[Code of Federal Regulations]
[Title 15, Volume 2, Parts 300 to 799]
[Revised as of January 1, 1997]
>From the U.S. Government Printing Office via GPO Access
[CITE: 15CFR734.3]

[Page 148-149]
 
                TITLE 15--COMMERCE AND FOREIGN TRADE
 
CHAPTER VII--BUREAU OF EXPORT ADMINISTRATION, DEPARTMENT OF COMMERCE
 
PART 734--SCOPE OF THE EXPORT ADMINISTRATION REGULATIONS--Table of Contents
 
Sec. 734.3  Items subject to the EAR.

    (a) Except for items excluded in paragraph (b) of this section, the 
following items are subject to the EAR:
    (1) All items in the United States, including in a U.S. Foreign 
Trade Zone or moving intransit through the United States from one 
foreign country to another;
    (2) All U.S. origin items wherever located;
    (3) U.S. origin parts, components, materials or other commodities 
incorporated abroad into foreign-made products, U.S. origin software 
commingled with foreign software, and U.S. origin technology commingled 
with foreign technology, in quantities exceeding de minimis levels as 
described in Sec. 734.4 and Supplement No. 2 of this part;
    (4) Certain foreign-made direct products of U.S. origin technology 
or software, as described in Sec. 736.2(b)(3) of the EAR. The term 
``direct product'' means the immediate product (including processes and 
services) produced directly by the use of technology or software; and
    (5) Certain commodities produced by any plant or major component of 
a plant located outside the United States that is a direct product of 
U.S.-origin technology or software, as described in Sec. 736.2(b)(3) of 
the EAR.
    (b) The following items are not subject to the EAR:
    (1) Items that are exclusively controlled for export or reexport by 
the following departments and agencies of the U.S. Government which 
regulate

[[Page 149]]

exports or reexports for national security or foreign policy purposes:
    (i) Department of State. The International Traffic in Arms 
Regulations (22 CFR part 121) administered by the Office of Defense 
Trade Controls relate to defense articles and defense services on the 
U.S. Munitions List. Section 38 of the Arms Export Control Act (22 
U.S.C. 2778).
    (ii) Treasury Department, Office of Foreign Assets Control (OFAC). 
Regulations administered by OFAC implement broad controls and embargo 
transactions with certain foreign countries. These regulations include 
controls on exports and reexports to certain countries (31 CFR chapter 
V). Trading with the Enemy Act (50 U.S.C. app. section 1 et seq.), and 
International Emergency Economic Powers Act (50 U.S.C. 1701, et seq.)
    (iii) U.S. Nuclear Regulatory Commission (NRC). Regulations 
administered by NRC control the export and reexport of commodities 
related to nuclear reactor vessels (10 CFR part 110). Atomic Energy Act 
of 1954, as amended (42 U.S.C. part 2011 et seq.).
    (iv) Department of Energy (DOE). Regulations administered by DOE 
control the export and reexport of technology related to the production 
of special nuclear materials (10 CFR part 810). Atomic Energy Act of 
1954, as amended (42 U.S.C. section 2011 et seq.).
    (v) Patent and Trademark Office (PTO). Regulations administered by 
PTO provide for the export to a foreign country of unclassified 
technology in the form of a patent application or an amendment, 
modification, or supplement thereto or division thereof (37 CFR part 5). 
BXA has delegated authority under the Export Administration Act to the 
PTO to approve exports and reexports of such technology which is subject 
to the EAR. Exports and reexports of such technology not approved under 
PTO regulations must comply with the EAR.
    (2) Prerecorded phonograph records reproducing in whole or in part, 
the content of printed books, pamphlets, and miscellaneous publications, 
including newspapers and periodicals; printed books, pamphlets, and 
miscellaneous publications including bound newspapers and periodicals; 
children's picture and painting books; newspaper and periodicals, 
unbound, excluding waste; music books; sheet music; calendars and 
calendar blocks, paper; maps, hydrographical charts, atlases, 
gazetteers, globe covers, and globes (terrestrial and celestial); 
exposed and developed microfilm reproducing, in whole or in part, the 
content of any of the above; exposed and developed motion picture film 
and soundtrack; and advertising printed matter exclusively related 
thereto.
    (3) Publicly available technology and software, except software 
controlled for EI reasons under ECCN 5D002 on the Commerce Control List, 
that:
    (i) Are already published or will be published as described in 
Sec. 734.7 of this part;
    (ii) Arise during, or result from, fundamental research, as 
described in Sec. 734.8 of this part;
    (iii) Are educational, as described in Sec. 734.9 of this part;
    (iv) Are included in certain patent applications, as described in 
Sec. 734.10 of this part.

    Note to paragraphs (b)(2) and (b)(3) of this section: A printed book 
or other printed material setting forth encryption source code is not 
itself subject to the EAR (see Sec. 734.3(b)(2)). However, 
notwithstanding Sec. 734.3(b)(2), encryption source code in electronic 
form or media (e.g., computer diskette or CD ROM) remains subject to the 
EAR (see Sec. 734.3(b)(3)).

    (4) Foreign made items that have de minimis U.S. content based on 
the principles described in Sec. 734.4 of this part.
    (c) ``Items subject to the EAR'' consist of the items listed on the 
Commerce Control List (CCL) in part 774 of the EAR and all other items 
which meet the definition of that term. For ease of reference and 
classification purposes, items subject to the EAR which are not listed 
on the CCL are designated as ``EAR99.''

[61 FR 12746, Mar. 25, 1996, as amended at 61 FR 65464, Dec. 13, 1996; 
61 FR 68578, Dec. 30, 1996]