§ 538.533 - Exportation, reexportation, or provision of certain services, software, and hardware incident to personal communications.

§ 538.533 Exportation, reexportation, or provision of certain services, software, and hardware incident to personal communications.

(a) Subject to the restrictions set forth in paragraph (b) of this section, the following transactions are authorized:

(1) Services. The exportation or reexportation, directly or indirectly, from the United States or by a U.S. person, wherever located, to Sudan of services incident to the exchange of personal communications over the Internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, and blogging.

(2) Software -

(i) Software subject to the EAR. The exportation, reexportation, or provision, directly or indirectly, to Sudan of software subject to the Export Administration Regulations, 15 CFR parts 730 through 774 (the “EAR”), that is necessary to enable services incident to the exchange of personal communications over the Internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, and blogging, provided that such software is designated EAR99 or classified by the U.S. Department of Commerce on the Commerce Control List, 15 CFR part 774, supplement No. 1 (CCL), under export control classification number (ECCN) 5D992.c.

(ii) Software that is not subject to the EAR because it is of foreign origin and is located outside the United States. The exportation, reexportation, or provision, directly or indirectly, by a U.S. person, wherever located, to Sudan of software that is not subject to the EAR because it is of foreign origin and is located outside the United States that is necessary to enable services incident to the exchange of personal communications over the Internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, and blogging, provided that such software would be designated EAR99 if it were located in the United States or would meet the criteria for classification under ECCN 5D992.c if it were subject to the EAR.

(iii) Software that is not subject to the EAR because it is described in 15 CFR 734.3(b)(3). The exportation, reexportation, or provision, directly or indirectly, by a U.S. person, wherever located, to Sudan of software that is not subject to the EAR because it is described in 15 CFR 734.3(b)(3) that is necessary to enable services incident to the exchange of personal communications over the Internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, and blogging.

(3) Additional software, hardware, and related services. To the extent not authorized by paragraph (a)(1) or (a)(2) of this section, the exportation, reexportation, or provision, directly or indirectly, to Sudan of certain software and hardware incident to personal communications, as well as related services, as follows:

(i) In the case of hardware and software subject to the EAR, the items specified in appendix B to this part;

(ii) In the case of hardware and software that is not subject to the EAR because it is of foreign origin and is located outside the United States that is exported, reexported, or provided, directly or indirectly, by a U.S. person, wherever located, to Sudan, hardware and software that is of a type described in appendix B to this part provided that it would be designated EAR99 if it were located in the United States or would meet the criteria for classification under the relevant ECCN specified in appendix B to this part if it were subject to the EAR; and

(iii) in the case of software not subject to the EAR because it is described in 15 CFR 734.3(b)(3) that is exported, reexported, or provided, directly or indirectly, from the United States or by a U.S. person, wherever located, to Sudan, software that is of a type described in the appendix B to this part.

Note to paragraphs (a)(2) and (a)(3):

The authorizations in paragraphs (a)(2) and (a)(3) of this section include the exportation, reexportation, or provision, directly or indirectly, to Sudan of authorized hardware and software by an individual leaving the United States for Sudan.

(4) Internet connectivity services and telecommunications capacity. The exportation or reexportation, directly or indirectly, from the United States or by a U.S. person, wherever located, to Sudan of consumer-grade Internet connectivity services and the provision, sale, or leasing of capacity on telecommunications transmission facilities (such as satellite or terrestrial network connectivity) incident to personal communications.

Note to paragraph (a)(4):

See § 538.512 for authorizations relating to transactions with respect to the receipt and transmission of telecommunications involving Sudan.

(5) Importation into the United States of hardware and software previously exported to Sudan. The importation into the United States of hardware and software authorized for exportation, reexportation, or provision to Sudan under paragraphs (a)(2) and (a)(3) of this section by an individual entering the United States, directly or indirectly, from Sudan, provided that the items previously were exported, reexported, or provided by the individual to Sudan pursuant to paragraphs (a)(2) and (a)(3) of this section.

(6) Exportation, reexportation, or provision of no cost services and software that are widely available to the public to the Government of Sudan. -

(i) Services. The exportation or reexportation, directly or indirectly, from the United States or by a U.S. person, wherever located, to the Government of Sudan of services described in paragraph (a)(1) of this section or categories (6) through (11) of appendix B to this part, provided that such services are widely available to the public at no cost to the user.

(ii) Software. The exportation, reexportation, or provision, directly or indirectly, to the Government of Sudan of software described in paragraph (a)(2) of this section or categories (6) through (11) of appendix B to this part, read in conjunction with paragraph (a)(3) of this section, provided that such software is widely available to the public at no cost to the user.

Note to paragraph (a):

Nothing in this section relieves the exporter from compliance with the export license application requirements of another Federal agency.

(b) This section does not authorize:

(1) The exportation, reexportation, or provision, directly or indirectly, of the services, software, or hardware specified in paragraph (a) of this section with knowledge or reason to know that such services, software, or hardware are intended for the Government of Sudan, except for services or software specified in paragraph (a)(6) of this section.

(2) The exportation, reexportation, or provision, directly or indirectly, of the services, software, or hardware specified in paragraph (a) of this section to any person whose property and interests in property are blocked pursuant to any part of 31 CFR chapter V, other than persons whose property and interests in property are blocked solely pursuant to Executive Order 13067 and Executive Order 13412 as the Government of Sudan.

(3) The exportation or reexportation, directly or indirectly, of commercial-grade Internet connectivity services or telecommunications transmission facilities (such as dedicated satellite links or dedicated lines that include quality of service guarantees).

(4) The exportation or reexportation, directly or indirectly, of web-hosting services that are for commercial endeavors or of domain name registration services.

(5) Any action or activity involving any item (including information) subject to the EAR that is prohibited by, or otherwise requires a license under, part 744 of the EAR or participation in any transaction involving a person whose export privileges have been denied pursuant to part 764 or 766 of the EAR, without authorization from the Department of Commerce.

(c) Effective February 18, 2015, transfers of funds from Sudan or for or on behalf of a person in Sudan in furtherance of an underlying transaction authorized by paragraph (a) of this section may be processed by U.S. depository institutions and U.S. registered brokers or dealers in securities so long as they are consistent with §§ 538.405 and 538.418.

(d) Specific licenses may be issued on a case-by-case basis for the exportation, reexportation, or provision of services, software, or hardware incident to personal communications not specified in paragraph (a) of this section or appendix B to this part.

Note 1 to § 538.533:

This section does not authorize any transaction prohibited by any part of chapter V of 31 CFR other than part 538. Accordingly, the transfer of funds may not be by, to, or through a person whose property and interests in property are blocked pursuant to any other part of 31 CFR chapter V, or any Executive order, except a Sudanese financial institution whose property and interests in property are blocked solely pursuant to 31 CFR part 538.

Note 2 to § 538.533:

See § 538.212(g)(1) for an exemption related to the exportation of certain goods and services to the Specified Areas of Sudan, and § 538.537 for a general license authorizing the transshipment of goods, technology, and services to or from the Republic of South Sudan.

[80 FR 8534, Feb. 18, 2015]