On May 22, 2015, the Commerce Department’s Bureau of Industry and Security (BIS) amended the near-comprehensive export restrictions on the Crimea region of Ukraine in an effort to facilitate communication between the people of Crimea and the outside world. The U.S. government believes that loosening restrictions on items that enable personal communications is in U.S. national security and foreign policy interests as it may reduce Russia’s ability to control the narrative in the region and may encourage other countries to impose sanctions on Russia.
Prior to the new rule, BIS required a license for all commercial and dual-use exports to Crimea, with the exception of EAR99 food and medicine. BIS now permits exports, without a license, of software that is necessary to enable the exchange of personal communications over the Internet, as long as such software: (1) is classified as EAR99 or as mass market software under Export Control Classification Number (ECCN) 5D992.c and, (2) is widely available to the public at no cost to the user.
The Treasury Department’s Office of Foreign Assets Control (OFAC) published a companion authorization – General License No. 9 – allowing exports to Crimea of certain services and related software incident to the exchange of personal communications over the Internet (e.g., instant messaging, chat and email, social networking, sharing of photos and movies, blogging, and web browsing) as long as these services and software are publicly available at no cost.
In its rule, BIS also clarified that when applying the “deemed export” rule for Crimea (a release of technology or source code to a foreign national, whether in the United States or abroad, is “deemed” to be an export/reexport to that individual’s home country and is subject to the restrictions applicable to that country), the nationality of the individual is the key factor to be considered. In other words, for a Ukrainian national from the Crimea region, the licensing requirements for Ukraine, rather than the more restrictive requirements for Crimea, would apply.
Stay tuned for more export controls developments as the situation in Crimea continues to unfold.