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Frequently Asked Questions (FAQs) concerning Software Exports & Re-Exports
Q: Is the export or reexport of software in machine readable code subject to the EAR when the source code for such software is publicly available?
A: If the source code of a software program is publicly available, then the machine readable code compiled from the source code is software that is publicly available and therefore not subject to the EAR.
Q: Is the export or reexport of software sold at a price that does not exceed the cost of reproduction and distribution subject to the EAR?
A: Software in machine readable code is publicly available if it is available to a community at a price that does not exceed the cost of reproduction and distribution. Such reproduction and distribution costs may include variable and fixed allocations of overhead and normal profit for the reproduction and distribution functions either in your company or in a third party distribution system. In your company, such costs may not include recovery for development, design, or acquisition. In this case, the provider of the software does not receive a fee for the inherent value of the software.
Q: Is the export or reexport of software subject to the EAR if it is sold at a price BIS concludes in a classification letter to be sufficiently low so as not to subject it to the EAR?
A: In response to classification requests, BIS may choose to classify certain software as not subject to the EAR even though it is sold at a price above the costs of reproduction and distribution as long as the price is nonetheless sufficiently low to qualify for such a classification in the judgment of BIS. |
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