What is subject to the EAR

← All Insights

1. The first question under the EAR

Part 734 of the Export Administration Regulations (EAR) sets out the rules for deciding whether items and activities are subject to the EAR (15 CFR 734.1(a)). It is the first step in working out obligations under the EAR. If neither an item nor an activity is subject to the EAR, there are no obligations under it and no need to review its other parts. The part also explains key terms, including subject to the EAR, items subject to the EAR, export and reexport.

Part 734 does not address part 760, on restrictive trade practices or boycotts (15 CFR 734.1(b)). Nor does it define the scope of the legal authority to regulate exports, reexports or activities under the Export Administration Act and other statutes (15 CFR 734.1(c)). It sets out how far that authority has been exercised through the EAR.

2. What subject to the EAR means

Subject to the EAR describes the items and activities over which the Bureau of Industry and Security (BIS) exercises regulatory jurisdiction under the EAR (15 CFR 734.2(a)(1)). Items and activities that are not subject to the EAR are outside its jurisdiction and are not affected by it. The Commerce Control List (CCL) and the relevant parts of the EAR should be reviewed to decide whether an item or activity is covered.

Items and activities subject to the EAR may also be controlled under export programs run by other agencies (15 CFR 734.2(a)(2)). They are not necessarily exempt from those programs, and in some cases more than one regulatory program applies. Being subject to the EAR does not mean a license is automatically needed (15 CFR 734.2(a)(3)). A license or other requirement applies only where another part of the EAR imposes one.

3. Items that are subject to the EAR

Five groups of items are subject to the EAR, apart from the exclusions (15 CFR 734.3(a)). The first is all items in the United States, including those in a U.S. Foreign Trade Zone or moving in transit through the United States between foreign countries (15 CFR 734.3(a)(1)). The second is all U.S.-origin items wherever located (15 CFR 734.3(a)(2)).

The third group is foreign-made items that incorporate, are bundled with or are commingled with controlled U.S.-origin content (15 CFR 734.3(a)(3)). That applies in any quantity in some cases, and above the de minimis levels in others. The fourth group is certain foreign-produced direct products of specified technology and software, as section 734.9 describes. The fifth is certain products of a complete plant or major plant component that is such a direct product (15 CFR 734.3(a)(4), 15 CFR 734.3(a)(5)).

4. Items under other agencies

Items exclusively controlled for export or reexport by certain other agencies are not subject to the EAR (15 CFR 734.3(b)(1)). Defense articles and defense services on the U.S. Munitions List fall under the Department of State and the International Traffic in Arms Regulations (ITAR) (15 CFR 734.3(b)(1)(i)). Treasury’s Office of Foreign Assets Control (OFAC) administers broad embargo controls on certain countries (15 CFR 734.3(b)(1)(ii)). The Nuclear Regulatory Commission and the Department of Energy each administer controls in their own fields (15 CFR 734.3(b)(1)(iii), 15 CFR 734.3(b)(1)(iv)).

The Patent and Trademark Office provides for the export of unclassified technology in a patent application (15 CFR 734.3(b)(1)(v)). Exports of such technology not approved under its rules must comply with the EAR. Items the Department of Defense sells, leases or lends under the Foreign Military Sales (FMS) program, under a Letter of Offer and Acceptance, are subject to the Arms Export Control Act instead (15 CFR 734.3(b)(1)(vi)).

5. Printed matter and public information

Printed books, pamphlets, newspapers, periodicals, maps, charts, sheet music and similar printed matter are not subject to the EAR (15 CFR 734.3(b)(2)). The exclusion also covers developed microfilm reproducing such content, developed motion picture film and soundtrack, and printed advertising matter exclusively related to these items.

Information and software are also excluded when they are published, or arise during or result from fundamental research (15 CFR 734.3(b)(3)). The same applies when they are released by instruction in a catalog course or teaching laboratory of an academic institution. Further exclusions cover patents and open patent applications, unless covered by an invention secrecy order, and other patent information. Information for a standards-related activity, non-proprietary system descriptions and defined telemetry data are also excluded. Encryption source code in electronic form remains subject to the EAR, even though a printed book setting it out is not (15 CFR 734.3, note to paragraphs (b)(2) and (b)(3)). These exclusions are covered in published information, fundamental research and patents.

6. The CCL, EAR99 and BIS determinations

Items subject to the EAR are those listed on the CCL in part 774 and all other items meeting the definition (15 CFR 734.3(c)). Items subject to the EAR but not listed on the CCL are designated EAR99. Items under temporary CCL controls are classified in the 0Y521 series while it is decided whether a new or revised Export Control Classification Number (ECCN), or EAR99, is appropriate.

BIS commodity classifications and advisory opinions are not, and may not be relied on as, determinations that items are subject to the EAR (15 CFR 734.3(d)). Items subject to the EAR may be exported under certain State Department licenses, agreements or approvals (15 CFR 734.3(e)). Activity outside their terms needs separate BIS authorization.

7. Activities and help from BIS

Two kinds of activity are subject to the EAR. One is certain activities of U.S. persons, wherever located, described in section 744.6 (15 CFR 734.5(a)). The other is activity of U.S. or foreign persons that an order under the EAR prohibits, including a denial order (15 CFR 734.5(b)).

Where licensing requirements are unclear, BIS may be asked for an advisory opinion or a commodity classification (15 CFR 734.6(a)). The State Department’s Directorate of Defense Trade Controls can make a formal jurisdictional determination for items that may be subject to the ITAR. BIS is the only agency responsible for deciding whether an item or activity is subject to the EAR and what EAR requirements apply (15 CFR 734.6(b)). Its determination affects only EAR requirements.

8. Work abroad and foreign law

The Export Control Reform Act of 2018 (ECRA) authorizes the Secretary of Commerce to undertake activities outside the United States, including investigations, pre-license checks and post-shipment verifications (15 CFR 734.11). BIS officials act with due care in a foreign jurisdiction, consistent with host nation law where possible. Complying with the EAR does not relieve a person of duties under foreign law (15 CFR 734.12). Complying with foreign law does not relieve a person of duties under U.S. law, including the EAR.

Key terms

Subject to the EAR	Within the regulatory jurisdiction BIS exercises under the EAR.
EAR99	The designation for items subject to the EAR but not listed on the CCL.
0Y521 series	The ECCNs used for items under temporary CCL controls.
Foreign Trade Zone	A zone in the United States; items in one are subject to the EAR.
Jurisdictional determination	A State Department ruling on whether an item is subject to the ITAR.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Jurisdiction comes first in every equipment move. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.