U.S. Department of Commerce
Export Administration Regulations (EAR)
Regulatory authority and scope
The Export Administration Regulations (EAR) 15 CFR 730-774, regulate the export of "dual use" items - i.e. goods and related technology, including software, that are designed for commercial purposes but could have military or other strategic applications. The list of EAR-controlled items (the Commerce Control List or CCL) is published at 15 CFR 774.
Items, technology, and software subject to the EAR are assigned an export control classification number (ECCN), based on a category and product group. There are ten categories and five product groups within each category. The ten categories are:
0) Nuclear materials, Facilities and Equipment, and Miscellaneous
1) Materials, Chemicals, Microorganisms, and Toxins
2) Materials Processing
5) (Part 1) Telecommunications and Information Security
5) (Part 2) Information Security
6) Lasers and Sensors
7) Navigation and Avionics
9) Propulsion Systems, Space Vehicles, and Related Equipment
The CCL is a "positive list"; in other words, if an item is not listed on the CCL, then, generally, the EAR does not apply. The EAR also controls the export of purely commercial commodities in support of U.S. trade and embargo policies. Purely commercial items are classified as EAR99 and have very few export restrictions, although an export license may be required depending on the country involved, the entity to whom the export will be made, and the end use of the item being exported. The export reform initiative has moved some less sensitive military items from the ITAR to the EAR; these items have more restrictions that many others on the CCL. They are referred to as 600-series items.
For goods and services listed on the CCL, a license may be required for export (depending on the country to which the export occurs), unless an exclusion or exemption applies. Where embargoed countries are involved, a license request will usually be denied.
Export is defined in 15 CFR 732.2(b) as an actual shipment or transmission of items subject to the EAR out of the U.S., as well as the release of technology or software subject to the EAR in a foreign country or to a foreign national either in the U.S. or abroad.
Deemed export is defined in 15 CFR 732.(b)(ii) as any release of technology or source code subject to the EAR to a foreign national, regardless of location. The release is deemed to be an export to the home country or countries of the foreign national. For the purposes of the EAR, legal U.S. permanent residents, naturalized citizens, and individuals protected under the Immigration and Naturalization Act are not considered to be foreign nationals.
Reexport is defined in 15 CFR 732(b)(4) as an actual shipment or transmission of items subject to the EAR from one foreign country to another foreign country. It also means the release of technology or software subject to the EAR to a foreign national outside the U.S. (deemed reexport).
De Minimus U.S. content is discussed in 15 CFR 734.4 as the amount of U.S. content, as determined by percentage of value of the U.S. content in the end item, required to make a foreign-produced item subject to the EAR. For some items, there is no de minimus content, meaning that any U.S. content will make the foreign-produced item controlled under the EAR. For other items the de minimus U.S. content for a foreign-produced item may be 10% or 25% of the total value.
Published Information and Software is defined in 15 CFR 734.7. Information is published when it is accessible to the interested public in any form. Publications may take the form of periodicals, books, print, electronic, public web sites, or any other media available for general distribution. General distribution may be defined as available to an interested community, such as a technical journal available to scientists in a relevant field, so long as the price charged for the publication does not exceed the cost of reproduction and distribution. Articles submitted to journals for consideration for publication are considered to be published, regardless of whether or not they are accepted. Published information also includes information readily available in libraries, as well as patents and published patent applications. Finally, release of information at a conference open to the participation of all technically qualified persons is considered to be publication of that information. Software is published when it is available for general distribution either free or at the cost of distribution. However, strong encryption software remains controlled, regardless of general availability.
Technology: The ITAR and EAR differ on their treatment of technology associated with controlled items. All "technical data" related to an item controlled by the ITAR are also controlled for export. Similarly, the EAR control technology ("specific information necessary for the 'development, ' 'production,' or 'use' of a product); however, the definition of "use" includes operation, installation, maintenance, repair, overhaul and refurbishing. Unless all six elements of "use" are included in the technology, foreign nationals usually have the ability to use EAR-controlled equipment in labs and classrooms.
License exceptions under the EAR
While the CCL is much more extensive than the USML, many fewer licenses are required for items controlled under the EAR than under the ITAR. This is because of the many license exceptions that may be available for EAR-controlled exports. It is important to understand that there are limitations on the use of the license exceptions (see 15 CFR 740.2), and that the use of a license exception may have associated recordkeeping and notification requirements.
More than one license exception may be available for a proposed activity. In such cases, the use of the exception with the fewest restrictions on use and least notification and recordkeeping requirements will minimize the compliance burden.
A common license exception available for university activities is TMP, which applies to the temporary export of University-owned equipment, including laptop computers and other equipment listed on the CCL, for work-related activities, including professional presentations, teaching, and field research. There are important limitations on the use of the TMP exception, and it is not available for certain technologies such as strong encryption software, or certain destinations such as embargoed countries. Before using TMP or any license exception, contact the Export Control Officer in Sponsored Projects.
The Department of Commerce encourages exporters to use the detailed descriptions in the CCL to self-classify items to be exported. However, in the event of an incorrect classification, the exporter is liable for any resulting violations of the EAR and may be subject to resulting penalties. Self-classification may be particularly difficult in the university environment where cutting edge research pushes the boundaries of existing technologies, and in fact may not precisely meet the technical specifications as described in the existing CCL listing. When unsure about a self-classification, the exporter may submit the item/technology to the Department of Commerce for a formal classification. Contact the Export Control Officer in Sponsored Projects for assistance with classifying items/technology and the submission of Commodity Classification requests.
Anti-Boycott Restrictions in the EAR
The Anti-Boycott provisions of the EAR were designed and implemented to address foreign governments' boycott of countries friendly to the U.S. The provisions are found in 15 CFR 760. The anti-boycott provisions specifically prohibit the following activities:
· Agreement to refuse or actual refusing to do business with a boycotted country or with blacklisted person
· Agreement to discriminate or actual discrimination against other persons based on race, religion, sex, national origin, or nationality (for example, agreeing to refuse to hire Israeli nationals)
· Providing information about race, religion, sex, or national origin of another person
· Furnishing information about business relationships with boycotted countries or blacklisted persons (for example, providing information about current or previous business in Israel)
· Furnishing information about membership concerning associations with charitable and fraternal organizations
· Paying or otherwise implementing letters of credit containing prohibited conditions or requirements
U.S. persons asked to engage in the prohibited activities are required to report the request to the Department of Commerce. If you encounter boycott language in a University activity, please contact the Export Control Officer in Sponsored Projects.