for export and reexport to Sudan under License Exception CCD?

For the purposes of License Exception Consumer Communications Devices (CCD), a "consumer" item is an item that is: (1) generally available to the public by being sold, without restriction, from stock at retail selling points by means of any of the following: (a) over-the counter transactions; (b) mail order transactions; (c) electronic transactions; or (d) telephone call transactions; and (2) designed for installation by the user without further substantial support by the supplier. In Section 740.19 (b) of the EAR, the term "consumer" describes the types of computers ((b) (1)), disk drives and storage equipment ((b)(2)), information security equipment, software, and peripherals ((b)(12)), and software ((b)(17)) that may be exported under License Exception CCD. The definition of "consumer" applies regardless of whether the item being exported or reexported is sold or donated.

Does this license exception cover the export or reexport of instruction manuals or other information on how to assemble and use authorized tools and equipment?

Instruction manuals or other information on how to assemble and use tools and equipment authorized for export or reexport under License Exception CCD likely fall into one of three categories. They may be eligible for License Exception Technology and Software Unrestricted (TSU) (Section 740.13(a) of the EAR) or constitute published information and software that is not subject to the EAR (Section 734.7 of the EAR), or they may not be subject to the EAR because they do not constitute "use" technology or other categories of technology (see Part 772 of the EAR). However, if such information is subject to the EAR, it may require a BIS license for export or reexport to Sudan.

Does License Exception CCD cover the export or reexport of upgrades, fixes, and patches for software?

Yes, if the software upgrades, fixes, or patches meet all the criteria described in License Exception CCD. Specifically, the items must be: 1) consumer communication devices as defined in License Exception CCD and 2) classified on the Commerce Control List under an ECCN that is expressly authorized for export or reexport under the license exception.

May I use License Exception CCD to sell communications devices to Sudan government owned, operated or controlled companies and corporations for resale to the Sudanese people?

License Exception CCD Section (c) (1) (iii) does not authorize the export or reexport of communications devices to the Government of Sudan, including entities owned, operated or controlled by the Government of Sudan, apart from certain consumer software listed in paragraph (b)(12) or (b)(17) that is distributed free of charge. Consequently, the Government of Sudan is an ineligible recipient of items such as telecommunications infrastructure equipment, computers, technology, and software (apart from the carve-out described), under the license exception. A license is therefore required for the export or reexport of such items to Sudan government owned, operated, or controlled companies. All items that require a license for export or reexport to the Government of Sudan will be reviewed on a case-by-case basis.

What changes does this rule make to the existing license exception for consumer communication devices?

As part of a January 16, 2015 rule that amended the EAR to reflect changes in the U.S. Government's Cuba policy, License Exception Consumer Communications Devices (CCD) was amended to authorize commercial sales, in addition to donations, of eligible items. Additionally, technical revisions were made in that rule to more precisely track the current technical specifications for some of the specified items. The Sudan rule provides that certain items, namely, Global Positioning System receivers and similar satellite receivers, are available under CCD for export and reexport to Sudan.

The item I would like to export is a consumer communications device listed on the Commerce Control List but its Export Control Classification Number is not among those specifically listed in License Exception CCD. May I use License Exception CCD to export

No. Your item must meet all the criteria of License Exception CCD to qualify for export or reexport under License Exception CCD. The item must be: 1) a consumer communications device as defined in License Exception CCD, and 2) classified on the Commerce Control List under an ECCN that is expressly authorized for export under the license exception.

If you are not sure whether your item is on the CCL or what ECCN applies to it, you may seek an official Commodity Classification (CCAT) from BIS in accordance with Section 748.3 of the EAR. You may submit a request for an official commodity classification through BIS's online SNAP-R System.

Please note that a CCAT will determine the ECCN that applies to your item or, alternatively, designate your item as EAR99. However, a CCAT will not state whether your item is a "consumer" communications device that may be exported or reexported under License Exception CCD. If you have questions about whether an item would qualify for export or reexport under License Exception CCD, including questions as to whether the item would constitute a consumer communications device for purposes of License Exception CCD, you may consult BIS's Foreign Policy Division at 202-482-4252 or submit an advisory opinion request in accordance with the procedures outlined in Section 748.3 of the EAR. You may also submit a license application as explained in the FAQ below.

The item I’d like to export is listed under an ECCN in License Exception CCD, but I have determined that it is not a “consumer” communications device within the meaning of License Exception CCD. May I export it under License Exception CCD?

No. Your item must meet all the criteria of License Exception CCD to qualify for export or reexport under License Exception CCD including meeting the definition of a "consumer" communications device that is set forth in the CCD license exception. If your item is listed on the CCL but you are unsure whether it is a consumer communications device, you may submit an application for license using BIS's SNAP-R system. If BIS determines that a license is required, BIS will process the application and apply the licensing policy outlined in Section 742.10 of the EAR. You may also seek an advisory opinion from BIS.

May I apply for a license to export or reexport telecommunications equipment to Sudan that does not qualify for export or reexport to Sudan under License Exception CCD?

Yes. BIS may authorize your export or reexport under a license when the export or reexport does not qualify for License Exception CCD. BIS will consider, on a case-by-case basis, applications to export or reexport telecommunications equipment and associated computers, software and technology for civil end use. In particular, BIS recognizes the significance of telecommunications items that are useful for the development of civil telecommunications network infrastructure.The facilitation of the free flow of information in Sudan can only occur effectively if there is adequate telecommunications infrastructure to support the consumer communications devices authorized by License Exception CCD. Consequently, BIS will review applications to export and reexport telecommunications-related items, including items useful for the development of civil telecommunications network infrastructure, on a case-by-case basis. License applicants should describe the specific civil end use of the items and their function in the development of civil telecom network infrastructure (see note to Section 742.10(b) (3)) in their license applications or in letters of explanation attached to the applications.

May I export consumer communications hardware and software under License Exception Consumer Communication Devices (CCD) to independent non-governmental organizations in Sudan?

Yes. Independent non-governmental organizations are eligible end-users of items exported to Sudan pursuant to License Exception Consumer Communications Devices (15 CFR § 740.19). Please note that organizations owned, operated, or controlled by the Sudanese Government are not eligible end-users.

May I use License Exception CCD to export consumer communications devices and software to Sudan for commercial resale within Sudan?

Yes. The terms of License Exception CCD do not require that items be exported or reexported directly to the end user. Consequently, exports and reexports to Sudan to commercial entities for resale to eligible end users would qualify for License Exception CCD. Eligible end users include individuals and independent non-governmental organizations operating in Sudan. Apart from certain specified consumer software that is distributed free of charge, the Government of Sudan may not be the end-user. An independent non-governmental organization that is owned, operated, or controlled by the Government of Sudan is not eligible to receive items under License Exception CCD. Persons wishing to use License Exception CCD are responsible for determining that the criteria of the license exception will be met. Please be advised nothing in License Exception CCD excuses a U.S. person from the need to comply with the Sudanese Sanctions Regulations.

What steps can Sudanese academic and training organizations (training institutes, test preparation centers, secondary schools, and universities) take to acquire and use hardware, software, web-based applications and teaching products?

Exporters and reexporters of items subject to the Export Administration Regulations may export or reexport hardware and software to Sudanese academic and training organizations without a BIS license if the transaction meets all the requirements of License Exception CCD. If such items also meet the requirements of the OFAC general license pertaining to certain software, hardware, and services incident to personal communications (31 CFR Section 538.533), an OFAC specific license would not be required for their export or reexport. (For definitive guidance on OFAC requirements, please consult with that agency.) Please note that not all Sudanese academic and training organizations would be authorized to receive these items under the license exception. Apart from certain specified consumer software that is distributed free of charge, License Exception CCD only applies to items destined for organizations or entities that are not part of the Sudanese Government (including owned, operated, or controlled by the government). Also, not all of the hardware and software described in this question will meet the requirements of License Exception CCD. In those cases, persons must apply for a BIS license and OFAC license to engage in the transaction. Sudanese academic and training organizations should contact the manufacturers and providers of these items directly to seek the classification number of the item they wish to import to Sudan and to learn whether they may receive the items and, if so, under what circumstances.

   
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