Title 15—Commerce and Foreign Trade--Volume 1
PART 744—CONTROL POLICY: END-USER AND END-USE BASED
§ 744.1   General provisions.
(a)(1) Introduction. In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part contains prohibitions against exports, reexports, and selected transfers to certain end users and end uses as introduced under General Prohibitions Five (End use/End users) and Nine (Orders, Terms, and Conditions), unless authorized by BIS. Sections 744.2, 744.3, and 744.4 prohibit exports, reexports, and transfers (in-country) of items subject to the EAR to defined nuclear, missile, and chemical and biological weapons proliferation activities. Section 744.5 prohibits exports, reexports, and transfers (in-country) of items subject to the EAR to defined nuclear maritime end-uses. Consistent with General Prohibition Seven (Support of Proliferation Activities and certain Military-Intelligence End Uses and End Users (“U.S. person” activities)), § 744.6 prohibits specific activities by U.S. persons in support of certain nuclear, missile, chemical and biological weapons end uses, and whole plants for chemical weapons precursors, as well as certain military-intelligence end uses and military-intelligence end users. Section 744.7 prohibits exports, reexports, and transfers (in-country) of certain items for certain aircraft and vessels. Section 744.8 prohibits exports, reexports, and transfers (in-country) without authorization when a person designated on the list of Specially Designated Nationals and Blocked Persons (SDN List) pursuant to certain specified sanctions programs is a party to the transaction. Section 744.9 sets forth restrictions on exports, reexports, and transfers (in-country) of certain cameras, systems, or related components. Section 744.11 imposes license requirements, to the extent specified in supplement no. 4 to this part, on entities listed in supplement no. 4 to this part for activities contrary to the national security or foreign policy interests of the United States. Section 744.15 sets forth the conditions for exports, reexports, and transfers (in-country) to persons listed on the Unverified List (UVL) in supplement no. 6 to this part, the criteria for revising the UVL, as well as procedures for requesting removal or modification of a listing on the UVL. Section 744.16 sets forth the license requirements, policies and procedures for the Entity List. Section 744.17 sets forth restrictions on exports, reexports, and transfers (in-country) of microprocessors and associated “software” and “technology” for military end uses and to military end users. Section 744.19 sets forth BIS's licensing policy for applications for export, reexport, and transfer (in-country) when a party to the transaction is an entity that has been sanctioned pursuant to any of three specified statutes that require certain license applications to be denied. In addition, these sections include license review standards for export, reexport, and in-country transfer license applications submitted as required by these sections. It should also be noted that part 764 of the EAR prohibits exports, reexports, and certain transfers of items subject to the EAR to denied parties. Section 744.21 imposes restrictions for exports, reexports, and transfers (in-country) of item subject to the EAR listed in supplement no. 2 to this part for a military end use or military end user in Burma, Cambodia, the People's Republic of China (PRC or China), Nicaragua, or Venezuela and for a Burmese, Cambodian, Chinese, Nicaraguan, or Venezuelan military end user if identified in supplement no. 7 to this part. Section 744.21 also imposes restrictions for exports, reexports, and transfers (in-country) for all items subject to the EAR for a military end use or military end user in Belarus or Russia and for a Belarusian or Russian military end user wherever located if identified on supplement no. 4 to this part. Section 744.22 imposes restrictions on exports, reexports, and transfers (in-country) for a military-intelligence end use or military-intelligence end user in Burma, China, Russia, or Venezuela; or for a country listed in Country Groups E:1 or E:2 (see supplement no. 1 to part 740 of the EAR). Section 744.23 sets forth restrictions on exports, reexports, and transfers (in-country) for certain “supercomputer” and semiconductor manufacturing end use.
(2) If controls set forth under more than one section of part 744 apply to a person, the license requirements for such a person will be determined based on the requirements of all applicable sections of part 744, and license applications will be reviewed under all applicable licensing policies.
(b) Steps. The following are steps you should follow in using the provisions of this part:
(1) Review end-use and end-user prohibitions. First, review each end-use and end-user prohibition described in this part to learn the scope of these prohibitions.
(2) Determine applicability. Second, determine whether any of the end-use and end-user prohibitions described in this part are applicable to your planned export, reexport, shipment, transmission, transfer (in-country) or other activity. See supplement no. 1 to part 732 for guidance. For exports, reexports, shipments, transmissions, or transfers (in-country) that are in transit at the time you are informed by BIS that a license is required in accordance with §§ 744.2(b), 744.3(b), 744.4(b), 744.6(c), 744.9(b), 744.11(c), 744.17(b), 744.21(b), or 744.22(b) of the EAR, you may not proceed any further with the transaction unless you first obtain a license from BIS (see part 748 of the EAR for instructions on how to apply for a license). The provisions of § 748.4(d)(2) of the EAR shall not apply to license applications submitted pursuant to a notification from BIS that occurs while an export, reexport, or transfer (in-country) is in transit.
§ 744.2   Restrictions on certain nuclear end-uses.
(a) General prohibition. In addition to the license requirements for items specified on the CCL, you may not export, reexport, or transfer (in-country) to any destination, other than countries in supplement no. 3 to this part, an item subject to the EAR without a license if, at the time of export, reexport, or transfer (in-country) you know 1 that the item will be used directly or indirectly in any one or more of the following activities described in paragraphs (a)(1), (a)(2), and (a)(3) of this section:
1 Part 772 of the EAR defines “knowledge” for all of the EAR except part 760, Restrictive Trade Practices and Boycotts. The definition, which includes variants such as “know” and “reason to know”, encompasses more than positive knowledge. Thus, the use of “know” in this section in place of the former wording “know or have reason to know” does not lessen or otherwise change the responsibilities of persons subject to the EAR.
(1) Nuclear explosive activities. Nuclear explosive activities, including research on or development, design, manufacture, construction, testing or maintenance of any nuclear explosive device, or components or subsystems of such a device. 2 3
2 Nuclear explosive devices and any article, material, equipment, or device specifically designed or specially modified for use in the design, development, or fabrication of nuclear weapons or nuclear explosive devices are subject to export licensing or other requirements of the Directorate of Defense Trade Controls, U.S. Department of State, or the licensing or other restrictions specified in the Atomic Energy Act of 1954, as amended. Similarly, items specifically designed or specifically modified for use in devising, carrying out, or evaluating nuclear weapons tests or nuclear explosions (except such items as are in normal commercial use for other purposes) are subject to the same requirements.
3 Also see §§ 744.5 and 748.4 of the EAR for special provisions relating to technical data for maritime nuclear propulsion plants and other commodities.
(2) Unsafeguarded nuclear activities. Activities including research on, or development, design, manufacture, construction, operation, or maintenance of any nuclear reactor, critical facility, facility for the fabrication of nuclear fuel, facility for the conversion of nuclear material from one chemical form to another, or separate storage installation, where there is no obligation to accept International Atomic Energy Agency (IAEA) safeguards at the relevant facility or installation when it contains any source or special fissionable material (regardless of whether or not it contains such material at the time of export), or where any such obligation is not met.
(3) Safeguarded and unsafeguarded nuclear activities. Safeguarded and unsafeguarded nuclear fuel cycle activities, including research on or development, design, manufacture, construction, operation or maintenance of any of the following facilities, or components for such facilities: 4
4 Such activities may also require a specific authorization from the Secretary of Energy pursuant to § 57.b.(2) of the Atomic Energy Act of 1954, as amended, as implemented by the Department of Energy's regulations published in 10 CFR 810.
(i) Facilities for the chemical processing of irradiated special nuclear or source material;
(ii) Facilities for the production of heavy water;
(iii) Facilities for the separation of isotopes of source and special nuclear material; or
(iv) Facilities for the fabrication of nuclear reactor fuel containing plutonium.
(b) Additional prohibition on persons informed by BIS. BIS may inform persons, either individually by specific notice or through amendment to the EAR, that a license is required for a specific export, reexport, or transfer (in-country), or for the export, reexport, or transfer (in-country) of specified items to a certain end-user, because there is an unacceptable risk of use in, or diversion to, the activities specified in paragraph (a) of this section. Specific notice is to be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided orally, it will be followed by a written notice within two working days signed by the Deputy Assistant Secretary for Export Administration. However, the absence of any such notification does not excuse persons from compliance with the license requirements of paragraph (a) of this section.
(c) Exceptions. Despite the prohibitions described in paragraphs (a) and (b) of this section, you may export technology subject to the EAR under the operation technology and software or sales technology and software provisions of License Exception TSU (see § 740.13(a) and (b)), but only to and for use in countries listed in supplement no. 3 to part 744 of the EAR (Countries Not Subject to Certain Nuclear End-Use Restrictions in § 744.2(a)). Notwithstanding the provisions of part 740 of the EAR, the provisions of § 740.13(a) and (b) will only overcome General Prohibition Five for countries listed in supplement no. 3 to part 744 of the EAR.
(d) License review standards. The following factors are among those used by the United States to determine whether to grant or deny license applications required under this section:
(1) Whether the commodities, software, or technology to be transferred are appropriate for the stated end-use and whether that stated end-use is appropriate for the end-user;
(2) The significance for nuclear purposes of the particular commodity, software, or technology;
(3) Whether the commodities, software, or technology to be exported are to be used in research on or for the development, design, manufacture, construction, operation, or maintenance of any reprocessing or enrichment facility;
(4) The types of assurances or guarantees given against use for nuclear explosive purposes or proliferation in the particular case;
(5) Whether the end-user has been engaged in clandestine or illegal procurement activities;
(6) Whether an application for a license to export to the end-user has previously been denied, or whether the end-use has previously diverted items received under a license, License Exception, or NLR to unauthorized activities;
(7) Whether the export would present an unacceptable risk of diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in § 744.2(a) of the EAR;
(8) The nonproliferation credentials of the importing country, based on consideration of the following factors:
(i) Whether the importing country is a party to the Nuclear Non-Proliferation Treaty (NPT) or to the Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco) (see supplement no. 2 to part 742 of the EAR), or to a similar international legally-binding nuclear nonproliferation agreement;
(ii) Whether the importing country has all of its nuclear activities, facilities or installations that are operational, being designed, or under construction, under International Atomic Energy Agency (IAEA) safeguards or equivalent full scope safeguards;
(iii) Whether there is an agreement for cooperation in the civil uses of atomic energy between the U.S. and the importing country;
(iv) Whether the actions, statements, and policies of the government of the importing country are in support of nuclear nonproliferation and whether that government is in compliance with its international obligations in the field of nonproliferation;
(v) The degree to which the government of the importing country cooperates in nonproliferation policy generally (e.g., willingness to consult on international nonproliferation issues);
(vi) Intelligence data on the importing country's nuclear intentions and activities; and
(9) Whether the recipient state has sufficient national export controls (as described in paragraph 3 of United Nations Security Council Resolution 1540 (2004)) to prevent an unacceptable risk of retransfer or diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in § 744.2(a) of the EAR.
§ 744.3   Restrictions on certain rocket systems (including ballistic missiles, space launch vehicles and sounding rockets) and unmanned aerial vehicles (including cruise missiles, target drones and reconnaissance drones) end-uses.
(a) General prohibition. In addition to the license requirements for items specified on the CCL, you may not export, reexport, or transfer (in-country) an item subject to the EAR without a license if, at the time of export, reexport or transfer (in-country) you know that the item:
(1) Will be used in the design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of rocket systems or unmanned aerial vehicles capable of a range of at least 300 kilometers in or by a country listed in Country Group D:4 of supplement no. 1 to part 740 of the EAR.
(2) Will be used anywhere in the world except by governmental programs for nuclear weapons delivery of NPT Nuclear Weapons States that are also members of NATO, in the design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of rocket systems or unmanned aerial vehicles, regardless of range capabilities, for the delivery of chemical, biological, or nuclear weapons; or
(3) Will be used in the design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of any rocket systems or unmanned aerial vehicles in or by a country listed in Country Group D:4, but you are unable to determine:
(i) The characteristics ( i.e., range capabilities) of the rocket systems or unmanned aerial vehicles, or
(ii) Whether the rocket systems or unmanned aerial vehicles, regardless of range capabilities, will be used in a manner prohibited under paragraph (a)(2) of this section.
For the purposes of this section, “Rocket Systems” include, but are not limited to, ballistic missiles, space launch vehicles, and sounding rockets. Also, for the purposes of this section, “unmanned aerial vehicles” include, but are not limited to, cruise missiles, target drones and reconnaissance drones.
(b) Additional prohibition on persons informed by BIS. BIS may inform persons, either individually by specific notice or through amendment to the EAR, that a license is required for a specific export, reexport or transfer (in-country) or for the export, reexport, or transfer (in-country) of specified items to a certain end-user, because there is an unacceptable risk of use in, or diversion to, the activities specified in paragraphs (a)(1) or (a)(2) of this section. Specific notice is to be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided orally, it will be followed by a written notice within two working days signed by the Deputy Assistant Secretary for Export Administration. However, the absence of any such notification does not excuse persons from compliance with the license requirements of paragraphs (a)(1), (a)(2), or (a)(3) of this section.
(c) Exceptions. No License Exceptions apply to the prohibitions described in paragraph (a) and (b) of this section.
(d) License review standards. (1) Applications to export, reexport or transfer (in-country) the items subject to this section will be considered on a case-by-case basis to determine whether the export, reexport or transfer (in-country) would make a material contribution to the proliferation of certain rocket systems, or unmanned aerial vehicles. When an export, reexport or transfer (in-country) is deemed to make a material contribution, the license will be denied.
(2) The following factors are among those that will be considered to determine what action should be taken on an application required by this section:
(i) The specific nature of the end use;
(ii) The significance of the export, reexport or transfer in terms of its contribution to the design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of certain rocket systems or unmanned aerial vehicles;
(iii) The capabilities and objectives of the rocket systems or unmanned aerial vehicles of the recipient country;
(iv) The nonproliferation credentials of the importing country;
(v) The types of assurances or guarantees against design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing for certain rocket system or unmanned aerial vehicle delivery purposes that are given in a particular case; and
(vi) The existence of a pre-existing contract.
§ 744.4   Restrictions on certain chemical and biological weapons end-uses.
(a) General prohibition. In addition to the license requirements for items specified on the CCL, you may not export, reexport, or transfer (in-country) an item subject to the EAR without a license if, at the time of export, reexport, or transfer (in-country) you know that the item will be used in the design, “development,” “production,” stockpiling, operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of chemical or biological weapons in or by any country or destination, worldwide; or in the design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of a whole plant to make chemical weapons precursors specified in ECCN 1C350 in or by countries other than those listed in Country Group A:3 (Australia Group) (see supplement no. 1 to part 740 of the EAR).
(b) Additional prohibition on persons informed by BIS. BIS may inform persons, either individually by specific notice or through amendment to the EAR, that a license is required for a specific export, reexport, or transfer (in-country), or for the export, reexport, or transfer (in-country) of specified items to a certain end-user, because there is an unacceptable risk of use in or diversion to the activities specified in paragraph (a) of this section, anywhere in the world. Specific notice is to be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided orally, it will be followed by a written notice within two working days signed by the Deputy Assistant Secretary for Export Administration. However, the absence of any such notification does not excuse persons from compliance with the license requirements of paragraph (a) of this section.
(c) Exceptions. No License Exceptions apply to the prohibitions described in paragraphs (a) and (b) of this section.
(d) License review standards. (1) Applications to export, reexport, or transfer (in-country) items subject to this section will be considered on a case-by-case basis to determine whether the export, reexport, or transfer (in-country) would make a material contribution to the design, “development,” “production,” stockpiling, operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of chemical or biological weapons. When an export, reexport, or transfer (in-country) is deemed to make such a contribution, the license will be denied.
(2) The following factors are among those that will be considered to determine what action should be taken on an application required under this section:
(i) The specific nature of the end-use;
(ii) The significance of the export, reexport, or transfer in terms of its contribution to the design, “development,” “production,” stockpiling, operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of chemical or biological weapons;
(iii) The nonproliferation credentials of the importing country or the country in which the transfer would take place;
(iv) The types of assurances or guarantees against the design, “development,” “production,” stockpiling, operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of chemical or biological weapons; and
(v) The existence of a pre-existing contract. See supplement no. 1 to part 742 of the EAR for relevant contract sanctity dates.
§ 744.5   Restrictions on certain maritime nuclear propulsion end-uses.
(a) General prohibition. In addition to the license requirements for items specified on the CCL, you may not export, reexport, or transfer (in-country) certain technology subject to the EAR without a license if at the time of the export, reexport or transfer (in-country) you know the item is for use in connection with a foreign maritime nuclear propulsion project. This prohibition applies to any technology relating to maritime nuclear propulsion plants, their land prototypes, and special facilities for their construction, support, or maintenance, including any machinery, devices, components, or equipment specifically developed or designed for use in such plants or facilities.
(b) Exceptions. The exceptions provided in part 740 of the EAR do not apply to the prohibitions described in paragraph (a) of this section.
(c) License review standards. It is the policy of the United States Government not to participate in and not to authorize United States firms or individuals to participate in foreign naval nuclear propulsion plant projects, except under an Agreement for Cooperation on naval nuclear propulsion executed in accordance with § 123(d) of the Atomic Energy Act of 1954. However, it is the policy of the United States Government to encourage United States firms and individuals to participate in maritime (civil) nuclear propulsion plant projects in friendly foreign countries provided that United States naval nuclear propulsion information is not disclosed.
§ 744.6   Restrictions on specific activities of “U.S. persons.”
(a) Scope. The general prohibitions in this section apply only to the extent that the underlying activities are not subject to a license requirement or general prohibition administered by another federal department or agency, see, for example, Assistance to Foreign Atomic Energy Activities regulations (10 CFR part 810), administered by the Department of Energy; International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130), administered by the Department of State; and certain sanctions regulations (to include, but not limited to, 31 CFR parts 500 through 599), administered by the Department of the Treasury. Accordingly, “U.S. persons” are required to seek a license from BIS only for the activities described in this section that are not subject to a license requirement or general prohibition administered by the Department of Energy, Department of State, Department of the Treasury, or other federal department or agency. The issuance of a license by BIS, or any other federal department or agency, does not authorize “U.S. persons” to engage in any activity that is otherwise prohibited by law, including criminal statutes.
(b) General prohibitions. No “U.S. person” may, without a license from BIS, 'support':
(1) The design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of nuclear explosive devices in or by any country not listed in supplement no. 3 to this part;
(2) The design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of “missiles” in or by a country listed in Country Groups D:4 or E:2;
(3) The design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of chemical or biological weapons in or by any country or destination worldwide;
(4) The design, “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, refurbishing, shipment, or transfer (in-country) of a whole plant to make chemical weapons precursors identified in ECCN 1C350, in or by countries other than those listed in Country Group A:3 (Australia Group); or
(5) A 'military-intelligence end use' or a 'military-intelligence end user,' as defined in § 744.22(f), in Belarus, Burma, Cambodia, the People's Republic of China, Russia, or Venezuela; or a country listed in Country Groups E:1 or E:2 (see supplement no. 1 to part 740 of the EAR).
(6) 'Support' means:
(i) Shipping or transmitting from one foreign country to another foreign country any item not subject to the EAR you know will be used in or by any of the end uses or end users described in paragraphs (b)(1) through (5) of this section, including the sending or taking of such item to or from foreign countries in any manner;
(ii) Transferring (in-country) any item not subject to the EAR you know will be used in or by any of the end uses or end users described in paragraphs (b)(1) through (5) of this section;
(iii) Facilitating such shipment, transmission, or transfer (in-country); or
(iv) Performing any contract, service, or employment you know may assist or benefit any of the end uses or end users described in paragraphs (b)(1) through (5) of this section, including, but not limited to: Ordering, buying, removing, concealing, storing, using, selling, loaning, disposing, servicing, financing, transporting, freight forwarding, or conducting negotiations in furtherance of.
(c) Additional prohibitions on “U.S. persons” informed by BIS. (1) BIS may inform “U.S. persons,” either individually by specific notice, through amendment to the EAR published in the Federal Register, or through a separate notice published in the Federal Register, that a license is required because an activity could involve the types of 'support' (as defined in paragraph (b)(6) of this section) to the end uses or end users described in paragraphs (b)(1) through (5) of this section. Specific notice is to be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided orally, it will be followed by a written notice within two working days signed by the Deputy Assistant Secretary for Export Administration. However, the absence of any such notification does not excuse the “U.S. person” from compliance with the license requirements of paragraph (b) of this section.
(2) Consistent with paragraph (c)(1) of this section, BIS is hereby informing “U.S. persons” that a license is required for the following activities, which could involve 'support' for the weapons of mass destruction-related end uses set forth in paragraph (b) of this section. Specifically, if you know your export, reexport, or transfer (in-country) meets any of the specified activities described in paragraphs (c)(2)(i) through (iii) of this section, then a license is required for shipping, transmitting, or transferring (in-country); facilitating the shipment, transmission, or transfer (in-country); or servicing (including installation) activities associated with any item, end use, or end user described in any of the following paragraphs:
(i) “Development” or “production” of “advanced-node ICs.” To or within Macau or a destination specified in Country Group D:5, any item not subject to the EAR that you know will be used in the “development” or “production” of integrated circuits at a “facility” of an entity headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5 where “production” of “advanced-node integrated circuits” occurs;
(ii) Category 3 items for “development” or “production” of “advanced-node ICs.” To or within Macau or a destination specified in Country Group D:5, any item not subject to the EAR and meeting the parameters of any ECCN in Product Groups B, C, D, or E in Category 3 of the CCL that you know will be used in the “development” or “production” of integrated circuits at a “facility” of an entity headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5 where “production” of integrated circuits occurs, but you do not know whether “production” of “advanced-node integrated circuits” occurs at such “facility”;
(iii) Semiconductor manufacturing equipment. To or within either Macau or a destination specified in Country Group D:5, any item not subject to the EAR and meeting the parameters of ECCNs 3B001.a.4, c, d, f.1, f.5, f.6, k to n, p.2, p.4, r, 3B002.c, 3D992, or 3E992 regardless of end use or end user.
(3) Scope of activities of “U.S. persons” that require a license under paragraph (c)(2) of this section —(i) Controlled activities. The U.S. persons controls in paragraphs (c)(2)(i) through (iii) of this section apply to persons who:
(A) Authorize the shipment, transmittal, or transfer (in-country) of items not subject to the EAR and described in paragraphs (c)(2)(i) through (iii) of this section;
(B) Conduct the delivery, by shipment, transmittal, or transfer (in-country), of items not subject to the EAR described in paragraphs (c)(2)(i) through (iii) of this section; or
(C) Service, including maintaining, repairing, overhauling, or refurbishing items not subject to the EAR described in paragraphs (c)(2)(i) through (iii) of this section.
(ii) Due diligence. Appropriate due diligence includes but is not limited to review of publicly available information, capability of items to be provided, proprietary market data, and end-use statements. “U.S. persons” should conduct due diligence to assess whether the item is for the “development” or “production” of “advanced-node integrated circuits” at a “facility” of an entity headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5, consistent with paragraphs (c)(2)(i) through (iii) of this section. As set forth in paragraph (c)(2)(ii), for items specified in Category 3B, 3C, 3D, or 3E ECCNs, license requirements may apply even when the “U.S. person” does not know whether the activity is for the “development” or “production” of “advanced-node integrated circuits.” In addition, some of the exclusions may require due diligence, such as those in paragraphs (d)(3) and (5) of this section. “U.S. persons” should follow the “Know Your Customer” guidance in supplement no. 3 to part 732 of the EAR. “U.S. persons” can also submit Advisory Opinion requests to BIS pursuant to § 748.3(c) of the EAR for guidance on specific fabrication facilities. To submit an Advisory Opinion request, email RPD2@bis.doc.gov.
(d) Exceptions and exclusions. No license exceptions apply to the prohibitions described in paragraphs (b)(1) through (4) or paragraph (c)(2) of this section.
(1) Exclusion of certain administrative and clerical activities and information otherwise excluded —(i) Exclusion of certain administrative and clerical activities. Given the policy objective of these controls, the “U.S. persons” criteria in paragraphs (c)(2)(i) through (iii) of this section do not extend to “U.S. persons” conducting administrative or clerical activities ( e.g., arranging for shipment or preparing financial documents) or otherwise implementing a decision to approve a restricted shipment, transmittal, or in-country transfer, or to activities of “U.S. persons” that are not directly related to the provision or servicing of specific items to the “development” or “production” of “advanced-node integrated circuits.”
(ii) Exclusion of information otherwise excluded under the EAR under part 734. The exclusion of certain activities specified in paragraph (c)(3) of this section only applies to paragraph (c)(2) of this section, and does not, for example, limit the scope of paragraph (b) of this section or apply to other uses of the term facilitate or facilitation found elsewhere in the EAR. The scope of paragraph (c)(2) of this section does not include information or software that would otherwise be excluded from the EAR based on the exclusion criteria under part 734, e.g., under § 734.7 (entitled “Published”) and § 734.8 “Technology” or “software” that arises during, or results from, fundamental research.
(iii) Exclusion of law enforcement and intelligence operations of the U.S. Government. Given the policy objective of these controls, the “U.S. persons” criteria in paragraphs (c)(2)(i) through (iii) of this section do not extend to “U.S. persons” conducting law enforcement and intelligence operations of the U.S. Government.
(2) Exclusion to paragraphs (b)(5) and (c)(2)(iii) of this section. Notwithstanding the prohibitions in paragraphs (b)(5) and (c)(2)(iii), “U.S. persons” who are employees of a department or agency of the U.S. Government may 'support' a 'military-intelligence end use' or a 'military-intelligence end user,' as described in paragraphs (b)(5) and (c)(2)(iii), if the 'support' is provided in the performance of official duties in furtherance of a U.S. Government program that is authorized by law and subject to control by the President by other means. This paragraph (d)(2) does not authorize a department or agency of the U.S. Government to provide 'support' that is otherwise prohibited by other administrative provisions or by statute. 'Contractor support personnel' of a department or agency of the U.S. Government are eligible for this authorization when in the performance of their duties pursuant to the applicable contract or other official duties. 'Contractor support personnel' for the purposes of this paragraph (d)(2) has the same meaning given to that term in § 740.11(b)(2)(ii) of the EAR. This authorization is not available when a department or agency of the U.S. Government acts as an agent on behalf of a non-U.S. Government person.
(3) Exclusion to paragraphs (c)(2)(i) and (ii) of this section. The term “production” in paragraphs (c)(2)(i) and (ii) does not apply to back-end steps such as assembly, test, or packaging that do not alter the integrated circuit technology level. If there is a question at the time of export, reexport, or transfer (in-country) about whether a manufacturing stage is back-end or whether a manufacturing stage is back-end or a back-end activity alters the technology level, you may submit an advisory opinion request to BIS pursuant to § 748.3(c) of the EAR for clarification.
(4) Exclusion to paragraphs (c)(2)(i) through (iii) of this section. (i) Paragraphs (c)(2)(i) through (iii) do not apply to a natural “U.S. person,” as defined in paragraphs (a)(1) and (3) of the definition in § 772.1 of the EAR, employed or working on behalf of a company headquartered in the United States or a destination specified in Country Group A:5 or A:6 and not majority-owned by an entity that is headquartered in either Macau or a destination specified in Country Group D:5.
(ii) Any activities a natural “U.S. person,” as defined in paragraphs (a)(1) and (3) of that term's definition in § 772.1 of the EAR, undertakes when employed or acting on behalf of a company not headquartered in the United States or a destination specified in Country Group A:5 or A:6 must comply with the requirements in this paragraph (d)(4) as applicable. For example, if a natural “U.S. person” is a freelancer who works or acts on behalf of a company headquartered in the United States or a destination specified in Country Group A:5 or A:6, those activities would not be prohibited under paragraphs (c)(2)(i) through (iii) of this section. However, if that same natural “U.S. person” was also working or acting on behalf of a company headquartered somewhere other than the United States or a destination specified in Country Group A:5 or A:6, the activities performed on behalf of such a company would not be excluded under paragraphs (c)(2)(i) through (iii) and a license would be required.
(5) Exclusion to paragraph (c)(2)(iii) of this section. Paragraph (c)(2)(iii) does not apply to servicing (including installation) activities unless at a “facility” where “production” of “advanced-node integrated circuits” occurs, which would require a license under paragraph (c)(2)(i) of this section.
(e) License review standards. (1) Applications for a “U.S. person” to 'support' (as defined in paragraph (b)(6) of this section) any of the end uses or end users described in paragraphs (b)(1) through (4) of this section will be denied if such support would make a material contribution to the end uses and end users described in paragraphs (b)(1) through (4) of this section.
(2) Applications for a “U.S. person” to 'support' (as defined in paragraph (b)(6) of this section) a 'military-intelligence end use' or a 'military-intelligence end user' as described in paragraph (b)(5) of this section will be reviewed with a presumption of denial.
(3) Applications for licenses submitted pursuant to the notice of a license requirement set forth in paragraph (c)(2) of this section will be reviewed in accordance with the policies described in paragraphs (e)(1) through (3) of this section. License review will take into account factors including technology level, customers, compliance plans, and contract sanctity.
(i) Presumption of denial. Applications will be reviewed with a presumption of denial for Macau and destinations specified in Country Group D:5 and entities headquartered or whose ultimate parent is headquartered in Macau or destinations specified in Country Group D:5, unless paragraph (e)(3)(ii) of this section applies.
(ii) Case-by-case. Applications will be reviewed with a case-by-case policy for license applications that meet either of the following conditions:
(A) For items specified in ECCN 3A090, 4A090, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, 5A992.z, 5D002.z, or 5D992.z, except for items designed or marketed for use in a datacenter and meeting the parameters of 3A090.a;
(B) For activities involving an item subject to the license requirements of paragraph (c)(2) of this section where there is an item not subject to the license requirements of paragraph (c)(2) that performs the same function as an item meeting the license requirements of paragraph (c)(2); or
(C) For all other applications not specified in paragraph (e)(3)(i) or (e)(3)(ii)(A) or (B) of this section.
§ 744.7   Restrictions on certain exports to and for the use of certain foreign vessels or aircraft.
(a) General end-use prohibition. In addition to the license requirements for items specified on the CCL, you may not export, reexport, or transfer (in-country) an item subject to the EAR to, or for the use of, a foreign vessel or aircraft, whether an operating vessel or aircraft or one under construction, located in any port including a Canadian port, unless a License Exception or NLR permits the shipment to be made:
(1) To the country in which the vessel or aircraft is located, and
(2) To the country in which the vessel or aircraft is registered, or will be registered in the case of a vessel or aircraft under construction, and
(3) To the country, including a national thereof, which is currently controlling, leasing, or chartering the vessel or aircraft.
A shipment or transmission of items to a launch platform or facility in international waters is an “export” or “reexport” to the country or countries the platform or facility is owned by, controlled by, or being operated on behalf of.
(b) Exception for U.S. and Canadian carriers. (1) Exception to general end-use prohibition. Notwithstanding the general end-use prohibition in paragraph (a) of this section, export, reexport, and transfer (in-country) may be made of the commodities described in paragraph (b)(3) of this section, for use by or on a specific vessel or plane of U.S. or Canadian registry located at any seaport or airport outside the United States or Canada except a port in Country Group D:1 (excluding the PRC), (see supplement no. 1 to part 740) provided that such commodities are all of the following:
(i) Ordered by the person in command or the owner or agent of the vessel or plane to which they are consigned;
(ii) Intended to be used or consumed on board such vessel or plane and necessary for its proper operation;
(iii) In usual and reasonable kinds and quantities during times of extreme need, except that usual and reasonable quantities of ship's bunkers or aviation fuel are considered to be only that quantity necessary for a single onward voyage or flight; and
(iv) Shipped as cargo for which Electronic Export Information (EEI) is filed to the Automated Export System (AES) in accordance with the requirements of the Foreign Trade Regulations (FTR) (15 CFR part 30), except EEI is not required to be filed when any of the commodities, other than fuel, is exported by U.S. airlines to their own aircraft abroad for their own use, see 15 CFR 30.37(o) of the FTR.
(2) Exports, reexports, and transfers (in-country) to U.S. or Canadian Airline's Installation or Agent. Exports, reexports, and transfers (in-country) of the commodities described in paragraph (e) of this section, except fuel, may be made to a U.S. or Canadian airline's installation or agent in any foreign destination except Country Group D:1 (excluding the PRC), (see supplement no. 1 to part 740) provided such commodities are all of the following:
(i) Ordered by a U.S. or Canadian airline and consigned to its own installation or agent abroad;
(ii) Intended for maintenance, repair, or operation of aircraft registered in either the United States or Canada, and necessary for the aircraft's proper operation, except where such aircraft is located in, or owned, operated or controlled by, or leased or chartered to, Country Group D:1 (excluding the PRC) (see supplement no. 1 to part 740) or a national of such country;
(iii) In usual and reasonable kinds and quantities; and
(iv) Shipped as cargo for which Electronic Export Information (EEI) is filed to the Automated Export System (AES) in accordance with the requirements of the Foreign Trade Regulations (FTR) (15 CFR part 30), except EEI is not required to be filed when any of these commodities is exported by U.S. airlines to their own installations and agents abroad for use in their aircraft operations, see 15 CFR 30.37(o) of the FTR.
(3) Applicable commodities. This § 744.7 applies to the commodities listed subject to the provisions in paragraph (b) of this section:
(i) Fuel, including crude oil, petroleum products other than crude oil that are of non-Naval Petroleum Reserves origin or derivation (see § 754.3 of the EAR), and blends of crude oil with such petroleum products;
(ii) Deck, engine, and steward department stores, provisions, and supplies for both port and voyage requirements, provided that any petroleum products other than crude oil which are listed in supplement no. 1 to part 754 of the EAR are of non-Naval Petroleum Reserves origin or derivation (see § 754.3 of the EAR);
(iii) Medical and surgical supplies;
(iv) Food stores;
(v) Slop chest articles;
(vi) Saloon stores or supplies; and
(vii) Equipment and spare parts.
§ 744.8   Restrictions on exports, reexports, and transfers (in-country) when certain persons designated on the list of Specially Designated Nationals and Blocked Persons (SDN List) are a party to the transaction.
(a) Scope. (1) In addition to any other EAR license requirements that may be applicable, this section imposes EAR license requirements, license review policies, and restrictions on the use of license exceptions for exports, reexports, and transfers (in-country) when a person who is designated on the Department of the Treasury, Office of Foreign Assets Control's (OFAC) List of Specially Designated Nationals and Blocked Persons (SDN List) with any of the following identifiers is a party to the transaction, as described in § 748.5(c) through (f):
(i) Related to Russia's invasion of Ukraine.
(A) [BELARUS-EO14038];
(B) [BELARUS];
(C) [RUSSIA-EO14024];
(D) [UKRAINE-EO13660];
(E) [UKRAINE-EO13661];
(F) [UKRAINE-EO13662]; or
(G) [UKRAINE-EO13685].
(ii) Terrorism-related.
(A) [FTO]; or
(B) [SDGT].
(iii) WMD-related.
(A) [NPWMD].
(B) [Reserved]
(iv) Related to narcotics trafficking or other criminal networks.
(A) [ILLICIT DRUGS-EO14059];
(B) [SDNT];
(C) [SDNTK]; or
(D) [TCO].
The names of such designations are published in the Federal Register and incorporated into the SDN List, as set forth in appendix A to 31 CFR chapter V and on OFAC's website at https://www.treas.gov/sdn. See Program Tag Definitions for OFAC Sanctions Lists for additional information: https://ofac.treasury.gov/specially-designated-nationals-list-sdn-list/program-tag-definitions-for-ofac-sanctions-lists.
(2) These EAR controls supplement and strengthen the sanctions that are imposed by OFAC on these SDNs to better ensure that U.S. national security and foreign policy interests are protected. Specifically, this section imposes controls on exports, reexports, or transfers (in-country) of items subject to the EAR where the OFAC regulations are not applicable, such as in certain situations involving deemed exports and deemed reexports, and reexports and transfers (in-country) not involving the U.S. financial system or otherwise involving U.S. persons. To avoid imposing a duplicative license requirement, the transactions specified in this section do not require separate EAR authorization if the transactions are authorized under an OFAC specific or general license or are exempted under OFAC's regulations.
The Entity List in supplement no. 4 to part 744 includes certain persons that have also been designated with certain identifiers on the SDN List. See § 744.11 and supplement no. 4 to part 744 for requirements, including license review policies, for these entities, which take precedence over the requirements in this § 744.8. BIS requires an EAR authorization as specified in the license requirement column on the Entity List for export, reexport, and transfer (in-country) transactions involving items subject to the EAR in which these persons are parties to the transaction regardless of whether such transaction is authorized under an OFAC specific or general license or exempted under OFAC's regulations.
(b) License requirements. Unless the export, reexport, or transfer (in-country) is authorized under an OFAC specific or general license or exempted under OFAC's regulations, a license is required under the EAR for the export, reexport, or transfer (in-country) of any item “subject to the EAR” when a person who is designated on OFAC's SDN List with any of the identifiers set forth in paragraph (a)(1) is a party to the transaction as described in § 748.5(c) through (f). A Department of Commerce license is not required for transactions described in this paragraph (b) that would have otherwise met all of the terms and conditions of an OFAC general license if the transactions had been subject to OFAC jurisdiction.
(c) License exceptions. No license exceptions may overcome the license requirements in this section, except for entities that are also listed on the Entity List in supplement no. 4 to part 744 that have certain license exception eligibility, which is available to overcome the license requirements of this section and supplement no. 4 to part 744 for that specific entity.
(d) License review policy. Applications for licenses required by this section will be subject to a presumption of denial license review policy, except when note 1 to paragraph (a)(1) of this section is applicable and the license review policy specified on the Entity List in supplement no. 4 to part 744 is different, in which case the license review policy under the applicable Entity List entry for that person would govern. You should consult OFAC regarding transactions subject to licensing requirements under regulations maintained by OFAC.
(e) Violations. (1) Any export, reexport, or transfer (in-country) by a U.S. person of any item subject to both the EAR and regulations maintained by OFAC in situations in which a person identified in paragraph (a)(1) is a party to the transaction as described in § 748.5(c) through (f) that is not authorized by OFAC constitutes a violation of the EAR. This paragraph does not apply to entities identified under both this section and the Entity List in supplement no. 4 to part 744. EAR violations involving entities identified under both this section and the Entity List will be addressed pursuant to §§ 744.11 and 744.16.
(2) Any export, reexport, or transfer (in-country) of any item subject to the EAR in which a person identified in paragraph (a)(1) is a party to the transaction as described in § 748.5(c) through (f) and such transaction is not subject to regulations maintained by OFAC and not authorized by BIS constitutes a violation of the EAR.
This section does not implement, construe, or limit the scope of any criminal statute, including but not limited to 18 U.S.C. 2339B(a)(1) and 2339A, and does not excuse any person from complying with any criminal statute, including but not limited to 18 U.S.C. 2339B(a)(1) and 18 U.S.C. 2339A.
§ 744.9   Restrictions on exports, reexports, and transfers (in-country) of certain cameras, systems, or related components.
(a) General prohibitions. (1) In addition to the applicable license requirements for nuclear nonproliferation, national security, regional stability, anti-terrorism, and United Nations embargo reasons in §§ 742.3, 742.4, 742.6, 742.8, 746.1(b), and 746.3 of the EAR, a license is required pursuant to this section for specific exports, reexports, or transfers (in-country) if at the time of export, reexport, or transfer, the exporter, reexporter, or transferor knows or is informed that:
(i) Commodities controlled by ECCN 6A003.a.3, 6A003.a.4, or 6A003.a.6 will be or are intended to be used by a 'military end-user,' as defined in paragraph (d) of this section in all destinations except Australia, Canada, or the United Kingdom.
(ii) Commodities described in ECCNs 0A504 (incorporating commodities controlled by ECCNs 6A002 or 6A003, or commodities controlled by 6A993.a that meet the criterion of Note 3.a to 6A003.b.4), 6A002, 6A003 (other than 6A003.a.3, 6A003.a.4, and 6A003.a.6), or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criteria of Note 3.a to 6A003.b.4), or 8A002.d will be or are intended to be used by a 'military end-user,' as defined in paragraph (d) of this section in all destinations except those specified in Country Group A:1.
(iii) Commodities described in ECCNs 0A504 (incorporating commodities controlled by ECCNs 6A002 or 6A003, or commodities controlled by 6A993.a that meet the criterion of Note 3.a to 6A003.b.4), 6A002, 6A003, or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criteria of Note 3.a to 6A003.b.4), or 8A002.d will be or are intended to be incorporated into a “military commodity” controlled by ECCN 0A919 in all destinations except Australia, Canada, or the United Kingdom.
(2) The license requirement described in paragraph (a)(1) of this section does not apply to exports, reexports, or transfers (in-country) of items described in that paragraph when such items are being reexported or transferred as part of a military deployment by a unit of the government of a country in Country Group A:1 (see Supplement No. 1 to part 740).
(b) Additional prohibition on exporters, reexporters, or transferors informed by BIS. BIS may inform an exporter, reexporter, or transferor, either individually by specific notice or through amendment to the EAR, that a license is required for the export, reexport, or transfer of commodities described in ECCNs 0A504 (incorporating commodities controlled by ECCNs 6A002 or 6A003, or commodities controlled by 6A993.a that meet the criterion of Note 3.a to 6A003.b.4), 6A002, 6A003, or 6A993.a (having a maximum frame rate equal to or less than 9 Hz and thus meeting the criteria of Note 3.a to 6A003.b.4), or 8A002.d to specified end users, because BIS has determined that there is an unacceptable risk of diversion to the users or unauthorized incorporation into the “military commodities” described in paragraph (a) of this section. Specific notice is to be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided orally, it will be followed by a written notice within two working days signed by the Deputy Assistant Secretary for Export Administration.
(c) License review standard. Applications for licenses required by this section will be reviewed by applying the policies that would be applied under the International Traffic in Arms Regulations (22 CFR Parts 120-130).
(d) Military end-user. In this section, the term “military end-user” means the national armed services (army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support “military end-uses” as defined in § 744.17(d).
(e) Exception. Shipments subject to the prohibitions in paragraphs (a) and (b) of this section that are consigned to and for the official use of the U.S. Government authorized pursuant to § 740.11(b)(2)(ii) of the EAR may be made under License Exception GOV. No other license exceptions apply to the prohibitions described in paragraphs (a) and (b) of this section.
§ 744.10   [Reserved]
§ 744.11   License requirements that apply to entities acting or at significant risk of acting contrary to the national security or foreign policy interests of the United States.
BIS may impose foreign policy export, re-export, and transfer (in-country) license requirements, limitations on availability of license exceptions, and set license application review policy based on the criteria in this section. Such requirements, limitations and policy are in addition to those set forth elsewhere in the EAR. License requirements, limitations on use of license exceptions, and license application review policies will be imposed under this section by adding an entity or an address that presents a high diversion risk ( see § 744.16(f) of this part) to the Entity List (supplement no. 4 to this part) with a reference to this section and by stating on the Entity List the license requirements and license application review policies that apply to that entity or address, or by informing an exporter, re-exporter, or transferor pursuant to paragraph (c) of this section that a specific entity or address is subject to a license requirement, limitations on use of license exceptions and license application review policies as specified in a specific notice provided to an exporter, re-exporter, or transferor. BIS may remove an entity from the Entity List if it is no longer engaged in the activities described in paragraph (b) of this section and is unlikely to engage in such activities in the future, or if it is no longer at significant risk of acting contrary to the national security or foreign policy interests of the United States as described therein. BIS may remove an address that presents a high diversion risk from the Entity List if the address is determined to no longer be a high diversion risk, for example if measures are undertaken to educate companies operating at those addresses on export compliance, or to effectively screen clients for diversion risk. BIS may modify the license exception limitations and license application review policies that apply to a particular entity or address that presents a high diversion risk to implement the policies of this section. BIS will implement the provisions of this section in accordance with the decisions of the End-User Review Committee or, if appropriate in a particular case, in accordance with the decisions of the body to which the End-User Review Committee decision is escalated. The End-User Review Committee will follow the procedures set forth in supplement no. 5 to this part.
(a) License requirement, availability of license exceptions, and license application review policy. A license is required, to the extent specified on the Entity List, to export, reexport, or transfer (in-country) any item subject to the EAR when an entity that is listed on the Entity List, or any entity using an address identified on the Entity List as presenting a high risk of diversion to activities of concern, is a party to the transaction as described in § 748.5(c) through (f) of the EAR unless otherwise authorized or excluded in this section. License exceptions may not be used unless authorized in the Entity List entry for the entity that is party to the transaction or for an address that presents a high diversion risk that is used by a party to the transaction. Applications for licenses required by this section will be evaluated as stated in the relevant Entity List entry, in addition to any other applicable review policy stated elsewhere in the EAR.
(1) [Reserved]
(2) Entity List foreign-“direct product” (FDP) license requirements, review policy, and license exceptions —(i) Footnote 1 entities. You may not, without a license or license exception, reexport, export from abroad, or transfer (in-country) to or within any destination or to any end user or party any foreign-produced item subject to the EAR pursuant to § 734.9(e)(1) of the EAR. All license exceptions described in part 740 of the EAR are available for foreign-produced items that are subject to this license requirement if all terms and conditions of the applicable license exception are met and the restrictions in § 740.2 of this EAR do not apply. The sophistication and capabilities of technology in items is a factor in license application review; license applications for foreign-produced items subject to a license requirement by this paragraph (a)(2) that are capable of supporting the “development” or “production” of telecom systems, equipment, and devices below the 5G level ( e.g., 4G, 3G) will be reviewed on a case-by-case basis.
(ii) [Reserved]
(iii) Footnote 3 entities. License requirements for foreign-produced items involving entities marked with footnote 3 are described in § 746.8(a)(3). The license review policy is set forth in the entry in supplement no. 4 to this part for each entity with a footnote 3 designation.
(iv) Footnote 4 entities. You may not, without a license, reexport, export from abroad, or transfer (in-country) to or within any destination or to any end user or party any foreign-produced item subject to the EAR pursuant to § 734.9(e)(2) of the EAR. See § 744.23 for additional license requirements that may apply to these entities. The license review policy for foreign-produced items subject to this license requirement is set forth in the entry in supplement no. 4 to this part for each entity with a footnote 4 designation.
(v) Footnote 5 entities and end-user facilities where the “production” of logic or DRAM “advanced-node integrated circuits” occurs —(A) License requirement. You may not, without a license, reexport, export from abroad, or transfer (in-country) to or within any destination or to any end user or party any foreign-produced item subject to the EAR pursuant to §§ 734.4(a)(9) or 734.9(e)(3), for each of the following paragraphs (A)( 1 ) through (A)( 4 ):
( 1 ) Exports from abroad or reexports from all countries. A license is required for commodities specified in ECCNs 3B001 (except 3B001.a.4, c, d, f.1, f.5, f.6, g, h, k to n, p.2, p.4, or r), 3B002 (except 3B002.c), 3B611, 3B903, 3B991 (except 3B991.b.2.a through 3B991.b.2.b), 3B992, 3B993, or 3B994 when exported from abroad or reexported by an entity headquartered in, or whose ultimate parent company is headquartered in, Macau or a destination specified in Country Group D:5.
( 2 ) Exports from abroad or reexports from countries in Country Group A:5 that are not in supplement no. 4 to part 742. A license is required for the export from abroad or reexport from countries specified in Country Group A:5 that are not in supplement no. 4 to part 742 of commodities specified in ECCN 3B993 if the commodity is not subject to equivalent controls by the relevant country.
( 3 ) Exports from abroad or reexports from all countries not listed in Country Group A:5. Exports from abroad or reexports from all countries not listed in Country Group A:5, as follows:
( i ) A license is required for commodities specified in ECCNs 3B001 (except 3B001.a.4, c, d, f.1, f.5, g, h, k to n, p.2, p.4, r), 3B002 (except 3B002.c), 3B611, 3B903, 3B991 (except 3B991.b.2.a through 3B991.b.2.b), 3B992, 3B993, or 3B994 by an entity that is headquartered or whose ultimate parent company is headquartered in a country not specified in supplement no. 4 to part 742.
( ii ) A license is required for commodities specified in ECCN 3B993 by an entity headquartered or whose ultimate parent company is headquartered in a country specified in supplement no. 4 to part 742 of this section.
( 4 ) Transfers (in-country). The commodity is to be transferred within the country of the entity specified by § 734.9(e)(3)(ii):
( i ) By an entity whose ultimate parent company is headquartered in a country not described in supplement no. 4 to part 742 and the entity is transferring a commodity specified in ECCNs 3B001 (except 3B001.a.4, c, d, f.1, f.5, g, h, k to n, p.2, p.4, or r), 3B002 (except 3B002.c), 3B611, 3B903, 3B991 (except 3B991.b.2.a through 3B991.b.2.b), 3B992, 3B993, or 3B994; or
( ii ) By an entity whose ultimate parent company is headquartered in a country described in supplement no. 4 to part 742 destination and the entity is transferring a commodity specified in ECCN 3B993.
(B) License review policy. The license review policy is set forth in the entry of the Entity List in supplement no. 4 to this part for each entity with a Footnote 5 designation. Unless otherwise stated in the license review policy column of the specific entity, there is a case-by-case license review policy for items subject to the license requirements of this section where there is a foreign-made item that is not subject to the license requirements of this section and performs the same function as an item subject to the EAR license requirements of this section.
(b) Criteria for revising the Entity List. Entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entity or party to the transaction that is operating at an address that presents a high diversion risk 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 and those acting on behalf of such entities or conducting operations at an address that presents a high diversion risk may be added to the Entity List pursuant to this section. An entity or address that presents a high diversion risk may pose a significant risk through certain circumstances that may be outside of its own control or in the case of addresses with high diversion risk, outside the control of certain parties to the transaction operating at such address that presents a high diversion risk. Such circumstances that may place an entity or address that presents a high diversion risk include situations involving a sustained lack of cooperation by a host government authority, for example, by preventing an end-use check from being conducted, that effectively prevents BIS from determining compliance with the EAR. This section may not be used to place any U.S. person, as defined in § 772.1 of the EAR, on the Entity List. Paragraphs (b)(1) through (5) of this section provide an illustrative list of activities that could be or represent a significant risk of being contrary to the national security or foreign policy interests of the United States, including the foreign policy interest of the protection of human rights throughout the world.
(1) Supporting persons engaged in acts of terror.
(2) Actions that could enhance the military capability of, or the ability to support terrorism of governments that have been designated by the Secretary of State as having repeatedly provided support for acts of international terrorism.
(3) Transferring, developing, servicing, repairing or producing conventional weapons in a manner that is contrary to United States national security or foreign policy interests or enabling such transfer, service, repair, development, or production by supplying parts, components, technology, or financing for such activity.
(4) Prevention of the accomplishment of an end use check conducted by or on behalf of BIS or the Directorate of Defense Trade Controls of the Department of State by:
(i) The entity or persons that own or control an address that presents a high diversion risk precluding access to; refusing to provide information about; or providing false or misleading information about parties to the transaction or the item to be checked. The conduct in this example includes: expressly refusing to permit a check; providing false or misleading information; or engaging in dilatory or evasive conduct that effectively prevents the check from occurring or makes the check inaccurate or useless. A nexus between the conduct of the party or address that presents a high diversion risk to be listed and the failure to produce a complete, accurate and useful check is required, even though an express refusal by the party to be listed is not required; or
(ii) A sustained lack of cooperation by the host government to schedule and facilitate the completion of an end-use check of entities identified on the Unverified List pursuant to § 744.15, resulting in sufficient concern such that the End-User Review Committee believes that prior review of exports, reexports, or transfers (in-country) involving the entity and the possible imposition of license conditions or license denial enhance BIS's ability to prevent violations of the EAR.
(5) Engaging in conduct that poses a risk of violating the EAR when such conduct raises sufficient concern that the End-User Review Committee believes that prior review of exports, reexports, or transfers (in-country) involving the party and the possible imposition of license conditions or license denial enhances BIS's ability to prevent violations of the EAR.
(c) Additional prohibition on persons informed by BIS. BIS may inform persons, either individually by specific notice or through amendment to the EAR, that a license is required for:
(1) A specific export, reexport, or transfer (in-country) because there is an unacceptable risk that the export, reexport, or transfer (in-country) is intended to circumvent the license requirement imposed on an entity or address that presents a high diversion risk listed in supplement no. 4 to this part; or
(2) The export, reexport, or transfer (in-country) of specified items to a certain party because there is an unacceptable risk that the party is acting as an agent, front, or shell company for an entity listed in supplement no. 4 to this part, or is otherwise assisting that listed entity in circumventing the license requirement set forth in that entity's entry in supplement no. 4 to this part; or
(3) The export, reexport, or transfer (in-country) of specified items to a certain party or address that presents a high diversion risk because 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, including the foreign policy interest of the protection of human rights throughout the world, and those acting on behalf of such entity or that an address that presents a high diversion risk of being used to divert items subject to the EAR to end-uses or end-users inconsistent with U.S. foreign policy or national security interests. Specific notice will be given only by, or at the direction of, the Principal Deputy Assistant Secretary for Strategic Trade and Technology Security or the Deputy Assistant Secretary for Strategic Trade. When such notice is provided orally, it will be followed by written notice within two working days signed by the Principal Deputy Assistant Secretary for Strategic Trade and Technology Security or the Principal Deputy Assistant Secretary's or Deputy Assistant Secretary's designee. The specific notice will include the license requirement, limitations on use of license exceptions, and license application review policy with which that exporter, re-exporter, or transferor must comply pursuant to this paragraph (c)(3). The ERC may add such entities or addresses that present a high diversion risk to the Entity List in supplement no. 4 to this part.
§§ 744.12-744.14   [Reserved]
§ 744.15   Restrictions on exports, reexports and transfers (in-country) to persons listed on the unverified list.
(a) General requirement. In addition to the requirements set forth elsewhere in the EAR, exports, reexports, or transfers (in-country) subject to the EAR involving parties to the transaction who are listed on the Unverified List (UVL) must be made in accordance with paragraph (b) of this section. The names and addresses of foreign persons subject to end-user controls based on the criteria described in paragraph (c) of this section are identified in the Unverified List found in supplement no. 6 to this part. Requirements found elsewhere in the EAR also apply, including but not limited to any license requirements, the record filing requirements pursuant to § 758.1(b)(8), and the restrictions on license exceptions described in § 740.2(a)(17) of the EAR.
(b) UVL statement. Before proceeding with any export, reexport, or transfer (in-country) subject to the EAR that is not subject to a license requirement, involving a person listed on the Unverified List as a party described in § 748.5 of the EAR, an exporter, reexporter, or transferor (in-country) must obtain a UVL statement from such person, according to the provisions set forth in this section. The statement must be retained in accordance with part 762 of the EAR.
(1) One UVL statement may be used for multiple exports, reexports, and transfers (in-country) of the same items between the same parties, so long as the party names, the description(s) of the items and the ECCNs are correct. If one UVL statement is used for multiple exports, reexports, and transfers (in-country), the exporter, reexporter, and transferor must maintain a log or other record that identifies each export, reexport, and transfer (in-country) made pursuant to this section and the specific UVL statement that is associated with each. The log or record must be retained in accordance with Part 762 of the EAR.
(2) The UVL statement must be in writing, signed and dated by an individual of sufficient authority to legally bind the UVL party, and state the following:
(i) Name of UVL party; complete physical address, to include shipping, corporate, and end user addresses, if different (simply listing a post office box is insufficient); telephone number; fax number; email address; Web site (if available); and name and title of individual signing the UVL statement.
(ii) Agrees not to use the item(s) for any use prohibited by the United States Export Administration Regulations (EAR), 15 CFR Parts 730-772, and agrees not to reexport or transfer (in-country) the item(s) to any destination, use or user prohibited by the EAR.
(iii) Declares that the end use, end user, and country of ultimate destination of the item(s) subject to the EAR are as follows: [INSERT END USE, END USER, AND COUNTRY OF ULTIMATE DESTINATION].
(iv) Agrees to cooperate with end-use checks, including a Post-Shipment Verification, conducted by or on behalf of the Bureau of Industry and Security, U.S. Department of Commerce, for any item subject to the EAR in transactions to which they were a party in the last five years. This cooperation includes facilitating the timely conduct of the check and providing full and accurate information concerning the disposition of items subject to the EAR.
(v) Agrees to provide copies of this document and all other export, reexport or transfer (in-country) records required to be retained in part 762 of the EAR.
(vi) Certifies that the individual signing the UVL statement has sufficient authority to legally bind the party.
(c) Criteria for revising the Unverified List. (1) Foreign persons who are parties to an export, reexport, and transfer (in-country) subject to the EAR may be added to the Unverified List if BIS or federal officials acting on BIS's behalf cannot verify the bona fides ( i.e. , legitimacy and reliability relating to the end use and end user of items subject to the EAR) of such persons because an end-use check, such as a pre-license check (PLC) or a post-shipment verification (PSV), cannot be completed satisfactorily for reasons outside of the U.S. Government's control. Examples in paragraphs (c)(1)(i) through (iii) of this section provide an illustrative list of those circumstances.
(i) During the conduct of an end-use check, the subject of the check is unable to demonstrate the disposition of items subject to the EAR.
(ii) The existence or authenticity of the subject of an end-use check cannot be verified (e.g., the subject of the check cannot be located or contacted).
(iii) Lack of cooperation by the host government authority prevents an end-use check from being conducted.
(2) BIS will remove a person from the Unverified List when BIS is able to verify the bona fides of the listed person as an end user, consignee, or other party to exports, reexports, or transfers (in-country) involving items subject to the EAR by completing a PLC or PSV. In the limited circumstance involving a PLC or PSV that cannot be completed due to lack of host government cooperation, an alternative bona fides verification process may be determined by BIS to be sufficient. A determination to remove a person from the Unverified List based on the criteria in this paragraph is separate from any determination made by BIS pursuant to § 744.11(b) of the EAR, and must be requested through paragraph (d) of this section.
(d) Procedure for requesting removal of a person on the Unverified List. Any person listed on the Unverified List may request that its listing be amended or removed.
(1) All such requests, including reasons therefor and information that verifies the bona fides, i.e., legitimacy and reliability of the person listed on the Unverified List as an end user, consignee or other party to exports, reexports, and transfers (in-country) of items subject to the EAR, must be in writing and sent to: Director, Office of Enforcement Analysis, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue NW., Room 4065, Washington, DC 20230, via fax to (202) 482-0971, or by email to UVLRequest@bis.doc.gov.
(2) The Deputy Assistant Secretary for Export Enforcement will review such requests and will convey the decision on the request to the requester in writing based on an assessment of the listed person's bona fides as a party to exports, reexports, and transfers (in-country) subject to the EAR. That decision will be the final agency action on the request.
§ 744.16   Entity List.
The Entity List (supplement no. 4 to this part) identifies persons or addresses of persons reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. The entries are added to the Entity List pursuant to sections of part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.
(a) License requirements. In addition to the license requirements for items specified on the CCL, you may not, without a license from BIS, export, reexport, or transfer (in-country) any items included in the License Requirement column of an entry on the Entity List (supplement no. 4 to this part) when an entity associated with that entry or when any entity using an address of high diversion risk associated with that entry is a party to a transaction as described in § 748.5(c) through (f) of the EAR. The specific license requirement for each listed entity or address with high diversion risk is identified in the license requirement column on the Entity List in supplement no. 4 to this part.
(b) License exceptions. No license exceptions are available for exports, reexports or transfers (in-country) to listed entities or addresses that present a high diversion risk of specified items, except license exceptions for items listed in § 740.2(a)(5) of the EAR destined to listed Indian or Pakistani entities to ensure the safety of civil aviation and safe operation of commercial passenger aircraft, and in the case of entities added to the Entity List pursuant to § 744.20, to the extent specified on the Entity List.
(c) License review policy —(1) General review policy. The license review policy for each listed entity or address that presents a high diversion risk is identified in the License Review Policy column on the Entity List.
(2) [Reserved]
(d) The End-User Review Committee (ERC). The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, generally makes decisions regarding additions to, removals from, or other modifications to the Entity List.
(e) Removal or modification requests. Any entity listed on the Entity List or the owner or operator of any address that presents a high diversion risk listed on the Entity List may request that its listing be removed or modified. All such requests, including reasons therefor, must be in writing and sent to: Chair, End-User Review Committee, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue NW, Room 3886, Washington, DC 20230.
(1) Review. The ERC will review such requests in accordance with the procedures set forth in Supplement No. 5 to this part.
(2) BIS action. The Deputy Assistant Secretary for Export Administration will convey the decision on the request to the requester in writing. That decision will be the final agency action on the request.
(f) Addresses that present a high diversion risk. In limited circumstances, such as when multiple entities on the Entity List use the same address, or the name of an entity at a particular address is unknown to BIS, BIS may determine that such an address presents a high risk of diversion and publish the address on the Entity List without an associated entity name. These entries will apply license requirements, license review policies, and restrictions on the use of license exceptions for all entities using that address. When submitting a license application, the applicant should name the specific entity on the application. In the license application field for additional information, the applicant should state that the address is on the Entity List.
§ 744.17   Restrictions on certain exports, reexports and transfers (in-country) of microprocessors and associated “software” and “technology” for “military end uses” and to “military end users.”
(a) General prohibition. In addition to the license requirements set forth elsewhere in the EAR, you may not export, reexport or transfer (in-country) microprocessors (“microprocessor microcircuits,” “microcomputer microcircuits,” and microcontroller microcircuits having a processing speed of 5 GFLOPS or more and an arithmetic logic unit with an access width of 32 bit or more, including those incorporating “information security” functionality), or associated “software” and “technology” for the “production” or “development” of such microprocessors without a license if, at the time of the export, reexport or transfer (in-country), you know, have reason to know, or are informed by BIS that the item will be or is intended to be used for a 'military end use,' as defined in paragraph (d) of this section, in a destination listed in Country Group D:1 (see supplement No. 1 to part 740 of the EAR); or by a 'military end user,' as defined in paragraph (e) of this section, in a destination listed in Country Group D:1.
(b) Additional prohibition on exporters or reexporters informed by BIS. BIS may inform an exporter, reexporter or transferor, either individually by specific notice or through amendment to the EAR, that a license is required for export, reexport or transfer (in-country) of items described in paragraph (a) of this section to specified end users, because BIS has determined that there is an unacceptable risk of diversion to the end uses or end users described in paragraph (a) of this section. Specific notice is to be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided orally, it will be followed by a written notice within two working days signed by the Deputy Assistant Secretary for Export Administration. The absence of any such notification does not excuse the exporter, reexporter or transferor from compliance with the license requirements of paragraph (a) of this section.
(c) License review standards. There is a presumption of denial for applications to export, reexport or transfer (in-country) items subject to this section.
(d) Military end-use. In this section, the phrase `military end use' means incorporation into: a military item described on the U.S. Munitions List (USML) (22 CFR part 121, International Traffic in Arms Regulations) or the Wassenaar Arrangement Munitions List (as set out on the Wassenaar Arrangement Web site at http://www.wassenaar.org ); commodities classified under ECCNs ending in “A018” or under “600 series” ECCNs; or any commodity that is designed for the “use,” “development,” “production,” or deployment of military items described on the USML, the Wassenaar Arrangement Munitions List or classified under ECCNs ending in “A018” or under “600 series” ECCNs. supplement No. 1 of this part lists examples of 'military end use.'
(e) Military end user. In this section, the term 'military end user' means the national armed services (army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support 'military end uses' as defined in paragraph (d) of this section.
(f) Exceptions. The prohibitions described in paragraphs (a) and (b) of this section supersede any license exception or No License Required (NLR) designation that would otherwise apply to a transaction subject to the EAR, except that this license requirement does not apply to exports, reexports or transfers (in-country) of items for or on behalf of the official use by personnel and agencies of the U.S. Government or to agencies of a cooperating government authorized by License Exception GOV pursuant to § 740.11 of the EAR. See § 740.11(b)(1) of the EAR for the definition of 'agency of the U.S. Government' and § 740.11(c)(1) for the definition of 'agency of a cooperating government.'
§ 744.18   [Reserved]
§ 744.19   Licensing policy regarding persons sanctioned pursuant to specified statutes.
Notwithstanding any other licensing policy elsewhere in the EAR, BIS will deny any export or reexport license application if any person who is a party to the transaction ( i.e., the applicant, other party authorized to receive a license, purchaser, intermediate consignee, ultimate consignee, or end-user) is subject to one or more of the sanctions described in paragraphs (a), (b), (c), and (e) of this section and will deny any export or reexport license application for an item listed on the Commerce Control List with a reason for control of MT if a person who is a party to the transaction is subject to a sanction described in paragraph (d) of this section.
(a) A sanction issued pursuant to the Iran-Iraq Arms Nonproliferation Act of 1992 (50 U.S.C. 1701 note) that prohibits the issuance of any license to or by the sanctioned person.
(b) A sanction issued pursuant to the Iran, North Korea, and Syria Nonproliferation Act (50 U.S.C. 1701 note) that prohibits the granting of a license and requires the suspension of an existing license for the transfer to foreign persons of items, the export of which is controlled under the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420), or the Export Administration Regulations.
(c) A sanction issued pursuant to section 11B(b)(1)(B)(ii) of the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420), that prohibits the issuance of new licenses for exports to the sanctioned person of items controlled pursuant to the Export Administration Act of 1979, as amended.
(d) A sanction issued pursuant to section 11B(b)(1)(B)(i) of the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420), that prohibits the issuance of new licenses for exports to the sanctioned person of MTCR Annex equipment or technology controlled pursuant to the Export Administration Act of 1979, as amended.
(e) A sanction issued pursuant to the Iran Sanctions Act of 1996 (50 U.S.C. 1701 note) that prohibits the issuance of a specific license or grant of any other specific permission or authority to export any goods or technology to a sanctioned person under the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420).
§ 744.20   [Reserved]
§ 744.21   Restrictions on certain 'military end uses' or 'military end users'.
(a) General prohibition. In addition to the license requirements for items specified on the Commerce Control List (CCL) (supplement no. 1 to part 774 of the EAR), you may not export, reexport, or transfer (in-country):
(1) Any item subject to the EAR listed in supplement no. 2 to this part without a license if, at the time of the export, reexport, or transfer (in-country), you have “knowledge,” as defined in § 772.1 of the EAR, that the item is intended, entirely or in part, for a 'military end use,' as defined in paragraph (f) of this section, in Burma, Cambodia, the People's Republic of China (China), Nicaragua, or Venezuela, or a Burmese, Cambodian, Chinese, Nicaraguan, or Venezuelan 'military end user,' as defined in paragraph (g) of this section, wherever located. 'Military end users' located outside of Burma, Cambodia, China, Nicaragua, or Venezuela are limited to entities identified on the 'Military End-User' (MEU) List under supplement no. 7 to this part.
(2) Any item subject to the EAR without a license if, at the time of the export, reexport, or transfer (in-country), you have “knowledge,” as defined in § 772.1 of the EAR that the item is intended, entirely or in part, for a 'military end use,' as defined in paragraph (f) of this section, in Belarus or Russia, or a Belarusian or Russian 'military end user,' as defined in paragraph (g) of this section, wherever located. Belarusian or Russian 'military end users' located outside of Belarus or Russia are limited to entities identified on the Entity List under supplement no. 4 to this part with a footnote 3 designation and a reference to this section.
An entity anywhere in the world, including in Burma, Cambodia, China, Nicaragua, or Venezuela, may be listed on the Entity List as a Belarusian or Russian 'military end user' with a footnote 3 designation. If the entity is not a Belarusian or Russian 'military end user,' but has otherwise been identified by the End User Review Committee (ERC) as a 'military end user,' that entity may be identified under the 'Military End-User' (MEU) List under supplement no. 7 to this part. As noted in paragraph (a)(1) of this section, exporters, reexporters, and transferors, even in the absence of any such notification, are not excused from compliance with the license requirements of this paragraph (a) for all entities in Burma, Cambodia, China, Nicaragua, or Venezuela to determine whether the entity is a 'military end user' for purposes of paragraph (g) of this section because supplement no. 7 is not an exhaustive listing of 'military end users' in those countries. As noted in paragraph (a)(2) of this section, exporters, reexporters, and transferors, even in the absence of any such notification, are not excused from compliance with the license requirements of this paragraph (a) for all entities in Belarus or Russia to determine whether the entity is a 'military end user' for purposes of paragraph (g) of this section because supplement no. 4 under this part is not an exhaustive listing of 'military end users' in those countries.
(b) Additional prohibition on those informed by BIS. BIS may inform you either individually by specific notice, through amendment to the EAR published in the Federal Register, or through a separate notification published in the Federal Register, that a license is required for specific exports, reexports, or transfers (in-country) of any item because there is an unacceptable risk of use in or diversion to a 'military end use' in Belarus, Burma, Cambodia, China, Nicaragua, the Russian Federation, or Venezuela, or for a Belarusian, Burmese, Cambodian, Chinese, Nicaraguan, Russian, or Venezuelan 'military end user,' wherever located. Specific notice will be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided orally, it will be followed by written notice within two working days signed by the Deputy Assistant Secretary for Export Administration or the Deputy Assistant Secretary's designee. The absence of BIS notification does not excuse the exporter from compliance with the license requirements of paragraph (a) of this section.
(1) 'Military End-User' (MEU) List. BIS may inform and provide notice to the public that certain entities are subject to the additional prohibition described under this paragraph (b) following a determination by the End-User Review Committee (ERC) that a specific entity is a 'military end user' pursuant to this section and therefore any exports, reexports, or transfers (in-country) to that entity represent an unacceptable risk of use in or diversion to a 'military end use' in Belarus, Burma, Cambodia, China, Nicaragua, the Russian Federation, or Venezuela, or for a Belarusian, Burmese, Cambodian, Chinese, Nicaraguan, Russian, or Venezuelan 'military end user,' wherever located. Such Burmese, Cambodian, Chinese, Nicaraguan, or Venezuelan 'military end users' may be added to supplement no. 7 to this part (MEU List). Such Belarusian or Russian 'military end users' may also be added to supplement no. 4 to this part (Entity List) and will be listed with a footnote 3 designation and a reference to this section. License requirements for listed MEU are described in paragraph (b)(1)(ii) of this section. The listing of entities under supplement no. 7 or 4 to this part is not an exhaustive listing of 'military end users' for purposes of this section, except for 'military end users' of a country identified in this section (Belarus, Burma, Cambodia, China, Nicaragua, the Russian Federation, or Venezuela) not located in that same country. As specified in paragraphs (a)(1) and (2) of this section, 'military end users' of a country identified in this section not located in that same country are exhaustively listed on either the Entity List with a footnote 3 designation and a reference to this section, or on the MEU List under supplement no. 7 this part. Exporters, reexporters, and transferors are responsible for determining whether transactions with entities not listed on supplement no. 7 or 4 to this part are subject to a license requirement under paragraph (a) of this section. The process in this paragraph (b)(1) for placing entities on the MEU List and Entity List is only one method BIS may use to inform exporters, reexporters, and transferors of license requirements under this section.
(i) End-User Review Committee (ERC). The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the MEU List and Entity List. Decisions by the ERC for purposes of the MEU List and Entity List will be made following the procedures identified in this section and in supplement no. 5 to this part (Procedures for End-User Review Committee Entity List and 'Military End User' (MEU) List Decisions).
(ii) License requirement for parties to the transaction. Consistent with paragraph (a) of this section, a license is required for the export, reexport, or transfer (in-country) of any item subject to the EAR listed in supplement no. 2 to this part when an entity that is listed on the MEU List as a Burmese, Cambodian, Chinese, Nicaraguan, or Venezuelan 'military end user' is a party to the transaction as described in § 748.5(c) through (f) of the EAR. Consistent with paragraph (a) of this section, a license is required for the export, reexport, or transfer (in-country) of any item subject to the EAR when a Belarusian or Russian 'military end user' that is listed on the Entity List pursuant to this section is a party to the transaction as described in § 748.5(c) through (f) of the EAR.
(2) Requests for removal from or modification of 'Military End User' (MEU) List and Entity List. Any entity listed on the MEU List or Entity List pursuant to this section may request that its listing be removed or modified. All such requests, including reasons therefor, must be in writing and sent to: Chair, End-User Review Committee, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue NW, Room 3886, Washington, DC 20230; or by email at ERC@bis.doc.gov. In order for an entity listed on the MEU List or the Entity List pursuant to this section to petition BIS for their removal or modification, as applicable, the entity must address why the entity is not a 'military end user' for purposes of this section.
(i) Review. The ERC will review such requests for removal or modification in accordance with the procedures set forth in supplement no. 5 to this part.
(ii) BIS action. The Deputy Assistant Secretary for Export Administration will convey the decision on the request to the requester in writing. That decision will be the final agency action on the request.
(c) License exception. Despite the prohibitions described in paragraphs (a) and (b) of this section, you may export, reexport, or transfer (in-country) items subject to the EAR under the provisions of License Exception GOV set forth in § 740.11(b)(2)(i) and (ii) of the EAR.
(d) License application procedure. When submitting a license application pursuant to this section, you must state in the “additional information” block of the application that “this application is submitted because of the license requirement in this section (Restrictions on certain 'military end uses' or 'military end users').” In addition, either in the additional information block of the application or in an attachment to the application, you must include all known information concerning the 'military end use' and 'military end user(s)' of the item(s). If you submit an attachment with your license application, you must reference the attachment in the “additional information” block of the application.
(e) License review standards. (1) Applications to export, reexport, or transfer (in-country) items described in paragraph (a)(1) of this section will be reviewed with a presumption of denial. Applications to export, reexport, or transfer (in-country) items described in paragraph (a)(2) of this section will be reviewed with a policy of denial except for food and medicine designated as EAR99, which will be reviewed under a case-by-case review policy, unless otherwise stated in the license review policy column on the Entity List (supplement no. 4 to this part).
(2) Applications may be reviewed under chemical and biological weapons, nuclear nonproliferation, or missile technology review policies, as set forth in §§ 742.2(b)(4), 742.3(b)(4), and 742.5(b)(4) of the EAR, if the end use may involve certain proliferation activities.
(3) Applications for items requiring a license for any reason that are destined for a 'military end use' in Belarus, Burma, Cambodia, China, Nicaragua, the Russian Federation, or Venezuela or for a Belarusian, Burmese, Cambodian, Chinese, Nicaraguan, Russian, or Venezuelan 'military end user,' wherever located, also will be subject to the review policy stated in paragraph (e)(1) of this section.
(f) Military end use. In this section, 'military end use' means: Incorporation into a military item described on the U.S. Munitions List (USML) (22 CFR part 121, International Traffic in Arms Regulations); incorporation into items classified under Export Control Classification Numbers (ECCNs) ending in “A018” or under “600 series” ECCNs; or any item that supports or contributes to the operation, installation, maintenance, repair, overhaul, refurbishing, “development,” or “production,” of military items described on the USML, or items classified under ECCNs ending in “A018” or under “600 series” ECCNs.
(g) Military end user. In this section, the term 'military end user' means the national armed services (army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations (excluding those described in § 744.22(f)(2)), or any person or entity whose actions or functions are intended to support 'military end uses' as defined in paragraph (f) of this section.
(h) Effects on contracts. Transactions involving the export, reexport, or transfer (in country) of items to or within Venezuela are not subject to the provisions of this section if the contracts for such transactions were signed prior to November 7, 2014.
§ 744.22   Restrictions on exports, reexports, and transfers (in-country) to certain military-intelligence end uses or end users.
(a) General prohibition. In addition to the license requirements for items specified on the Commerce Control List (CCL) (supplement no. 1 to part 774 of the EAR), you may not export, reexport, or transfer (in-country) any item subject to the EAR without a license from BIS if, at the time of the export, reexport, or transfer (in-country), you have “knowledge” that the item is intended, entirely or in part, for a 'military-intelligence end use' in Belarus, Burma, Cambodia, the People's Republic of China (China), Russia, or Venezuela; or a country listed in Country Groups E:1 or E:2 (see supplement no. 1 to part 740 of the EAR), or for a Belarusian, Burmese, Cambodian, Chinese, Russian, or Venezuelan 'military-intelligence end user' or a 'military-intelligence end user' of a country listed in Country Group E:1 or E:2, wherever located. 'Military intelligence end-users' located outside of Belarus, Burma, Cambodia, the People's Republic of China (China), Russia, or Venezuela; or a country listed in Country Groups E:1 or E:2, are limited to entities identified under paragraph (f)(2) of this section.
(b) Additional prohibition on those informed by BIS. BIS may inform you either individually by specific notice, through amendment to the EAR published in the Federal Register, or through a separate notification published in the Federal Register, that a license is required for specific exports, reexports, or transfers (in-country) of any item subject to the EAR because there is an unacceptable risk of use in, or diversion to, a 'military-intelligence end use' in Belarus, Burma, Cambodia, China, Russia, or Venezuela; or a country listed in Country Group E:1 or E:2 (see supplement no. 1 to part 740 of the EAR), or for a Belarusian, Burmese, Cambodian, Chinese, Russian, or Venezuelan 'military-intelligence end user' or a 'military-intelligence end user' of a country listed in Country Group E:1 or E:2, wherever located.
(c) License exception. Notwithstanding the prohibitions described in paragraphs (a) and (b) of this section, you may export, reexport, or transfer (in-country) items subject to the EAR under the provision of License Exception GOV set forth in § 740.11(b)(2)(ii) of the EAR.
(d) License application procedure. When submitting a license application pursuant to this section, you must state in the “additional information” block of the application that “this application is submitted because of the license requirement in § 744.22 of the EAR (Restrictions on exports, reexports, and transfers (in-country) to certain military-intelligence end uses or end users).” In addition, either in the additional information block of the application or in an attachment to the application, you must include all known information concerning the military-intelligence end use(s) or end user(s) of the item(s). If you submit an attachment with your license application, you must reference the attachment in the “additional information” block of the application.
(e) License review policy. Applications to export, reexport, or transfer (in-country) items requiring a license pursuant to paragraph (a) or (b) of this section will be reviewed with a presumption of denial.
(f) Definitions. (1) 'Military-intelligence end use' means the “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of, or incorporation into, items described on the U.S. Munitions List (USML) (22 CFR part 121, International Traffic in Arms Regulations), or classified under ECCNs ending in “A018” or under “600 series” ECCNs, which are intended to support the actions or functions of a 'military-intelligence end user,' as defined in this section.
(2) 'Military-intelligence end user' means any intelligence or reconnaissance organization of the armed services (army, navy, marine, air force, or coast guard); or national guard. For license requirements applicable to other government intelligence or reconnaissance organizations of these countries, see § 744.21. 'Military-intelligence end users' subject to the license requirements set forth in this section located in Belarus, Burma, Cambodia, China, Russia, or Venezuela; or a country listed in Country Groups E:1 or E:2 (see supplement no. 1 to part 740 of the EAR) include, but are not limited to, the 'military-intelligence end users' identified in this paragraph (f)(2). For 'military-intelligence end users' located in all other countries this paragraph (f)(2) is an exhaustive listing.
(i) Burma. Office of Chief of Military Security Affairs (OCMSA) and the Directorate of Signal.
(ii) Cambodia. General Department of Research and Intelligence (GDRI).
(iii) Cuba. Directorate of Military Intelligence (DIM) and Directorate of Military Counterintelligence (CIM).
(iv) China, People's Republic of. Intelligence Bureau of the Joint Staff Department.
(v) Iran. Islamic Revolutionary Guard Corps Intelligence Organization (IRGC-IO) and Artesh Directorate for Intelligence (J2).
(vi) Korea, North. Reconnaissance General Bureau (RGB).
(vii) Russia. Main Intelligence Directorate (GRU).
(viii) Syria. Military Intelligence Service.
(ix) Venezuela. General Directorate of Military Counterintelligence (DGCIM).
(x) Belarus. The Main Intelligence Directorate of the General Staff of the Armed Forces of Belarus.
(xi) Other countries. Paragraph (f)(2)(ix) of this section identifies 'military-intelligence end users' located in all countries other than those identified in paragraphs (f)(2)(i) through (x) of this section.
§ 744.23   “Supercomputer,” “advanced-node integrated circuits,” and semiconductor manufacturing equipment end use controls.
(a) General prohibition. In addition to the license requirements for items specified on the CCL, you may not export, reexport, or transfer (in-country) without a license any item subject to the EAR described in paragraphs (a)(1) through (4) of this section when you have “knowledge” at the time of export, reexport, or transfer (in-country) that the item is destined for a destination, end use, or type of end user described in paragraphs (a)(1) through (4) of this section, unless excluded by paragraph (a)(5) of this section.
(1) “Supercomputers” —(i) Item scope. (A) An integrated circuit (IC) subject to the EAR and specified in ECCN 3A001, 3A991, 4A994, 5A002, 5A004, or 5A992; or
(B) A computer, “electronic assembly,” or “component” subject to the EAR and specified in ECCN 4A003, 4A004, 4A994, 5A002, 5A004, or 5A992.
(ii) Destination and end-use scope. (A) The “development,” “production,” operation, installation (including on-site installation), maintenance (checking), repair, overhaul, or refurbishing of a “supercomputer” located in or destined to Macau or a destination specified in Country Group D:5 of supplement no. 1 to part 740 of the EAR; or
(B) The incorporation into, or the “development” or “production” of any “component” or “equipment” that will be used in a “supercomputer” located in or destined to Macau or a destination specified in Country Group D:5.
(2) “Advanced-node ICs” —(i) Any item at a “production” “facility” of “advanced-node ICs.” Any items subject to the EAR when you know the items will be used in the “development” or “production” of ICs destined to a “facility” located in Macau or a destination specified in Country Group D:5 where “production” of “advanced-node ICs” occurs.
(ii) Category 3 items to a “facility” where the technology node is unknown. Any item subject to the EAR specified in an ECCN in Product Groups B, C, D, or E in Category 3 of the CCL when you know the item will be used in the “development” or “production” of ICs destined to a “facility” located in Macau or a destination specified in Country Group D:5 where “production” of integrated circuits occurs, but you do not know whether “production” of “advanced-node ICs” occurs at such “facility.”
(iii) Design of “advanced-node ICs”. Any Electronic Computer Aided Design (ECAD) or Technology Computer Aided Design (TCAD) “software” and “technology” subject to the EAR when you “know” it will be used in the design of an “advanced-node integrated circuit” that will be “produced” in Macau or a destination specified in Country Group D:5 in supplement no. 1 to part 740 of the EAR.
(iv) “Advanced Node IC” exclusion. Items specified in paragraphs (a)(2)(i) and (ii) destined to entities designated with a Footnote 5 are not subject to the license requirements in this section.
(3) Advanced computing items. (i)(A) Any item subject to the EAR and specified in ECCN 3A001.z.1.b, z.2.b, z.3.b, z.4.b; 3A090.b; 4A003.z.1.b, z.2.b; 4A004.z.2; 4A005.z.2; 4A090.b; 5A002.z.1.b, z.2.b, z.3.b, z.4.b, z.5.b; 5A004.z.1.b, z.2.b; 5A992.z.2, 5D002.z.1.b, z.2.b, z.3.b, z.4.b, z.5.b, z.6.b, z.7.b, z.8.b, and z.9.b; 5D992.z.2 destined to any destination other than those specified in Country Groups D:1, D:4, or D:5 (excluding any destination also specified in Country Groups A:5 or A:6) for an entity that is headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5 ( e.g., a PRC-headquartered cloud or data server provider located outside of Country Groups D:1, D:4, or D:5 (excluding any destination also specified in Country Groups A:5 or A:6)).
(B) Any item subject to the EAR and specified in ECCN 3A090.c destined to any destination other than Macau or those specified in Country Group D:5, for an entity that is headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5.
(ii) ECCN 3E001 (for 3A090, except for 3A090.c) “technology” when it meets all of the following:
(A) The technology is developed by an entity headquartered in, or whose ultimate parent company is headquartered in, either Macau or a destination specified in Country Group D:5;
(B) The “technology” is subject to the EAR pursuant to the foreign direct product rule in § 734.9(h)(1)(i)(B)( 1 ) and (h)(2)(ii) of the EAR;
(C) The “technology” is for reexport or transfer (in-country) from or within a destination specified in Country Group D:1, D:4, D:5, excluding any destination also specified in Country Groups A:5 or A:6, to any destination worldwide; and
(D) The “technology” is for the “production” of commodities or software specified in ECCN 3A001.z, 3A090 (except for 3A090.c), 4A003.z, 4A004.z, 4A005.z, 4A090, 5A002.z, 5A004.z, or 5A992.z.
This paragraph (a)(3)(ii) includes items subject to the EAR pursuant to the foreign direct product rule in § 734.9(h)(1)(i)(B)( 1 ) and (h)(2)(ii) of the EAR.
(4) Semiconductor manufacturing equipment (SME) and “components,” “assemblies,” and “accessories.” A license is required for export, reexport, or transfer (in-country) if paragraph (a)(4)(i) or (ii) of this section applies.
(i) Directly destined to Macau and Country Group D:5. Any item subject to the EAR and specified on the CCL when destined to or within either Macau or a destination specified in Country Group D:5 for the “development” or “production” of “equipment,” “components,” “assemblies,” or “accessories” specified in ECCNs 3B001 (except 3B001.g and .h), 3B002, 3B611, 3B903, 3B991 (except 3B991.b.2.a through 3B991.b.2.b), 3B992, 3B993, 3B994 or associated “software” and “technology” in 3D or 3E of the CCL.
(ii) Indirect exports, reexports, or transfers (in-country). Any item subject to the EAR and specified on the CCL for export, reexport, or transfer (in-country), if all of the following apply:
(A) The item (either in its original form or as subsequently incorporated into a foreign-made item) is for “development” or “production” of a foreign-made item, whether subject to the EAR or not, that is specified in an ECCN listed in paragraph (a)(4)(i) of this section (and not excepted by that paragraph); and
(B) The “development” or “production” is by an entity headquartered in, or whose ultimate parent is headquartered in, Macau or a destination specified in Country Group D:5.
For transactions involving “development” or “production” in Macau or a destination specified in Country Group D:5 by an entity that is headquartered in Macau or a destination specified in Country Group D:5, but the “development” or “production” is undertaken at the direction of an entity headquartered in the United States or a destination specified in Country Group A:5 or A:6, refer to General Order No. 4 in supp. no. 1 to part 736 (Temporary General License—Less restricted SME “parts,” “components,” or “equipment”).
(5) Back-end exclusion. For purposes of paragraph (a)(2) of this section, the term “production” does not apply to back-end steps such as assembly, test, or packaging that do not alter the integrated circuit technology level. If there is a question at the time of export, reexport, or transfer (in-country) about whether a manufacturing stage is back-end or whether a back-end activity alters the technology level, you may submit an Advisory Opinion request to BIS pursuant to § 748.3(c) of the EAR for clarification.
(b) Additional prohibition on persons informed by BIS. BIS may inform persons, either individually by specific notice or through amendment to the EAR published in the Federal Register, that a license is required for a specific export, reexport, or transfer (in-country) of any item subject to the EAR to a certain end-user, because there is an unacceptable risk of use in, or diversion to, the end uses specified in paragraphs (a)(1) through (4) of this section. Specific notice is to be given only by, or at the direction of, the Deputy Assistant Secretary for Export Administration. When such notice is provided orally, it will be followed by a written notice within two working days signed by the Deputy Assistant Secretary for Export Administration or the Deputy Assistant Secretary's designee. However, the absence of any such notification does not excuse persons from compliance with the license requirements of paragraph (a) of this section.
(c) License exceptions. No license exceptions may overcome the prohibition described in paragraph (a) of this section, except the prohibitions in paragraphs (a)(4) and (a)(3)(i) of this section may be overcome by license exceptions in § 740.2(a)(9)(i) or (ii) of the EAR, respectively.
(d) License review standards. License review will consider several factors including technology level, customers, compliance plans, and contract sanctity.
(1) Presumption of denial. Applications will be reviewed with a presumption of denial for Macau and destinations specified in Country Group D:5 and any entity headquartered in, or with an ultimate parent headquartered in, Macau or a destination specified in Country Group D:5, unless either paragraph (d)(2) or (3) applies.
(2) Presumption of approval. Applications will be reviewed with a presumption of approval for end users headquartered in the United States or a destination specified in Country Group A:5 or A:6, that are not majority-owned by an entity headquartered in either Macau or a destination specified in Country Group D:5.
(3) Case-by-case. There is a case-by-case license review policy for license applications that meet one of the following conditions:
(i) For items specified in ECCN 3A090, 4A090, 3A001.z, 4A003.z, 4A004.z, 4A005.z, 5A002.z, 5A004.z, 5A992.z, 5D002.z, or 5D992.z, except for items designed or marketed for use in a datacenter and meeting the parameters of 3A090.a;
(ii) For items subject to the license requirements of this section where there is a foreign-made item that is not subject to the license requirements of this section and performs the same function as an item subject to the EAR license requirements of this section; or
(iii) For all other applications not specified in paragraph (d)(1) or (2) or (d)(3)(i) or (ii).