15 CFR Parts 730-774 are promulgated and implemented by the Department of Commerce, Bureau of Industry and Security (BIS), and regulate the export control, the export and re-export of commercial and dual use (commercial and military/security applications) items, including encrypted software, identified on the Commodity Control List (CCL).
EAR Decision Tree
- Items not designated under the control of another federal agency or listed on the Commodity Control List (CCL) are classified as EAR99.
- The CCL is destination based and export or re-export of both ECCN designated items and EAR99 items are controlled based upon the country of destination.
EAR Unique Definitions
Access Information 15 CFR § 772.1
Access information means information that allows access to encrypted technology or encrypted software in an unencrypted form. Examples include decryption keys, network access codes, and passwords.
Export 15 CFR § 734.13
(1) an actual shipment or transmission out of the U.S., including the sending or taking of an item out of the U.S., in any manner., (2) releasing or otherwise transferring of “technology” or source code (but not object code) to a foreign person in the U.S. (a “deemed export”), or transferring by a person in the U.S. of registration, control, or ownership of spacecraft … (see §734.13(a)(3)).
An export of an item that will transit through a country or countries to a destination identified in the EAR is deemed to be an export to that destination.
Re-export 15 CFR § 734.14
(1) an actual shipment or transmission of items subject to the EAR from one foreign country to another foreign country, including the sending or taking of an item to or from such countries in any manner; (2) releasing or otherwise transferring “technology” or source code subject to the EAR to a foreign person of a country other than the foreign country where the release or transfer takes place (a deemed re-export); (3) transferring by a person outside of the U.S. of registration, control, or ownership of spacecraft (see 734.14(a)(3).
Release as used in 15 CFR § 734.15
(a)Technology or software is “ released ” through:
(i) Visual or other inspection by foreign person of items that reveal “technology” or source code subject to the EAR to a foreign person; or
(ii) Oral or written exchanges with a foreign person of “technology” or source code In the U.S. or abroad
(b) Any act causing the “release” of “technology” or “software,” through the use of “access information” or otherwise, to yourself or another person requires an authorization to the same extent an authorization would be required to export or reexport such “technology” or “software” to that person.
NOTE: Export of encryption source code and object code has special rules, see 15 CFR § 734.17
Export Control Classification Number (ECCN)
The alpha-numeric designation proscribed to a particular item on the CCL according to category and group.
If an item falls under U.S. Department of Commerce jurisdiction and is not listed on the CCL, it is designated as EAR99. EAR99 items generally consist of low-technology consumer goods and do not require a license in many situations. However, if the proposed export of an EAR99 item is to an embargoed country, to an end-user of concern or in support of a prohibited end-use, you may be required to obtain a license.
Commodity Control List (CCL) 15 CFR § 774 Supplement 1
Regulated items are identified on the CCL in the following ten broad categories:
- 0-Nuclear Materials, Facilities and Equipment and Miscellaneous Items
- 1-Materials, Chemicals, "Microorganisms," and Toxins
- 2-Materials Processing
- 3-Electronics Design, Development, and Production
- 5 Part I-Telecommunications
- 5 Part 2-Information Security
- 6-Sensors and Lasers
- 7-Navigation and Avionics
- 9-Aerospace and Propulsion
Within each category, items are arranged by group:
A-Equipment, Assemblies, and Components
B-Test, Inspection, and Production Equipment