On February 18, 2015 the Commerce Department’s Bureau of Industry and Security (“BIS”) and Treasury Department’s Office of Foreign Assets Control (“OFAC”) published changes to the Export Administration Regulation (“EAR”) and the Sudanese Sanctions Regulations (“SSR”) in order to advance the free flow of information and facilitate communications by the Sudanese people. OFAC’s changes are consistent and nearly identical to its personal communications general license for Iran, first issued on May 30, 2013 and revised on February 7, 2014. See our guidance related to the Iran Personal Communications License. Because BIS and OFAC maintain concurrent jurisdiction to regulate trade with Sudan, BIS has amended the EAR including the revision of License Exception Consumer Communications Devices (“CCD”) to authorize cetin exports to Sudan.
Sudanese Sanction Regulations
OFAC’s amendments to the SSR include provision for both U.S. and non-U.S. Persons.
- U.S. Persons are authorized to export services to Sudan incident to the exchange of personal communications
- U.S. and non-U.S. Persons may export certain U.S.-origin software to Sudan incident to personal communications
- U.S. Persons may export certain foreign-origin software or software that is not subject to the EAR as defined in EAR § 734.3(b)(3)
- U.S. and non-U.S. Persons may export certain hardware listed in Annex B to Sudan including (but not limited to):
- Mobile phones and PDAs
- Satellite phone and Broadband Global Area Network hardware
- Consumer modems, network interface cards, ration equipment, routers
- Laptops, tablets and personal computing devices
- Anti-virus and anti-malware software
- Anti-tracking software
- Mobile operating systems and applications for mobile devices
- U.S. Persons may provide certain consumer Internet connectivity services to Sudan
- Authorized hardware and software may be imported into the United States
- U.S. Persons may export certain free of cost services and software to the Government of Sudan
Export Administration Regulations
In consultation with OFAC and the State Department, BIS implemented changes to the EAR consistent with the new authorizations issued by OFAC. BIS has expanded License Exception CCD and made minor technical changes to ensure authorization of certain personal communication devices to Sudan.
Consumer Communications Devices
On January 15, 2015, BIS amended License Exception CCD to authorize the export of certain items to Cuba. The new change by BIS adds Sudan as an authorized destination for the license exception. In addition License Exception CCD now includes authorization to export certain Global Positioning System receivers and similar satellite receivers to Sudan only. The items authorized under CCD for Sudan overlap with OFAC’s new authorizations and include (but are not limited to):
- Network access controllers and communications channel controllers
- Mobile phones
- Satellite telephones
- Personal digital assistants
- Consumer software to be used for equipment described in this list
Reexport of Items Subject to the EAR
BIS amended Section 742.10 of the EAR and no longer requires a license for non-U.S. Persons to reexport specified U.S. Origin items to Sudan. The items which no longer require a license for reexport are those classified under the following ECCNs: 2A994, 3A992.a, 5A991.g, 5A992, 5D992.b or .c, 6A991, 6A998, 7A994, 8A992.d, .e, .f, and .g, 9A990.a and .b, and 9A991.d and .e. In addition, these items are not included in the de minimis calculation for Sudan.
The new authorization permits U.S. Persons to provide certain free of charge services and items to the Government to Sudan. However, the Government of Sudan continues to be a prohibited end user for the direct or indirect export of fee-based services and hardware directly under both OFAC and BIS regulations. Both agencies have modified their specific licensing review policy from a policy of denial to a case-by-case assessment for personal communication services, software or hardware (OFAC) and for medical and telecommunications equipment (BIS).