The Export Administration Regulations

The Export Administration Regulations (EAR) are a set of regulations administered by the Bureau of Industry and Security, which is part of the U.S. Commerce Department. In general, the EAR govern what a person may export from the U.S., re-export the item from a foreign country, or transfer an item from one person to another, in a foreign country. The EAR apply to physical things (sometimes referred to as “commodities”) as well as technology and software.

The Export Administration Regulations have very broad application. With only the exceptions noted below, the EAR apply to the following categories of things: all items in the United States of America, including in a U.S. Foreign Trade Zone or moving in transit through the United States of America from one foreign country to another, all U.S. origin items wherever located, foreign-made commodities that incorporate controlled U.S.-origin commodities, foreign-made commodities that are “bundled” with controlled U.S.-origin software, foreign-made software that is commingled with controlled U.S.-origin software, and foreign-made technology that is commingled with controlled U.S.-origin technology in certain quantities (see the “de minimis” rules).

The Export Administration Regulations also apply to the following categories of items: certain foreign-made direct products of U.S. origin technology or software, and certain commodities produced by any plant or major component of a plant located outside the United States of America that is a direct product of U.S.-origin technology or software.

The Export Administration Regulations does not apply, however, to items that are exclusively controlled for export or re-export by the following departments and agencies of the U.S. Government which regulate exports or re-exports for national security or foreign policy purposes: prerecorded phonograph records reproducing in whole or in part, the content of printed books, pamphlets, and miscellaneous publications, including newspapers and periodicals, printed books, pamphlets, and miscellaneous publications including bound newspapers and periodicals, children’s picture and painting books, newspaper and periodicals, unbound, excluding waste, music books, music sheets, calendars and calendar blocks, paper, maps, hydrographical charts, atlases, gazetteers, globe covers, and globes (terrestrial and celestial), exposed and developed microfilm reproducing, in whole or in part, the content of any of the above, exposed and developed motion picture film and soundtrack, and advertising printed matter exclusively related thereto.

The Export Administration Regulations contain a list of rules called “The 10 General Prohibitions”, which provide as follow:

1. You may not, without a license or License Exception, export any item subject to the EAR to another country or re-export any item of U.S.-origin if each of the following is true: “(i) The item is controlled for a reason indicated in the applicable Export Control Classification Number (ECCN), and (ii) Export to the country of destination requires a license for the control reason as indicated on the Country Chart at part 738 of the EAR”.

2. You may not, without a license or license exception, re-export or export from abroad foreign-made commodities that incorporate controlled U.S.-origin commodities, foreign-made commodities that are “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, if such items require a license according to any of the provisions in the EAR and incorporate or are commingled with more than a de minimis amount of controlled U.S. content, as defined in part 734 of the EAR.

3. General Prohibition 3 applies to certain items that are produced outside of the U.S. and that are the “direct product” of U.S. technology or software, or they are developed from a plat which is the “direct product” of U.S. technology or software. Under General Prohibition 3, you may not, without a license or license exception, re-export any item that meets the direct product test to a destination in Country Group D:1, E:1, or E:2, as defined in part 740 of the EAR. Additionally, you may not, without a license or license exception, re-export or export from abroad any foreign-made military commodities that meet the direct product test to a destination in Country Group D:1, D:3, D:4, D:5, E:1, or E:2.

4. You may not take any action that is prohibited by a denial order issued under 15 CFR Part 766. These orders prohibit many actions in addition to direct exports by the person denied export privileges, including some transfers within a single country, either in the United States of America or abroad, by other persons. You are responsible for ensuring that any of your transactions in which a person who is denied export privileges is involved do not violate the terms of the order. Orders denying export privileges are published in the Federal Register when they are issued and are the legally controlling documents in accordance with their terms.

5. You may not, without a license, knowingly export or re-export any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.

6. You may not, without a license or License Exception authorised under part 746, export or re-export any item subject to the EAR to any of the following countries: Cuba, Iraq, North Korea, Russia (with respect to Russian oil and gas industries), Crimea region of the Ukraine, Iran and Syria.

7. U.S. persons may not perform certain activities relating to nuclear explosive devices, missiles, and chemical or biological weapons.

8. Under General Prohibition 8, if you export or re-export an item, it may not pass through any of the following countries without a license: Armenia, Azerbaijan, Belarus, Cambodia, Cuba, Georgia, Kazakhstan, Kyrgyzstan, Laos, Mongolia, North Korea, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam.

9. You may not violate terms or conditions of a license or of a License Exception issued under or made a part of the EAR, and you may not violate any order issued under or made a part of the EAR.

10. You may not sell, transfer, export, re-export, finance, order, buy, remove, conceal, store, use, loan, dispose of, transport, forward, or otherwise service, in whole or in part, any item subject to the EAR and exported or to be exported with knowledge that a violation of the Export Administration Regulations, the Export Administration Act or any order, license, License Exception, or other authorisation issued thereunder has occurred, is about to occur, or is intended to occur in connection with the item. Nor may you rely upon any license or License Exception after notice to you of the suspension or revocation of that license or exception.