(a) Introduction. If your item or activity is subject to the scope of the EAR , you should then consider each of the ten general prohibitions listed in part 736 of the EAR . General Prohibitions One ((Exports and Reexports), Two (Parts and Components Reexports), and Three (Foreign-Produced Direct Product Reexports) (§ 736.2(b) (1), (2), and (3) of the EAR ) are product controls that are shaped and limited by parameters specified on the CCL and Country Chart. General Prohibitions Four through Ten are prohibitions on certain activities that are not allowed without authorization from BIS, and these prohibitions apply to all items subject to the EAR unless otherwise specified (§ 736.2(b) (4) through (10) of the EAR ).
(b) Step 7: Classification. (1) You should classify your items “subject to the EAR ” in the relevant entry on the CCL , and you may do so on your own without BIS assistance. The CCL includes a supplement no. 4 to part 774—Commerce Control List Order of Review. This supplement establishes the steps (i.e., the order of review) that should be followed in classifying items that are “subject to the EAR .” The exporter, reexporter, or transferor is responsible for correctly classifying the items in a transaction, which may involve submitting a classification request to BIS. Failure to classify or have classified the item correctly does not relieve the person of the obligation to obtain a license when one is required by the EAR .
(2) You have a right to request the applicable classification of your item from BIS, and BIS has a duty to provide that classification to you. For further information on how to obtain classification assistance from BIS, see part 748 of the EAR .
(3) For items subject to the EAR but not listed on the CCL , the proper classification is EAR 99. This number is a “basket” for items not specified under any CCL entry and appears at the end of each Category on the CCL .
(4) Items subject to temporary CCL controls are classified under the ECCN 0Y521 series (i.e., 0A521, 0B521, 0C521, 0D521 and 0E521) pursuant to § 742.6(a)(8) of the EAR while a determination is being made as to whether classification under a revised or new ECCN or EAR 99 designation is appropriate.
(c) Step 8: Country of ultimate destination. You should determine the country of ultimate destination. The country of destination determines the applicability of several general prohibitions, License Exceptions, and other requirements. Note that part 754 of the EAR concerning short supply controls is self-contained and is the only location in the EAR that contains both the prohibitions and exceptions applicable to short supply controls.
(d) Step 9: Reason for control and the Country Chart—(1) Reason for control and column identifier within the Export Control Classification Number (ECCN ). Once you have determined that your item is controlled by a specific ECCN , you must use information contained in the “License Requirements” section of that ECCN in combination with the Country Chart to decide whether a license is required under General Prohibitions One, Two, or Three to a particular destination. The CCL and the Country Chart are taken together to define these license requirements. The applicable ECCN will indicate the reason or reasons for control for items within that ECCN . For example, ECCN 6A007 is controlled for national security, missile technology, and anti-terrorism reasons.
(2) Reason for control within the Country Chart. With each of the applicable Country Chart column identifiers noted in the correct ECCN , turn to the Country Chart. Locate the correct Country Chart column identifier on the horizontal axis, and determine whether an “X” is marked in the cell next to the destination in question. Consult § 738.4 of the EAR for comprehensive instructions on using the Country Chart and a detailed example.
(i) An “X” in the cell or cells for the relevant country and reason(s) for control column indicates that a license is required for General Prohibitions One (Exports and Reexports in the Form Received), Two (Parts and Components Reexports), and Three (Foreign-Produced Direct Product Reexports). (See § 736.2 (b)(1), (b)(2), and (b)(3) of the EAR ).
(ii) If one or more cells have an “X” in the relevant column, a license is required unless you qualify for a License Exception described in part 740 of the EAR . If a cell does not contain an “X” for your destination in one or more relevant columns, a license is not required under the CCL and the Country Chart.
(iii) Additional controls may apply to your export. You must go on to steps 12 through 18 described in paragraphs (g) to (m) of this section to determine whether additional limits described in General Prohibition Two (Parts and Components Reexports) and General Prohibition Three (Foreign-Produced Direct Product Reexports) apply to your proposed transaction. If you are exporting an item from the United States, you should skip Step 10 and Step 11. Proceed directly to Step 12 in paragraph (g) of this section.
(3) License requirements not on the Country Chart. There are two instances where the Country Chart cannot be used to determine if a license is required. Items controlled for short supply reasons are not governed by the Country Chart. Part 754 of the EAR contains license requirements and License Exceptions for items subject to short supply controls. A limited number of ECCN s contained on the CCL do not identify a Country Chart column identifier. In these instances, the ECCN states whether a license is required and for which destinations. See § 738.3(a) of the EAR for a list of the ECCN s for which you do not need to consult the Country Chart to determine licensing requirements.
(4) Destinations subject to embargo and other special controls provisions. The Country Chart does not apply to Cuba, Iran, North Korea, and Syria. For those countries you should review the provisions at part 746 of the EAR and may skip this step concerning the Country Chart. For Iraq and Russia, the Country Chart provides for certain license requirements, and part 746 of the EAR provides additional requirements.
(5) Items subject to the EAR but not on the CCL . Items subject to the EAR that are not on the CCL are properly classified EAR 99. For such items, you may skip this step and proceed directly with Step 12 in paragraph (g) of this section.
(e) Step 10: Foreign-made items incorporating controlled U.S.-origin items and the de minimis rules—(1) De minimis rules. If your foreign-made item abroad is a foreign-made commodity that incorporates controlled U.S.-origin commodities, a foreign-made commodity that is ‘bundled’ with controlled U.S.-origin software, foreign-made software that is commingled with controlled U.S.-origin software, or foreign-made technology that is commingled with controlled U.S.-origin technology, then it is subject to the EAR if the U.S.-origin controlled content exceeds the de minimis levels described in Sec. 734.4 of the EAR .
(2) Guidance for calculations. For guidance on how to calculate the U.S.-controlled content, refer to supplement no. 2 to part 734 of the EAR . Note, U.S.-origin technology controlled by ECCN 9E003.a.1 through a.11, and .h, and related controls, and encryption software controlled for “EI” reasons under ECCN 5D002 (not eligible for de minimis treatment pursuant to § 734.4(b) of the EAR ) or encryption technology controlled for “EI” reasons under ECCN 5E002 (not eligible for de minimis treatment pursuant to § 734.4(a)(2) of the EAR ) do not lose their U.S.-origin when redrawn, used, consulted, or otherwise commingled abroad in any respect with other software or technology of any other origin. Therefore, any subsequent or similar software or technology prepared or engineered abroad for the design, construction, operation, or maintenance of any plant or equipment, or part thereof, which is based on or uses any such U.S.-origin software or technology is subject to the EAR .
(f) Step 11: Foreign-produced direct product rule—General Prohibition Three. Foreign-produced items located outside the U.S. that are the direct product of “technology” or “software” subject to the EAR or produced by a plant or major component of a plant located outside the United States that is a direct product of U.S.-origin “technology” or “software” subject to the EAR , whether made in the U.S. or a foreign country, may be subject to the EAR if they meet the conditions of General Prohibition Three in § 736.2(b)(3). Direct products that are subject to the EAR may require a license to be exported from abroad, transferred (in-country), or reexported to specified countries or end users. If your foreign item meets the conditions of the foreign-produced direct product rule (General Prohibition Three), then your export from abroad, transfer (in-country), or reexport is subject to the EAR . You should next consider the steps regarding all other general prohibitions, license exceptions, and other requirements. If your item does not meet the conditions of General Prohibition Three, then your export from abroad, transfer (in-country), or reexport is not subject to the EAR . You have completed the steps necessary to determine whether your transaction is subject to the EAR , and you may skip the remaining steps.
(g) Step 12: Persons denied export privileges. (1) Determine whether your transferee, ultimate end-user, any intermediate consignee, or any other party to a transaction is a person denied export privileges (see part 764 of the EAR ). It is a violation of the EAR to engage in any activity that violates the terms or conditions of a denial order. General Prohibition Four (Denial Orders) applies to all items subject to the EAR , i.e., both items on the CCL and within EAR 99.
(2) There are no License Exceptions to General Prohibition Four (Denial Orders). The prohibition concerning persons denied export privileges may be overcome only by a specific authorization from BIS, something that is rarely granted.
(h) STEP 13: Prohibited end-uses and end-users. (1) Review the end-uses and end-users prohibited under General Prohibition Five (End-Use and End-User) (§ 736.2(b)(5) of the EAR ) described in part 744 of the EAR . Part 744 of the EAR contains all the end-use and end-user license requirements, and those are in addition to the license requirements under General Prohibitions One (Exports and Reexports), Two (Parts and Components Reexports), and Three (Foreign-produced Direct Product Reexports). Unless otherwise indicated, the license requirements of General Prohibition Five (End-Use and End-User) described in part 744 of the EAR apply to all items subject to the EAR , i.e. both items on the CCL and within EAR 99. Moreover, the requirements of General Prohibition Five (End-Use and End-User) are in addition to various end-use and end-user limitations placed on certain License Exceptions.
(2) Under License Exception TSU (§ 740.13 of the EAR ), operation technology and software, sales technology, and software updates overcome General Prohibition Five (End-Use and End-User) (§ 736.2(b)(5) of the EAR ) if all terms and conditions of these provisions are met by the exporter or reexporter.
(i) Step 14: Embargoed countries and special destinations. If your destination for any item is Cuba, Iran, Iraq, North Korea, or Syria, you must consider the requirements of parts 742 and 746 of the EAR . Unless otherwise indicated, General Prohibition Six (Embargo) applies to all items subject to the EAR , i.e., both items on the CCL and within EAR 99. See § 746.1(b) for destinations subject to limited sanctions under United Nations Security Council arms embargoes. See §§ 746.5 for Russian and Belarusian industry sector sanctions, 746.6 for Crimea region of Ukraine and covered regions of Ukraine, 746.8 for Sanctions against Russia and Belarus, and 746.10 for 'luxury goods' sanctions against Russia and Belarus and Russian and Belarusian oligarchs and malign actors. You may not make an export, reexport, or transfer (in-country) contrary to the provisions of part 746 of the EAR without a license unless:
(1) You are exporting, reexporting, or transferring only published information or software as specified in § 734.7 or other items outside the scope of the EAR , or
(2) You qualify for a License Exception referenced in part 746 of the EAR concerning embargoed destinations. You may not use a license exception described in part 740 of the EAR to overcome General Prohibition Six (Embargo) (§ 736.2(b)(6) of the EAR ) unless it is specifically authorized in part 746 of the EAR . Note that part 754 of the EAR concerning short supply controls is self-contained and is the only location in the EAR for both the prohibitions and exceptions applicable to short supply controls.
(j) Step 15: Restrictions on specific activities of “U.S. persons.” (1) Review the scope of activity prohibited by General Prohibition Seven ( “U.S. person” activities) (§ 736.2(b)(7) of the EAR ) as that activity is described in § 744.6 of the EAR . Keep in mind that such activity is not limited to exports, reexports, or transfers (in-country). “U.S. person” activities extend to services and shipping or transmitting certain wholly foreign-origin items, or facilitating such shipments or transmissions, in 'support' of the specified weapons of mass destruction and military-intelligence-related end uses and end users and is not limited to items listed on the CCL or designated EAR 99. See § 744.6(b)(6) of the EAR for the full definition of 'support,' which includes ordering, storing, using, selling, loaning, disposing, servicing, financing, transporting, freight forwarding, or conducting negotiations in furtherance of.
(2) Review the definition of “U.S. person” in § 772.1 of the EAR .
(k) Step 16: In-transit. Shippers and operators of vessels or aircraft should review General Prohibition Eight (In-Transit) to determine the countries in which you may not unladen or ship certain items in-transit. General Prohibition Eight applies to all items subject to the EAR , i.e. both items on the CCL and within EAR 99.
(l) Step 17: Review orders, terms, and conditions. Review the orders, terms, and conditions applicable to your transaction. General Prohibition Nine (Orders, Terms, and Conditions) prohibits the violation of any orders, terms, and conditions imposed under the EAR . Terms and conditions are frequently contained in licenses. In addition, the ten general prohibitions (part 736 of the EAR ) and the License Exceptions (part 740 of the EAR ) impose terms and conditions or limitations on your proposed transactions and use of License Exceptions. A given license or License Exception may not be used unless each relevant term or condition is met.
(m) Step 18: Review the “Know Your Customer” Guidance and General Prohibition Ten (Knowledge Violation to Occur). License requirements under the EAR are determined solely by the classification, end-use, end-user, ultimate destination, and conduct of U.S. persons. Supplement no. 1 to part 732 of the EAR is intended to provide helpful guidance regarding the process for the evaluation of information about customers, end-uses, and end-users. General Prohibition Ten (Knowledge Violation to Occur) prohibits anyone from proceeding with a transaction with knowledge that a violation of the EAR has occurred or is about to occur. It also prohibits related shipping, financing, and other services. General Prohibition Ten applies to all items subject to the EAR , i.e. both items on the CCL and within EAR 99.
(n) Step 19: Complete the review of the general prohibitions. After completion of Steps described in this section and review of all ten general prohibitions in part 736 of the EAR , including cross-referenced regulations in the EAR , you will know which, if any, of the ten general prohibitions of the EAR apply to you and your contemplated transaction or activity.
(1) If none of the ten general prohibitions is applicable to your export from the United States, no license from BIS is required, you do not need to qualify for a License Exception under part 740 of the EAR . You should skip the Steps in § 732.4 of this part regarding License Exceptions and proceed directly to the Steps in § 732.5 of this part regarding recordkeeping, clearing the Bureau of Customs and Border Protection with the appropriate Shipper's Export Declaration or Automated Export System record, and using the required Destination Control Statement.
(2) If none of the ten general prohibitions is applicable to your reexport or export from abroad, no license is required and you should skip all remaining Steps.
(3) If one or more of the ten general prohibitions are applicable, continue with the remaining steps.
[61 FR 12740, Mar. 25, 1996] Editorial Note:For Federal Register citations affecting § 732.3, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.