§ 740.2 Restrictions on all License Exceptions. ( a ) You may not use *any* License Exception if *any* one or more of the following apply: ( 1 ) Your authorization to use a License Exception has been suspended or revoked, or your intended export does not qualify for a License Exception.
( 2 ) The export or reexport is subject to one of the ten General Prohibitions, is not eligible for a License Exception, and has not been authorized by BIS.
( 3 ) The item is primarily useful for surreptitious interception of wire, oral, or electronic communications, or related software, controlled under ECCNs 5A001.f.1, 5A980, 5D001 (for 5A001.f.1 or for 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1))), or 5D980, unless the item is consigned to and for the official use of an agency of the U.S. Government (see § 740.11(b)(2)(ii) of this part, Governments (GOV)). No license exceptions apply for 5E001.a (for 5A001.f.1, or for 5D001.a (for 5A001.f.1)) or for 5E980.
( 4 ) The item being exported or reexported is subject to the license requirements described in § 742.7 of the EAR and the export or reexport is not: ( i ) Being made to Australia, India, Japan, New Zealand, or a NATO (North Atlantic Treaty Organization) member state (see NATO membership listing in § 772.1 of the EAR):
( ii ) Authorized by § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. government);
( iii ) Authorized by § 740.14(e) of the EAR; or
( iv ) Authorized by § 740.20 of the EAR (License Exception STA).
( 5 ) ( i ) The item is controlled for missile technology (MT) reasons. Only the following license exceptions may be used to export MT-controlled items to destinations other than those identified in Country Groups D:4 or D:5 (see supplement no. 1 to part 740 of the EAR): ( A ) License Exception TMP (§ 740.9(a)(1), (a)(3) through (8), and (a)(10), (b)(1) through (b)(3), and Notes 2, 3, and 4 to paragraph (b) of the EAR);
( B ) License Exception RPL (§ 740.10 of the EAR);
( C ) License Exception GOV (§ 740.11(b)(2) of the EAR);
( D ) License Exception TSU (§ 740.13(a) through (c), and (g) of the EAR);
( E ) License Exception AVS (§ 740.15(b)(1) through (b)(4), (c)(1), (2), (e), and (f) of the EAR); *and*
( F ) License Exception APR for (§ 740.16(c) through (f) of the EAR).
( ii ) The item is controlled for missile technology (MT) reasons. Only the following license exceptions may be used to export MT-controlled items described in paragraphs (a)(5)(ii)(A) and (B) of this section to destinations identified in Country Groups D:4 or D:5 (see supplement no. 1 to part 740 of the EAR), provided the terms and conditions in parts 740 and 746 as applicable are met: ( A ) MT-controlled items described in ECCNs 6A008, 7A001, 7A002, 7A004, 7A101, 7A102, 7A103, 7A104, 7A105, 7B001, 7D001, 7D002, 7D003, 7D101, 7D102, 7E003, 7E101 or 9A515, may be exported, reexported, or transferred (in-country) as part of a spacecraft, manned aircraft, land vehicle or marine vehicle or in quantities appropriate for replacement parts for such applications under § 740.9(a)(4) (License Exception TMP for kits consisting of replacement parts), § 740.10 (License Exception RPL), § 740.13 (License Exception TSU), or § 740.15(b) (License Exception AVS for equipment and spare parts for permanent use on a vessel, aircraft or spacecraft, excluding paragraph (b)(2)(ii)), *and*
( B ) MT-controlled commodities described in ECCNs 2A001 or 2A101 may be exported, reexported, or transferred (in-country) under § 740.9(a)(4) (License Exception TMP) or § 740.10 (License Exception RPL) as one-for-one replacement for equipment previously legally exported, reexported, or transferred (in-country).
( 6 ) The export or reexport is to a sanctioned destination (Cuba, Iran, North Korea, Syria, Crimea region of Ukraine, and the so-called Donetsk People's Republic (DNR) and Luhansk People's Republic (LNR) regions of Ukraine) or a license is required based on a limited sanction (Russia or Belarus) unless a license exception or portion thereof is specifically listed in the license exceptions paragraph pertaining to a particular sanctioned country in part 746 of the EAR.
( 7 ) With the exception of License Exception GOV (§ 740.11(b)(2)), license exceptions are not available for the following 6E001 or 6E002 technology: ( i ) Technology required for the “development” or “production” of photon detector, microbolometer detector, pyroelectric, or multispectral detector, infrared focal plane arrays (IRFPAs), described in ECCN 6A002, having a peak response within the wavelength range exceeding 900 nm but not exceeding 30,000 nm, excluding lead sulfide or lead selenide IRFPAs having a peak response within the wavelength range exceeding 1,000 nm but not exceeding 5,000 nm and not exceeding 16 detector elements; or
( ii ) Technology required for the “development” or “production” of third generation or greater (*e.g.,* Electron Bombarded Active Pixel Sensor (EBAPS)) image intensifier tubes described in ECCN 6A002.
( 8 ) The item is controlled under ECCNs 2A983, 2A984, 2D983, 2D984, 2E983 or 2E984 and the License Exception is other than: ( i ) RPL, under the provisions of § 740.10, including § 740.10(a)(3)(v), which prohibits exports and reexports of replacement parts to countries in Country Group E:1 (see Supplement 1 to part 740));
( ii ) GOV, restricted to eligibility under the provisions of § 740.11(b)(2)(ii); or
( iii ) TSU, under the provisions of § 740.13(a) and (c).
( 9 ) ( i ) The item is controlled under ECCN 3B001.a.4, c, d, f.1.b, j to p, 3B002.b or c, or associated software and technology in ECCN 3D001, 3D002, 3D003, or 3E001 and is being exported, reexported, or transferred (in-country) to or within either Macau or a destination specified in Country Group D:5 of supplement no. 1 to this part, and the license exception is other than License Exception GOV, restricted to eligibility under the provisions of § 740.11(b).
( ii ) The item is identified in paragraph (a)(9)(ii)(A) or (B) of this section, is being exported, reexported, or transferred (in-country) to or within a destination specified in Country Group D:1, D:4, or D:5, excluding any destination also specified in Country Groups A:5 or A:6, or to an entity headquartered in, or with an ultimate parent headquartered in, Macau or a destination specified in Country Group D:5, wherever located, and the license exception is other than: TMP, restricted to eligibility under the provisions of § 740.9(a)(6); NAC/ACA, under the provisions of § 740.8; RPL, under the provisions of § 740.10; GOV, restricted to eligibility under the provisions of § 740.11(b); or TSU under the provisions of § 740.13(a) and (c). Items restricted to eligibility only for the foregoing license exceptions are: ( A ) Controlled under ECCNs 3A090, 4A090, or associated software and technology in 3D001, 3E001, 4D090, and 4E001;
( B ) An integrated circuit, “electronic assembly” or “component” or related software or technology specified in ECCNs 3A001.z; 3D001 (for “software” for commodities controlled by 3A001.z, 3A090); 3E001 (for “technology” for commodities controlled by 3A001.z); 4A003.z; 4A004.z; 4A005.z; 4D001 (for “software” for commodities controlled by 4A003.z, 4A004.z, and 4A005.z); and 4E001 (for “technology” for commodities controlled by 4A003.z, 4A004.z, 4A005.z); 5A002.z; 5A004.z; 5A992.z; 5D002.z; 5D992.z; 5E002 (for “technology” for commodities controlled by 5A002.z or 5A004.z); “software” specified by 5D002 (for 5A002.z or 5A004.z commodities)); 5E992 (for “technology” for commodities controlled by 5A992.z or “software” controlled by 5D992.z).
( 10 ) The commodity being exported or reexported is subject to the license requirements of § 742.11 of the EAR.
( 11 ) The item is a “military commodity” subject to ECCN 0A919, except that such military commodities may be reexported in accordance with § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. Government).
( 12 ) The item is described in a 9x515 or “600 series” ECCN and is destined to, shipped from, or was manufactured in a destination listed in Country Group D:5 or Hong Kong (see Supplement No. 1 to part 740 of the EAR), except that: ( i ) 9x515 or “600 series” items destined to, or in, Country Group D:5 are eligible for License Exception GOV (§ 740.11(b)(2) of the EAR); and
( ii ) 1A613.c or .d items destined to, or in, Country Group D:5 are eligible for License Exception TMP (§ 740.9(a)(11) of the EAR) or License Exception BAG (§ 740.14(h)(2) of the EAR).
( 13 ) “600 series” items that are controlled for missile technology (MT) reasons may not be exported, reexported, or transferred (in-country) under License Exception STA (§ 740.20 of the EAR). Items controlled under ECCNs 9D610.b, 9D619.b, 9E610.b, or 9E619.b or .c are not eligible for license exceptions except for License Exception GOV (§ 740.11(b)(2) of the EAR). Only the following license exceptions may be used to export “600 series” items to destinations other than those identified in Country Group D:5 or Hong Kong (see Supplement No. 1 to part 740 of the EAR): ( i ) License Exception LVS (§ 740.3 of the EAR);
( ii ) License Exception TMP (§ 740.9 of the EAR);
( iii ) License Exception RPL (§ 740.10 of the EAR);
( iv ) License Exception TSU (§ 740.13(a), (b), (f) and (g) of the EAR);
( v ) License Exception GOV (§ 740.11(b) or (c) of the EAR);
( vi ) License Exception BAG (§ 740.14); and
( vii ) License Exception STA under § 740.20(c)(1) of the EAR, provided all of the applicable terms and conditions, including those specific to the “600 series” are met.
( 14 ) Items classified under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521 may only be authorized by License Exception GOV (§ 740.11(b)(2)(ii)) or an item-specific license exception identified in supplement no. 5 to part 774 for a particular ECCN 0Y521 item. Note to paragraph ( a
)(14):
Item-specific license exception availability is specific to each ECCN 0Y521 entry in supplement no. 5 to part 774 and may not be used for any other ECCN 0Y521 entries in the supplement. The U.S. Government makes a determination at the time items are classified under ECCNs 0A521, 0B521, 0C521, 0D521 and 0E521 regarding whether any license exceptions will be available, in addition to License Exception GOV (§ 740.11(b)(2)(ii)).
( 15 ) If they are sold under a contract that includes $14,000,000 or more of “600 Series Major Defense Equipment” (as defined in § 772.1), exports of “600 series” items to a country not listed in Country Group A:5 (see supplement no. 1 to part 740 of the EAR), are not eligible for any license exception except to U.S. Government end users under License Exception GOV (§ 740.11(b) of the EAR).
( 16 ) If they are sold under a contract that includes $25,000,000 or more of “600 Series Major Defense Equipment” (as defined in § 772.1), exports of “600 series” items to a country listed in Country Group A:5 (see supplement no. 1 to part 740 of the EAR), are not eligible for any license exception except to U.S. Government end users under License Exception GOV (§ 740.11(b) of the EAR).
( 17 ) A party to the transaction, as described in § 748.5 of the EAR, is listed on the Unverified List in supplement no. 6 to part 744, see § 744.15 of the EAR.
( 18 ) 9x515 items that are controlled for missile technology (MT) reasons may not be exported, reexported, or transferred (in-country) under License Exception STA (§ 740.20 of the EAR).
( 19 ) The exporter or reexporter to Hong Kong of any item subject to the EAR and controlled on the CCL for NS, MT, NP Column 1, or CB reasons has not received one of the following with respect to the item: ( i ) A copy of an import license issued to the Hong Kong importer by the Government of the Hong Kong Special Administrative Region, pursuant to the Hong Kong Import and Export (Strategic Commodities) Regulations, that covers all items to be exported or reexported pursuant to that license exception for which a Hong Kong import license is required and that is valid on the date of the export or reexport that is subject to the EAR; or
( ii ) A copy of a written statement issued by the Government of the Hong Kong Special Administrative Region that no import license is required to import into Hong Kong the item(s) to be exported or reexported. The statement may have been issued directly to the Hong Kong importer or it may be a written statement available to the general public. The statement may be used for more than one export or reexport to Hong Kong so long as it remains an accurate statement of Hong Kong law.
( 20 ) The reexporter from Hong Kong of any item subject to the EAR controlled on the CCL for NS, MT, NP column 1, or CB reasons has not received one of the following with respect to the item: ( i ) An export license issued by the Government of the Hong Kong Special Administrative Region, pursuant to the Hong Kong Import and Export (Strategic Commodities) Regulations, that covers all items to be reexported pursuant to that license exception for which a Hong Kong export license is required and that is valid on the date of the reexport that is subject to the EAR; or
( ii ) A copy of a written statement issued by the Government of the Hong Kong Special Administrative Region that no Hong Kong export license is required for the item(s) to be rexported. The statement may have been issued directly to the Hong Kong reexporter or it may be a written statement available to the general public. The statement may be used for more than one reexport from Hong Kong so long as it remains an accurate statement of Hong Kong law.
( 21 ) The reexport or transfer (in-country) of firearms classified under ECCNs 0A501, 0A502, 0A506, 0A507, or 0A508 with either an ITAR-defined “foreign defense article” (22 CFR 120.39) that is not subject to Department of State jurisdiction that is incorporated into the firearm or “knowledge” that an ITAR-defined “defense article” (22 CFR 120.31) will be subsequently incorporated into the firearm, where the “(foreign) defense article” is described in USML Category I(h)(2). In such instances, no license exceptions are available except for License Exception GOV (§ 740.11(b)(2)(ii)).
( 22 ) The item being exported, reexported, or transferred (in-country) is eligible for § 740.24 and the license exception is other than IEC, TMP, RPL, GOV, or TSU, subject to the limitations in this paragraph (a)(22). License Exception IEC is available as specified in § 740.24. License Exception TMP is restricted to eligibility under the provisions of § 740.9(a)(3) and (a)(6); RPL is restricted to eligibility under the provisions of § 740.10; GOV is restricted to eligibility under the provisions of § 740.11(b); and TSU is restricted to eligibility under the provisions of § 740.13(a) and (c).
( 23 ) Exports, reexports, or transfers (in-country) of semi-automatic firearms or shotguns controlled under ECCNs 0A506, 0A507, or 0A508 sold under a contract or otherwise part of an export that includes $4,000,000 or more of such items are not eligible for any license exceptions except to personnel and agencies of the U.S. Government under License Exception GOV (§ 740.11(b) of the EAR), for official use by an agency of NATO, or where a license exception would otherwise be available for the export, reexport, or transfer (in-country) of such items to a destination specified in Country Groups A:5 or A:6 (see supplement no. 1 to part 740 of the EAR) except Mexico, South Africa, or Turkey.
( 24 ) Exporters of items controlled under ECCNs 0A501, 0A502, 0A504, 0A505, 0A506, 0A507, 0A508, or 0A509 wishing to use an EAR license exception for such items must first have the consignee obtain and provide to the exporter an import certification or equivalent document, if the importing country requires one, prior to using an EAR license exception. Note to paragraph ( a
):
Items subject to the exclusive export control jurisdiction of another agency of the U.S. Government may not be authorized by a license exception or any other authorization under the EAR. If your item is subject to the exclusive jurisdiction of another agency of the U.S. Government, you must determine your export licensing requirements pursuant to the other agency's regulations. See § 734.3(b) and supplement no. 3 to part 730 of the EAR for other U.S. Government departments and agencies with export control responsibilities.
( b ) All License Exceptions are subject to revision, suspension, or revocation, in whole or in part, without notice to protect U.S. national security or foreign policy interests. BIS may stop a shipment or an export, reexport, or (in-country) transaction at any stage of its progress, *e.g.,* in order to prevent an unauthorized export, reexport, or transfer (in-country). If a shipment is already en route, BIS may order the return or unloading of the shipment at any port of call.
( c ) BIS may by informing the exporter, suspend or revoke any License Exception in order to comply with U.S. Wassenaar obligations. In addition, BIS may inform an exporter, that before using any License Exception, a notice be submitted with BIS concerning the proposed export.
( d ) See § 746.3 for restrictions on certain transfers within Iraq of items exported or reexported to Iraq pursuant to a License Exception.
[61 FR 12768, Mar. 25, 1996] Editorial Note
Editorial Note: For Federal Register citations affecting § 740.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at *www.govinfo.gov .*