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U.S. Export Controls
and Economic Sanctions
U.S. Export Controls and
Economic Sanctions
Fourth Edition
(formerly The Export Control and
Embargo Handbook)
E R IC L . H I R S C H HO R N
B R IA N J. E G A N
E DWA R D J. K R AU L A N D
1
3
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of
excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press

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© Oxford University Press 2022
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in
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University Press, at the address above.
You must not circulate this work in any other form

and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data

Names: Hirschhorn, Eric L., author. | Egan, Brian J., 1972–author. |
Krauland, Edward J., author.
Title: U.S. export controls and economic sanctions / Eric L. Hirschhorn,
Brian J. Egan, Edward J. Krauland.
Other titles: Export control and embargo handbook | US export controls and
economic sanctions
Description: Fourth edition. | New York : Oxford University Press, [2022] |
Includes bibliographical references and index.
Identifiers: LCCN 2020044441 (print) | LCCN 2020044442 (ebook) | ISBN 9780197582411 (hardback) |
ISBN 9780190068288 (epub) | ISBN 9780190068271 (updf) | ISBN 9780190068295 (digital-online)
Subjects: LCSH: Export controls—United States. | Embargo.
Classification: LCC KF1987 .H57 2021 (print) | LCC KF1987 (ebook) |
DDC 343.7308/78—dc23
LC record available at https://lccn.loc.gov/2020044441
LC ebook record available at https://lccn.loc.gov/2020044442
DOI: 10.1093/oso/9780197582411.001.0001
1 3 5 7 9 8 6 4 2
Printed by Integrated Books International, United States of America
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the subject
matter covered. It is based upon sources believed to be accurate and reliable and is intended to be
current as of the time it was written. It is sold with the understanding that the publisher is not engaged
in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is
required, the services of a competent professional person should be sought. Also, to confirm that the
information has not been affected or changed by recent developments, traditional legal research
techniques should be used, including checking primary sources where appropriate.
(Based on the Declaration of Principles jointly adopted by a Committee of the

American Bar Association and a Committee of Publishers and Associations.)
You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com.
To our families, with gratitude
for their support and encouragement
throughout our professional careers
About the Authors
Eric L. Hirschhorn served as Under Secretary for Industry and Security at the U.S.
Department of Commerce from 2010 until 2017. As head of the Bureau of Industry and
Security, he administered the export controls discussed in chapter 1 of this book and
was a leader in the Obama administration’s Export Control Reform initiative, which
profoundly affected the export controls discussed in c hapters 1 and 2. Before his ser-
vice as Under Secretary, he was for many years a partner in Winston & Strawn LLP.
His law practice there included export controls, economic sanctions, foreign payments,
antiboycott compliance, litigation, and lawyers’ professional responsibility matters. He
previously worked at the U.S. Department of Commerce, the U.S. Office of Management
and Budget (President’s Reorganization Project), and the U.S. House of Representatives.
Mr. Hirschhorn received his law degree from Columbia University and his undergrad-
uate degree from the University of Chicago.
Brian J. Egan is a partner at Skadden, Arps, Slate, Meagher & Flom LLP in Washington,
DC. His practice includes economic sanctions, export controls, foreign investment
reviews, and other international legal disputes and compliance issues. Before entaering
private practice, he served as Legal Advisor to the U.S. Department of State from
2016 to 2017, Deputy White House Counsel and Legal Advisor to the U.S. National
Security Council from 2013 to 2016, and Assistant General Counsel for Enforcement
and Intelligence at the U.S. Department of the Treasury from 2012 to 2013. Mr. Egan
received his law degree from the University of California, Berkeley, and his undergrad-
uate degree from Stanford University.
Edward J. Krauland is a partner in the Washington, DC, office of Steptoe & Johnson
LLP, where he is a member of the International Regulation & Compliance Group. Mr.
Krauland represents companies conducting business internationally, to assist in under-
standing and complying with dual use, defense, and nuclear export controls, economic
sanctions, antiboycott regulations, and anti–money laundering requirements. His
practice includes counseling on compliance programs, reviewing specific transactions
for risk management, securing regulatory licenses and approvals, conducting in-
ternal investigations and risk assessments, and assisting clients in U.S. government
enforcement actions. Prior to joining Steptoe, he served with the Nuclear Regulatory
Commission in the area of nuclear export regulation. He is a graduate of Princeton
University and the University of Michigan Law School.
Preface
This—under a new title—is the fourth edition of a work that first was published in 2000
as The Export Control and Embargo Handbook. A second edition appeared in 2005 and
a third in 2010. In a sense, the work dates from 1987, when Eric Hirschhorn’s chapter
about the export controls administered by the Departments of Commerce and State was
published as part of a larger work on U.S. laws relating to international trade. This edi-
tion of the book, like its three predecessors, covers those two regimes plus the economic
sanctions programs administered by the Treasury Department’s Office of Foreign
Assets Control (OFAC), the controls on exports of nuclear commodities (administered
by the Nuclear Regulatory Commission), and the controls on assistance to foreign nu-
clear activities (administered by the Department of Energy).
Much has changed since the third edition saw the light of day a decade ago. The
Obama administration’s Export Control Reform initiative (ECR) moved thousands of
less sensitive military items from the State Department’s U.S. Munitions List (USML)
to the Commerce Department’s Commerce Control List (CCL). When the transferred
items were on the USML, they routinely were licensed by the State Department for ex-
port to the United States’ closest friends and allies. They now can be exported to those
countries more easily than in the past and in some instances without the need for an
export license. This movement of commodities and technology from the USML to the
CCL greatly reduced the number of export licenses issued by the State Department
and increased the number issued annually by the Commerce Department from about
19,000 (in Fiscal Year 2010) to 34,000 (in Fiscal Year 2019). Additional transfers made
in early 2020 should further increase the Commerce Department’s licensing volume.
The summer of 2018 saw enactment of the Export Control Reform Act of 2018
(ECRA) as well as the related Foreign Investment Risk Review Modernization Act of
2018. The enactment of ECRA marked the first significant overhaul since 1988 of the
law governing the export controls administered by the Commerce Department’s Bureau
of Industry and Security (BIS). In fact, the prior statute—the Export Administration
Act of 1979 (EAA)—had been in lapse for seventeen years when ECRA became law
on August 13, 2018. During this hiatus, as well as during the numerous prior periods
between 1979 and 2001 when the EAA was in lapse, the Commerce Department’s
Export Administration Regulations had been kept in force by means of presidential
declarations of emergency under the National Emergencies Act and the International
Emergency Economic Powers Act.
Economic sanctions administered by OFAC continue to be deployed by the executive
branch as an important tool for addressing national security and foreign policy crises.
The Obama and Trump administrations, and both parties in the U.S. Congress, have
(mostly) expanded and (in some cases) reduced or terminated sanctions in response to
events around the world. During this period of time, U.S. sanctions policy continued to
focus increasingly on “smart sanctions”—that is, targeting specific problematic actors
xxii Preface
and adopting a more nuanced approach to sanctions implementation than the tradi-
tional imposition of sanctions against entire countries. The United States frequently has
pursued a multilateral approach to sanctions though bilateral and regional efforts, as
well as at the U.N. Security Council in certain circumstances.
To highlight the major changes, new sanctions regimes were imposed against Russia,
the Ukraine region of Crimea, and Venezuela; expanded sanctions were applied to
North Korea; and sanctions were relaxed or largely ended against Sudan and Burma
(Myanmar). In the case of Iran, the U.S. government increased sanctions in the run-
up to the 2016 nuclear agreement (the Joint Comprehensive Plan of Action), reduced
nuclear-related sanctions substantially as part of that deal, and then reimposed and
increased sanctions after withdrawing from the agreement in 2018.
The United States also has dramatically ramped up its use of “secondary” sanctions
against foreign persons for dealing with U.S.-sanctioned persons, even when there
is no U.S. jurisdictional “hook” applicable to the foreign person. These sanctions are
controversial internationally, even with U.S. partners and allies, but they appear to be
here to stay. The extraterritorial reach of U.S. sanctions jurisdiction has also been ex-
panded, with several large enforcement actions brought against large non-U.S. banks
and other companies for violations of U.S. sanctions. In light of these changes, this edi-
tion provides an expanded overview of U.S. economic sanctions.
The Nuclear Regulatory Commission’s controls on exports of nuclear commodities
and the Department of Energy (DOE) controls on assistance to foreign nuclear activi-
ties changed little during the decade. The DOE regulations were revised in 2015 for the
first time since 1986; the revision included few substantive changes, though more trans-
parency was achieved in the manner in which DOE administers its rules.
All told, then, the sanctions and export control landscape has changed substantially
since 2009. This volume seeks to reflect those changes. Unless otherwise noted, all
references herein to statutes and regulations are as they existed at December 31, 2020
(except in c hapter 3, for which the cutoff date is May 31, 2020).
This volume, like its predecessors, has been enhanced immeasurably by the con-
structive comments and suggestions of many clients, government officials, professional
colleagues, and others with whom we have worked over the years. In particular, the
authors would like to express appreciation to Martin Willner, an attorney at Steptoe
& Johnson LLP, for his substantial assistance with this edition. This book, however,
expresses only the views of the authors.
The authors have endeavored to make this work accurate, but errors doubtless
exist. We would appreciate receiving readers’ comments and suggestions at any of our
addresses: ELHirschhorn@gmail.com, began@steptoe.com, and ekrauland@steptoe.
com.
Eric L. Hirschhorn
Brian J. Egan
Edward J. Krauland
Washington, DC
April 2021
How to Use This Book
Notice
PERSONS attempting to find a motive in this narrative will be prosecuted;
persons attempting to find a moral in it will be banished; persons attempting
to find a plot in it will be shot.
BY ORDER OF THE AUTHOR, Per G.G., Chief of Ordnance.
—Mark Twain, Huckleberry Finn, Preface
Like Mark Twain’s tongue-in-cheek description of his epic work,1 this book contains
neither a motive, nor a moral, nor a plot. The authors’ intention—and expectation—is
that those working with or studying the U.S. government’s export control and economic
sanctions programs will employ it as a reference work.
This work offers several features that the official regulations do not.
• Although the book roughly follows the order of the regulations, it does not do
so slavishly. Where an agency’s regulations are relevant to one another but are
located in different parts of the Code of Federal Regulations, for example, we have
attempted to discuss them together or at least to include helpful cross-references.
• Where regulations of one agency are relevant to those of another, we have sought
to point out the connections.
• The authors’ collective professional experience dealing with the laws and
regulations covered in this volume totals more than seven decades advising pri-
vate clients about them, plus eighteen years as government officials responsible for
administering them. Accordingly, the volume includes some anecdotes, hints, and
reflections about how their application in practice sometimes can differ from what
their literal wording might appear to require.
It’s important to underscore that this book does not purport to offer legal advice.
Rather, it is intended as a tool for those seeking to improve their understanding and
interpretation of U.S. laws and policies, and to comply with what can be a complicated,
perplexing system of laws and regulations, administered by a host of agencies whose
perspectives and goals sometimes may be inconsistent with one another.
Moreover, the book does not address every aspect of every regulation within its
scope. It should be used as a companion to the regulations rather than as a substitute for
them. In addition to the text of this work, the user should review the actual regulations,
1 Ernest Hemingway declared that “[a]‌ ll modern American literature comes from one book by Mark
Twain called ‘Huckleberry Finn.’ * * * [I]t’s the best book we’ve had. All American writing comes from that.
There was nothing before. There has been nothing as good since.” Ernest Hemingway, The Green Hills of
Africa (1935).
xxiv How to Use This Book
as well as updates to the law and policy made after this book’s cutoff date to ensure com-
pliance with the law.
The appendices of earlier editions of this work included textual excerpts from various
agency regulations. Today these rules are readily available online. Moreover, some are
amended frequently. Accordingly, we have not included any in this fourth edition.
URLs for the U.S. Code and the Code of Federal Regulations, at locations that nor-
mally reflect changes within a matter of days, are:
• U.S. Code: https://uscode.house.gov/browse.xhtml

• Code of Federal Regulations: https://www.ecfr.gov/cgi-bin/ECFR?page=browse
Public Laws enacted since 1995 can be found at:
• https://www.govinfo.gov/app/collection/PLAW
Websites for the agencies whose export controls are addressed in this book are:
• Commerce/BIS: https://www.bis.doc.gov/
• State/DDTC: https://www.pmddtc.state.gov/ddtc_public
• Treasury/OFAC: https://home.treasury.gov/policy-issues/office-of-foreign-assets-
control-sanctions-programs-and-information
• Nuclear Regulatory Commission: https://www.nrc.gov/
• Department of Energy: https://www.energy.gov/
Introduction
United States export controls and economic sanctions have a long history. An early ex-
ample occurred in October 1774, when the First Continental Congress adopted articles
of association that included two commitments. One, effective immediately, was not to
import goods from Great Britain. A second, to take effect a year in the future if cer-
tain objectionable British laws and practices remained in force, was not to export goods
to Great Britain.1 Fighting between British and American troops commenced in April
1775 and the export control commitment took effect September 10 of that year.2 After
the federal government began operations under the Constitution, statutes restricting
arms exports3 and authorizing the president to impose embargoes4 were enacted as
early as 1794.
This book addresses the four U.S. export licensing regimes that are most likely to be
of interest to an exporter: controls on (1) “dual use” (i.e., having recognized civilian and
military applications5) goods, software, and technology,6 (2) defense items,7 (3) nuclear
equipment and radioactive materials,8 and (4) nuclear technology.9 “Dual use” goods
1 1 Journals of Congress 75, 77 (Oct. 20, 1774), http://memory.loc.gov/cgi-bin/ampage?collId=lljc&fileN
ame=001/lljc001.db&recNum=81&itemLink=r?ammem/hlaw:@field(DOCID+@lit(jc00137))%230010080
&linkText=1 (last visited June 27, 2020).
2 Federation of American Scientists, “Export Control Provisions,” at 1 (Oct. 12, 1998), http://www.fas.org/
nuke/control/export/provisions.htm (last visited June 27, 2020).

3 Act of May 22, 1794, ch. 33, 1 Stat. 369. A statute permitting licensing of such exports “in cases connected
with the security of the commercial interest of the United States, and for public purposes only,” was approved
by President George Washington the following year. Act of March 3, 1795, ch. 53, 1 Stat. 444.
4 Act of June 4, 1794, ch. 41, 1 Stat. 372.
5 See 15 C.F.R. § 730.3 (2020).
6 These controls are administered by the U.S. Department of Commerce under the Export Control
Reform Act of 2018, 50 U.S.C. §§ 4801-4852 (2018 & Supp. I 2019) (ECRA), and the Export Administration
Regulations, 15 C.F.R. pts. 730-774 (2020) (the EAR).
7 These items are referred to as “defense articles and defense services.” At one time all such items were
controlled by the Department of State. As a result of the Obama administration’s Export Control Reform
(ECR) initiative, however, control of these items now is divided. Less significant military items are controlled
by the Commerce Department, under the Export Administration Regulations, 15 C.F.R. pts. 730-774 (2020),
while military end items and more significant parts, components, and technology are controlled by the
Directorate of Defense Trade Controls (DDTC), U.S. Department of State, under sections 38 and 39 of the
Arms Export Control Act, 22 U.S.C. §§ 2778-2779 (2018), and the International Traffic in Arms Regulations
(the ITAR), 22 C.F.R. pts. 120-130 (2020).
8 These are regulated by the U.S. Nuclear Regulatory Commission under the Atomic Energy Act of 1954,
42 U.S.C. §§ 2011–2297g-4 (2018), and implementing regulations, 10 C.F.R. pt. 110 (2020). As a general rule,
this regime applies to items inside the containment vessel of a nuclear reactor as well as to nuclear material.
Nuclear commodities not subject to this regime are controlled under the Export Administration Regulations.
9 This is regulated by the U.S. Department of Energy under the Atomic Energy Act of 1954, 42 U.S.C. §§
2011–2297g-4 (2018), and implementing regulations, 10 C.F.R. pt. 810 (2020).
U.S. Export Controls and Economic Sanctions. Eric L. Hirschhorn, Brian J. Egan and Edward J. Krauland, Oxford University Press.
© Oxford University Press 2022. DOI: 10.1093/oso/9780197582411.001.0001
xxvi Introduction
include not only sophisticated items such as computers but also such commonplace
goods as hammers, nails, and shoelaces.
The volume also addresses the major economic sanctions currently imposed by
the United States.10 These are primarily administered by the Office of Foreign Assets
Control, U.S. Department of the Treasury.
At least twenty other licensing regimes apply to exports from the United States. This
figure excludes situations where exports of an item are prohibited outright, with no
provision being made for licensing.11 Also excluded are instances where exports must
be supported by specified documentation but do not require the approval of a federal
agency12 and instances where export inspection by the U.S. government is available as a
service but is not required.13
Federal export licensing regimes beyond those for dual use, defense, and nuclear
items cover exports of controlled substances and precursor chemicals,14 medical
devices that do not meet U.S. standards,15 hazardous wastes,16 hazardous substances,17
technologies used to produce ozone-depleting substances,18 technical data exported as
part of applications for foreign patents,19 certain watercraft not controlled under the
Export Control Reform Act or the International Traffic in Arms Regulations,20 ani-
mals for export,21 natural gas,22 electric power,23 endangered fish, wildlife, and plants,24
migratory birds,25 bald and golden eagles,26 Antarctic mammals, birds, and plants,27
10 See 31 C.F.R. pts. 500-598 (2019).

11 E.g., 16 U.S.C. §§ 3371–3378 (2018) (export of illegally possessed fish, wildlife, and plants); 18 U.S.C. §
842(m) (2018) (export of plastic explosives not containing detection agents); 18 U.S.C. § 553 (2018) (exports
of stolen vehicles); 21 U.S.C. §§ 381(e), 382 (2018) (drugs not approved by Food and Drug Administration);
21 U.S.C. § 843(a)(9) (2018) (export of items intended for use in manufacturing illegal chemical substances);
21 U.S.C. § 863(a)(3) (2018) (export of drug paraphernalia).
12 E.g., 19 U.S.C. §§ 1646b-1646c (2018) (export of used self-propelled vehicles); 19 C.F.R. §§ 192.1-192.4
(2018) (same); 31 U.S.C. § 5316 (2018) (monetary instruments exceeding $10,000 in value).
13 E.g., 7 U.S.C. § 7759(f)(2) (2018) (authorizing Department of Agriculture to inspect plants and plant
products offered for export); 7 C.F.R. pt. 353 (2020) (establishing the USDA export inspection program).
14 Controlled by the Drug Enforcement Administration, U.S. Department of Justice, under the Controlled
Substances Import and Export Act. 21 U.S.C. §§ 951-971 (2018); 21 C.F.R. pts. 1312-1313 (2020).
15 Controlled by the Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act, 21
U.S.C. § 381(e)(1), (2) (2018).

16 Controlled by the Environmental Protection Administration under the Resource Conservation and
Recovery Act of 1976. 42 U.S.C. § 6938 (2018); 40 C.F.R. §§ 262.83 (2020).

17 Controlled under the Toxic Substances Control Act, 15 U.S.C. § 2611 (2018).
18 42 U.S.C. § 7671m(c)(1) (2018).
19 These are administered by the Patent and Trademark Office, U.S. Department of Commerce. 35 U.S.C. §§
181–188 (2018); 37 C.F.R. pt. 5 (2020).

20 Controlled by the Maritime Administration, U.S. Department of Transportation, under the Shipping
Act of 1916. 46 U.S.C. § 56101 (2018).

21 Controlled by the U.S. Department of Agriculture. 7 U.S.C. § 8304 (20018).
22 Controlled by the Federal Energy Regulatory Commission (FERC) and the Energy Department’s
Economic Regulatory Administration (ERA). 15 U.S.C. §§ 717(b), 717b (2018); see Big Bend Conservation
Alliance v. Federal Energy Regulatory Comm’n, 896 F.3d 418 (D.C. Cir. 2018) (noting coverage of facilities
construction for the export of natural gas as well as exports of natural gas itself).
23 Controlled by FERC and ERA under the Federal Power Act. 16 U.S.C. § 824a(e) (2018).
24 Controlled by the Fish and Wildlife Service (FWS), U.S. Department of the Interior, under the
Endangered Species Act of 1973. 16 U.S.C. §§ 1531-1544 (2018).

25 Controlled by the FWS under the Migratory Bird Treaty Act of 1918. 16 U.S.C. §§ 703-712 (2018).
26 Controlled by the FWS under the Act for the Protection of Bald and Golden Eagles of 1940. 16 U.S.C. §§
668-668d (2018).
27 Controlled by the National Science Foundation under the Antarctic Conservation Act of 1978. 16 U.S.C.
§§ 2401-2413 (2018).
Introduction xxvii
Antarctic marine living resources,28 illegally taken wildlife,29 raw ivory,30 items said to
contain substances derived from tigers or rhinoceroses,31 and five-cent and one-cent
coins.32
28 Controlled by the Commerce Department under the Antarctic Marine Living Resources Convention
Act of 1984. 16 U.S.C. §§ 2431-2444 (2018).

29 Controlled under the Lacey Act Amendments of 1981. 16 U.S.C. § 3372(a) (2018).
30 Controlled under the African Elephant Conservation Act. 16 U.S.C. § 4223(2) (2018).
31 Controlled under the Rhinoceros and Tiger Conservation Act of 1988. 16 U.S.C. § 5305a (2018).
32 31 C.F.R. pt. 82 (2020); see 31 U.S.C. § 5111(d) (2018).
1
Commerce Department Controls on Exports
of “Dual Use” and Lower-Level Military
Goods, Software, and Technology
I. Introduction 2 for Control, and the Commerce

II. Overview of the Export Country Chart 39
Administration Regulations 4 a. Structure of the Commerce
Control List 39
III. Scope of the Export Administration b. How to Determine Whether a
Regulations 7 License Is Required 43
A. Definitions 7 c. Self-Classification vs.
B. Coverage of the EAR 17 Classification by the
C. Export Control Compliance and Commerce Department 44
Antidiscrimination Rules 18 2. Steps 10 and 11— Foreign Made
D. Information Disclosure 21 Items and the De Minimis Rule 44
IV. The Ten General Prohibitions of the 3. Step 12— Persons
Export Administration Regulations 22 Denied Export Privileges 46
A. General Prohibition One—Exports 4. Step 13— Prohibited
and Reexports 22 End Uses and End Users 46
B. General Prohibition Two—Parts and a. Nuclear End Uses 47
Components Reexports 22 b. Missile End Uses 47
C. General Prohibition Three—Exports c. Chemical and Biological
of Foreign-Made Products That Weapons End Uses 48
Employ U.S.-Origin Technology 23 d. Other Restricted End Uses 49
D. General Prohibition Four—Violating e. “Is Informed” 49
Denial Orders 23 f. The Entity List and General
E. General Prohibition Five—Prohibited Orders 49
End Use or End User 23 g. Terrorist End Users 50
F. General Prohibition Six—Embargoed h. Parties Sanctioned Under
Destinations 24 Other Regulatory Regimes 50
G. General Prohibition Seven— i. Other Restricted End Users 51
Proliferation Activities by U.S. Persons 24 j. The Unverified List 51
H. General Prohibition Eight—In-Transit 5. Step 14— Embargoed Destinations 52
Restrictions 25 6. Step 15— Activity of U.S. Persons 52
I. General Prohibition Nine—Violation 7. Step 16— In-Transit Restrictions 53
of Orders, License Terms, or License 8. Step 17— Orders, Terms, and
Conditions 25 Conditions Imposed Under the
J. General Prohibition Ten—Acting with Export Administration
Knowledge of a Violation 25 Regulations 54
V. The Twenty-Nine-Step 9. Step 18— “Know Your
Program: Determining the Customer”; Knowledge That
Regulatory Requirements for an Violation About to Occur 54
10. Step 19— Re-Review of General
Export or Reexport 25
Prohibitions 55
A. Steps 1 through 6—Is the Item or
C. Steps 20 through 26—If the Item
Transaction Subject to the EAR? 26
Requires a License, Is a License
B. Steps 7 through 19—Do Any of the
Exception Available? 55
General Prohibitions Apply? 39
1. General Rules for License Exceptions 55
1. Steps 7 through 9—Classification,
2. Shipments of Limited Value
Ultimate Destination, Reason
(License Exception LVS) 57
U.S. Export Controls and Economic Sanctions. Eric L. Hirschhorn, Brian J. Egan and Edward J. Krauland, Oxford University Press.
© Oxford University Press 2022. DOI: 10.1093/oso/9780197582411.003.0001
2 U.S. Export Controls and Economic Sanctions
3. Shipments to Country Group B to the Automated Export

(License Exception GBS) 58 System (AES) 75
4. Civil End Users and End Uses b. Step 28—Destination Control
(License Exception CIV) 58 Statement 76
5. Restricted Technology and c. Other Reporting and
Software (License Exception TSR) 58 Documentation 77
6. Computers (License Exception VI. Types of Controls—Licensing Policies 79
APP) 59 A. “CCL-Based” Controls 79
7. Encryption (License Exception B. Controls Based upon End User and
ENC) 60 End Use 88
8. Temporary Exports and Reexports C. Embargoes and Other Special Controls 89
(License Exception TMP) 63 D. Short Supply Controls 94
a. Temporary Imports, Exports,
VII. Export Licenses, Classifications,
and Reexports 63
b. Exports of Items Temporarily in and Advisory Opinions—
the United States 65 Preparation, Filing, and Processing 94
c. Beta Test Software 66 A. Commodity Jurisdiction,
9. Servicing and Replacement of Parts Classification, Advisory Opinion,
and Equipment (License Exception and VEU Requests 96
RPL) 66 B. Export and Reexport License
10. Governments, International Applications 98
Organizations, Chemical Weapons C. Filing of Applications and
Convention Inspections, and Classification Requests 104
the International Space Station D. Processing of Applications and
(License Exception GOV) 68 Issuance of Licenses 104
11. Unrestricted Technology and E. Special Comprehensive License 107
Software (License Exception TSU) 69 F. Special Iraq Reconstruction License 107
12. Strategic Trade Authorization G. Validated End User Program 107
(License Exception STA) 70 VIII. Violations and Penalties 108
13. Aircraft, Vessels, and Spacecraft A. Violations 108
(License Exception AVS) 72 B. Voluntary Disclosure of Suspected
14. Permissive Reexports (License Violations 112
Exception APR) 72 C. Penalties 115
15. Agricultural Commodities to Cuba 1. Civil and Administrative 115
(License Exception AGR) 73 2. Criminal 116
16. Other License Exceptions (BAG, IX. Investigations and Enforcement
CCD, GFT, and SCP) 74 Proceedings 120
D. License Applications 74 A. Investigations 120
E. Steps 27 through 29—Export B. Resolution Prior to Formal
Documentation, Recordkeeping, and Proceeding 121
Other Requirements 75 C. Formal Civil Proceedings 121
1. Export Documentation 75 D. Temporary Denial Orders 122
a. Step 27—Electronic Export X. Foreign Availability
Information (EEI) Filing Determinations 123

I. Introduction
U.S. government controls on exports of “dual use” items—those having potential military
or similar applications as well as commercial applications1—have been in effect continu-
ously since 1942.2 During much of this period the controls have existed under the Export
1 See Export Control Reform Act of 2018, Pub. L. No. 115-232, § 1742(2), 132 Stat. 2208 (defining “dual-
use” as meaning useful for military, terrorism, weapons of mass destruction, or law enforcement purposes, as
well as for civilian applications).
2 Act of June 30, 1942, ch. 461, 56 Stat. 463. Previous statutes included the Neutrality Act, 1935, ch. 837, 49
Stat. 1081, which focused on large items such as military aircraft, the Act of May 1, 1937, ch. 146, 50 Stat. 121,
the Act of Nov. 4, 1939, ch. 2, 54 Stat. 4, the Act of June 26, 1940, ch. 431, 54 Stat. 611, the Act of Aug. 27, 1940,
ch. 695, 54 Stat. 866, the Act of Nov. 17, 1941, ch. 473, 55 Stat. 764, and the Act of Feb. 21, 1942, ch. 104, 56
Stat. 95.
Commerce Department Controls on Exports 3
Administration Act of 1979 (EAA)3 and its predecessors. Significant revisions of this line
of statutes occurred in 1949,4 1962,5 1969,6 1979,7 1985,8 and 1988.9 The EAA lapsed seven
times between its enactment in 1979 and its replacement in 2018, with the longest lapse—
seventeen years—beginning in August 2001.10 In each instance when the EAA was not in
force, its controls were continued by the President relying on his emergency powers under
the International Emergency Economic Powers Act (IEEPA),11 with violations subject to
IEEPA rather than the EAA. This practice consistently was upheld by the courts.12
The pattern of EAA lapses and interstitial use of IEEPA to fill the resulting gaps
largely ended with the enactment of the Export Control Reform Act of 2018 (ECRA) in
August 2018.13 Unlike the EAA, ECRA does not have an expiration date, so—except for
three unrepealed sections of the EAA14—the decades-long pattern of EAA lapses and
gap-filling using IEEPA is over.
A number of other statutes support or have supported various aspects of dual-use
export controls. Some are general in character,15 some target particular countries,16
3 Pub. L. No. 96-72, 93 Stat. 503 (originally codified at 50 U.S.C. App. §§ 2401–2420 (2000) (expired Aug.
20, 2001; repealed in part Aug. 13, 2018)). In December 2015 the appendix to title 50 of the U.S. Code was
eliminated. At that time—and despite its having lapsed fourteen years earlier—the EAA was reclassified to 50
U.S.C. §§ 4601–4623. All but three provisions of the EAA formally were repealed with the enactment of the
Export Control Reform Act of 2018. Export Control Reform Act of 2018, Pub. L. No. 115-232, § 1766(a), 132
Stat. 2232, as amended by Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 205, 133 Stat. 13, 476-
77 (2019) (codified at 50 U.S.C. §§ 4801-4852).
4 Export Control Act of 1949, ch. 11, 63 Stat. 7.
5 Act of July 1, 1962, Pub. L. No. 87-515, 76 Stat. 127.
6 Export Administration Act of 1969, Pub. L. No. 91-184, 83 Stat. 841.
7 Export Administration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503.
8 Export Administration Amendments Act of 1985, Pub. L. No. 99-64, 99 Stat. 120.
9 Export Enhancement Act of 1988, Pub. L. No. 100-418, §§ 2401–2431, 2444–2446, 102 Stat. 1325, 1347–
62, 1366–70.
10 See Act of Nov. 13, 2000, Pub. L. No. 106-508, 114 Stat. 2360 (reviving EAA until Aug. 20, 2001). Earlier
lapses of the EAA were from September 30 to October 1, 1983, October 14 to December 5, 1983, March 30,
1984 to July 12, 1985, September 30, 1990 to March 27, 1993, June 30 to July 5, 1994, and August 20, 1994 to
November 13, 2000.
11 50 U.S.C. §§ 1701–1706 (2018); see, e.g., Exec. Order No. 12730, 55 Fed. Reg. 40373 (1990), 3 C.F.R., 1990
Comp., p. 305 (continuing EAR in force under IEEPA); Exec. Order No. 12923, 59 Fed. Reg. 34551 (1994)
(same); Exec. Order No. 12924, 59 Fed. Reg. 43437 (1994), 3 C.F.R., 1994 Comp., p. 917 (same); Exec. Order
No. 13222, 66 Fed. Reg. 44025 (Aug. 22, 2001), 3 C.F.R., 2001 Comp., p. 783 (same).
12 E.g., United States v. Zhi Yong Guo, 634 F.3d 1119, 1121-22 (9th Cir. 2011); United States v. Spawr Optical
Research, Inc., 685 F.2d 1076, 1081 (9th Cir. 1982); Bernstein v. United States Dep’t of State, 974 F. Supp. 1288,
1299–1300 (N.D. Calif. 1997).
13 Export Control Reform Act of 2018, Pub. L. No. 115-232, §§ 1741-1781, 132 Stat. 2208-38, as amended
by Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 205, 133 Stat. 13, 476-77 (2019) (codified at 50
U.S.C. §§ 4801-4852).
14 The ECRA provision repealing the EAA excludes sections 11A, 11B, and 11C, which relate to sanctions
for proliferators. ECRA § 1766(a), 132 Stat. 2232. The President has continued to rely on his IEEPA emer-
gency powers to keep these authorities in effect. Id. § 1766(b); see, e.g., Notice of August 14, 2019, 84 Fed. Reg.
41881 (Aug. 15, 2019) (continuing national emergency in force). As of the close of 2020, the only sanctions
in force under these three provisions of the EAA were imposed by the State Department against two North
Korean entities. See Imposition of Missile Proliferation Sanctions on Two North Korean Entities, 83 Fed. Reg.
4536 (Jan. 31, 2018); email from Matthew Borman, Deputy Assistant Secretary for Export Administration,
U.S. Department of Commerce, to Eric Hirschhorn (Aug. 15, 2019).
15 E.g., § 5(a) of the United Nations Participation Act of 1945, 22 U.S.C. § 287c(a) (2018) (authorizing
President to implement actions mandated by the U.N. Security Council). This statute is part of the basis for
the sanctions regime for North Korea, see 31 C.F.R. authority note prec. § 510.101 (2019), as well as the now-
terminated U.S. embargoes against Libya, see Exec. Order No. 12543, 51 Fed. Reg. 875 (1986), 3 C.F.R., 1986
Comp. p. 181, Serbia (Kosovo), see Exec. Order No. 13088, 63 Fed. Reg. 32109 (June 12, 1998), 3 C.F.R., 1998
Comp. p. 191, UNITA (Angola), see Exec. Order No. 13098, 63 Fed. Reg. 44771 (Aug. 20, 1998), 3 C.F.R., 1998
Comp. p. 206, and Iraq, see Exec. Order No. 12724, 55 Fed. Reg. 33089 (1990), 3 C.F.R., 1990 Comp. p. 297.
16 E.g., Iran-Iraq Arms Non-Proliferation Act of 1992, as amended, Pub. L. No. 102-484, §§ 1601–608,
106 Stat. 2571, as amended (codified at 50 U.S.C. § 1701 n.); 22 U.S.C. § 2370(a)(1), (y) (2006) (provision of
Foreign Assistance Act of 1961 authorizing trade embargo against Cuba).
one targets a particular commodity (high performance computers),17 and still others—
including the three sections of the EAA that were not repealed by ECRA—target par-
ticular activities.18 Controls under these laws generally have been implemented by the
same Commerce Department regulations that implement the EAA and IEEPA.
Many defense items, which by definition are not dual-use but solely for military use,
now are subject to Commerce Department export controls. The Export Control Reform
(ECR) initiative begun by the Obama administration transferred many lower-level
defense items, mostly parts and components, from State Department to Commerce
Department jurisdiction. These items now are subject to the EAR and appear on the
Commerce Control List (CCL).19 They no longer are subject to the Arms Export Control
Act (AECA)20 or the International Traffic in Arms Regulations (ITAR),21 though the
State Department is authorized to license their export if they are part of a mixed order
with ITAR-controlled items.22
II. Overview of the Export Administration Regulations
Exports of most commercial items, dual-use items, and military items that have been
transferred from State to Commerce Department jurisdiction are governed by the
Export Administration Regulations (EAR).23 The EAR are administered by the Bureau
of Industry and Security (BIS) of the U.S. Department of Commerce,24 which maintains
a current version of the EAR online at https://www.bis.doc.gov/index.php/regulations/
export-administration-regulations-ear.
The EAR, which occupy about eight hundred pages in the Code of Federal Regulations, are
excruciatingly complex. This is due largely to a policy preference for allowing license-free treat-
ment of less sensitive items when destined for friendly foreign countries and appropriate end
uses. That requires multiple distinctions among items with differing technical levels of capa-
bility and destinations with differing levels of diversion risk. By contrast, the State Department’s
ITAR are considerably shorter, require a license for almost every item appearing on the U.S.
Munitions List (USML), and contain relatively few exceptions to the licensing requirement.25
17 National Defense Authorization Act for FY 1998, Pub. L. No. 105-85, §§ 1211, 1213, 111 Stat. 1932
(1997), as amended by Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, Pub. L. No.
105-261, § 1524, 112 Stat. 2180 (1998) (codified at 50 U.S.C. § 2404 n.).
18 E.g., 22 U.S.C. § 2799aa-1 (2018) (countries developing or testing nuclear weapons); 22 U.S.C. §§ 5603–
5605 (2018) (countries using chemical or biological weapons). The unrepealed provisions of the EAA relate to
violations of multilateral national security export controls, 50 U.S.C. § 4611 (2018), multilateral missile prolif-
eration controls, id. § 4612, and chemical and biological weapons controls, id. § 4613.
19 15 C.F.R. pt. 774, supp. 1 (2020).
20 22 U.S.C. §§ 2778-2779 (2018).
21 22 C.F.R. pts. 120-130 (2020).
22 Exec. Order No. 13637, second § 5(a), 78 Fed. Reg. 16129, 16131 (2013), 3 C.F.R., 2013 Comp. p. 226;
see 15 C.F.R. § 734.3(e) (2019) (recognizing this authorization). EAR items licensed by the State Department
under this provision remain subject to EAR jurisdiction, not ITAR jurisdiction. Exec. Order No. 13637,
second § 5(b), 78 Fed. Reg. 16129, 16131 (2013), 3 C.F.R., 2013 Comp. p. 226.
23 15 C.F.R. pts. 730–774 (2020). The EAR were rewritten in 1996. 61 Fed. Reg. 12714 (Mar. 25, 1996).
Part 760 of the EAR contains one of the two U.S. regimes governing compliance with international boycotts
not sanctioned by the United States. 15 C.F.R. pt. 760 (2020); see I.R.C. § 999 (2018).
24 See 15 C.F.R. § 730.1 (2020). Prior to April 2002, BIS was known as the Bureau of Export
Administration (BXA).
25 See 22 C.F.R. pts. 120–130 (2020). The ITAR, which occupy about 170 pages in the Code of Federal
Regulations, are discussed more fully at pages 125–194 of this book. To be sure, many practitioners consider
the ITAR to be as complex as the EAR, even though the former are shorter.
The EAR cover not only exports from the United States but also reexports of “U.S.-
origin” items from other countries, transfers within other countries, sales of many
foreign-made products containing U.S.-origin components or technology or derived
from certain U.S.-origin equipment or technology, and disclosures of U.S.-origin tech-
nology to foreign nationals (even if occurring within the United States).26 Prior to en-
actment of ECRA,27 which has no expiration date, the EAR were continued in force
when the EAA lapsed by the use of presidential emergency declarations under IEEPA.28
Controls imposed by the EAR fall into four general categories—national security,
foreign policy, non-proliferation of weapons of mass destruction, and “short supply.”29
The national security category covers items “that would make a significant contribu-
tion to the military potential of any other country or combination of countries that
would prove detrimental to the national security of the United States.” These typically
are items employing sophisticated technology or encryption.30 The foreign policy cat-
egory includes exports to “terrorist-supporting” countries,31 crime control equip-
ment,32 items that could affect the stability of geographic regions of concern,33 and
items controlled in fulfillment of international obligations (e.g., U.N. embargoes).34 The
non-proliferation category comprises items relating to weapons of mass destruction—
nuclear weapons, missiles, and chemical and biological weapons.35 The few remaining
short supply controls, which limit the export of specified items that are in short supply
in the United States, apply to certain petroleum products, western red cedar, and horses
exported by sea. They appear in part 754 of the EAR.36
In addition to controlling items because of their inherent characteristics or poten-
tial, the EAR impose controls because of the nature of the intended end user and end
use. Most notably, all items subject to the EAR that are destined for disfavored end
uses—namely, (1) the development or manufacture, in specified countries, of nuclear
weapons,37 missiles,38 chemical or biological weapons;39 (2) specified cameras for mili-
tary use;40 (3) items for military end use in Russia, China, or Venezuela;41 or (4) certain
26 15 C.F.R. § 730.5 (2020), as amended by 85 Fed. Reg. 29852 (May 19, 2020).
27 Export Control Reform Act of 2018, Pub. L. No. 115-232, §§ 1741-1781, 132 Stat. 2208-38, as amended
by Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 205, 133 Stat. 13, 476-77 (2019) (codified at 50
U.S.C. §§ 4801-4852).
28 E.g., Exec. Order No. 12924, 59 Fed. Reg. 43437 (1994), 3 C.F.R., 1994 Comp., p. 917 (continuing EAR in
force under IEEPA).

To the extent permitted by law, the provisions of the Export Administration Act of 1979, as amended,
and the provisions for administration of the Export Administration Act of 1979, as amended, shall be
carried out under this order so as to continue in full force and effect and amend, as necessary, the ex-
port control system heretofore maintained by the Export Administration Regulations issued under
the Export Administration Act of 1979, as amended.
Id. § 1. The Commerce Department had a stated policy of “conforming actions under the Executive Order
[continuing the EAR under IEEPA] to those under the EAA, insofar as appropriate.” 64 Fed. Reg. 1121 (Jan.
8, 1999).
29 15 C.F.R. § 730.6 (2020); id. pt. 742.
30 See 15 C.F.R. §§ 742.4, 742.15 (2020).
31 15 C.F.R. §§ 742.8–742.10, 742.19 (2020).
32 15 C.F.R. § 742.7 (2020), as amended by 85 Fed. Reg. 63009 (Oct. 6, 2020), and id. 63010.
33 15 C.F.R. § 742.6 (2020), as amended by 85 Fed. Reg. 83769 (Dec. 23, 2020).
34 15 C.F.R. § 742.1(b)(2) (2020).
35 15 C.F.R. §§ 730.6, 742.2 (chemical/biological), 742.3 (nuclear), 742.5 (missile) (2020).
36 15 C.F.R. pt. 754 (2020).
37 15 C.F.R. § 744.2 (2020).
38 15 C.F.R. § 744.3 (2020).
39 15 C.F.R. § 744.4 (2020).
40 15 C.F.R. § 744.9 (2020), as amended by 85 Fed. Reg. 4177 (Jan. 23, 2020).
41 15. C.F.R. § 744.21 (202c), as amended by 85 Fed. Reg. 83797-98 (Dec. 23, 2020).
microprocessors for military use42—require licenses for export, reexport, and, in some
instances, in-country transfer.
The EAR also control exports to disfavored end users— namely, (1) weapons
proliferators,43 (2) designated terrorists and terrorist organizations,44 (3) desig-
nated former Iraqi government officials,45 (4) military end users in China, Russia, or
Venezuela,46 (5) persons sanctioned under certain statutes other than ECRA,47 or oth-
erwise sanctioned by the State Department,48 and (6) persons on the “Entity List.”49 The
Entity List, which appears as a supplement to part 744 of the EAR,50 comprises non-U.S.
entities for which there is reasonable cause to believe, based on specific and articulable
facts, that the entity has been involved, is involved, or poses a significant risk of being
or becoming involved in activities that are contrary to the national security or foreign
policy interests of the United States.51
Items subject to the EAR and specified on the Entity List may not be transferred to a
listed entity, or in a transaction in which a listed entity is a party, without a license from
BIS, and no license exceptions are available in such instances.52
The “Unverified List” comprises firms whose bona fides the U.S. government hasn’t
been able to verify but that are not accused of any wrongdoing.53 If an entity appears
on this list, U.S.-origin items may be provided to them, but only after they certify
their identity and related information and, among other things, agree to be subject to
postshipment inspection at the U.S. government’s request.54
Another list of disfavored end users is the Denied Persons List (Denial List, or DPL),
which comprises individuals and entities deprived of some or all U.S. export privileges
as the result of findings that they have violated, or imminently may violate, the EAR.55
Also—and importantly—“United States persons” (i.e., United States citizens, residents,
and firms, as well as anyone physically present in the United States) may not transfer any
42 15 C.F.R. § 744.17 (2020). This applies to microprocessors having a processing speed of 5 GFLOPS or more
and an arithmetic logic unit with an access width of 32 bit or more. Id. An exemplary list of microprocessors
subject to this restriction appears as a supplement to part 744. 15 C.F.R. pt. 744, supp. 1 (2020).
43 15 C.F.R. § 744.8 (2020).
44 15 C.F.R. §§ 744.12-744.14 (2020).
45 15 C.F.R. § 744.18 (2020).
46 15 C.F.R. § 744.21 (2020), as amended by 85 Fed. Reg. 23459 (Apr. 28, 2020) (adding coverage of military
end users in China) and 85 Fed. Reg. 83797-98 (Dec. 23, 2020).
47 15 C.F.R. § 744.19 (2020). These include the Iran-Iraq Arms Nonproliferation Act of 1992, id. § 744.19(a),
the Iran, North Korea, and Syria Nonproliferation Act, id. § 744.19(b), and the Iran Sanctions Act of 1996, id.
§ 744.19(e).
48 15 C.F.R. § 744.20 (2020).
49 15 C.F.R. §§ 744.11, 744.16 (2020), as amended by 85 Fed. Reg. 51337 (Aug. 20, 2020).
50 15 C.F.R. pt. 744, supp. 4 (2020).
51 Id. § 744.11(b). In one instance, Congress has imposed additional conditions on the removal of a specific
company from the Entity List. National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, §
1260I, 133 Stat. 1687 (2019) (imposing specified preconditions on removal of Huawei Technologies Co. Ltd. and
its affiliates from Entity List). Whether that action is an unconstitutional bill of attainder remains to be seen. See
U.S. Const. art. I, § 9, cl. 3 (“No Bill of Attainder . . . shall be passed [by Congress]”); Lovett v. United States, 328
U.S. 303 (1946) (holding statute that denied salary to three named government officials to be bill of attainder).
52 Id. § 744.11(a), as amended by 85 Fed. Reg. 51337 (Aug. 20, 2020). License exceptions are discussed at
pages 55 through 74 infra.

53 15 C.F.R. § 744.15 (2020).
54 Id. § 744.15(b).
55 U.S. Dep’t of Commerce, BIS Denied Persons List, https://www.bis.doc.gov/index.php/policy-guidance/
lists-of-parties-of-concern/denied-persons-list (last visited July 4, 2020). The DPL is discussed at pages 115–
116 infra.
item—even one located abroad and not of United States origin—known to be destined for
specified nuclear weapons, missile, chemical weapons, or biological weapons uses.56
If a commodity, software, or technology is “subject to the EAR” (a concept discussed
later), its export, reexport, or transfer to a given destination and end user either (1) does
not require a license from the Commerce Department, which is the case for most items
going to most countries, (2) requires a license but is eligible for a “license exception,” or
(3) requires a license and is not eligible for a license exception.
Importantly, the fact that a particular item requires a license for export to a partic-
ular country does not mean that the export is forbidden. What it does mean is that the
would-be exporter must apply for a license, which may or may not be granted. The
authors have seen many instances in which even sophisticated parties don’t appreciate
this distinction and pass up potential export sales that likely would have been licensed.
Part 732 of the EAR57 summarizes the steps needed to determine whether a transaction
is subject to the EAR and, if so, whether a license is required. The obligations of the U.S. ex-
porter (or other U.S. party) under the EAR depend upon the answers to five questions:
• What is the item to be exported, with a particular focus on the capability, use(s) in-
tended by the designer or manufacturer, and technical characteristics of the item?
• To what country is the item ultimately being shipped?
• Who will be the end user of the item?
• To what use will the item be put?
• Finally, even if the U.S. party is not engaging in an export or reexport, is that party
assisting a prohibited end use or end user?58
An exporter must go through as many as twenty-nine steps to determine and carry

out its EAR obligations.59 Steps 1 through 6 determine whether the item or transaction
in question is subject to the EAR.60 Steps 7 through 19 determine whether the transac-
tion is subject to any of the EAR’s ten general prohibitions.61 Steps 20 through 26 deter-
mine whether any “license exceptions” apply to the transaction.62 Steps 27 through 29
relate to export formalities and recordkeeping requirements.63
III. Scope of the Export Administration Regulations
A. Definitions
Most definitions of EAR terms appear in section 772.1. Although a glossary of terms
appears at the back of this book (pages 391 through 408), several are sufficiently impor-
tant to merit discussion here.
56 15 C.F.R. § 744.6 (2020).

57 15 C.F.R. pt. 732 (2020).
58 15 C.F.R. §§ 732.1(b), 736.2(a) (2020).
59 15 C.F.R. pt. 732 (2020). These steps are described at pages 25 through 78 infra.
60 15 C.F.R. § 732.2 (2020).
61 15 C.F.R. § 732.3 (2020). The general prohibitions are set out fully in part 736 of the EAR.
62 15 C.F.R. § 732.4 (2020).
63 15 C.F.R. § 732.5 (2020).
1. “Subject to the EAR” This phrase defines the items and transactions that are sub-
ject to the regulatory jurisdiction of BIS.64 In general, the phrase includes items in the
United States (regardless of their place of origin),65 “U.S.-origin” items wherever located,66
foreign-made items that incorporate more than a specified percentage of U.S.-origin con-
tent,67 some foreign-made “direct products” of U.S.-origin technology or software,68 and
some commodities that are products of a facility outside the United States that’s a direct
product of specified U.S.-origin technology or software.69 The more highly controlled
items subject to the EAR appear on the CCL.70 Items subject to the EAR but not listed on
the CCL are classified as “EAR99.”71
In most cases, items subject to other U.S. export control regimes are not subject to the
EAR and vice versa.72 These typically are defense items controlled by the Department of State
under the International Traffic in Arms Regulations,73 items and transactions controlled by
the Department of the Treasury under the foreign assets control regulations,74 certain nu-
clear commodities controlled by the Nuclear Regulatory Commission,75 nuclear weapons–
related technology controlled by the Department of Energy,76 technology in patent
applications,77 and items that are exported under the Foreign Military Sales program.78
Information that doesn’t come within the definition of “technology” is not subject to the
EAR.79 A number of additional categories of information are not “subject to the EAR” even
if they come within the definition of “technology.” These are discussed more fully at pages
29–34 and include published information,80 information arising during or resulting from
fundamental research,81 data released in an academic institution’s “catalog course or asso-
ciated teaching laboratory,”82 information in patents and patent applications that isn’t oth-
erwise restricted,83 “non-proprietary system descriptions,”84 and specified telemetry data.85
64 15 C.F.R. § 734.2(a) (2020).

65 15 C.F.R. § 734.3(a)(1) (2020).
66 15 C.F.R. § 734.3(a)(2) (2020).
67 15 C.F.R. § 734.3(a)(3) (2020).
68 15 C.F.R. § 734.3(a)(4) (2020).
69 15 C.F.R. § 734.3(a)(5) (2020).
70 15 C.F.R. § 734.3(c) (2020). The CCL is supplement 1 to part 774 of the EAR.
71 Id.
72 15 C.F.R. § 734.3(a)(2) (2020).
73 See 15 C.F.R. § 734.3(b)(1)(i) (2020). These controls are discussed at pages 125–196 of this book.
74 See 15 C.F.R. § 734.3(b)(1)(ii) (2020). These controls are discussed at pages 197–368 of this book.
75 See 15 C.F.R. § 734.3(b)(1)(iii) (2020). These controls are discussed infra at pages 369–379.
76 See 15 C.F.R. § 734.3(b)(1)(iv) (2020). These controls are discussed infra at pages 379–388.
77 See 15 C.F.R. § 734.3(b)(1)(v) (2020). These controls are administered by the U.S. Patent and Trademark
Office.
78 See 15 C.F.R. § 734.3(b)(1)(vi) (2020).
79 15 C.F.R. § 734.3, n. to ¶ (b)(3) (2020). Such information may be subject to part 760 of the EAR, which
addresses antiboycott compliance, however. Id.

80 15 C.F.R. § 734.3(b)(2), (b)(3)(i) (2020).
81 15 C.F.R. § 734.3(b)(3)(ii) (2020).
82 15 C.F.R. § 734.3(b)(3)(iii) (2020). The institution needn’t be located in the U.S. Revisions to
Definitions in the Export Administration Regulations, Frequently Asked Questions, Not Subject to the
EAR: Information released by Instruction in a Catalog Course or Associated Teaching Laboratory of an
Academic Institution (§ 734.3(b)(3)), FAQ 1.5 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/
documents/compliance-training/export-administration-regulations-training/1554-ear-definitions-faq/
file (last visited July 4, 2020).
83 15 C.F.R. § 734.3(b)(3)(iv) (2020).
84 15 C.F.R. § 734.3(b)(3)(v) (2020).
85 15 C.F.R. § 734.3(b)(3)(vi) (2020). The data covered by this provision are specified in note 2 to category
9.E. of the Commerce Control List, 15 C.F.R. pt. 774, supp. 1 (2020).
Encryption source code appearing in a published book is not subject to the EAR.86 The
same source code appearing on an electronic medium is subject to the EAR, unless it is
classified to Export Control Classification Number (ECCN) 5D002 and has been notified
to BIS and the National Security Agency pursuant to section 742.15(b) of the EAR.87
For the most part, items that contain nothing of U.S. origin are subject to the EAR only
when being exported from the United States.88 Unless their export license or authorization
provides otherwise, the subsequent reexport of non-U.S.-origin items by a non-U.S. person
is not subject to the EAR,89 but misrepresentation of an item’s ultimate destination at the time
when the item is exported from the United States is a violation of the EAR.90 Importantly, the
EAR provide expressly that “if neither your item nor activity is subject to the EAR, then you
do not have any obligations under the EAR and you do not need to review other parts of the
EAR,”91 except possibly its antiboycott provisions, which appear in part 760.92
2. “Item” “Item” is a collective term that means commodities, software, and tech-
nology.93 At times, individual elements like “software” may be mentioned in the EAR
independently of the collective term.94
3. “Technology” “Technology” means “[i]‌nformation necessary for the ‘devel-
opment,’ ‘production,’ ‘use,’ operation, installation, maintenance, repair, overhaul,
or refurbishing (or other terms specified in ECCNs on the CCL that control ‘tech-
nology’) of an item.”95 It “may be in any tangible or intangible form, such as written or
oral communications, blueprints, drawings, photographs, plans, diagrams, models,
formulae, tables, engineering designs and specifications, computer-aided design files,
manuals or documentation, electronic media or information revealed through visual
inspection.”96
“Development” takes in “all stages prior to serial production,”97 while “produc-
tion” means “all production stages, such as: product engineering, manufacture, inte-
gration, assembly (mounting), inspection, testing, [and] quality assurance.”98 “Use” is
“[o]‌peration, installation (including on-site installation), maintenance (checking), re-
pair, overhaul and refurbishing.”99 “Use” is present only if all six of these elements are
86 15 C.F.R. § 734.3, n. to ¶¶ (b)(2) & (b)(3) (2020).

87 Id.; 15 C.F.R. §§ 734.17(b)(2), 742.15(b) (2020).
88 See 15 C.F.R. § 734.3(a)(1) (2020) (by implication). An exception is certain items manufactured abroad
in plants whose major components are of U.S. origin. 15 C.F.R. § 734.3(a)(4)-(5) (2020).
89 15 C.F.R. § 734.3(a)(1)- (2) (2020) (by implication); telephone conference between Daniel Cook,
Director, Regulations Branch, Office of Technology and Policy Assessment, U.S. Dep’t of Commerce, and
co-author Eric Hirschhorn (Feb. 11, 1988); letter from Douglas R. Brown, Director, Chemical & Biological
Controls Division, Ofc. of Nonproliferation and Treaty Compliance, BIS (July 13, 2006) (copy in possession
of authors).
90 15 C.F.R. § 764.2(g)(1)(ii)-(iii) (2020), as amended by 85 Fed. Reg. 73416 (Nov. 18, 2020).
91 15 C.F.R. § 734.1(a) (2020).
92 15 C.F.R. § 734.1(b) (2020); see id. pt. 760.
93 15 C.F.R. § 772.1, definition of “item” (2020).
94 Id.
95 15 C.F.R. § 772.1, definition of “technology” (2020) (emphasis added).
96 Id. n. 1.
97 15 C.F.R. § 772.1, definition of “development” (2020). The definition includes as examples “design, design
research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design
data, process of transforming design data into a product, configuration design, integration design, layouts.” Id.
98 15 C.F.R. § 772.1, definition of “production” (2020).
99 Id., definition of “use.”
found,100 but if a particular ECCN specifies one or more of the six individually, then
only the mentioned elements need be present.101
Although the definition of “technology” is broad, it does not cover all information
and indeed doesn’t even cover all information relating to controlled commodities. For
example, information on the “basic function or purpose of an item” does not consti-
tute “technology” for purposes of the EAR.102 Similarly, “[a]‌technical specification that
conveys size, weight and performance requirements and does not include ‘build-to-
print technology’ ” likely would not constitute “technology.”103 With the exception of
EAR99 technology, which in most cases is not controlled at all, the EAR control only
information that is “required” for the development, production, or use of items on the
CCL,104 and “required” means “only that portion of ‘technology’ or ‘software’ which is
peculiarly responsible for achieving or exceeding the controlled performance levels,
characteristics or functions.”105
4. “Export” Except for certain encryption software, “export” means not only the
physical transmission of an item out of the United States106 or giving remote access to
technology to someone abroad107 but also “releasing or otherwise transferring ‘tech-
nology’ or source code (but not object code) to a foreign person in the United States.”108
The last aspect of “export” is known as the “deemed export rule.”109 For purposes of
the EAR, a “foreign person” is
[a]‌ny natural person who is not a lawful permanent resident of the United States,
citizen of the United States, or any other protected individual as defined by 8 U.S.C.
1324b(a)(3). It also means any corporation, business association, partnership, trust,
society or any other entity or group that is not incorporated in the United States or
organized to do business in the United States, as well as international organizations,
foreign governments and any agency or subdivision of a foreign government (e.g., dip-
lomatic mission).110
100 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Definition of
Technology Q. 1 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-training/

export-administration-regulations-training/1554-ear-definitions-faq/file (last visited July 4, 2020).
101 15 C.F.R. § 772.1, n. to definition of “use” (2020).
102 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Definition of
Technology Q. 2 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-training/

103 Id. Q. 4.
104 15 C.F.R. pt. 774, supp. 2, ¶ 1 (2020) (General Technology Note). The General Technology Note applies
to all ECCNs, whether or not they expressly mention it. Letter from Eileen M. Albanese, Act’g Director, Ofc. of
Exporter Services, BIS (Mar. 25, 2014), https://www.bis.doc.gov/index.php/documents/advisory-opinions/
906-final-technology-definition-advisory-opinion-redacted/file (last visited July 4, 2020).
105 15 C.F.R. § 772.1, definition of “required” (2020).
106 15 C.F.R. § 734.13(a)(1) (2020).
107 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Activities That
Are Not Exports, Reexports, or Transfers Q. 10 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/

documents/compliance-training/export-administration-regulations-training/1554-ear-definitions-faq/file
(last visited July 4, 2020).
108 15 C.F.R. § 734.13(a)(2) (2020).
109 Id.
110 15 C.F.R. § 772.1, definition of “foreign person” (2020).
The relationship between the deemed export rule and federal antidiscrimination law
is complex and in some respects ambiguous. For a discussion of this issue, see pages
18–21.
Unclassified111 technology and software that are sent, taken, or stored outside the
United States are excluded from the definition of “export” if they are secured using end-
to-end encryption112 that meets the standards prescribed by section 734.18(a)(5) of the
EAR and are not “intentionally” stored113 in Russia or a country subject to a U.S. arms
embargo (i.e., included in EAR Country Group D:5114).115 This carveout also applies
where a U.S. national located abroad is the sole recipient of the data.116
Technology and software are “released” for export by visual inspection by foreign
nationals, by oral exchanges of information with foreign nationals, and by causing the
release of encrypted technology or software through the use of “access information”117
(e.g., decryption keys, network access codes, and passwords).118 Note, however, that
“[m]‌erely seeing an item briefly is not necessarily sufficient to constitute a release of the
technology required . . . to develop or produce it.”119
At one time, the “release” definition included “[t]‌he application to situations abroad
of personal knowledge or technical experience acquired in the United States” even if not
observed by a foreign national.120 This provision, which effectively outlawed activity
that did not transfer any technology, was removed when the definition was revised in
2016 as part of the Export Control Reform initiative.121 Now, a service performed on
behalf of a foreign national that doesn’t transfer technology is not an export unless it
violates the proliferation-related controls in part 744 of the EAR or the restrictions on
dealing with denied parties under part 764.122
111 In this context, “unclassified” refers to the fact that the technology or software has not been classified
under the U.S. government’s system for classifying national security information. See Exec. Order No. 13526,
3 C.F.R., 2009 Comp., p. 298, 75 Fed. Reg. 707 (Jan. 5, 2010).
112 “End-to-end encryption” is “(i) the provision of cryptographic protection of data such that the data is
not in unencrypted form between an originator (or the originator’s in-country security boundary) and an
intended recipient (or the recipient’s in-country security boundary), and (ii) the means of decryption are not
provided to any third party. The originator and the recipient may be the same person.” 15 C.F.R. § 734.18(b)
(2020). Put slightly differently, it is “cryptographic protection of data such that the data are not in unencrypted
form between the originator or the originator’s in-country security boundary and an intended recipient or the
recipient’s in-country security boundary.” Revisions to Definitions in the Export Administration: Frequently
Asked Questions, Activities That Are Not Exports, Reexports, or Transfers Q. 6 (eff. Sept. 1, 2016), https://
www.bis.doc.gov/index.php/documents/compliance-training/export-administration-regulations-training/
1554-ear-definitions-faq/file (last visited July 4, 2020). Data lose their eligibility for this carve-out if they are
decrypted while in transit between the relevant security boundaries. Id. Q. 8.
113 Data that are in transit via the internet “are not deemed to be stored.” 15 C.F.R. § 734.18, n. 1 to ¶ (a)(5)
(iv) (2020).
114 15 C.F.R. pt. 740, supp. 1 (2020).
115 15 C.F.R. § 734.18(a)(5) (2020).
116 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Activities That Are
Not Exports, Reexports, or Transfers Q. 9 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/

compliance-training/export-administration-regulations-training/1554-ear-definitions-faq/file (last visited
July 4, 2020).
117 15 C.F.R. § 734.15 (2020).
118 15 C.F.R. § 772.1, definition of “access information” (2020).
119 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Release Q. 3 (eff.
Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-training/export-administration-

regulations-training/1554-ear-definitions-faq/file (last visited July 4, 2020).
120 15 C.F.R. §§ 734.2(b)(3)(iii), 770.3(d)(1) (2016).
121 See 81 Fed. Reg. 35604 (2016).
122 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Definitions
of Export and Reexport Q. 1 (eff. Sept. 1, 2016), https:// www.bis.doc.gov/ index.php/ documents/
The deemed export rule does not apply to the mere use of hardware123 or object code
software124 by a foreign national unless controlled technology is transferred thereby.
More generally, affording a foreign person access to controlled items doesn’t constitute
an export or deemed export unless technology is actually “released.”125
Encryption object code and source code software is considered to have been
“exported” not only when actually sent out of the United States126 or transferred to a
foreign embassy or affiliate within the United States127 but also when it is downloaded to
locations outside the United States128 or made
available for transfer outside the United States, over wire, cable, radio, electromagnetic,
photo optical, photoelectric or other comparable communications facilities acces-
sible to persons outside the United States, including transfers from electronic bulletin
boards, Internet file transfer protocol and World Wide Web sites, unless the person
making the “software” available takes precautions adequate to prevent unauthorized
transfer of such code.129
Such “precautions” should include “such measures as” ensuring that the system re-
ceiving a transfer doesn’t have a government domain (e.g., .mil or .gov),130 notifying
transferees that the software is subject to the EAR,131 and requiring each transferee to
acknowledge that the software is not intended for a government end user and is subject
to the EAR.132
Note that “[f]‌or encryption items, the deemed export rules apply only to deemed
exports of technology and to deemed reexports of technology and source code. There
are no deemed export rules for transfers of encryption source code to foreign nationals
in the United States.”133
Interestingly, the fact that making encryption software available for downloading
from abroad constitutes an “export” doesn’t necessarily make such an action an EAR
violation. A 2009 BIS advisory opinion that as of the close of 2020 remains posted on the
BIS website states that

July 4, 2020). The removal of the old standard was intentional. See 81 Fed. Reg. 35591-92 (2016) (noting exclu-
sion of services from EAR unless related to proliferation activities or in violation of denial orders). Mention of
the standard in the current version of § 770.3(d)(1)(ii) of the EAR reflects a drafting oversight that BIS plans
to correct. Exchange of emails between co-author Eric Hirschhorn and Hillary Hess, Director, Regulations &
Policy Division, BIS (June 29 and July 1, 2019).
123 Letter from Alexander Lopes Jr., Director, Deemed Exports and Electronics Div., BIS, at 2 (Dec.
16, 2004).
124 15 C.F.R. § 734.13(a)(2), (b) (2020) (by implication).
125 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Release Q. 1 (eff.

126 15 C.F.R. § 734.17(a)(1) (2020).
127 15 C.F.R. § 734.17(a)(2) (2020).
128 15 C.F.R. § 734.17(b)(1) (2020).
129 15 C.F.R. § 734.17(b)(2) (2020).
130 15 C.F.R. § 734.17(c)(1) (2020).
131 15 C.F.R. § 734.17(c)(2) (2020).
132 15 C.F.R. § 734.17(c)(3) (2020).
133 U.S. Dep’t of Commerce, BIS Encryption FAQ 17, https://www.bis.doc.gov/index.php/all-articles/15-
policy-guidance/encryption/560-encryption-faqs#3 (last visited July 4, 2020).

[p]‌ublishing “mass market” encryption software to the Internet where it may be

downloaded by anyone neither establishes “knowledge” of a prohibited export or
reexport nor triggers any “red flags” necessitating the affirmative duty to inquire under
the “Know Your Customer” guidance provided in the EAR (see 67 Fed. Reg. 38857,
June 6, 2002). Therefore, a person or company would not be in violation of the EAR
if it posts “mass market” encryption software on the Internet for free and anonymous
download and then at a later time the software is downloaded by an anonymous person
in [an embargoed country].134
The 2009 advisory opinion adds that if the posting party makes itself aware of who is
downloading the software, allowing a download by someone in an embargoed country
may provide the posting party with “knowledge” and hence create an EAR violation on
its part.135 Moreover, object code for mass market encryption software no longer is sub-
ject to the EAR, and source code for such software is not subject to the EAR if it meets
the eligibility requirements for License Exception TSU.
Under the EAR, mere transfer of title does not constitute an “export” if the item is
not moved from one country to another and no technology is “released” to a foreign
national. This includes the transfer of ownership of a satellite, so long as the satellite is
eligible for export under License Exception STA and the transferee is not located in a
country subject to a U.S. arms embargo (i.e., in Country Group D:5).136 Note, however,
that individual licenses may impose conditions of this character.
5. “Reexport” Unsurprisingly, the term “reexport” comprehends the actual shipment
of items “from one foreign country to another.”137 The term also includes release of tech-
nology or source code in a foreign country to a national of a different foreign country,138
an event that is known as a “deemed” reexport. With several exceptions, such a transfer
“is a deemed reexport to the foreign person’s most recent country of citizenship or per-
manent residency.”139 The exceptions are:
• There is no deemed reexport where a foreign entity lawfully in possession of U.S.-

origin technology or source code releases it to a foreign national of a country other
than the entity’s location, where the entity has “knowledge” (defined later) that
134 Letter from C. Randall Pratt, Director, Information Technology Controls Div., Ofc. of Nat’l Security
and Technology Transfer Controls, BIS (Sept. 11, 2009), https://www.bis.doc.gov/index.php/documents/

advisory-opinions/529-downloads-of-encrypted-software-reviewed-and-classified-as-mass-market/file
(last visited July 4, 2020); accord 76 Fed. Reg. 1059 (Jan. 7, 2011). Such actions nonetheless may result in
violations of the economic sanctions regulations administered by OFAC, depending upon the facts.
135 Letter from C. Randall Pratt, Director, Information Technology Controls Div., Ofc. of Nat’l Security
and Technology Transfer Controls, BIS (Sept. 11, 2009), https://www.bis.doc.gov/index.php/documents/

advisory-opinions/529-downloads-of-encrypted-software-reviewed-and-classified-as-mass-market/file
(last visited July 4, 2020). License Exception TSU is discussed at pages 69 and 70 infra.
136 15 C.F.R. § 734.13(a)(3) (2020); Revisions to Definitions in the Export Administration: Frequently
Asked Questions, Definitions of Export and Reexport Q. 4 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.
php/documents/compliance-training/export-administration-regulations-training/1554-ear-definitions-
faq/file (last visited July 4, 2020).
137 15 C.F.R. § 734.14(a)(1) (2020).
138 15 C.F.R. § 734.14(a)(2) (2020).
139 15 C.F.R. § 734.14(b) (2020).
• the foreign national’s most recent country of citizenship or permanent residency

is that of a country to which export from the United States of the “technology” or
source code at issue would be authorized by the EAR either under a license excep-
tion or in situations where no license under the EAR would be required.140
• Also, there is no deemed reexport where such a foreign entity releases such tech-
nology or source code to a foreign national of a country other than the entity’s
location, where (1) “[t]‌he foreign person is a bona fide ‘permanent and regular
employee’ of the entity and is not a proscribed person,”141 (2) the “employee is a na-
tional exclusively of a country in Country Group A:5” (i.e., a country in the top tier
of License Exception STA142), and (3) “[t]he release of ‘technology’ or source code
takes place entirely within the physical territory of any such country, or within the
United States.”143
• Finally, there is no deemed reexport where such a foreign entity releases such tech-
nology or source code to a foreign national of a country other than the entity’s lo-
cation, where the recipient “is a bona fide ‘permanent and regular employee’ of the
entity and is not a proscribed person,” “[t]‌he release takes place entirely within the
physical territory of any such country, or within the United States,” the releasing
entity has in place effective procedures guarding against diversion of the tech-
nology or source code, and one of six specified circumstances is present.144
The transfer of technology or software between two U.S. persons located in a for-
eign country does not constitute a reexport.145 The transfer of commodities within a for-
eign country ordinarily does not constitute a reexport unless such a transfer violates
the terms of the particular license or license exception under which the commodity
originally reached the foreign country. BIS sometimes conditions the issuance of a li-
cense on the undertaking that no retransfer within a foreign country (usually called an
“in-country transfer” or a “transfer (in-country)”) will occur absent express permission
from BIS.
Where an item exported from the United States is intended for Country X but is
transshipped via Country Y or transits Country Y (i.e., the item is not unloaded from
the carrier and doesn’t enter the customs territory of Country Y), the journey from
Country Y to Country X is not considered a reexport but is part of the original export
from the United States.146
140 15 C.F.R. § 734.20(a) (2020).

141 A “proscribed person” is someone “who is prohibited from receiving the items at issue or participating
in a transaction that is subject to the EAR without authorization under the EAR, such as persons on the Entity
List or denied persons.” 15 C.F.R. § 772.1, definition of “proscribed person” (2020). A “permanent and regular
employee” is someone who either has been employed by the entity for one year or more, 15 C.F.R. § 734.20(d)
(2)(i) (2020), or is a contract employee who works for the entity full-time, on site, under the direction of the
entity, and with a nondisclosure agreement in force, id. § 734.20(d)(2)(ii).
142 See 15 C.F.R. § 740.20 (2020) (establishing License Exception STA); id. pt. 740, supp. 1 (setting forth
country groups).
143 15 C.F.R. § 734.20(b) (2020).
144 15 C.F.R. § 734.20(c) (2020).
145 15 C.F.R. § 734.18(a)(3) (2020).
146 15 C.F.R. § 734.14(c) (2020).
Sending an item back to the United States from abroad does not constitute a
reexport.147
Depending upon its destination and its classification within the Commerce Control
List, transferring the registration, control, or ownership of a spacecraft subject to the
EAR to a foreign national may constitute a reexport.148 The actual launch of a “space-
craft, launch vehicle, payload, or other item” into space, however, is not an export or
reexport.149
6. “Knowledge” For purposes of most provisions of the EAR, “knowledge”
includes not only positive knowledge that the circumstance exists or is substantially
certain to occur, but also an awareness of a high probability of its existence or future oc-
currence. Such awareness is inferred from evidence of the conscious disregard of facts
known to a person and is also inferred from a person’s willful avoidance of facts.150
The term “includes variants such as ‘know’ and ‘reason to know,’ [and] encompasses
more than positive knowledge.”151 Although the precise extent to which this formu-
lation goes beyond actual knowledge is unknown, it probably does not reach mere
negligence.152
7. “Specially designed” The phrase “specially designed” is employed in certain CCL
and USML entries to limit the scope of the relevant control. It does so by excluding
items that are merely capable of performing the function in question, thus retaining
within the entry only those items whose specific and intended purpose is performance of
the function in question.
Prior to ECR, the phrase was defined in the EAR only in respect of items controlled for
missile technology reasons. To put it mildly, there had been considerable controversy—
in industry, in academia, in the federal government, in the courts, and among those
sectors—about the coverage and meaning of the term.
One significant accomplishment of the Export Control Reform initiative was the
adoption—for all EAR and ITAR purposes—of a single, all-purpose definition of “spe-
cially designed,” with only slight variations between the EAR and ITAR definitions.153 It
is—regrettably—somewhat complex, but it releases many items from control and so is
worth wrestling with.
147 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Definitions of
Export and Reexport Q. 3 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-

training/export-administration-regulations-training/1554-ear-definitions-faq/file (last visited July 4, 2020).
148 15 C.F.R. § 734.14(a)(3) (2020).
149 15 C.F.R. § 734.18(a)(1) (2020).
150 15 C.F.R. § 772.1, definition of “knowledge” (2020). This definition does not apply to part 760 of the EAR
(Restrictive Trade Practices or Boycotts), id., which is not addressed in this book.
151 15 C.F.R. § 744.2(a) n. 1 (2020).
152 See Eric L. Hirschhorn, Foreign Corrupt Practices Act Narrowed, Significantly Clarified, Nat’l L.J. 16
(Dec. 26, 1988) (noting that “reason to know” standard under the 1988 amendments to the Foreign Corrupt
Practices Act does not appear to include negligence). The preambles to the proposed, 56 Fed. Reg. 10765
(Mar. 13, 1991), and final, 56 Fed. Reg. 40494 (Aug. 15, 1991), EAR “knowledge” regulations did not men-
tion the FCPA expressly, but it was generally understood at the time that the 1988 FCPA knowledge standard
formed the basis for the 1991 EAR standard.
153 See 78 Fed. Reg. 22728 (revising EAR definition; codified at 15 C.F.R. § 772.1), 22735 (adopting a CCL
order of review that includes treatment of ECCNs containing a “specially designed” criterion; codified at 15
C.F.R. pt. 774, supp. 4), 22754 (adopting ITAR definition; codified at 22 C.F.R. § 120.41) (Apr. 16, 2013).
The definition has been described as adopting a “catch-and-release” approach and

has two steps.154 First, the “catch” portion—paragraph (a)—comprises two broad sets
of circumstances. Inclusion in either of these brings the item within the definition un-
less one of the “releases” in paragraph (b) (discussed later) applies. One “catch” circum-
stance is that the item “has properties peculiarly responsible for achieving or exceeding
the performance levels, characteristics, or functions in the relevant ECCN or USML
paragraph.”155 A note explains that
[i]‌tems that as a result of “development” have properties peculiarly responsible for

achieving or exceeding the performance levels, “functions” or characteristics in a
relevant ECCN paragraph may have properties shared by different products. For ex-
ample, ECCN 1A007 controls equipment and devices, specially designed to initiate
charges and devices containing energetic materials, by electrical means. An example
of equipment not meeting the peculiarly responsible standard under paragraph (a)(1)
is a garage door opener, that as a result of “development” has properties that enable
the garage door opener to send an encoded signal to another piece of equipment to
perform an action (i.e., the opening of a garage door). The garage door opener is not
“specially designed” for purposes of 1A007 because although the garage door opener
could be used to send a signal by electrical means to charges or devices containing
energetic materials, the garage door opener does not have properties peculiarly re-
sponsible for achieving or exceeding the performance levels, “functions” or charac-
teristics in 1A007. For example, the garage door opener is designed to only perform
at a limited range and the level of encoding is not as advanced as the encoding usually
required in equipment and devices used to initiate charges and devices containing en-
ergetic materials, by electrical means. Conversely, another piece of equipment that, as
a result of “development,” has the properties (e.g., sending a signal at a longer range,
having signals with advanced encoding to prevent interference, and having signals that
are specific to detonating blasting caps) needed for equipment used to initiate charges
and devices containing energetic materials, would be peculiarly responsible because
the equipment has a direct and proximate causal relationship that is central or spe-
cial for achieving or exceeding the performance levels, “functions” or characteristics
identified in 1A007.156
The second “catch” circumstance covers parts, components, accessories, attachments,

or software “for use with or in a commodity or defense article ‘enumerated’ or otherwise
described on the CCL or the USML.”157 If an item is not “caught” by either of these
circumstances, it’s not “specially designed” and there is no need to consider the “release”
portion of the definition.158
Second, the “release” portion— paragraph (b) of the definition— contains six
subparagraphs. A part, component, accessory, attachment, or software (all as defined in
154 Id. at 22682.

155 15 C.F.R. § 772.1, definition of “specially designed” ¶ (a)(1) (2020).
156 15 C.F.R. § 772.1, definition of “specially designed,” n. to ¶ (a)(1) (2020).
157 Id. ¶ (a)(2). Note 1 to the definition of “specially designed” offers an extended explanation of
“enumerated.” Note 1 mentions “catch-all,” a term that is explained in detail in note 2.

158 15 C.F.R. pt. 774, supp. 4, ¶ (a)(4)(i) (2020).
section 772.1) that is “caught” by paragraph (a) nevertheless is not considered “specially
designed” if it falls within any of the “release” circumstances of paragraph (b).159
1. A commodity jurisdiction decision or an interagency-cleared commodity classifi-

cation (CCATS) has classified the item either to an ECCN that doesn’t contain the
phrase “specially designed” as a control parameter or as being an EAR99 item.160
2. The item—regardless of its form or fit—is “a fastener (e.g., screw, bolt, nut, nut
plate, stud, insert, clip, rivet, pin), washer, spacer, insulator, grommet, bushing,
spring, wire, or solder.”161
3. The item “[h]‌as the same function, performance capabilities, and the same or
“equivalent” form and fit, as a commodity or software used in or with an item that
[1] [i]s or was in “production” (i.e., not in “development”); and [2] [i]s either not
“enumerated” on the CCL or USML, or is described in an ECCN controlled only
for Anti-Terrorism (AT) reasons.”162 Note 1 to paragraph (b)(3) explains when
work being done to improve a production item removes the improved item from
qualification for this release criterion.
4. The item has been developed with “knowledge” that it would be for use “in or
with” (1) items not enumerated on the CCL or the USML or, if enumerated on
the CCL, items controlled only for antiterrorism reasons, as well as with (2) items
described in an ECCN.163
5. The item has been developed “as a general purpose” item—that is, not for use with
a particular commodity or type of commodity.164
6. The item has been developed for use in or with commodities or software that ei-
ther are covered by an ECCN controlled for antiterrorism reasons only or are clas-
sified to EAR99.165
In order to qualify under the last three bullets, their elements must be established by
“documents contemporaneous with” the development of the item.166 Unsurprisingly,
this documentation requirement can be challenging for items that were developed
many years ago.
B. Coverage of the EAR
The United States takes the position that jurisdiction under the EAR extends
not only to exports from the United States167 but also to reexports from foreign
159 15 C.F.R. § 772.1, definition of “specially designed” ¶ (b) (2020).

160 Id. ¶ (b)(1).
161 Id. ¶ (b)(2).
162 Id. ¶ (b)(3). Note 1 to the definition of “specially designed” offers an extended explanation of
“enumerated.” Note 1 mentions “catch-all,” a term that is explained in detail in note 2. Notes 2 and 3 to ¶ (b)(3)
explain the meaning of “equivalent” and “form.”
163 Id. ¶ (b)(4). “Knowledge” is defined in § 772.1 and is discussed supra at pages 15.
164 Id. ¶ (b)(5). An example of a “particular commodity” is an F/A-18 fighter aircraft. Id. An example of a
“particular type of commodity” is an aircraft or a machine tool. Id.

165 Id. ¶ (b)(6).
166 Id. nn. to ¶¶ (b)(4), (b)(5), and (b)(6).
167 15 C.F.R. § 734.3(a)(1) (2020).
countries of “U.S.-origin” goods and technology,168 certain exports of foreign made

goods incorporating U.S.-origin components,169 and certain exports of goods made
outside the United States that incorporate,170 or were produced using,171 U.S.-origin
technology.172 This jurisdiction is said to cover such items regardless of where they are
located and regardless of whether the person owning or controlling them has any other
connection with the United States.173 The EAR also cover certain activities by “United
States persons” even if no U.S.-origin goods or technology are involved.174
In the 1982 cases involving exports by European firms in support of a Soviet natural
gas pipeline, the United States controversially took the position that the EAA author-
ized it to control goods entirely of foreign origin if those goods were to be exported
from Europe by a European subsidiary of a U.S. parent company.175 The EAR do not
currently impose any similar restrictions. However, as discussed elsewhere in this book,
the United States continues to exert jurisdiction over the entirely foreign-origin activ-
ities of foreign subsidiaries of U.S. companies under some of the sanctions programs
administered by the Department of the Treasury.
Although the extensive extraterritorial reach for the EAR that is claimed by the
United States has been controversial from an international law standpoint,176 the
U.S. government has shown little inclination to accept restrictions upon this reach.177
C. Export Control Compliance and Antidiscrimination Rules
As demonstrated previously, employers must be cautious in sharing U.S.-origin tech-

nology with foreign nationals in the United States. An employer designing an export
control compliance program, however, also must keep the applicable antidiscrimination
laws in mind.
The interplay between the federal immigration and antidiscrimination laws, on the
one hand, and the EAR, ITAR, and nuclear technology export control regulations, on
the other, is complex, uncertain, and perilous. Indeed, at first glance the different sets of
rules may appear irreconcilable. A careful analysis, however, demonstrates that this is
only partly the case.
168 15 C.F.R. §§ 734.3(a)(2) (covering “[a]‌ll U.S. origin items wherever located”), 734.14 (2020). The EAR
do not define “U.S. origin.”

169 15 C.F.R. §§ 734.3(a)(3), 734.4 (2020).
170 15 C.F.R. § 734.3(a)(4) (2020).
171 15 C.F.R. § 734.3(a)(5) (2020).
172 See, e.g., American Law Institute, Restatement (Fourth) of the Foreign Relations Law of the
United States § 402, rptr. n. 9, at 161 (2018).

173 See 15 C.F.R. § 734.3(a)(2) (2020) (EAR covers U.S. origin items “wherever located”).
174 15 C.F.R. § 730.5(d) (2020).
175 Amendment of Oil and Gas Controls to the U.S.S.R., 47 Fed. Reg. 27250, 27252 (June 24,
1982) (amending 15 C.F.R. § 385.2(c)(1)); Export of Oil and Gas Equipment to the Soviet Union, 18 Weekly
Comp. Pres. Doc. 820 (June 19, 1982); In re Dresser (France) S.A., 47 Fed. Reg. 51463, 51466 (Nov. 15, 1982).
176 See, e.g., Kenneth Dam, Economic and Political Aspects of Extraterritoriality, 19 Int’l Law. 887, 894–95
(1985); Homer Moyer & Linda Mabry, Export Controls as Instruments of Foreign Policy: The History, Legal
Issues, and Policy Lessons of Three Recent Cases, 15 Law & Pol’y Int’l Bus. 1, 108–16 (1983); Stanley J. Marcuss
& Eric L. Richard, Extraterritorial Jurisdiction in United States Trade Law: The Need for a Consistent Theory, 20
Colum. J. Transnat’l L. 439, 473–81 (1981).
177 But see 15 C.F.R. § 734.3(a)(3) (2020) (where U.S.-origin proportion of foreign-made end product is de
minimis, end product is not subject to the EAR (by implication)).

One point on which the immigration and export controls schemes agree, for ex-
ample, is who is a “U.S. person.” This is someone who is (1) a U.S. citizen, (2) an indi-
vidual lawfully admitted for permanent residence, or (3) a “protected person” (i.e., a
refugee, asylum grantee, or an applicant for asylum).178 The export control rules provide
that such an individual is not the recipient of a “deemed export” when he or she receives
U.S.-origin technology.
Moreover, the Immigration and Nationality Act (INA) does not protect an individual
in a temporary, nonimmigrant, status from citizenship status discrimination. Thus, “an
employer that has a policy of not hiring individuals who are not ‘protected individuals’
based solely on the person’s citizenship status would not be in violation of the INA’s
anti-discrimination provision.”179 This means that a general policy limiting hiring to
employees who do not require work visas (namely, U.S. citizens, lawful permanent
residents, and “protected persons”) would not violate the antidiscrimination provisions
of the INA—although care must be taken to avoid even inadvertent violations of
antidiscrimination laws.
Further, the Justice Department, quite reasonably, discourages asking export
control–related questions “for positions that are not subject to export control laws.”180
Beyond these three points of concurrence, though, things quickly become more
complicated. If a non-U.S. person is in the country lawfully, the INA generally prohibits
employment discrimination on the basis of her citizenship, national origin, or immigra-
tion status.181 More generally, title VII of the Civil Rights Act of 1964 prohibits discrim-
ination on the basis of, among other things, national origin.182
Although the INA excepts “discrimination because of citizenship status which is
otherwise required in order to comply with law, regulation, or executive order,”183 the
Justice Department’s position is that this exception doesn’t apply in the export control
context because “[n]‌either the ITAR nor the EAR requires or authorizes employers to
hire only U.S. citizens and [lawful permanent residents].”184 Rather, the export control
rules require only “that employers obtain export licenses for non-U.S. person employees
if their positions require access to information governed by [those regulations]. As a
178 8 U.S.C. § 1324b(a)(3) (2018); accord 50 U.S.C. § 4801(13)(A)(i) (2018) (ECRA definition); 15 C.F.R.
§ 772.1, definition of “U.S. person” (2020) (EAR); 22 C.F.R. § 120.15 (2020) (ITAR); 10 C.F.R. § 810.2(c)(6)
(2020) (DOE nuclear technology regulations).
179 Letter from Seema Nanda, Deputy Special Counsel, Ofc. of Special Counsel for Immigration-Related
Unfair Employment Practices, U.S. Dep’t of Justice, to Malcolm K. Goeschi, Morgan Lewis & Bockius LLP at
2–3 (Feb. 25, 2013), https://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2013/163.pdf (last
visited July 4, 2020).
180 Letter from Alberto Ruisanchez, Deputy Special Counsel, Ofc. of Special Counsel for Immigration-
Related Unfair Employment Practices, U.S. Dep’t of Justice, to Eric S. Bord, Partner, Morgan, Lewis & Bockius
LLP, at 2 (Mar. 31, 2016) (citation omitted), https://www.justice.gov/crt/file/837281/download (last visited
July 4, 2020).
181 8 U.S.C. § 1324b(a)(1) (2018).
182 42 U.S.C. § 2000e-2 (2018).
183 8 U.S.C. § 1324b(a)(2)(C) (2018).
184 Press Release, U.S. Dep’t of Justice, “Justice Department Settles Immigration-Related Discrimination
Claim Against Honda Aircraft Company LLC” (Feb. 1, 2019), https:// www.justice.gov/ opa/
pr/
justice- d epartment- s ettles- i mmigration- related- d iscrimination- c laim- a gainst- h onda- aircraft?mc_
cid=a7f1ba30de (last visited July 4, 2020). The same is true of the nuclear technology regulations. 10
C.F.R. pt. 810 (2020).
result, [those regulations do] not limit the categories of work-authorized non-U.S. citi-
zens an employer may hire.”185
Title VII contains a national security exception, but it applies only if the position,
or access to the premises, “is subject to any requirement imposed in the interest of the
national security of the United States under any security program in effect pursuant
to or administered under any statute of the United States or any Executive order of the
President.”186 If an employer refuses to hire a person based on the national security ex-
ception, the burden is on the employer to prove that the position is subject to national
security requirements.
The Justice Department offers a few suggestions for reconciling export control and
antidiscrimination legal regimes, but it’s unclear how practical they are. For example,
Justice has said that
an employer that implements a document verification process to determine only a new

employee’s immigration or citizenship status to comply with export control laws is un-
likely to violate the anti-discrimination provision if the document verification process
is separate and distinct from the employment eligibility verification process. However,
we caution employers that to the extent these separate and distinct processes appear to
be integrated, such as due to proximity in time, employees and human resources per-
sonnel may have the impression that the documentary requests are for employment
eligibility verification purposes.187
Also,
[i]‌f the information is sought for compliance with export licensing requirements, and
not for employment eligibility verification or any discriminatory purposes, inquiring
about an applicant’s citizenship or country of origin for this purpose would not appear
to violate the INA’s anti-discrimination so long as such inquiries are made uniformly
and without the intent to discriminate on the basis of national origin or citizenship
status.188
But, this particular Justice Department letter continues, “an employer that refuses to
hire a work-authorized individual who is not a ‘protected individual’ for citizenship
status, but rather, based on that individual’s country of origin and/or country of citizen-
ship may be committing prohibited national origin discrimination.”189
So what is an employer to do? First, and most obviously, employers cannot restrict
hiring for export-controlled positions to only U.S. citizens, as the definition of protected
185 Letter from Alberto Ruisanchez, Deputy Special Counsel, Ofc. of Special Counsel for Immigration-
Related Unfair Employment Practices, U.S. Dep’t of Justice, to Eric S. Bord, Partner, Morgan, Lewis & Bockius
LLP, at 2 (Mar. 31, 2016) (citation omitted), https://www.justice.gov/crt/file/837281/download (last visited
July 4, 2020).
186 42 U.S.C. § 2000e-2(g) (2018).
187 Id. at 3.
188 Letter from Seema Nanda, Deputy Special Counsel, Ofc. of Special Counsel for Immigration-Related
Unfair Employment Practices, U.S. Dep’t of Justice, to Malcolm K. Goeschi, Morgan Lewis & Bockius LLP
at 3 (Feb. 25, 2013), https://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2013/163.pdf (last
visited July 4, 2020).
189 Id.
persons encompasses more classes of people. Several Justice Department civil enforce-
ment actions have penalized employers for failing to take this into account.
Second, employers can lawfully limit hiring, whether or not the position is export-
controlled, to candidates who do not require immigration sponsorship, so long as they
implement such policies in a nondiscriminatory manner.
Although employers can restrict hiring for export- controlled positions, the
restrictions must carefully align with the export-control requirements—and should
be limited to those positions that are actually subject to export controls requirements.
Where a position would require an export license, an employer may indicate—and
should do so in the job announcement—that individuals for whom a license would be
required will not be considered. Also, an employer can state—again, this is best done
when initially advertising an export control–related position—that employment ulti-
mately will depend upon the prospective hire being a U.S. person (as defined previ-
ously) or obtaining a deemed export license. The problem with this second approach is
that employer and employee may go through a drawn-out hiring process—and a wait
for the government’s decision on a deemed export license application—only to have the
license denied, sending employer and prospective employee back to zero.
Any restrictions included in advertising should be drafted with great caution. Even
legally accurate language can be regarded as discriminatory due to the possibility that
misunderstandings about terminology will deter potential candidates from applying for
the position. There is no designated “safe” language for describing immigration-specific
limitations in job advertisements. There are, however, two immigration- specific
questions that the Justice Department’s Immigration and Employee Rights Section has
designated as safe to ask of applicants during the hiring process:
“Are you legally authorized to work in the U.S.?”
“Will you now or in the future require sponsorship for employment visa status (e.g.,
H-1B status)?”
D. Information Disclosure
Many documents relating to BIS are available on the BIS website, https://bis.doc.gov.
Guidance documents can be found at https://bis.doc.gov/guidance, as well as on the
Commerce Department’s analogous site, https://www.commerce.gov/guidance.190
The disclosure of federal agency records, including those possessed by BIS, that
have not been made publicly available is governed by the Freedom of Information Act
(FOIA).191 In addition to its eight substantive exemptions from disclosure,192 FOIA
contains an exemption—Exemption 3—that incorporates by reference other federal
statutes that either “require[] that the matters [covered by those other laws] be withheld
from the public in such a manner as to leave no discretion on the issue” or “establish[]
190 See 85 Fed. Reg. 12771 (Mar. 4, 2020) (announcing establishment of Commerce Department site for
guidance documents.)
191 5 U.S.C. § 552 (2018).
192 See 5 U.S.C. § 552(b)(1)-(2), (4)-(9) (2018). The FOIA exemptions for classified materials, id. § 552(b)
(1), trade secrets, id. § 552(b)(4), and law enforcement information, id. § 552(b)(7), arise with particular fre-
quency in respect of FOIA requests for BIS records.
particular criteria for withholding or refer[] to particular types of material to be

withheld,” and that if enacted after 2009, refer expressly to Exemption 3.193
ECRA provides that “information submitted or obtained in connection with a li-
cense or other authorization . . . , a recordkeeping or reporting requirement, an enforce-
ment activity, or other operations under [ECRA’s export control provisions]” is within
Exemption 3 and is not to be disclosed unless the Secretary of Commerce determines
that disclosure is in the national interest.194 This ECRA provision unquestionably is an
Exemption 3 statute.
Although BIS handles its own FOIA requests, a Commerce-wide set of rules governs
such activities.195
IV. The Ten General Prohibitions of the Export

Administration Regulations
The key to compliance with the EAR is conforming to the ten general prohibitions. The
general prohibitions, which do not include all potential violations of the EAR,196 are as
follows.
A. General Prohibition One—Exports and Reexports
Absent a license issued by the Commerce Department or the availability of a “license

exception,” no one may export an item from the United States, or reexport a U.S.-origin
item from anywhere else, if the ECCN of that item on the CCL197 and the EAR Country
Chart,198 when read together, require a license for shipment to the country in ques-
tion.199 The ECCN indicates the reason(s) for control of the item. If the entry for the
destination country on the Country Chart has an “x” under one or more of the reasons
for control for the ECCN in question, the proposed export requires a license or license
exception.
B. General Prohibition Two—Parts and Components Reexports
Without a license or license exception, no one may export from abroad a foreign
made end product containing more than the specified de minimis200 percentage of
193 5 U.S.C. § 552(b)(3) (2018).

194 ECRA § 1761(h), 132 Stat. 2228–29 (codified as 50 U.S.C. § 4820(h)).
195 15 C.F.R. pt. 4 (2020).
196 For example, the general prohibitions don’t contain specific references to solicitation, attempt, aiding or
abetting a violation, conspiracy, or possession with intent to export illegally.

197 15 C.F.R. pt. 774, supp. 1 (2020).
198 15 C.F.R. pt. 738, supp. 1 (2020).
199 15 C.F.R. § 736.2(b)(1) (2020).
200 De minimis is a shorthand version of the Latin phrase de minimis non curat lex, meaning that the law
does not take notice of inconsequential things. Black’s Law Dictionary 524 (10th ed. 2014). In export con-
trol parlance, the term refers to foreign-made items whose U.S.-origin content is sufficiently small that the
end item is released from U.S. control and is not “subject to the EAR.” See 15 C.F.R. § 734.4 (2020).
U.S.-origin components if the CCL would require a license (or a license exception)
to send that end product (i.e., not the U.S.-origin components) from the United
States to the destination in question.201 The de minimis rule is discussed more fully
at pages 34–38.
C. General Prohibition Three—Exports of Foreign-Made Products

That Employ U.S.-Origin Technology
General Prohibition 3 requires a license for certain exports from abroad—exports

to Country Group E, to various Country Group D destinations, and to or involving
specified affiliates of a Chinese telecommunications company known as Huawei
Technologies Co. Ltd.—of items that are the “direct product” of U.S.-origin technology
or software, or are the direct product of a foreign plant (or major portion of a plant)
that’s the direct product of U.S.-origin technology.202 The four branches of this prohibi-
tion are addressed at pages 38–39.
D. General Prohibition Four—Violating Denial Orders
No one may violate a Commerce Department order affecting export privileges (a denial
order) unless the action has been licensed by BIS.203 Denial orders are published in the
Federal Register when issued and a compilation of current denial orders—the DPL—
is available on the BIS website: https://www.bis.doc.gov/index.php/policy-guidance/
lists-of-parties-of-concern/denied-persons-list. A consolidated screening list, which
includes the DPL as well as other lists of restricted parties published by BIS and the
U.S. Departments of State and the Treasury, can be found at https://www.trade.gov/
consolidated-screening-list. No license exception can be employed to overcome this
prohibition,204 and licenses for such transactions rarely are granted.205
E. General Prohibition Five—Prohibited End Use or End User
Without a license, no one knowingly may export or reexport any item to an end user or
end use prohibited for non-proliferation or similar reasons by part 744 of the EAR.206
201 15 C.F.R. § 736.2(b)(2) (2020).

202 15 C.F.R. § 736.2(b)(3) (2020), as amended by 85 Fed. Reg. 29852 (May 19, 2020) (adding coverage of
Huawei Technologies Co. Ltd. and affiliates), and by 85 Fed. Reg. 51603 (Aug. 20, 2020) (expanding coverage
for certain Entity List parties); see 85 Fed. Reg. 36719 (June 18, 2020) (permitting release of certain technology
to Huawei entities when release is to a standards organization for the purpose of contributing to the revision
or development of a standard).
203 15 C.F.R. § 736.2(b)(4) (2020).
204 15 C.F.R. § 736.2(b)(4)(ii) (2020).
205 See 15 C.F.R. § 732.3(g)(2) (2020).
206 15 C.F.R. § 736.2(b)(5) (2020).
F. General Prohibition Six—Embargoed Destinations
Absent a license or license exception, no one may export or reexport a U.S.-origin

item to a destination that is embargoed by the United States under part 746 of the
EAR.207 License exceptions for such destinations are available only if expressly au-
thorized by part 746,208 and licenses are issued for such destinations only on rare
occasions.
G. General Prohibition Seven—Proliferation Activities

by U.S. Persons
Without a license, no “U.S. person” may knowingly export to or support specified prolif-
eration activities—namely, the development of nuclear weapons, missiles, or chemical/
biological weapons—in specified countries.209 For purposes of this General Prohibition,
a U.S person is:
(1) Any individual who is a citizen of the United States, a permanent resident alien of
the United States, or a protected individual as defined by 8 U.S.C. 1324b(a)(3); (2) Any
juridical person organized under the laws of the United States or any jurisdiction
within the United States, including foreign branches; and (3) Any person in the United
States.210
“Support” means “any action, including financing, transportation, and freight

forwarding, by which a person facilitates an export, reexport, or transfer
(in-country).”211
BIS expressly reserves the right, by notice from the Deputy Assistant Secretary of
Commerce for Export Administration, to prohibit specified conduct that “could in-
volve” the prohibited activities.212 No license exceptions overcome this prohibition,213
and “applications to engage in activities otherwise prohibited by this section will be
denied if the activities would make a material contribution to the design, development,
production, stockpiling, or use of nuclear explosive devices, chemical or biological
weapons, or of missiles.”214
207 15 C.F.R. § 736.2(b)(6) (2020). Note that the Department of State, 22 C.F.R. § 126.1 (2020), and the
Department of the Treasury, 31 C.F.R. pts. 500–598 (2019), impose embargoes on various countries,
individuals, and entities. The State Department regulations are discussed at pages 125–196 infra, and the
Treasury Department regulations at pages 197–368 infra. A transaction involving an embargoed country may
require licensing under multiple regulatory regimes.
208 Id.
209 15 C.F.R. §§ 736.2(b)(7), 744.6(a)-(b) (2020).
210 15 C.F.R. § 744.6(c) (2020).
211 15 C.F.R. § 744.6(a)(1) (2020).
212 15 C.F.R. § 744.6(b) (2020).
213 15 C.F.R. § 744.6(d) (2020).
214 15 C.F.R. § 744.6(e) (2020).
H. General Prohibition Eight—In-Transit Restrictions
Without a license or license exception, no one may cause the transit of items through
any of the countries (currently seventeen in number) specified in section 736.2(b)(8)
(ii) of the EAR.215
I. General Prohibition Nine—Violation of Orders, License Terms, or

License Conditions
No one may violate a condition specified in a license, license exception, or order (in-
cluding orders appearing as supplements 1 and 2 to part 736) issued under the EAR.216
J. General Prohibition Ten—Acting with Knowledge of a Violation
No one may act in respect of a transaction or item subject to the EAR with knowledge
that a violation of the EAR relating to that transaction or item has occurred, is about to
occur, or is intended to occur.217 Among other things, this means that once a party is
aware of an EAR violation with respect to an item, the party cannot engage in further
actions or transactions with respect to that item (even to remedy the EAR violation)
without authorization from BIS. Moreover, no one may rely upon a license or license
exception under the EAR after being notified that such license or license exception has
been revoked or suspended.218
V. The Twenty-Nine-Step Program: Determining

the Regulatory Requirements for an Export or Reexport
Twelve steps are sufficient for Alcoholics Anonymous219 but not for the federal govern-
ment. An exporter may have to go through as many as twenty-nine steps to meet the
regulatory requirements for an export or reexport. These steps analyze whether an item
is subject to the EAR (steps 1 through 6),220 whether the transaction is caught by any
of the EAR’s ten general prohibitions (steps 7 through 19),221 whether the transaction
is eligible for any license exception (steps 20 through 26),222 and what formalities and
recordkeeping requirements apply to the transaction (steps 27 through 29).223
215 15 C.F.R. § 736.2(b)(8) (2020). The current countries (as of the close of 2020) are Armenia, Azerbaijan,
Belarus, Cambodia, Cuba, Georgia, Kazakhstan, Kyrgyzstan, Laos, Mongolia, North Korea, Russia, Tajikistan,
Turkmenistan, Ukraine, Uzbekistan, and Vietnam. Id. § 736.2(b)(8)(ii).
216 15 C.F.R. § 736.2(b)(9) (2020).
217 15 C.F.R. § 736.2(b)(10) (2020).
218 Id.
219 See A.A. World Services, “The Twelve Steps of Alcoholics Anonymous,” (rev. Aug. 2016), https://www.
aa.org/en_pdfs/smf-121_en.pdf (last visited July 4, 2020).

220 15 C.F.R. § 732.2 (2020).
221 15 C.F.R. § 732.3 (2020).
222 15 C.F.R. § 732.4 (2020).
223 15 C.F.R. § 732.5 (2020). A few other requirements are cross-referenced in section 732.6.
SUPPLEMENT NO. 1 TO PART 732 – EXPORT CONTROL DECISION TREE
Export Control
Subject to the EAR? No Exit the EAR
Decision Tree (See § 734.2–5)
Yes
Is your item classified under an

ECCN on the CCL?
ECCN Yes
[See § 736.2(b)(1–3)]
No EAR99
(See Supp No. 1 to Part 774)
Do General
Do General Prohibitions 4-
Prohibitions 4–10
10 apply?
Yes [See § 736.2(b)(4–10)] apply?
[See § 736.2(b)(4–10)]
No
Is there an “X” in the box? No

[(Using the Commerce Country
No “No License Required” (NLR)
Chart (Supp. No. 1 to Part 738)
[See §§ 732.5(a) & 758.1(d, f, g)]
and the CCL (Supp. No.1
to Part 774)]
Yes
Yes
Is a License Exception
Available? Yes Use License Exception
(See part 740, including § 740.2 (See Part 740)
“Restrictions on all License Exceptions”)
No
Submit an application for license
(See Part 748)
A. Steps 1 through 6—Is the Item or Transaction Subject to the EAR?
Unless excepted as described below, all items in the United States (regardless of their or-
igin) and all U.S.-origin items (whether located in the United States or elsewhere) are sub-
ject to the EAR, as are (1) U.S.-origin parts and components incorporated in foreign-made
products containing more than the de minimis U.S. value specified in the EAR, (2) foreign
technology or software commingled with U.S.-origin software or technology in excess of
permitted de minimis values, (3) certain foreign-made “direct products” of U.S.-origin
technology, and (4) certain commodities produced abroad by a plant or major component
of a plant that is a “direct product” of U.S.-origin technology or software.224 A flow chart
to assist in ascertaining whether a transaction is subject to the EAR appears in the EAR225
and is reproduced here.
224 15 C.F.R. § 734.3(a) (2020).

225 15 C.F.R. pt. 732, supp. 2 (2020).
Bureau of Industry and Security, Commerce Pt. 732, Supp. No. 2
SUPPLEMENT NO. 2 TO PART 732 - AM I SUBJECT TO THE EAR

Subject to the EAR?
Am I involved in an activity described in 734.5, e.g., related to the

proliferation of chemical or biological weapons, neclear explosive devices
or “missiles”; technical assistance with respect to encryption; or activities
YES
prohibited by any order issued under the EAR
See Section 734.5(a), (b), and (c)
NO
Is the item I am planning to export or reexport subject to the exclusive
jurisdiction of another U.S. Government Federal Department or Agency?
N YES
O See Section 734.3(b)(1)
T NO S
U
S Does my export or reexport consist of prerecorded phonograph records, B
U YES
printed book, pamphlets & miscellaneous publications as described in the
EAR?
J
B E
See Section 734.3(b)(2)
J C
NO
E T
C Is the technology or software I am planning to export or reexport publicly
available (excluding encryption items)?
T YES T
See Section 734.3(b)(3) O
T
NO
O T
Is my item in the United States?
YES H
T See Section 734.3(a)(1) E
H
NO
E Is my item outside of the U.S., but of U.S. origin? E

See Section 734.3(a)(2)
YES A
E R
NO
A
R Does my foreign-made item incorporate controlled U.S. origin items that
exceed the de minimis limits defined in section 734.4 or Supp. No. 2 to
part 734 of the EAR, or is it ineligible for de minimis? YES
See Section 734.3(a)(3)

NO
Is the foreign-made item a direct product of U.S.-origin technology or

software, as described in section 736.2(b)(3) o the EAR, and the
NO destination is Cuba, Libya, or a destination in Country Group D:1? YES
See Section 734.3(a)(4) and (5)
[69 FR 5687, Feb. 6, 2004]

The EAR define “direct product”—somewhat circularly—as “the immediate product

(including processes and services) produced directly by the use of technology or soft-
ware.”226 By way of example, if U.S.-origin technology is employed in designing a de-
vice for the manufacture of integrated circuits, the manufacturing device is the direct
product of the technology but the integrated circuits produced by that device ordinarily
are not.
Before addressing the steps that are set out in the EAR, we examine two restrictions
on Commerce Department technology controls that are imposed by ECRA and that as
of the close of 2020 had not been addressed in the EAR.
First, with the exception of a limited class of donations, Commerce may not use
its ECRA authorities “to regulate or prohibit . . . the export, reexport, or in-country
transfer of any item that may not be regulated or prohibited under section 203(b) of
the International Emergency Economic Powers Act (50 U.S.C. 1702(b))” (IEEPA).227
Second, Commerce may not employ its recently enacted authority regarding
“emerging” and “foundational” technologies to “control . . . the export of any tech-
nology . . . described in section 203(b) of [IEEPA]” or a similar provision of any other
law.228
IEEPA section 203(b) prohibits, among other things, restrictions on the export of
“any information or informational materials, including but not limited to, publications,
films, posters, phonograph records, photographs, microfilms, microfiche, tapes, com-
pact disks, CD ROMs, artworks, and news wire feeds” unless such information is
controlled for national security, non-proliferation, or terrorism reasons, or is subject to
the espionage laws.229
Accordingly, a colorable—though, to the authors’ knowledge, untested—argument
can be made for the proposition that BIS cannot control technology exports for reasons
other than national security, non-proliferation, or terrorism unless the statutory basis
for the control is a statute other than ECRA or IEEPA.230 The other reasons for con-
trol under the current EAR are crime control, regional stability, short supply, and
U.N. sanctions. Arguably, such reasons may not be employed as a basis for controlling
technology exports under the EAR, though this also would have been the case during
the periods (totaling twenty-six of the thirty years between 1988 and 2018) when the
EAR subsisted directly under IEEPA because the Export Administration Act of 1979
was in lapse.231 The issue does not appear to have been addressed by any reported court
decision.
226 15 C.F.R. § 734.3(a)(4) (2020).
227 50 U.S.C. § 4813(b) (2018).
228 50 U.S.C. § 4817(b)(4)(A) (2018) (“Mandatory Exceptions”).
229 50 U.S.C. § 1702(b)(3) (2018). The IEEPA provision, popularly known as the Berman Amendment,
was enacted in 1988 and revised in 1994. It refers to the national security and foreign policy provisions of the
now-repealed Export Administration Act of 1979 (EAA) by their section numbers. The repeal of the EAA
by ECRA, however, does not obviate this reference because “a statute that refers to another statute by spe-
cific title or section number in effect cuts and pastes the referenced statute as it existed when the referring
statute was enacted, without any subsequent amendments.” Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 769 (2019)
(Roberts, C.J.). Thus, the repeal of the EAA in 2018 does not detract from the 1994 incorporation of several of
its provisions into IEEPA by specific reference.
230 See Eric L. Hirschhorn, Can IEEPA Support Foreign Policy Controls on Exports of Technology?, Export
Control News, at 5 (Feb. 27, 1992). This article antedates the 1994 revision of § 203(b), which expanded the
exception to include non-proliferation and terrorism controls as well as those imposed for national security
reasons, but the principle is the same.
231 See supra note 10 and accompanying text for the precise dates when the EAR subsisted under IEEPA.
1. Step 1—Exclusive Jurisdiction of Another Federal Agency In step 1 the exporter

examines whether the item is subject to the exclusive jurisdiction of another federal
agency that controls exports for national security or foreign policy reasons. If so, the
EAR do not apply to exports or reexports of that item.232 The word “exclusive” is im-
portant. Ordinarily an item subject to the export regulatory jurisdiction of one agency
will not simultaneously be subject to the jurisdiction of another, but that is not always
the case. For example, the Treasury Department’s foreign assets control regulations
may restrict transactions with Country X or Entity Y at the same time the EAR control
exports of certain items to Country X or Entity Y. In some such instances one agency’s
regulations may expressly defer to those of the other.233 Absent such a provision, though,
licenses from both may be required. The basic approach used in structuring EAR juris-
diction, however, is that the regulatory regimes of other agencies take precedence and
that the EAR effectively is a default category.
The EAR expressly mention controls of the Department of State over defense arti-
cles and defense services,234 Treasury Department economic sanctions (though those
destination-oriented controls can overlap with and duplicate the EAR’s product-
oriented controls),235 Nuclear Regulatory Commission controls on commodities used
in connection with nuclear activities,236 Department of Energy regulations on assis-
tance to foreign nuclear activities,237 regulations of the Patent and Trademark Office
governing exports of certain technology as part of foreign patent applications,238 and
items subject to the EAR that are transferred to foreign countries by the Department of
Defense under the Foreign Military Sales program.239
2. Step 2—Publicly Available Technology and Software With the exception of encryp-
tion software controlled under ECCN 5D002,240 publicly available technology and soft-
ware are not subject to the EAR if they (1) have been published or are to be published,241
(2) arise during or result from fundamental research,242 (3) are educational, in that they
232 15 C.F.R. § 732.2(a) (2020).

233 E.g., 15 C.F.R. § 744.13(a)(2) (2020) (no BIS license needed for an export to a specially designated ter-
rorist if OFAC has authorized the transaction).
234 15 C.F.R. § 734.3(b)(1)(i) (2020). These controls, which are authorized by sections 38 and 39 of the Arms
Export Control Act of 1976, 22 U.S.C. § 2778 (2018), and the International Traffic in Arms Regulations, 22
C.F.R. pts. 120–130 (2020), are discussed at pages 125–196 of this volume.
235 15 C.F.R. § 734.3(b)(1)(ii) (2020). The economic sanctions regulations appear at 31 C.F.R. pts. 500–598
and are authorized principally by the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§
1701–1706 (2018), and section 5(b) of the Trading with the Enemy Act, 50 U.S.C. § 4305(b) (2018). They are
discussed at pages 197–368 infra.
236 15 C.F.R. § 734.3(b)(1)(iii) (2020). In general, the NRC regulates exports of nuclear materials and of
commodities for use inside the containment vessel, and BIS covers items for use outside the containment
vessel. The NRC regulations appear at 10 C.F.R. pt. 110 and are discussed infra at pages 369–379
237 15 C.F.R. § 734.3(b)(1)(iv) (2020). The DOE regulations, which appear at 10 C.F.R. pt. 810, are discussed
infra at pages 379–388.

238 15 C.F.R. § 734.3(b)(1)(v) (2020). The PTO regulations appear at part 5 of title 37 of the C.F.R. Certain
patent information also is excluded from the scope of the EAR. See 15 C.F.R. §§ 734.3(b)(iv), 734.10. Further
discussion of the relationship between the EAR and the PTO regulations appears in a 2006 BIS advisory
opinion. Letter from Alexander K. Lopes Jr., Director, Deemed Exports and Electronics Div., Ofc. of National
Security and Technology Transfer Controls, BIS (Jan. 11, 2006), https:// www.bis.doc.gov/ index.php/
documents/advisory-opinions/512-nexus-between-export-and-deemed-export-requirements-under-the-
ear-and-the-foreign-filing-requirement/file (last visited July 4, 2020).
239 15 C.F.R. § 734.3(b)(1)(vi) (2020). Such FMS items are subject to the Arms Export Control Act. Id.
240 15 C.F.R. § 734.3(b)(3) (2020). This includes source code for such software when stored in electronic
form but not when contained in “[a]‌printed book or other printed material.” Id. § 734.3(b) n.
241 15 C.F.R. §§ 734.3(b)(3)(i), 734.7 (2020).
242 15 C.F.R. §§ 734.3(b)(3)(i), 734.8 (2020).
“[a]‌re released by instruction in a catalog course or associated teaching laboratory of

an academic institution,”243 (4) are included in certain patent applications,244 (5) are
“non-proprietary system descriptions”245 (i.e., “technology . . . the possessor would
readily share with competitors”246), or (6) are telemetry data being transmitted to or
from spacecraft or satellites and limited to information specified, in detail, in note 2 to
category 9.E. of the Commerce Control List.247
Published information. Unclassified248 technology and software that has become
“available to the public without restrictions upon its further dissemination” (aside from
copyright restrictions or similar property rights in the medium249) has been “published”
for purposes of this rule.250 This means that except for certain encryption software251
and firearms-production software and technology,252 one lawfully possessing EAR-
controlled technology can remove it from control by the simple act of publishing it. This
provision represents an effort to accommodate First Amendment considerations. Its ra-
tionale is that the most sensitive information—from a practical rather than a theoretical
standpoint—is proprietary and hence will not be published readily by its owner. Indeed,
a commonly employed rule of thumb is whether the holder of the information would
share it with a competitor or with the general public, and an official example published
by the Commerce Department states that what can be seen on a plant tour that is open
to the general public is “published” for purposes of this rule.253
EAR examples—and these are not exclusive254—of “published” technology and
software include (1) by subscription open to anyone,255 (2) availability at libraries or
“other public collections” where the public can obtain the material,256 (3) “unlimited
243 15 C.F.R. §§ 734.3(b)(iii), 734.9 (2020).

244 15 C.F.R. §§ 734.3(b)(3)(iv), 734.10 (2020); Revisions to Definitions in the Export
Administration: Frequently Asked Questions, Patents (eff. Sept. 1, 2016,) https://www.bis.doc.gov/index.
php/documents/compliance-training/export-administration-regulations-training/1554-ear-definitions-
faq/file (last visited July 4, 2020).
245 15 C.F.R. § 734.3(b)(3)(v) (2020).
246 81 Fed. Reg. 35597 (June 3, 2016).
247 15 C.F.R. § 734.3(b)(3)(vi) (2020).
248 Information is “classified” when it has been classified for national security or similar reasons under
Exec. Order No. 13526, 75 Fed. Reg. 707 (Jan. 5, 2010), 3 C.F.R. 2009 Comp., p. 298, or a comparable
earlier or later order. Revisions to Definitions in the Export Administration: Frequently Asked Questions,
Published Technology and Software Q. 3 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/
July 4, 2020).
249 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Published
Technology and Software Q. 4 (eff. Sept. 1, 2016), https:// www.bis.doc.gov/

index.php/
documents/
July 4, 2020).
250 15 C.F.R. § 734.7(a) (2020).
251 15 C.F.R. § 734.7(b) (2020).
252 85 Fed. Reg. 4172 (Jan. 23, 2020) (adding § 734.7(c)).
253 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Release Q.3 (eff.

254 See 15 C.F.R. 734.7(a) (2020) (Information has been published “when it has been made available to the
public without restrictions upon its further dissemination such as through any of the following”) (emphasis
added).
255 15 C.F.R. § 734.7(a)(1) (2020). The text of this exception does not distinguish between subscription to a
printed periodical and subscription to an online service. See id. That said, BIS has not yet stated expressly that
the latter form of subscription comes within this exception.
256 15 C.F.R. § 734.7(a)(2) (2020). That a library has access controls in place to protect written materials from
theft or to protect users does not remove the facility from this exception. Revisions to Definitions in the Export
Administration: Frequently Asked Questions, Published Technology and Software Q.1 (eff. Sept. 1, 2016),
distribution” at a conference or similar gathering, in the United States or abroad, that is

“generally accessible to the public” or to “all technically qualified members of the public”
and where attendees are permitted to take and retain notes,257 (4) unlimited public dis-
semination (in printed form or otherwise), including posting on publicly accessible in-
ternet sites,258 and (5) “submission of a written . . . representation of knowledge” to a
domestic or foreign journal, a group conducting fundamental research (defined and
discussed immediately following), or organizers of an open conference with the in-
tent that the information “will be made publicly available if accepted for publication or
presentation.”259
Information arising from fundamental research. This provision excludes from con-
trol technology and software260 that arise during, or result from “research in science,
engineering, or mathematics, the results of which ordinarily are published and shared
broadly within the research community, and for which the researchers have not ac-
cepted restrictions for proprietary or national security reasons.”261
The genesis of this exclusion is National Security Decision Directive 189, which was
issued by President Ronald Reagan in September 1985.262 BIS has clarified that “[t]‌he
scope of the EAR definition of [fundamental research] is fully consistent with the scope
of the NSDD-189 definition.”263 NSDD-189 also states that if control of such informa-
tion is required for national security reasons, it should be effected through security clas-
sification rather than export controls.
It is important to note that there will be instances where the results of a project are to
be published and hence are “fundamental research,” but information coming into the
project (e.g., from a corporate sponsor) might be controlled, not destined for publica-
tion, and hence not fundamental research.264
https://www.bis.doc.gov/index.php/documents/compliance-training/export-administration-regulations-
training/1554-ear-definitions-faq/file (last visited July 4, 2020).
Asked Questions, Published Technology and Software QQ. 6, 6.1, 6.3 (eff. Sept. 1, 2016), https://www.bis.
doc.gov/index.php/documents/compliance-training/export-administration-regulations-training/1554-ear-
definitions-faq/file (last visited July 4, 2020). Charging a registration fee does not disqualify a conference so
long as the fee “is reasonably related to costs of the conference and reflects an intention that all interested and
technically qualified persons should be able to attend.” Id. Q. 6.2.
258 15 C.F.R. § 734.7(a)(4) (2020).
Asked Questions, Published Technology and Software QQ. 5, 5.1, 6.4 (eff. Sept. 1, 2016), https://www.bis.
doc.gov/index.php/documents/compliance-training/export-administration-regulations-training/1554-ear-
definitions-faq/file (last visited July 4, 2020).
260 The exclusion does not apply to “physical objects such as pathogens or equipment.” Revisions to
Definitions in the Export Administration: Frequently Asked Questions, Fundamental Research Q. 1 (eff.
261 15 C.F.R. § 734.8(c) (2020); see id. § 734.8(b) n. 3 (explaining circumstances under which government
research is excluded from the “publicly available” exception).

262 NSDDs, NATIONAL POLICY ON THE TRANSFER OF SCIENTIFIC, TECHNICAL AND
ENGINEERING INFORMATION (Sept. 21, 1985), https://fas.org/irp/offdocs/nsdd/nsdd-189.htm (last vis-

ited July 4, 2020).
263 Revisions to Definitions in the Export Administration: Frequently Asked Questions, Fundamental
Research Q. 3 (eff. Sept. 1, 2016), https:// www.bis.doc.gov/ index.php/ documents/compliance- training/

264 Revisions and Clarification of Deemed Export Related Regulatory Requirements, 71 Fed. Reg. 30840,
30844 (May 31, 2006); Revisions to Definitions in the Export Administration: Frequently Asked Questions,
Fundamental Research Q. 6 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-
training/export-administration-regulations-training/1554-ear-definitions-faq/file (last visited July 4, 2020).
Another random document with
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imagination is displayed with a power and amplitude that have
elsewhere never been surpassed in etching or engraving, and only
rarely in other forms of pictorial art. Although scarcely known to the
public at large, they have always formed the delight of those who
feel the appeal of imaginative fantasy, and notably of Coleridge and
of De Quincey, who has recorded his impression in golden words.
They are reputed to represent scenes which burned themselves into
the artist’s consciousness while delirious with fever, and it is certain
that they do possess that terrible, vivid reality, so enormously
amplified as to lose the proportions of ordinary existence, which
characterizes all oppressive dreams and particularly those induced
by narcotics. They represent interiors of vast and fantastic
architecture, complete yet unfinished, composed of an inexplicable
complexity of enormous arches springing from massive piers built,
like the arches they carry, of gigantic blocks left rough-hewn. By a
contrast that could only have been conceived by genius these
monstrous spaces are traversed in every direction by frail
scaffoldings, together with ladders, bridges, and all manner of works
in wood; and are filled, at the same time, with an inexhaustible
succession of ropes, pulleys, and engines, finely described by De
Quincey as “expressive of enormous power put forth or of resistance
overcome.” They are distinguished by one of Piranesi’s greatest
qualities, the power to express immensity as, perhaps, no one else
has ever done, and are flooded with light which seems intense in its
opposition to the brilliant shadows, so that altogether it would be
difficult to understand their title of “Prisons,” were it not for the
presence of engines of torment, and of mighty chains that twine over
and depend from huge beams, or sometimes bind fast the little
bodies of human beings. The unusual and inexplicable nature of
these “Prisons” gives to the beholder’s imagination a mighty stimulus
productive of strange excitement.
Piranesi. The Prisons. Plate V
Size of the original etching, 21¼ × 16¼ inches
Piranesi. The Prisons. Plate VI
Size of the original etching, 21¼ × 15¾ inches
The “English Opium-Eater” in likening his visions to these pictures,—
and what higher praise of their imaginative force could there be?—
speaks of their “power of endless growth and self-reproduction.” One
of their distinguishing peculiarities is this repetition of parts, as of
things which grow out of themselves unceasingly, reproducing their
parts until the brain reels at the idea of their endlessness. This
characteristic, together with that curious opposition between their air
of open immensity and their suggestion of prison-horror, gives them
that particular appearance of absolute reality in the midst of
impossibility, which is a distinctive feature of dreams. In this way they
arouse a sense of infinitude in the mind of the beholder; now,
although size is in itself of no importance, it is nevertheless true that,
when combined with other qualities of value, “greatness of
dimension is a powerful cause of the sublime.” This greatness, both
in conception and in material execution, they possess, together with
that opposition of light to obscurity which “seems in general to be
necessary to make anything very terrible.” Indeed, that these
etchings reveal a more imaginative vigor arouse a kind of awe in any
one who gives them more than a passing glance, while the horror
which they suggest is never physical so as to nauseate or “press too
nearly” and cause pain, but imparts, on the contrary, a sense of
danger and of terror that causes a delightful excitement, certainly
fulfilling the definition of the sublime as given by Burke.
Although it does not follow that Piranesi is a greater etcher than
Rembrandt, it may still be true that these etchings reveal a more
imaginative vigor than is shown in those of the great Dutchman.
They do not possess that subtle imagination which envelops
everything that Rembrandt ever touched in an air of exquisite
mystery, and gives to his least sketch an inexhaustible fund of
suggestion, nor can they be compared to his etchings as
consummate works of art; yet they do have a titanic, irresistible force
of sheer imagination, which neither Rembrandt nor any other etcher,
however superior in other ways, possessed to the same extent. Their
preëminence in this one point is certainly admissible, and as it has
been shown, presumably, that they are imaginative, original, and
sublime, is it too much to say that, at least in the expression of
certain intellectual qualities, Piranesi in these plates carried the art of
etching to the highest point yet attained, so that no one who does not
know these plates can know quite all that etching is capable of
expressing?
“The Prisons” are also the most notable example of that principle of
opposition, or contrast, of which Piranesi made so masterful a use in
whatever he did. The application of this law in the handling, and at
times in the abuse, of blacks and whites, is, of course, apparent to
even the most casual observer in all that came from his hand. In the
present series, however, this law may be seen carried to its utmost
limit. From every stupendous vault there hangs a long, thin rope,
while up gigantic pillars of rough masonry climb frail ladders of wood,
and great voids between immense piers are spanned by light
bridges, also of wood, bearing the slightest and most open of iron
railings. In his plates of Roman ruins, Piranesi introduces the human
figure dressed in the lovely costume of the eighteenth century, in
order to contrast grace with force, and to oppose the living and the
fugitive to the inanimate and the enduring; but here his use of the
human figure rises to the truly dramatic. In the midst of these vast
and awful halls with their air of stillness and of power, of “resistance
overcome,” he places men who seem the smallest and the frailest
among creatures. Grouped by twos or threes, whether depicted in
violent motion or standing with significant gesture, they are always
enigmatic in their attitudes, so that their presence and obvious
emotion amid this immense and silent grandeur arouse a sense of
tragic action, a feeling of mysterious wonder and curiosity that gives
to all lovers of intellectual excitement a pleasure as keen as unusual.
Particularly in one vision of a monstrous wheel of wood revolving in
space, no one knows how, above a fragment of rocky architecture,
while three human beings engaged in animated converse are
obviously unconscious of the gigantic revolutions, the limits of
fantasy are reached, and the mind turns instinctively to those images
of the spheres rolling eternally in infinite space which are found in
Milton and all mystic poets.
Piranesi. The Prisons. Plate IX
Size of the original etching, 21½ × 16 inches
Piranesi. The Prisons. Plate VII
Size of the original etching, 21⅝ × 16⅛ inches
These plates are also interesting as a striking and curious proof of
Piranesi’s conscious mastery of his art. They are filled with such a
fury of imagination, and are etched with such dash and boldness of
execution that it seems as though they must be, if not, as was once
said, the sane work of a madman, at least burned directly on the
plate by the force of a fever-stricken mind. But not so; they are,
however fevered their original inspiration may have been, the result
of careful elaboration, and are but one more proof of the saying of
that other and still greater etcher, Whistler, that a work of art is
complete, and only complete, when all traces have disappeared of
the means by which it was created. There exists in the British
Museum a unique, and until recently unknown, series of first states
of “The Prisons.” Now, although these first states have the main
outline and, as it were, the germ of the published states, these latter
are so elaborated and, on the whole, improved, as to make it at first
incredible that they could ever have grown out of, or had any relation
to, the earlier states. The idea of vast masses of masonry is there,
thrown on the paper with a simplicity of decorative effect and a
directness of touch which have been lessened in the later work; but,
on the other hand, all those scaffolds, engines of torment, and
groups of men above described, are lacking, so that the power of
contrast and the sense of terror, productive of the sublime, are
entirely wanting, and are, therefore, shown to be the result of
conscious art used by Piranesi in elaboration of an original
inspiration.
Piranesi possessed a style so intensely individual that every print he
produced is recognizable as his by any person who has ever looked
at two or three of his plates with moderate attention, yet this style
never degenerated into manner; that is to say, into an imitation not of
nature, but of the peculiarities of other men or of one’s own earlier
work. It became a manner or process in the hands of his son,
Francesco, but with Giovanni Battista it always remained style, which
is the expression of an original intellect observing nature before
consciously varying the relations of elements drawn by it from
nature, to the end of producing a work of art. This style, whose faults
lie in excessive contrasts of black and white, in inadequate handling
of skies, and, at times, in a certain general hardness of aspect, is
marked by great boldness, breadth, and power, both in conception
and in actual execution, but it is never marred by crudity or
roughness. It is a remarkable fact that the immense force, which first
of all impresses one in Piranesi’s work, does not exclude, but is, on
the contrary, often combined or contrasted with extreme elegance
and fineness of touch. To cite but one instance: in that wonderful
print which forms the title-page of “The Prisons,”—the figure of the
chained man, who imparts such a sense of terror to the whole scene,
is handled with a grace and delicacy worthy of Moreau or any of
those French contemporaries who filled the land with their exquisite
creations for the endless delight of later generations. It is this
contrast, together with his dramatic introduction and grouping of the
human figure, which gives to Piranesi’s style a character that has
been aptly qualified as scenic. An etching by Piranesi produces very
much the same curious effect that a person experiences on entering
a theater after the curtain has risen, so that he receives from the
stage a sudden, sharp impression, not of a passing moment of the
play, but of one distinct, dramatic picture. His etchings are never
theatrical in the sense of something factitious and exaggerated
beyond likeness to nature, but are always truly dramatic.
Piranesi. The Prisons. Plate VIII
Size of the original etching, 21½ × 15¾ inches
Piranesi. The Prisons. Plate XI
Size of the original etching, 16 × 21½ inches
It will have been noticed that plates by Piranesi have been referred
to both as etchings and engravings; this is because he used both
etching and engraving in the same plate, a proceeding which, if
decried by theoretical writers, has none the less been habitually
employed by many of the greatest masters of both means of
expression. Despite his faults and his Latin exuberance, Piranesi is
technically one of the great etchers, in whose hands, particularly in
certain plates in “The Prisons,” the etching-needle attained a breadth
of vigorous execution that no one has surpassed. In judging an artist,
the obvious precept, to consider what he was aiming to do, is
unfortunately too often neglected. To expect of Piranesi either the
incomparable delicacy of Whistler, or the unsurpassed crispness of
Meryon would be futile, but he does possess certain forceful qualities
which are not theirs. When he used the burin, he could handle it with
the greatest precision and skill. In such a plate as the one known as
The French Academy, the building is engraved with a skill not at all
unworthy of the engravers who were at that time doing such
wonderful work in France, while the plate, as a whole, gains a
delightful quality,—that neither pure etching nor pure engraving could
have given,—from the contrast which the sharp and delicately
engraved lines make with the figures that are etched with a
consummate freedom and dash worthy of Callot, who, one cannot
but think, must have influenced Piranesi.
In his valuable monograph on Piranesi, Mr. Arthur Samuel makes the
statement that “architectural etching has culminated with him”; and it
is certain that in this field his work surpasses, both in architectural
correctness and in artistic merit, any that has been done either
before or since his day.
Piranesi. The Prisons. Plate XIII

Size of the original etching, 16 × 21¾ inches
Piranesi. The Prisons. Plate XIV
Size of the original etching, 16⅜ × 21½ inches
Part III
THE INFLUENCE OF PIRANESI ON DECORATION
IN THE XVIII CENTURY
There is still another side of Piranesi’s originality, public ignorance of
which may be said to be complete—namely, his relation to
architecture, and the very great debt owed him by that art. That he
was an architect who signed himself as such on many plates during
his entire life is a fact ignored even by many of those architects who
are most indebted to him; but this fact is negligible, together with the
work which he actually executed as an architect. The benefits which
he conferred were rendered in other ways.
His first, and perhaps greatest, service consisted in the collection of
materials. The classic motives which he gathered and etched form
an inexhaustible store of ornament on which generation after
generation of architects has drawn, and will continue to draw. The
enormous quantity and variety of classic fragments of the best
quality that Piranesi brought together is in itself astounding, but a
fact of still greater importance is that it was he who, more than any
one else, gave these motives currency. In his day no one, except
Winckelmann—now known chiefly by his influence on Goethe, and
by his tragic death—did as much as Piranesi to foster appreciation
and spread knowledge of classic antiquity; while his plates, both by
their greater currency and higher artistic merit, did wider and more
enduring good than could ever be accomplished by the work of a
critic and connoisseur, even of Winckelmann’s talent and prestige.
His boundless enthusiasm and his real learning aroused more
people than we shall ever know, at the same time that his labors, so
indefatigable as to be incredible, spread abroad in prodigal profusion
the reproductions of the remains of classic buildings, statues, and
ornament. The greater part of these relics would have continued, but
for him, to be known to only a few collectors and frequenters of
museums; and it is certain that more classic motives have come into
use, directly or indirectly, from the works of Piranesi than from any
other one source, with the possible exception of modern
photography.
In this connection it is impossible to insist too much on his exquisite
taste, which, although it had its lapses, as in his designs for
chimney-pieces, was on the whole of the highest. This fact seems
quite incredible if the time and place of his life be considered. The
intellectual degradation of all Italy at this period has already been
alluded to, and, art being always a reflection and expression of
contemporary life, it follows that the artistic degradation of Piranesi’s
Italian contemporaries was complete. It is difficult to conceive the
rococo horrors of eighteenth-century Italy. In France the most
contorted productions of the Louis XV style, or the most far-fetched
symbolic lucubrations under Louis XVI, never reached such depths
of bad taste; for the French, in their most unfortunate moments, can
never divest themselves entirely of an innate taste and a sense of
measure which give some redeeming grace to their worst follies. The
lack of tact, of a sense of limitations, which often characterizes
Spanish and Italian art, and at times makes possible splendid flights
never attempted by the French, also permits them, when misguided,
to sink to abysmal depths. It would be hard to find much good in the
heavy contortions of the rococo work of eighteenth-century Italy,
which, starting from Bernini, exaggerated all his faults and kept none
of even his perverted genius. Amid this riot of bad taste, Piranesi,
with his love of classic simplicity, his sense of the noble, and his
feeling for balance and distance, stands out an inexplicable
phenomenon.
In certain plates, Piranesi, while using elements taken from antiquity,
created a style of ornamental composition which inspired or was
copied in work praised for its originality, and passing under the name
of other styles. No one dreams of speaking of a Piranesi style, yet
there is many a piece of decoration that calls itself Louis XVI, or
Adam, or anything else, which comes directly from the work of this
much-pilfered Italian. He stands in relation to a great deal of
architectural decoration much as do, in science, those profound and
creative minds who discover a great principle, but neglect its detailed
application, only to have it taken up by lesser inventors of a practical
trend, who put it to actual uses, the tangible value of which excites
so great an admiration that no thought is taken of the man who
discovered the very principle at the base of it all. In such plates as
those dedicated to Robert Adam and Pope Clement XIII there can be
found, fully developed, the style we call currently Louis XVI, although
the greater part of it was produced under Louis XV
contemporaneously with the work which goes by that name. The
style in question is there, with its exquisite detail copied from the
antique; we can see its inspiration taken from the classic which it
wished to reproduce, together with its fortunate inability to do so, and
its consequently successful creation of something entirely original
but yet filled with classic spirit. That interruption of ornament, that
alternation of the decorated and the plain, that sense of balance and
of contrast, distinctive of the Louis XVI style—all are here. To think
that these qualities came to Piranesi through French influence would
be ridiculous, for the style under discussion obviously took for its
model classic art, to which it was an attempted return; and as
Piranesi was all his life in direct contact with the source of this
inspiration, he could scarcely have been formed by a derivation of
that which he knew directly.
If this be true, it may be asked why Piranesi’s work did not create in
Italy at least sporadic attempts at a style analogous to that of Louis
XVI. The reason for this lies in the already mentioned condition of
the Italy of that day, for a work of art is absolutely conditioned by, and
a result of, the environment in which it occurs. Here and there a work
of art may, by some phenomenon, occur in opposition, or without
apparent relation, to its surroundings; but in such circumstances it
will have no successors, just as an unusually hardy orange-tree may
thrive far to the north, but will not bear fruit and propagate itself. A
great critic has said: “There is a reigning direction, which is that of
the century; those talents who try to grow in an opposite direction
find the issue closed; the pressure of public spirit and of surrounding
manners compresses or turns them aside by imposing on them a
fixed flowering.” The torpor and bad taste engendered in Italy by
political and intellectual oppression precluded the work of Piranesi
from bearing any fruit in his own country.
Statue of Piranesi, by Angelini, assisted by Piranesi’s son,
and erected in the Church of Santa Maria in Aventino
(Rome). It faces the great candelabra which Piranesi had
designed to illuminate his statue. This plate was engraved by
Piranesi’s son, Francesco, in 1790.
Size of the original engraving, 19⅞ × 12¾ inches
Piranesi. Antique Marble Vase
From “Vasi. Candelabri. Cippi. Sarcofagi. Tripodi. Lucerne ed Ornamenti
Antichi Disegn. ed inc. dal Cav. Gio. Batta. Piranesi.” (1778) Vol. II, plate No.
73. Piranesi’s dedication of this plate reads: “Al Suo Carissimo Amico Il. Sig.
Riccardo Hayward Scuttore Inglese.”
Size of the original etching, 24 × 16⅜ inches
To think, on the other hand, that Piranesi exerted an influence on

French art of his day is not so fanciful as might at first be supposed.
If it be true, as just stated, that it is impossible for the work of an
artist to produce any result when his environment is hostile, it is
equally true that an artist, or a body of artists, can exert an enormous
influence when their surroundings favor and the ground is ready to
receive the seed they sow. France was ripe for such seed as
Piranesi cast abroad vainly in Italy, and in the former country an
incalculable influence in the creation of the Louis XVI style was
exerted by those men who accompanied Mme. de Pompadour’s
brother, Abel Poisson, Marquis de Marigny, on his travels in Italy.
Three years previously this great patron of art had caused her
brother to be appointed to the succession of the “Surintendance des
Beaux-Arts,” and after three years of apprenticeship, in order to
make himself worthy of this important and exalted position, she sent
him, in the company of a numerous suite, to Italy in December, 1749,
to complete his education by remaining there until September, 1751.
In his following were Soufflot, the architect, and Charles Nicholas
Cochin fils, the celebrated engraver. On his return from Italy, M. de
Marigny directed all the works of art undertaken by the government
throughout France, while Soufflot built the church of Ste. Geneviève,
now known as the Panthéon, and was one of the most conspicuous
and influential men in the world of art in his day. Cochin, aside from
being a great engraver, was intellectually one of the most interesting
artists of the day, and, as M. de Marigny’s right-hand man, wielded
an influence almost incomprehensible to us of to-day. The latter part
of his life, he really ruled in M. de Marigny’s stead, and his absolute
dictatorship in all matters of art in France can only be compared to
that of Le Brun under Louis XIV.
That his Italian travels were the decisive influence of Cochin’s career
is clearly shown in his own work, and is expressly stated by Diderot,
who says of him that, “judge everywhere else, he was a scholar at
Rome.” Soufflot was only seven years older than Piranesi, and

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U.S.

Export Controls and Economic

Understanding Motor Controls 4th Edition Stephen L.

How Sanctions Work: Iran and the Impact of Economic

Commercial Law 4th Edition Eric Baskind

Export Import Management Gupta

Essentials of the U.S. Health Care System 4th Edition,

Williams Gynecology (4th ed) 4th Edition Barbara L.

Dermatology 4th Edition Jean L. Bolognia

Sanctions: What Everyone Needs to Know® Bruce W.

Published in the United States of America by Oxford University Press

© Oxford University Press 2022

You must not circulate this work in any other form

Library of Congress Cataloging-​in-​Publication Data

(Based on the Declaration of Principles jointly adopted by a Committee of the

• U.S. Code: https://​uscode.house.gov/​browse.xhtml

Public Laws enacted since 1995 can be found at:

1 1 Journals of Congress 75, 77 (Oct. 20, 1774), http://​memory.loc.gov/​cgi-​bin/​ampage?collId=lljc&fileN

nuke/​control/​export/​provisions.htm (last visited June 27, 2020).

2011–​2297g-​4 (2018), and implementing regulations, 10 C.F.R. pt. 810 (2020).

10 See 31 C.F.R. pts. 500-​598 (2019).

U.S.C. § 381(e)(1), (2) (2018).

Recovery Act of 1976. 42 U.S.C. § 6938 (2018); 40 C.F.R. §§ 262.83 (2020).

181–​188 (2018); 37 C.F.R. pt. 5 (2020).

Act of 1916. 46 U.S.C. § 56101 (2018).

Endangered Species Act of 1973. 16 U.S.C. §§ 1531-​1544 (2018).

Act of 1984. 16 U.S.C. §§ 2431-​2444 (2018).

I. Introduction  2 for Control, and the Commerce

3. Shipments to Country Group B to the Automated Export

II. Overview of the Export Administration Regulations

force under IEEPA).

pages 55 through 74 infra.

An exporter must go through as many as twenty-​nine steps to determine and carry

III. Scope of the Export Administration Regulations

56 15 C.F.R. § 744.6 (2020).

64 15 C.F.R. § 734.2(a) (2020).

addresses antiboycott compliance, however. Id.

86 15 C.F.R. § 734.3, n. to ¶¶ (b)(2) & (b)(3) (2020).

Technology Q. 1 (eff. Sept. 1, 2016), https://​www.bis.doc.gov/​index.php/​documents/​compliance-​training/​

Technology Q. 2 (eff. Sept. 1, 2016), https://​www.bis.doc.gov/​index.php/​documents/​compliance-​training/​

Are Not Exports, Reexports, or Transfers Q. 10 (eff. Sept. 1, 2016), https://​www.bis.doc.gov/​index.php/​

Not Exports, Reexports, or Transfers Q. 9 (eff. Sept. 1, 2016), https://​www.bis.doc.gov/​index.php/​documents/​

Sept. 1, 2016), https://​www.bis.doc.gov/​index.php/​documents/​compliance-​training/​export-​administration-​

compliance-​training/​export-​administration-​regulations-​training/​1554-​ear-​definitions-​faq/​file (last visited

Sept. 1, 2016), https://​www.bis.doc.gov/​index.php/​documents/​compliance-​training/​export-​administration-​

policy-​guidance/​encryption/​560-​encryption-​faqs#3 (last visited July 4, 2020).

[p]‌ublishing “mass market” encryption software to the Internet where it may be

• There is no deemed reexport where a foreign entity lawfully in possession of U.S.-​

and Technology Transfer Controls, BIS (Sept. 11, 2009), https://​www.bis.doc.gov/​index.php/​documents/​

and Technology Transfer Controls, BIS (Sept. 11, 2009), https://​www.bis.doc.gov/​index.php/​documents/​

• the foreign national’s most recent country of citizenship or permanent residency

140 15 C.F.R. § 734.20(a) (2020).

Export and Reexport Q. 3 (eff. Sept. 1, 2016), https://​www.bis.doc.gov/​index.php/​documents/​compliance-​

The definition has been described as adopting a “catch-​and-​release” approach and

[i]‌tems that as a result of “development” have properties peculiarly responsible for

The second “catch” circumstance covers parts, components, accessories, attachments,

154 Id. at 22682.

“enumerated.” Note 1 mentions “catch-​all,” a term that is explained in detail in note 2.

Library of Congress Cataloging-in-Publication Data

• U.S. Code: https://uscode.house.gov/browse.xhtml

1 1 Journals of Congress 75, 77 (Oct. 20, 1774), http://memory.loc.gov/cgi-bin/ampage?collId=lljc&fileN

nuke/control/export/provisions.htm (last visited June 27, 2020).

2011–2297g-4 (2018), and implementing regulations, 10 C.F.R. pt. 810 (2020).

10 See 31 C.F.R. pts. 500-598 (2019).

181–188 (2018); 37 C.F.R. pt. 5 (2020).

Endangered Species Act of 1973. 16 U.S.C. §§ 1531-1544 (2018).

Act of 1984. 16 U.S.C. §§ 2431-2444 (2018).

I. Introduction 2 for Control, and the Commerce

An exporter must go through as many as twenty-nine steps to determine and carry

Technology Q. 1 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-training/

Technology Q. 2 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-training/

Are Not Exports, Reexports, or Transfers Q. 10 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/

Not Exports, Reexports, or Transfers Q. 9 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/

Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-training/export-administration-

compliance-training/export-administration-regulations-training/1554-ear-definitions-faq/file (last visited

Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-training/export-administration-

policy-guidance/encryption/560-encryption-faqs#3 (last visited July 4, 2020).

• There is no deemed reexport where a foreign entity lawfully in possession of U.S.-

and Technology Transfer Controls, BIS (Sept. 11, 2009), https://www.bis.doc.gov/index.php/documents/

and Technology Transfer Controls, BIS (Sept. 11, 2009), https://www.bis.doc.gov/index.php/documents/

Export and Reexport Q. 3 (eff. Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-

The definition has been described as adopting a “catch-and-release” approach and

“enumerated.” Note 1 mentions “catch-all,” a term that is explained in detail in note 2.

1. A commodity jurisdiction decision or an interagency-cleared commodity classifi-

countries of “U.S.-origin” goods and technology,168 certain exports of foreign made

As demonstrated previously, employers must be cautious in sharing U.S.-origin tech-

A. General Prohibition One—Exports and Reexports

B. General Prohibition Two—Parts and Components Reexports

C. General Prohibition Three—Exports of Foreign-Made Products

General Prohibition 3 requires a license for certain exports from abroad—exports

D. General Prohibition Four—Violating Denial Orders

E. General Prohibition Five—Prohibited End Use or End User

F. General Prohibition Six—Embargoed Destinations

Absent a license or license exception, no one may export or reexport a U.S.-origin

G. General Prohibition Seven—Proliferation Activities

H. General Prohibition Eight—In-Transit Restrictions

I. General Prohibition Nine—Violation of Orders, License Terms, or

J. General Prohibition Ten—Acting with Knowledge of a Violation

V. The Twenty-Nine-Step Program: Determining

aa.org/en_pdfs/smf-121_en.pdf (last visited July 4, 2020).

A. Steps 1 through 6—Is the Item or Transaction Subject to the EAR?

The EAR define “direct product”—somewhat circularly—as “the immediate product

1. Step 1—Exclusive Jurisdiction of Another Federal Agency In step 1 the exporter

Technology and Software Q. 4 (eff. Sept. 1, 2016), https:// www.bis.doc.gov/

Sept. 1, 2016), https://www.bis.doc.gov/index.php/documents/compliance-training/export-administration-

ENGINEERING INFORMATION (Sept. 21, 1985), https://fas.org/irp/offdocs/nsdd/nsdd-189.htm (last vis-

Research Q. 3 (eff. Sept. 1, 2016), https:// www.bis.doc.gov/ index.php/ documents/compliance- training/