My previous article addressed the availability and requirements for the use of License Exception BAG when traveling with your personally owned PC. In this article I will address the options available for those of you traveling with a PC owned by your employer.

License Exception TMP authorizes the temporary use of commodities and software abroad as long as the item(s) are returned to the country of export no later than one year from the date of export. Eligible commodities and software include the usual and reasonable kinds and quantities of tools of trade, commodities and software for use in a lawful enterprise or undertaking of the exporter or employees of the exporter to destinations other than Country Group E:2 (Cuba) and Sudan.

See 15 CFR §740.9(a)(2)(i)(B) for the specific requirements regarding authorized exports of tools of trade to Sudan under TMP. Please note these requirements include restrictions on the PC’s Adjusted Peak Performance (APP) and software, including encryption software loaded on the PC. Only software controlled under ECCN 4D994, 5D992 and components controlled under 5A991 and 5A992 installed in the listed equipment are authorized under this section.

The company owned PC, operating system such as Microsoft Vista, software applications such as Microsoft Office, and other corporate standard load applications installed on the system you are planning to travel with qualify under the provisions of TMP—tools of trade.

I know what you are thinking: “What about encryption items that may be loaded or installed on the PC?” No problem. Note 2 to Category 5, Part 2 of Supplement No. 1 to Part 774 authorizes the use of License Exception TMP for encryption products when accompanying their user for personal use or as tools of trade subject to the terms and conditions of the License Exception.

In order to utilize License Exception TMP, the PC must remain under the “effective control” of the exporter or the employee of the exporter. The Export Administration Regulations (EAR) define effective control as retaining physical possession of the item, or securing the item in such an environment as a hotel safe, a bonded warehouse or a locked or guarded exhibition facility.

As previously mentioned, TMP requires the exporter to return to the United States as soon as practicable but no later than one year after the date of export. If you are planning to remain abroad beyond one year, you must request authorization from the Bureau of Industry and Security (BIS) by submitting Form BIS-748P 90 days prior to the end of the one-year period.

If you intend to sell or permanently dispose of the PC abroad you must request authorization from BIS in the form of a license application unless the export is authorized under NLR or by another applicable License Exception.

Several compliance colleagues have brought up some good points regarding controlled technology. While TMP specifically authorizes the temporary use of commodities and software abroad subject to the terms and conditions of the License Exception, it does not mention technology. If you work in an industry subject to the dual-use controls found on the Commerce Control List (CCL) and you have controlled technical data on your company PC, you should remove it prior to leaving for your travels abroad.

To ensure consistency across all segments of the business, your company may want to consider implementing an equipment travel policy. In the process of developing the policy think about the possibility of the PC being lost or stolen.

Under this scenario License Exception TMP is now out the window since the lost or stolen PC is probably not coming back into the United States. It also raises the question of “effective control” as required by the License Exception. You also need to consider what data was contained on the PC and deal with it being out there and in the hands of who knows whom.

To lessen the risk of possible compromising situations, some companies are providing a “clean” system loaded with an operating system and the basic corporate software for the employees to checkout for use while traveling. This way the company knows that the software loaded on the computer and the data contained on the system is only the basic stuff the employee will need to perform their duties while away from the office and doesn’t include any controlled technical data or sensitive information.

Don’t just think in the terms of the PC. What about those handy jump/flash drives and external hard drives? When developing an equipment travel policy you have to decide and balance the appropriate level of due diligence and reasonable care employed to mitigate unnecessary risk while accommodating your specific business needs. For example, an insurance company may not necessarily need an overly cumbersome equipment travel policy; however, a manufacturing firm that develops lasers may want to employ a more comprehensive policy.

In summary, the use of License Exception TMP—Tools of Trade—when traveling with a company owned PC:

• Requires return to the country of export within one year unless prior authorization is requested from BIS;
• Applies to encryption products including PC’s with pre-loaded encryption when accompanying their user as a tool of trade to authorized destinations;
• PC must remain under the “effective control” of the exporter or employee;
• Has no reporting requirements;
• Is restricted to Country Group E:2 and Sudan;
• Does not include provisions for controlled technical data; and
• Applies to items controlled by the EAR.

This article is based upon the requirements for License Exception TMP—Tools of Trade. The requirements and controls for other types of temporary exports under TMP are not the same. License Exception TMP applies to commodities and software subject to the EAR. It does not apply if your company PC contains hardware, software or technical data for defense articles or services that are subject to the export licensing requirements of the International Traffic in Arms Regulations (ITAR), 22 CFR Parts 120 - 130.

Last, but certainly not least; the information presented here is based upon the regulations as written at the time of publishing. Regulatory requirements are subject to change. You should always consult the most current and up-to-date versions of the relevant regulations prior to exporting to ensure you are complying with all applicable requirements.