§ 736.2 - General prohibitions and determination of applicability.

§ 736.2 General prohibitions and determination of applicability.

(a) Information or facts that determine the applicability of the general prohibitions. The following five types of facts determine your obligations under the ten general prohibitions and the EAR generally (also see other parts of the EAR where the license requirements and other EAR restrictions are specified in greater detail):

(1) Classification of the item. The classification of the item on the Commerce Control List (see part 774 of the EAR) or description of the item in supplements no. 2, 4, or 6 to part 746 of the EAR. For guidance on classifying items, see the Commerce Control List Order of Review in supplement no. 4 to part 774 and for determining licensing requirements using the Commerce Control List in supplement no. 1 to part 774 and the Commerce Country Chart in supplement no. 1 to part 738, see § 738.4;

Note 1 to paragraph (a)(1):

The description of items in supplements no. 2, 4, or 6 of part 746 are used for determining license requirements for Russia and Belarus under §§ 746.5 and 746.10. Items described in supplements no. 2, 4, or 6 in most cases are designated as EAR99 (subject to the EAR but not specifically listed on the Commerce Control List).

(2) Destination. The country of ultimate destination for an export, reexport, or reexport transfer (in-country) (see parts 738 and 774 of the EAR concerning the Country Chart and the Commerce Control List for export and reexport license requirements and part 746 for additional license requirements based on embargoes and other special controls for exports, reexports, or certain transfers (in-country));

(3) End - user or end use. The ultimate end user (see General Prohibition Four (paragraph (b)(4) of this section) and supplement no. 1 to part 764 of the EAR for references to persons with whom your transaction may not be permitted; see General Prohibition Five (Paragraph (b)(5) of this section) and part 744 for references to end - users for whom you may need an export or reexport , reexport, or transfer (in-country) license). Certain EAR requirements (e.g., §§ 734.9(e), 744.11(a)), and 744.15(b)) extend to all parties to the transaction as described in § 748.5(c) through (f). Many of the end-use controls in part 744 specify destinations or Country Groups as part of the criteria for defining the scope of the end use controls.

(4) End-use. The ultimate end-use (see General Prohibition Five (paragraph (b)(5) of this section) and part 744 of the EAR for general end-use restrictions); and

(5) Conduct. Conduct such as contracting, financing, and freight forwarding in support of a proliferation project or a 'military-intelligence end use' or a 'military-intelligence end user,' as described in part 744 of the EAR.

(b) General prohibitions. The following ten general prohibitions describe certain exports, reexports, transfers (in-country), and other conduct, subject to the scope of the EAR, in which you may not engage unless you either have a license from the Bureau of Industry and Security (BIS) or qualify under part 740 of the EAR for a License Exception from each applicable general prohibition in this paragraph. The License Exceptions at part 740 of the EAR apply only to General Prohibitions One (Exports and Reexports in the Form Received), Two (Parts and Components Reexports), and Three (Foreign-Produced “Direct Product” Reexports); however, selected License Exceptions are specifically referenced and authorized in part 746 of the EAR concerning embargo destinations and in § 744.2(c) of the EAR regarding nuclear end-uses and in § 744.11 and in supplement no. 4 to part 744 - Entity List.

(1) General Prohibition One - Export and reexport of controlled items to listed countries (Exports and Reexports). You may not, without a license or License Exception, export any item subject to the EAR to another country or reexport any item of U.S.-origin if each of the following is true:

(i) The item is controlled for a reason indicated in the applicable Export Control Classification Number (ECCN), and

(ii) Export to the country of destination requires a license for the control reason as indicated on the Country Chart at part 738 of the EAR. (The scope of this prohibition is determined by the correct classification of your item and the ultimate destination as that combination is reflected on the Country Chart.)^[1] Note that each License Exception described at part 740 of the EAR supersedes General Prohibition One if all terms and conditions of a given License Exception are met by the exporter or reexporter.

(2) General Prohibition Two - Reexport and export from abroad of foreign-made items incorporating more than a de minimis amount of controlled U.S. content (U.S. Content Reexports).

(i) You may not, without a license or license exception, reexport or export from abroad foreign-made commodities that incorporate controlled U.S.-origin commodities, foreign-made commodities that are “bundled” with controlled U.S.-origin software, foreign-made software that is commingled with controlled U.S.-origin software, or foreign-made technology that is commingled with controlled U.S.-origin technology if such items require a license according to any of the provisions in the EAR and incorporate or are commingled with more than a de minimis amount of controlled U.S. content, as defined in § 734.4 of the EAR concerning the scope of the EAR.

(A) It incorporates more than the de minimis amount of controlled U.S. content, as defined in § 734.4 of the EAR concerning the scope of the EAR;

(B) It is controlled for a reason indicated in the applicable ECCN; and

(C) Its export to the country of destination requires a license for that control reason as indicated on the Country Chart. (The scope of this prohibition is determined by the correct classification of your foreign-made item and the ultimate destination, as that combination is reflected on the Country Chart.)

(ii) Each License Exception described in part 740 of the EAR supersedes General Prohibition Two if all terms and conditions of a given License Exception are met by the exporter or reexporter.

(3) General Prohibition Three - Foreign-direct product (FDP) rules .

(i) You may not, without a license or license exception, export from abroad, reexport, or transfer (in-country) foreign-“direct products” subject to the EAR pursuant to § 734.9 if such items are subject to a license requirement in part 736, 742, 744, 746, or 764 of the EAR.

(ii) Each license exception described in part 740 of the EAR supersedes General Prohibition Three if all terms and conditions of a given license exception are met and none of the restrictions of § 740.2 or § 744.11(a) apply.

(4) General Prohibition Four (Denial Orders) - Engaging in actions prohibited by a denial order.

(i) You may not take any action that is prohibited by a denial order issued under part 766 of the EAR, Administrative Enforcement Proceedings. These orders prohibit many actions in addition to direct exports by the person denied export privileges, including some transfers within a single country, either in the United States or abroad, by other persons. You are responsible for ensuring that any of your transactions in which a person who is denied export privileges is involved do not violate the terms of the order. Orders denying export privileges are published in the Federal Register when they are issued and are the legally controlling documents in accordance with their terms. BIS also maintains compilations of persons denied export privileges on its Web site at http://www.bis.doc.gov. BIS may, on an exceptional basis, authorize activity otherwise prohibited by a denial order. See § 764.3(a)(2) of the EAR.

(ii) There are no License Exceptions described in part 740 of the EAR that authorize conduct prohibited by this General Prohibition Four.

(5) General Prohibition Five - Export or reexport , reexport, or transfer (in-country) to prohibited end-uses or end-users (End-Use End-User). You may not, without a license, knowingly export or reexport , reexport, or transfer (in-country) any item subject to the EAR to an end - user or end - use that is prohibited by part 744 of the EAR. Each section in part 744 specifies whether the license requirements extend to exports, reexports, and transfers (in-country).

(6) General Prohibition Six - Export or reexport , reexport, and transfer (in-country) to embargoed destinations (Embargo).

(i) You may not, without a license or License Exception authorized under part 746, export or reexport license exception or portion thereof that is specifically listed in the license exceptions paragraph pertaining to a particular sanctioned country or region in part 746 of the EAR, export, reexport, or transfer (in-country) any item subject to the EAR to a country or region (e.g., the Crimea region of Ukraine and covered regions of Ukraine) that is embargoed by the United States or otherwise made subject to controls under part 734 as both are described at part 746 of the EAR. Each section in part 746 specifies whether the license requirements extend to exports, reexports, and transfers (in-country).

(ii) License Exceptions exceptions to General Prohibition Six are described in part 746 of the EAR, on Embargoes and Other Special Controls. Unless a License Exception license exception or other authorization is authorized in part 746 of the EAR, the License Exceptions license exceptions described in part 740 of the EAR are not available to overcome this general prohibition.

(7) General Prohibition Seven - Support of proliferation activities and certain military-intelligence end uses and end users (“U.S. person” activities).

(i) Support of proliferation activities and certain military-intelligence end uses and end users (“U.S. person” activities).

(A) If you are a “U.S. person,” as that term is defined in § 772.1 of the EAR, you may not engage in any activities prohibited by § 744.6(b) or (c) of the EAR, which prohibit, without a license from BIS, the shipment, transmission, or transfer (in-country) of items not subject to the EAR; facilitating such shipment, transmission, or transfer (in-country); or the performance of any contract, service, or employment (including, but not limited to: ordering, buying, removing, concealing, storing, using, selling, loaning, disposing, servicing, financing, or transporting, freight forwarding, or conducting negotiations in furtherance of) that you know or are informed by BIS will 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 part 744 of the EAR;

(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) of the EAR, in Belarus, Burma, the People's Republic of China, Russia, or Venezuela; or a country listed in Country Groups E:1 or E:2.

(B) If you are a “U.S. person” as that term is defined in § 772.1 of the EAR, you may not export a Schedule 1 chemical listed in supplement no. 1 to part 745 without first complying with the provisions of §§ 742.18 and 745.1 of the EAR.

(C) If you are a “U.S. person” as that term is defined in § 772.1 of the EAR, you may not export a Schedule 3 chemical listed in supplement no. 1 to part 745 to a destination not listed in supplement no. 2 to part 745 without complying with the End-Use Certificate requirements in § 745.2 of the EAR that apply to Schedule 3 chemicals controlled for CW reasons in ECCN 1C350, ECCN 1C355, and ECCN 1C395.

(ii) [Reserved]

(8) General Prohibition Eight - In transit shipments and items to be unladen from vessels or aircraft (Intransit) -

(i) Unlading and shipping in transit. You may not export or reexport an item through, or transit through a country listed in paragraph (b)(8)(ii) of this section, unless a license exception or license authorizes such an export or reexport directly to or transit through such a country of transit, or unless such an export or reexport is eligible to such a country of transit without a license.

(ii) Country scope. This General Prohibition Eight applies to Armenia, Azerbaijan, Belarus, Cambodia, Cuba, Georgia, Kazakhstan, Kyrgyzstan, Laos, Mongolia, North Korea, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam.

(9) General Prohibition Nine - Violation of any order, terms, and conditions (Orders, Terms, and Conditions). You may not violate terms or conditions of a license or of a License Exception issued under or made a part of the EAR, and you may not violate any order issued under or made a part of the EAR. There are no License Exceptions to this General Prohibition Nine in part 740 of the EAR. Supplements Nos. 1 and 2 to this part provide for certain General Orders and Administrative Orders.

(10) General Prohibition Ten - Proceeding with transactions with knowledge that a violation has occurred or is about to occur (Knowledge Violation to Occur). You may not sell, transfer, export, reexport, finance, order, buy, remove, conceal, store, use, loan, dispose of, transport, forward, or otherwise service, in whole or in part, any item subject to the EAR and exported, reexported, or transferred (in-country) or to be exported, reexported, or transferred (in-country) with knowledge that a violation of the Export Administration Regulations, the Export Administration Control Reform Act of 2018, or any order, license, License Exceptionlicense exception, or other authorization issued thereunder has occurred, is about to occur, or is intended to occur in connection with the item. Nor may you rely upon any license or License Exception license exception after notice to you of the suspension or revocation of that license or exception. There are no License Exceptions license exceptions to this General Prohibition Ten in part 740 of the EAR.

[61 FR 12754, Mar. 25, 1996]

Editorial Note

Editorial Note:

For Federal Register citations affecting § 736.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

Footnotes - 736.2

^[1] See part 738 of the EAR for selected controls that are not specified on the Country Chart.