---
kind: "range"
citation: "15 C.F.R. §§ 734.2–734.5"
title: "15"
from: "734.2"
to: "734.5"
count: 4
url: "https://uscodex.org/cfr/15/734.2..734.5"
---

# §734.2. Subject to the EAR.

- (a) **Subject to the EAR—Definition.**
  - (1) **“Subject to the EAR—** ” is a term used in the EAR to describe those items and activities over which BIS exercises regulatory jurisdiction under the EAR. Conversely, items and activities that are not subject to the EAR are outside the regulatory jurisdiction of the EAR and are not affected by these regulations. The items and activities subject to the EAR are described in §§ [734.2 through 734.5](/cfr/15/734.2..734.5.md) and [734.9](/cfr/15/734.9.md) of this part. You should review the Commerce Control List (CCL) and any applicable parts of the EAR to determine whether an item or activity is subject to the EAR. However, if you need help in determining whether an item or activity is subject to the EAR, see [§ 734.6](/cfr/15/734.6.md) of this part. Publicly available technology and software not subject to the EAR are described in §§ [734.7](/cfr/15/734.7.md), [734.8](/cfr/15/734.8.md), and [734.10](/cfr/15/734.10.md). The Bureau of Industry and Security (BIS) website at https://www.bis.doc.gov contains several practical examples describing publicly available technology and software that are outside the scope of the EAR under the FAQ section of the website. See the FAQs under the heading, EAR Definitions, Technology and Software, Fundamental Research, and Patents FAQs. The examples are illustrative, not comprehensive.
  - (2) Items and activities subject to the EAR may also be controlled under export-related programs administered by other agencies. Items and activities subject to the EAR are not necessarily exempted from the control programs of other agencies. Although BIS and other agencies that maintain controls for national security and foreign policy reasons try to minimize overlapping jurisdiction, you should be aware that in some instances you may have to comply with more than one regulatory program.
  - (3) The term “subject to the EAR” should not be confused with licensing or other requirements imposed in other parts of the EAR. Just because an item or activity is subject to the EAR does not mean that a license or other requirement automatically applies. A license or other requirement applies only in those cases where other parts of the EAR impose a licensing or other requirement on such items or activities.
- (b) [Reserved]

# §734.3. Items subject to the EAR.

- (a) Except for items excluded in [paragraph (b)](#b) of this section, the following items are subject to the EAR:
  - (1) All items in the United States, including in a U.S. Foreign Trade Zone or moving intransit through the United States from one foreign country to another;
  - (2) All U.S. origin items wherever located;
  - (3) 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:
    - (i) In any quantity, as described in [§ 734.4(a)](/cfr/15/734.4.md?p=a) of this part; or
    - (ii) In quantities exceeding the de minimis levels, as described in [§ 734.4(c)](/cfr/15/734.4.md?p=c) or [§ 734.4(d)](/cfr/15/734.4.md?p=d) of this part;
  - (4) Certain foreign-produced “direct products” of specified “technology” and “software,” as described in [§ 734.9](/cfr/15/734.9.md) of the EAR; and
  - (5) Certain foreign-produced products of a complete plant or any major component of a plant that is a “direct product” of specified “technology” or “software” as described in [§ 734.9](/cfr/15/734.9.md) of the EAR.
- (b) **The following are not subject to the EAR—**
  - (1) Items that are exclusively controlled for export or reexport by the following departments and agencies of the U.S. Government which regulate exports or reexports for national security or foreign policy purposes:
    - (i) **Department of State.** The International Traffic in Arms Regulations ([22 CFR parts 120-130](/cfr/22/part120-130.md)) administered by the Directorate of Defense Trade Controls relate to defense articles and defense services on the U.S. Munitions List ([22 CFR part 121](/cfr/22/part121.md)). Section 38 of the Arms Export Control Act ([22 U.S.C. 2778](/usc/22/2778.md)). (Also see [paragraph (b)(1)(vi)](#b-1-vi) of this section).
    - (ii) **Treasury Department, Office of Foreign Assets Control (OFAC).** Regulations administered by OFAC implement broad controls and embargo transactions with certain foreign countries. These regulations include controls on exports and reexports to certain countries ([31 CFR chapter V](/cfr/31/chV.md)). Trading with the Enemy Act (50 U.S.C. app. [section 1](/cfr/15/1.md) et seq.), and International Emergency Economic Powers Act ([50 U.S.C. 1701](/usc/50/1701.md), et seq.)
    - (iii) **U.S. Nuclear Regulatory Commission (NRC).** Regulations administered by NRC control the export and reexport of commodities related to nuclear reactor vessels ([10 CFR part 110](/cfr/10/part110.md)). Atomic Energy Act of 1954, as amended (42 U.S.C. [part 2011](/cfr/15/part2011.md) et seq.).
    - (iv) **Department of Energy (DOE).** Regulations administered by DOE control the export and reexport of technology related to the production of special nuclear materials ([10 CFR part 810](/cfr/10/part810.md)). Atomic Energy Act of 1954, as amended ([42 U.S.C. section 2011](/usc/42/2011.md) et seq.).
    - (v) **Patent and Trademark Office (PTO).** Regulations administered by PTO provide for the export to a foreign country of unclassified technology in the form of a patent application or an amendment, modification, or supplement thereto or division thereof ([37 CFR part 5](/cfr/37/part5.md)). BIS has delegated authority under the Export Administration Act to the PTO to approve exports and reexports of such technology which is subject to the EAR. Exports and reexports of such technology not approved under PTO regulations must comply with the EAR.
    - (vi) **Department of Defense (DoD) and Department of State Foreign Military Sales (FMS) Program.** Items that are subject to the EAR that are sold, leased or loaned by the Department of Defense to a foreign country or international organization under the FMS Program of the Arms Export Control Act pursuant to a Letter of Offer and Acceptance (LOA) authorizing such transfers are not “subject to the EAR,” but rather, are subject to the authority of the Arms Export Control Act.
  - (2) 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; sheet music; 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.
  - (3) **Information and “software” that—**
    - (i) Are published, as described in [§ 734.7](/cfr/15/734.7.md);
    - (ii) Arise during, or result from, fundamental research, as described in [§ 734.8](/cfr/15/734.8.md);
    - (iii) Are released by instruction in a catalog course or associated teaching laboratory of an academic institution;
    - (iv) Appear in patents or open (published) patent applications available from or at any patent office, unless covered by an invention secrecy order, or are otherwise patent information or are for a standards-related activity as described in [§ 734.10](/cfr/15/734.10.md);
    - (v) Are non-proprietary system descriptions; or
    - (vi) **Are telemetry data as defined in Note 2 to Category 9, Product Group E (see supplement no.** 1 to [part 774](/cfr/15/part774.md) of the EAR).
- (c) “Items subject to the EAR” consist of the items listed on the Commerce Control List (CCL) in [part 774](/cfr/15/part774.md) of the EAR and all other items which meet the definition of that term. For ease of reference and classification purposes, items subject to the EAR which are not listed on the CCL are designated as “EAR99.” 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)](/cfr/15/742.6.md?p=a-8) of the EAR, while a determination is made as to whether classification under a revised or new ECCN, or an EAR99 designation, is appropriate.
- (d) Commodity classification determinations and advisory opinions issued by BIS are not, and may not be relied upon as, determinations that the items in question are “subject to the EAR,” as described in [§ 748.3](/cfr/15/748.3.md) of the EAR.
- (e) Items subject to the EAR may be exported, reexported, or transferred in country under licenses, agreements, or other approvals from the Department of State's Directorate of Defense Trade Controls pursuant to §§ [120.5(b)](/cfr/15/120.5.md?p=b) and [126.6(c)](/cfr/15/126.6.md?p=c) of the International Traffic in Arms Regulations (ITAR) (22 CFR [120.5(b)](/cfr/22/120.5.md?p=b) and [126.6(c)](/cfr/22/126.6.md?p=c)). Exports, reexports, or in-country transfers not in accordance with the terms and conditions of a license, agreement, or other approval under [§ 120.5(b)](/cfr/15/120.5.md?p=b) of the ITAR requires separate authorization from BIS. Exports, reexports, or in-country transfers of items subject to the EAR under a Foreign Military Sales case that exceed the scope of [§ 126.6(c)](/cfr/15/126.6.md?p=c) of the ITAR or the scope of actions made by the Department of State's Office of Regional Security and Arms Transfers require separate authorization from BIS.

# §734.4. De minimis U.S. content.

- (a) **Items for which there is no de minimis level.**
  - (1) There is no de minimis level for the export from a foreign country of a foreign-made computer with an Adjusted Peak Performance (APP) exceeding that listed in ECCN 4A003.b and containing U.S.-origin controlled semiconductors (other than memory circuits) classified under ECCN 3A001 to Computer Tier 3 destinations; or exceeding an APP listed in ECCN 4A994.b and containing U.S.-origin controlled semiconductors (other than memory circuits) classified under ECCN 3A001 or high speed interconnect devices (ECCN 4A994.j) to Cuba, Iran, North Korea, and Syria.
  - (2) Foreign produced encryption technology that incorporates U.S. origin encryption technology controlled by ECCN 5E002 is subject to the EAR regardless of the amount of U.S. origin content.
  - (3) There is no de minimis level for equipment meeting the parameters in ECCN 3B993.f.1 of the Commerce Control List in supplement no. 1 to [part 774](/cfr/15/part774.md) of the EAR, when the equipment is destined for use in the “development” or “production” of “advanced-node integrated circuits” and the “advanced-node integrated circuits” meet the parameter specified in [paragraph (1)](#a-1) of that definition in [§ 772.1](/cfr/15/772.1.md) of the EAR, unless the country from which the foreign-made item was first exported 1 has this commodity specified on an export control list.
  - (4) There is no de minimis level for U.S.-origin technology controlled by ECCN 9E003.a.1 through a.6, a.8, .h, .i, and .l, when redrawn, used, consulted, or otherwise commingled abroad.
  - (5) There is no de minimis level for foreign-made “military commodities” incorporating one or more of the commodities described in ECCN 0A919.a.1 when destined for a country listed in Country Group D:5 of supplement no. 1 to [part 740](/cfr/15/part740.md) of the EAR.
  - (6) 9x515 and “600 series.”
    - (i) There is no de minimis level for foreign-made items that incorporate U.S.-origin 9x515 or “600 series” items enumerated or otherwise described in paragraphs .a through .x of a 9x515 or “600 series” ECCN when destined for a country listed in Country Group D:5 of supplement no. 1 to [part 740](/cfr/15/part740.md) of the EAR.
    - (ii) There is no de minimis level for foreign-made items that incorporate U.S.-origin 9x515 or “600 series” .y items when destined for a country listed in Country Group E:1 or E:2 of supplement no. 1 to [part 740](/cfr/15/part740.md) of the EAR or for Belarus, the People's Republic of China (PRC), or Russia.
  - (7) Under certain rules issued by the Office of Foreign Assets Control, certain exports from abroad by U.S.-owned or controlled entities may be prohibited notwithstanding the de minimis provisions of the EAR. In addition, the de minimis rules do not relieve U.S. persons of the obligation to refrain from supporting the proliferation of weapons of mass-destruction and missiles as provided in [§ 744.6](/cfr/15/744.6.md) of the EAR.
  - (8) There is no de minimis level related to the SME FDP rule for a commodity meeting the parameters in ECCNs 3B001.a.4, c, d, f.1, f.5, f.6, k to n, p.2, p.4, r, or 3B002.c of the Commerce Control List (CCL) in supplement no. 1 to [part 774](/cfr/15/part774.md) of the EAR, when the commodity contains a U.S.-origin integrated circuit specified under Category 3, 4, or 5 of the CCL, and the commodity is destined for Macau or a destination specified in Country Group D:5, unless excluded from the national security license requirement in [§ 742.4(a)(4)](/cfr/15/742.4.md?p=a-4) or the regional stability license requirement in [§ 742.6(a)(6)](/cfr/15/742.6.md?p=a-6) of the EAR.
  - (9) For items related to the Footnote 5 FDP rule, there is no de minimis level for an item meeting the parameters in ECCNs specified in Category 3B (except 3B001.a.4, c, d, f.1, f.5, f.6, k to n, p.2, p.4, r, or 3B002.c) of the Commerce Control List (CCL) in supplement no. 1 to [part 774](/cfr/15/part774.md) of the EAR, when the commodity contains a U.S.-origin integrated circuit specified under Category 3, 4, or 5 of the CCL, and the commodity is destined for an entity with a Footnote 5 designation in the license requirement column of the Entity List in supplement no. 4 to [part 744](/cfr/15/part744.md) of the EAR, or to an end-user “facility” located in Macau or a destination specified in Country Group D:5 when there is “knowledge” that the commodities will be used in the “production” of logic or DRAM “advanced-node integrated circuits.”
- (b) **Special requirements for certain Category 5, Part 2 items.** Non-U.S.-made items that incorporate U.S.-origin items that are listed in this paragraph are subject to the EAR unless they meet the de minimis level and destination requirements of paragraph [(c)](#c) or [(d)](#d) of this section and the requirements of this paragraph.
  - (1) The U.S.-origin commodities or software, if controlled under ECCN 5A002, ECCN 5B002, equivalent or related software therefor classified under ECCN 5D002, and “cryptanalytic items” or digital forensics items (investigative tools) classified under ECCN 5A004 or 5D002, must have been:
    - (i) Publicly available encryption source code classified under ECCN 5D002 that has met the criteria specified in [§ 742.15(b)](/cfr/15/742.15.md?p=b), see [§ 734.3(b)(3)](/cfr/15/734.3.md?p=b-3) of the EAR. Such source code does not have to be counted as controlled U.S.-origin content in a de minimis calculation;
    - (ii) Authorized for License Exception ENC by BIS after classification pursuant to [§ 740.17(b)(3)](/cfr/15/740.17.md?p=b-3) of the EAR;
    - (iii) Authorized for License Exception ENC by BIS after classification pursuant to [§ 740.17(b)(2)](/cfr/15/740.17.md?p=b-2) of the EAR, and the non-U.S.-made product will not be sent to any destination in Country Groups E:1 and E:2 in Supplement No. 1 to [part 740](/cfr/15/part740.md) of the EAR; or
    - (iv) Authorized for License Exception ENC pursuant to [§ 740.17(b)(1)](/cfr/15/740.17.md?p=b-1) of the EAR.
  - (2) The U.S.-origin encryption items are classified under ECCNs 5A992, 5D992, or 5E992.b.
- (c) **10% De Minimis Rule.** Except as provided in paragraphs [(a)](#a) and [(b)(1)(iii)](#b-1-iii) of this section and subject to the provisions of paragraphs [(b)(1)(i)](#b-1-i), [(b)(1)(ii)](#b-1-ii) and (b)(2) of this section, the following reexports are not subject to the EAR when made to any country in the world. See supplement no. 2 of this part for guidance on calculating values.
  - (1) Reexports of a foreign-made commodity incorporating controlled U.S.-origin commodities or “bundled” with U.S.-origin software valued at 10% or less of the total value of the foreign-made commodity;
  - (2) Reexports of foreign-made software incorporating controlled U.S.-origin software valued at 10% or less of the total value of the foreign-made software; or
  - (3) Reexports of foreign technology commingled with or drawn from controlled U.S.-origin technology valued at 10% or less of the total value of the foreign technology. Before you may rely upon the de minimis exclusion for foreign-made technology commingled with controlled U.S.-origin technology, you must file a one-time report. See supplement no. 2 to [part 734](/cfr/15/part734.md) for submission requirements.
- (d) **25% De Minimis Rule.** Except as provided in [paragraph (a)](#a) of this section and subject to the provisions of [paragraph (b)](#b) of this section, the following reexports are not subject to the EAR when made to countries other than those listed in Country Group E:1 or E:2 of supplement no. 1 to [part 740](/cfr/15/part740.md) of the EAR. See supplement no. 2 to this part for guidance on calculating values.
  - (1) Reexports of a foreign-made commodity incorporating controlled U.S.-origin commodities or “bundled” with U.S.-origin software valued at 25% or less of the total value of the foreign-made commodity;
  - (2) Reexports of foreign-made software incorporating controlled U.S.-origin software valued at 25% or less of the total value of the foreign-made software; or
  - (3) Reexports of foreign technology commingled with or drawn from controlled U.S.-origin technology valued at 25% or less of the total value of the foreign technology. Before you may rely upon the de minimis exclusion for foreign-made technology commingled with controlled U.S.-origin technology, you must file a one-time report. See supplement no. 2 to [part 734](/cfr/15/part734.md) for submission requirements.
- (e) You are responsible for making the necessary calculations to determine whether the de minimis provisions apply to your situation. See supplement no. 2 to [part 734](/cfr/15/part734.md) for guidance regarding calculation of U.S. controlled content.
- (f) See [§ 770.3](/cfr/15/770.3.md) of the EAR for principles that apply to commingled U.S.-origin technology and software.
- (g) **Recordkeeping requirement.** The method by which you determined the percentage of U.S. content in foreign software or technology must be documented and retained in your records in accordance with the recordkeeping requirements in [part 762](/cfr/15/part762.md) of the EAR. Your records should indicate whether the values you used in your calculations are actual arms-length market prices or prices derived from comparable transactions or costs of production, overhead, and profit.

# §734.5. Activities of U.S. and foreign persons subject to the EAR.


The following kinds of activities are subject to the EAR:

- (a) Specific activities of “U.S. persons,” wherever located, related to the proliferation of nuclear explosive devices, “missiles,” chemical or biological weapons, whole plants for chemical weapons precursors, and certain military-intelligence end uses and end users as described in [§ 744.6](/cfr/15/744.6.md) of the EAR.
- (b) Activities of U.S. or foreign persons prohibited by any order issued under the EAR, including a Denial Order issued pursuant to [part 766](/cfr/15/part766.md) of the EAR.