The list of EAR-controlled items (the "Commerce Control list", or “CCL”) is published at 15 CFR §774, Supplement 1. An alphabetical list of CCL "items" is accessible at: http://www.access.gpo.gov/bis/ear/pdf/indexccl.pdf. EAR "technical data" can include blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals, and instructions written or recorded on other media or devices such as disk, tape, and read-only memories. EAR "technical assistance" can include instruction, skills training, working knowledge, and consulting services.

The CCL covers ten (10) broad categories of commodities, technology, and software subject to the export licensing authority of BIS:

1. Nuclear Materials, Facilities and Equipment, and Miscellaneous
2. Materials, Chemicals, Microorganisms, and Toxins
3. Materials Processing
4. Electronics
5. Computers
6. Telecommunications and Information Security
7. Lasers and Sensors
8. Navigation and Avionics
9. Marine
10. Propulsion Systems, Space Vehicles, and Related Equipment

For goods and technology listed on the CCL, a license may be required for exporting, depending on the destination country, receiving party, end-user, and end use, unless an exclusion or exemption applies. Where embargoed countries are involved (refer to “OFAC Sanctions Program”), a license will be denied.

In addition, the regulations include an additional “catch-all” category, the "EAR99," which covers any good or technology that is subject to the EAR as defined in 15 CFR §734.3(a), but that is not on the CCL. Items in the EAR99 category do not require a license for “list-based” controls, but may require a license based on embargoes, sanctions, receiving party or end use.

The following five types of facts determine your obligations under the ten general prohibitions set forth in EAR 15CFR Part 736:

1. Classification. The classification of the item on the Commerce Control List (15CFR Part 774 of the EAR);
2. Destination. The country of ultimate destination for an export or reexport (15CFR Parts 738 and 774 which addresses the Country Chart and the Commerce Control List);
3. End-user. The ultimate end user (see General Prohibition Four (paragraph (b)(4) of this section) and Supplement No. 1 to part 764 of the EAR for references to persons with whom your transaction may not be permitted; see General Prohibition Five (Paragraph (b)(5) of this section) and part 744 for references to end-users for whom you may need an export or reexport license);
4. End-use. The ultimate end user, General Prohibition Four (15CFR736(b)(4)) and Supplement No. 1 to part 764 for references to persons with whom your transaction may not be permitted; General Prohibition Five (15CFR736(b)(5)) and Part 744 for references to end-users for whom you may need an export or reexport license; and
5. Conduct. Conduct such as contracting, financing, and freight forwarding in support of a proliferation project as described in 15CFR Part 744 of the EAR.

EAR Broad Based Controls

Comprehensive controls

§ 746.2 CUBA
§ 746.7 IRAN
§ 746.9 SYRIA

Sanctions on selected categories of items to specific destinations

Sanctions on selected categories of items to specific destinations. 

1. BIS controls the export and reexport of selected categories of items to countries under United Nations Security Council arms embargoes. See the Commerce Control List in Supplement No. 1 to Part 774. See also §§ 746.3 (Iraq) and 746.4 (North Korea).
2. The countries subject to United Nations Security Council arms embargoes are: Central African Republic, Democratic Republic of the Congo, Eritrea, Iran, Iraq, Lebanon, Libya, North Korea, Somalia, and Sudan.

Sanctions

• § 746.3 IRAQ
• § 746.4 NORTH KOREA
• § 746.5 RUSSIAN INDUSTRY SECTOR SANCTIONS
• § 746.6 CRIMEA REGION OF UKRAINE
• § 746.7 IRAN
• § 746.9 SYRIA

ITAR defines “defense articles,” 22CFR120.6, to mean articles found on the U.S. Munitions List (USML) (22CFR§121.1).   A “defense article” refers any item or technical data designated in §121.1.

ITAR defines “technical data”, §120.10, as information that is required, in any physical form, for the designs, development , production, manufacture, assembly, operation, repair, testing, maintenance, or modification of a defense article. Any information that reveal technical data directly relating to items designated in §121.1.  It also includes forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles.

ITAR defines “defense services”, 15CFRPart120.9, to mean: (1) the furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles; (2) the furnishing to foreign persons of any technical data controlled under this subchapter (§120.10), whether in the United States or abroad; or (3) military training of foreign units and forces, regular and irregular, including formal or informal  instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.  Note; Prior to entering in an agreement to provide defenses services requires the approval of the Directorate of Defense Trade Controls before the defense services may be furnished.

The revised Part 810 regulations are more specific about activities, as noted below:

• Chemical conversion and purification of uranium, thorium, plutonium or neptunium
• Nuclear fuel fabrication
• Uranium or plutonium isotope separation (enrichment)
• Nuclear reactor development, production or use of reactor components
• Development, production or use of production accelerator-driven subcritical assembly systems
• Heavy water production
• Reprocessing of irradiated nuclear fuel or targets containing special nuclear material
• The transfer of technology for the development, production, or use of equipment or material especially designed or prepared for any of the above listed activities

Activities listed in 10 CFR 810 (above) will fall in one of the following three categories:

Category I. Activities NOT in the scope of 10 CFR 810

• Exports authorized under NRC, EAR, or ITAR
• Transfer of publicly available information, publicly available technology or the results of fundamental research
• Uranium and thorium mining and milling
• Nuclear fusion reactors
• Radiopharmaceutical isotopes not involving special nuclear material
• Transfer of technology to lawful permanent US residents

Category II.  Generally authorized activities, requiring no other authorization, but which do require reporting their use to DoE

• Activities listed in 10 CFR 810 involving a “generally authorized destination” country listed in Appendix A (about 50 countries)
• Transfer of technology to an employee of an NRC-licensed facility, under specified conditions
• Dealing with a radiological emergency, under specified conditions
• Furnishing operational safety information or assistance to existing civilian reactors outside the US, under specified conditions
• Furnishing operational safety information or assistance to new, proposed or existing civilian reactors in the US, under specified conditions
• Exchange programs approved by the Department pf State in consultation with DoE
• Implementing the 1980 US-IAEA agreement for application of safeguards in the US
• IAEA employee activities
• Extraction of molybdenum-99 from irradiated enriched uranium for medical use, under specified conditions

Category III.   Activities requiring specific authorization from DoE

• Activities listed in 10 CFR 810 involving a country not listed in Appendix A as a “generally authorized destination”.
• Transferring sensitive nuclear technology, such as information important to the design, construction, fabrication, operation, or maintenance of a uranium enrichment or nuclear reprocessing facility or a facility for producing heavy water to any non-US country or entity.
• Providing technology or assistance to non-US countries or nationals related to uranium or plutonium isotope separation (enrichment), fabrication of nuclear fuel containing plutonium, heavy water production, an accelerator-driven subcritical assembly system, a production reactor or reprocessing of irradiated nuclear fuels or targets containing special nuclear material.

It is strongly advised to refer to the complete regulations before acting, to be assured whether an activity is outside the scope of Part 810 categories II (generally authorized) or III (specifically authorized).  It is important to address the activity level with respect to requiring specific authorization, as the risk in acting first and then determining that specific authorization was required, it will be too late to fix.

Part 810.5 describes a mechanism through which you can request advice from the Office of Nonproliferation and Arms Control in DoE’s National Nuclear Security Administration (NNSA) on the interpretation of Part 810 as it applies to the facts in your specific case.

If an item is listed on the US Munitions List, it's subject to the State Department's ITAR.

If the item is "specially designed" for one of the US Munition List (USML) items for which "specially designed" applies, it is “caught” and subject to the ITAR, even though it might seem to be an EAR item.  About half the USML categories include "specially designed" items.  Otherwise, it's subject to the BIS’ EAR.

An item is "caught" by the "specially designed" criteria if its development resulted in properties peculiarly responsible for an item on the USML's achieving the performance, characteristics, or functions that make it ITAR-controlled, or if it is a part, component, accessory, attachment, of software for use with a USML item.  However, it can be "released" from the "specially designed" criteria if it is a fastener, is equivalent to a non-USML item already in production, was developed for USML and non-USML items, was developed as a general purpose item, or if determined by the DDTC to be subject to the EAR.  Important note: this is a summary of the ITAR order of review, and is completely described in §121.1(b)(1). The DDTC has designed a decision tool to help determine whether an item is "specially designed".

Review the general characteristics of the item, which should lead to the appropriate USML category, then match the particular characteristics and functions of the item to determine the specific entry within that category. All ITAR-controlled exports require a license from the DDTC, unless they qualify for one of several exemptions. An asterisk is used to classify some ITAR items as Significant Military Equipment, which require stricter controls.

All ITAR-controlled items require a license for export or for transfer to a non-US person anywhere, unless an exemption applies.

• Review the general characteristics of the item, which should lead to the appropriate Commerce Control list (CCL) category and Export Control Classification Number (ECCN).
• Determine the applicable product group: A (end items, equipment, accessories, attachments, parts, components, and systems), B (test, inspection, and production equipment), C (materials), D (software), or E (technology).

• ECCNs 9x515 (satellites, spacecraft, and related items previously controlled under the ITAR) and "600 series" (nx6nn) ECCNs (other items previously controlled under the ITAR) take precedence over other ECCNs.  If the item is described by an entry in 9x515 or nx6xx, other than a "specially designed" paragraph (usually 9x515.x or nx6xx.x), that will be its CCL classification.

  Otherwise, if the item is described by a "specially designed" paragraph in ECCN 9x515 or nx6nn (usually 9x515.x or nx6nn.x): An item is "caught" by the "specially designed" criteria if its development resulted in properties peculiarly responsible for the 9x515 or nx6nn item achieving the performance, characteristics, or functions described in the relevant ECCN or USML paragraph, or if it's a part, component, accessory, attachment, of software for use with a CCL or USML item. However, it can be "released" from the "specially designed" criteria if:

  • it's in an ECCN paragraph that doesn't include "specially designed"; or
  • it's been determined through Commodity Jurisdiction (State Department) or Commodity Classification (CCATS, Commerce Department) to be EAR 99; or
  • it's a fastener; or
  • it's equivalent to an item already in production, not on the USML and if on the CCL controlled only for anti-terrorism (AT) purposes; or
  • it was developed for use with items on the CCL and with items not on the USML and, if on the CCL, controlled only for anti-terrorism (AT) purposes; or
  • it was developed as a general purpose item, not for use in a particular item or type of item; or
  • it was developed for use with items controlled by EAR99, or with items controlled by EAR99 and items controlled by an anti-terrorism (AT) ECCN

If the item was "caught" and not "released", then its ECCN is that of the "specially designed" paragraph that "caught" it.

If none of the criteria in the above-mentioned steps apply, the next aspect of the EAR classification starts at the beginning of the applicable CCL category and respective product group (A, B, C, D or E)which requires review of each ECCN to determine whether it describes the item — the first (most controlled) match and in the CCL manifest is the item's ECCN.

EAR-controlled items may need a license for export, release or transfer to a non-US person anywhere.  The control procedures depend on the ECCN manifest reasons for control, the destination country, the end-user, and end-use.

If no ECCN describes the item, its classification is EAR99, meaning that it's not on the Commerce Control List, but remains as an EAR-controlled item that is subject to controls for restricted end-user, end-use, or destination.

Note the complete description of the EAR’s order of review is described in Supplement No. 4 to 15CFR§774 and in the "specially designed" definition in 15CFR§772.  The BIS has designed an order of review tool, as well as a decision tool, to help determine whether an item is "specially designed."