Title 15
SECTION 736.2
736.2 General prohibitions and determination of applicability.
§ 736.2 General prohibitions and determination of applicability. Link to an amendment published at 86 FR 4870, Jan. 15, 2021.(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:
(1) Classification of the item. The classification of the item on the Commerce Control List (see part 774 of the EAR);
(2) Destination. The country of ultimate destination for an export or reexport (see parts 738 and 774 of the EAR concerning the Country Chart and the Commerce Control List);
(3) End-user. 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 license).
(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 as described in part 744 of the EAR.
(b) General prohibitions. The following ten general prohibitions describe certain exports, reexports, 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.
(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.
1 See part 738 of the EAR for selected controls that are not specified on the Country Chart.
(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-produced direct product of specified “technology” and “software” (Foreign-Produced Direct Product Rule) - (i) Country scope of prohibition. You may not, without a license or license exception, reexport any item subject to the scope of this General Prohibition Three to a destination in Country Group D:1, E:1, or E:2 (See supplement no.1 to part 740 of the EAR). Additionally, you may not, without a license or license exception, reexport or export from abroad any ECCN 0A919 commodities subject to the scope of this General Prohibition Three to a destination in Country Group D:1, D:3, D:4, D:5, E:1, or E:2.
(ii) Product scope of foreign-made items subject to prohibition. This General Prohibition 3 applies if an item meets either the Conditions defining the direct product of technology or the Conditions defining the direct product of a plant in paragraph (b)(3)(ii)(A) of this section:
(A) Conditions defining direct product of technology. Foreign-made items are subject to this General Prohibition 3 if they meet both of the following conditions:
(1) They are the direct product of technology or software that requires a written assurance as a supporting document for a license, as defined in paragraph (o)(3)(i) of supplement no. 2 to part 748 of the EAR, or as a precondition for the use of License Exception TSR at § 740.6 of the EAR, and
(2) They are subject to national security controls as designated on the applicable ECCN of the Commerce Control List at part 774 of the EAR.
(B) Conditions defining direct product of a plant. Foreign-made items are also subject to this General Prohibition 3 if they are the direct product of a complete plant or any major component of a plant if both of the following conditions are met:
(1) Such plant or component is the direct product of technology that requires a written assurance as a supporting document for a license or as a precondition for the use of License Exception TSR in § 740.6 of the EAR, and
(2) Such foreign-made direct products of the plant or component are subject to national security controls as designated on the applicable ECCN of the Commerce Control List at part 774 of the EAR.
(iii) Country scope of prohibition for 9x515 or “600 series” items. You may not, except as provided in paragraphs (b)(3)(v) or (vi) of this section, reexport or export from abroad without a license any “600 series” item subject to the scope of this General Prohibition Three to a destination in Country Groups D:1, D:3, D:4, D:5, E:1, or E:2 (see supplement no. 1 to part 740 of the EAR). You may not, except as provided in paragraphs (b)(3)(v) or (vi) of this section, reexport or export from abroad without a license any 9x515 item subject to the scope of this General Prohibition Three to a destination in Country Groups D:5, E:1, or E:2 (see supplement no. 1 to part 740 of the EAR).
(iv) Product scope of 9x515 and “600 series” items subject to this prohibition. This General Prohibition Three applies if a 9x515 or “600 series” item meets either of the following conditions:
(A) Conditions defining direct product of “technology” or “software” for 9x515 and “600 series” items. Foreign-made 9x515 and “600 series” items are subject to this General Prohibition Three if the foreign-made items meet both of the following conditions:
(1) They are the direct product of “technology” or “software” that is in the 9x515 or “600 series” as designated on the applicable ECCN of the Commerce Control List in supplement no. 1 to part 774 of the EAR; and
(2) They are in the 9x515 or “600 series” as designated on the applicable ECCN of the Commerce Control List in part 774 of the EAR.
(B) Conditions defining direct product of a plant for 9x515 and “600 series” items. Foreign-made 9x515 and “600 series” items are also subject to this General Prohibition Three if they are the direct product of a complete plant or any major component of a plant if both of the following conditions are met:
(1) Such plant or major component is the direct product of 9x515 or “600 series” “technology” as designated on the applicable ECCN of the Commerce Control List in part 774 of the EAR, and
(2) Such foreign-made direct products of the plant or major component are in the 9x515 or “600 series” as designated on the applicable ECCN of the Commerce Control List in part 774 of the EAR.
(v) 9x515 and “600 series” foreign-produced direct products of U.S. “technology” or “software” subject to this General Prohibition Three do not require a license for reexport or export from abroad to the new destination unless the same item, if exported from the U.S. to the new destination would have been prohibited or made subject to a license requirement by part 742, 744, 746, or 764 of the EAR.
(vi) Criteria for prohibition relating to parties on Entity List. You may not reexport, export from abroad, or transfer (in-country) without a license or license exception any foreign-produced item controlled under footnote 1 of supplement no. 4 to part 744 (“Entity List”) when there is “knowledge” that:
(A) The foreign-produced item will be incorporated into, or will be used in the “production” or “development” of any “part,” “component,” or “equipment” produced, purchased, or ordered by any entity with a footnote 1 designation in the license requirement column of this supplement; or
(B) Any entity with a footnote 1 designation in the license requirement column of this supplement is a party to any transaction involving the foreign-produced item, e.g., as a “purchaser,” “intermediate consignee,” “ultimate consignee,” or “end-user.”
(vii) License exceptions. All license exceptions described in part 740 of the EAR are available for foreign-produced items that are subject to the EAR pursuant to paragraphs (b)(3)(i) through (v) of this section if all terms and conditions of the pertinent license exception terms and conditions are met and the restrictions in § 740.2 do not apply. For foreign-produced items that are subject to the EAR pursuant to paragraph (b)(3)(vi) of this section, license exceptions are available only as set forth in part 740 of the EAR pursuant to § 744.11(a), i.e., the license requirement column for the entity, if all terms and conditions of the pertinent license exception are met and the restrictions in § 740.2 do not 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 to prohibited end-uses or end-users (End-Use End-User). You may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.
(6) General Prohibition Six - Export or reexport to embargoed destinations (Embargo). (i) You may not, without a license or License Exception authorized under part 746, export or reexport any item subject to the EAR to a country that is embargoed by the United States or otherwise made subject to controls as both are described at part 746 of the EAR.
(ii) License Exceptions to General Prohibition Six are described in part 746 of the EAR, on Embargoes and Other Special Controls. Unless a License Exception or other authorization is authorized in part 746 of the EAR, the 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 (U.S. person proliferation activity) - (i) Support of proliferation activities (U.S. person proliferation activity). (A) If you are a U.S. person as that term is defined in § 744.6(c) of the EAR, you may not engage in any activities prohibited by § 744.6(a) or (b) of the EAR, which prohibits the performance, without a license from BIS, of certain financing, contracting, service, support, transportation, freight forwarding, or employment that you know will assist in certain proliferation activities described further in part 744 of the EAR. There are no License Exceptions to this General Prohibition Seven in part 740 of the EAR unless specifically authorized in that part.
(B) If you are a U.S. person as that term is defined in § 744.6(c) 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 § 744.6(c) 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, or ECCN 1C395.
(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 or to be exported with knowledge that a violation of the Export Administration Regulations, the Export Administration Act or any order, license, License 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 after notice to you of the suspension or revocation of that license or exception. There are no License Exceptions to this General Prohibition Ten in part 740 of the EAR.
[61 FR 12754, Mar. 25, 1996] 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.