Using TMP or BAG Exceptions
When you leave the country, everything you take is an export, including devices, software, and data. Personal effects (clothes, “articles of personal adornment”, toiletries, medicine, etc., “and their containers”) are generally covered by EAR’s BAG (personal baggage) exception. Personal electronic devices (laptop, tablet, PDA, flash drive), technology and research items are a bit more nuanced.
Personal Electronic Devices
Your personal electronic devices (the physical device and ordinary software installed on it) are typically subject to the EAR:
- Laptops, iPhones, Blackberries: 5A992 (HW/SW bundles), 4A994 (HW only)
- Mass market software (Windows, OS X, Office, Adobe products, Visual Studio): 5D992
- Open source software (Linux, Apache): 5D002
For many destinations, the control classification may mean no license is required. If one may be required, there are two exceptions allowing EAR items to be taken without a license.
- If you own the device, the BAG exception allows you to take the device and software for your personal use as “tools of trade” when you travel, with the condition that you must bring it back (EAR §740.14(b)(4)). This can be used for any destination country, but if you plan to travel to one of the Country Group E:1. Terrorist-supporting Countries (currently Cuba, Iran, North Korea, (North) Sudan, and Syria), you cannot use the BAG exception for encryption items and software subject to EI controls on the Commerce Control List, a subset of the 5x002 classifications (EAR §740.14(f)).
- If you’ll be traveling to any of these destinations with unordinary encryption items or software, consult MIT’s Export Control Officer.
- If the device is owned by MIT, the TMP exception allows you to take the device and software “for use in a lawful enterprise or undertaking of the exporter” to countries other than Cuba, (North) Sudan or Syria, with the condition that you must bring it back within a year (EAR §740.9(a)(2)(i)).
- If your destination is one of the restricted countries, please refer to section (B) of this EAR reference for Sudan, or section (C) for Cuba or Syria, and consult MIT’s Export Control Officer.
Fill out this Electronic Devices Form online, then print it to self-certify your electronic device as complying with TMP or BAG. It will demonstrate to a customs officer that you are aware of and have thought through the regulations. Send a copy to the Export Control Officer.
ITAR Technical Data (documents, diagrams, data, software)
- Software or data subject to the ITAR does not qualify for EAR’s BAG and TMP exceptions, and generally cannot be taken out of the country without a State Department license. Software or data within the scope of the ITAR but excluded as the product of fundamental research can be taken, but you may be challenged if the device is inspected. At a minimum, the software or data should be labeled as the product of fundamental research at MIT; better would be to publish it (publicly available website, for instance) and have evidence of its public availability.
- An MIT employee can take ITAR-controlled technical data out of the country without a license from the State Department for the purpose or giving it to another MIT employee, although the data cannot be used for foreign production or providing technical assistance (ITAR §124.4(b)(9)).
- This does not allow the receiving MIT employee to retransfer the ITAR-controlled technical date to a non-US person who is not an MIT employee — that would be the technical assistance form of defense service
EAR technology (documents, diagrams, data)
- Both the BAG and TMP exceptions can be used by US persons to take EAR-controlled technology out of the country. Neither allows the technology to be transferred to a person who would otherwise not be authorized to receive it — to oversimplify, you can carry it and use it, but don’t give it away.
- Neither the BAG nor the TMP exception can be used by non-US persons to take EAR-controlled technology out of the country.
- When using the BAG exception, in addition to the description above under “Personal Electronic Devices”, the technology must be used solely by you or by family members who are US persons, and you must take “adequate security precautions to protect against unauthorized access to the technology while [it] is being transmitted and used overseas” (e.g., password, firewall, VPN).
- When using the TMP exception, in addition to the description above under “Personal Electronic Devices”, the technology must be under your effective control (physical possession of the item, or secured as in a in a hotel safe, a bonded warehouse, or a locked or guarded exhibition facility).
- Fill out, and take with you, a copy of the editable electronic devices form to self-certify your use of the exception. For U.S. government recordkeeping requirements, file a copy with the Export Control Officer before you travel (hard copy, a scan of the signed form, or the unsigned pdf sent from your MIT email account). Take a signed copy with you, and give it to the Customs official if they question or inspect your device.
- MIT faculty and staff can usually take EAR electronic devices and commercial software as tools of trade using the temporary export exception (TMP, see EAR §740.9) . Others can take them as personal items using the baggage exception (BAG, see EAR §740.14).
Research items may appear more “interesting” and more likely to draw attention from customs or security officials than personal technology like a laptop. Even if developed through fundamental research, tangible items such as samples or prototypes are subject to export controls. Items in the scope of the ITAR will always need an export license. Items in the scope of the EAR may need a license, but if they do qualify for the TMP exception (since they’re owned by MIT, the BAG exception doesn’t apply).
It may seem that hand-carrying an item is more reliable, because you’ll accompany it. Consider shipping it in advance instead. The documentation expectations for shipped goods are clearer – get the paperwork right and the item will probably make it. Even if the item does draw attention for detailed inspection, it won’t disrupt your travel. Note that if the item is shipped, it will only qualify for the TMP exception if it can be shipped to an MIT employee.