(a) License requirements. Except as described in the exclusions in paragraph (a)(12), and in addition to license requirements specified on the Commerce Control List (CCL ) in supplement no. 1 to part 774 of the EAR and in other provisions of the EAR , including part 744 and other sections of part 746, a license is required as specified under paragraphs (a)(1) through (7). These license requirements follow an order of review, which provides guidance on the relationship between the different license requirements and which ones take precedence for certain items. For purposes of paragraphs (a)(5) through (7) of this section, a license is not required for any item that is listed in supplement nos. 4, 5 or 6 to this part that is also classified under an Export Control Classification Number (ECCN ) on the Commerce Control List (CCL ) in supplement no. 1 to part 774 of the EAR . See paragraph (a)(1) of this section and part 742 for license requirements for exports, reexports, and transfers to or within Russia or Belarus for items classified in ECCN s, as well as part 744 for end-use and end-user controls that may apply to your transaction. Paragraphs (a)(1) and (2) of this section, are also used for determining license requirements for exports, reexports, and transfers to or within Russia or Belarus of any item that is listed in supplement nos. 4, 5, or 6 to this part and is classified in an ECCN on the CCL in supplement no. 1 to part 774 of the EAR . License requirements in paragraph (a)(4) that apply to exports, reexports, and transfers (in-country) involved in certain end-uses should be reviewed only after license requirements in paragraphs (a)(1) through (a)(3) and (a)(5) through (a)(7) are reviewed.
(1) Items classified in any ECCN on the CCL . A license is required to export, reexport, or transfer (in-country) to or within Russia or Belarus any item subject to the EAR and specified in any Export Control Classification Number (ECCN ) on the CCL .
(2) Russia/Belarus/Temporarily occupied Crimea region of Ukraine foreign “direct product” (FDP) rule. A license is required to reexport, export from abroad, or transfer (in-country) to any destination any foreign-produced item subject to the EAR under the Russia/Belarus/Temporarily occupied Crimea region of Ukraine under the FDP rule described in § 734.9(f) of the EAR .
(3) Russia/Belarus-Military End User FDP rule. A license is required to reexport, export from abroad, or transfer (in-country) to or within any destination any foreign-produced item subject to the EAR under § 734.9(g) of the EAR .
Note 1 to paragraph (a)(3):A 'military end user' for purposes of this paragraph is any entity listed on the Entity List in supplement no. 4 to part 744 of the EAR with a Footnote 3 designation.
(4) Oil and Gas—(i) Certain exploration or production of oil or gas. A license is required to export, reexport, or transfer (in-country) any item subject to the EAR listed in supplement no. 2 to this part and items specified in ECCN s 0A998, 1C992, 3A229, 3A231, 3A232, 6A991, 8A992, and 8D999 when you “know” that the item will be used directly or indirectly in exploration for, or production of, oil or gas in Russian deepwater (greater than 500 feet) or Arctic offshore locations or shale formations in Russia or Belarus, or are unable to determine whether the item will be used in such projects. Such items include, but are not limited to, drilling rigs, parts for horizontal drilling, drilling and completion equipment, subsea processing equipment, Arctic-capable marine equipment, wireline and down hole motors and equipment, drill pipe and casing, software for hydraulic fracturing, high pressure pumps, seismic acquisition equipment, remotely operated vehicles, compressors, expanders, valves, and risers.
(ii) Additional prohibition on those informed by BIS. BIS may inform persons, either individually by specific notice or through amendment to the EAR , that a license is required for a specific export, reexport, or transfer (in-country) or for the export, reexport, or transfer (in-country) of specified items to a certain end-user or end-use, because there is an unacceptable risk of use in, or diversion to, the activities specified in this section in Russia or Belarus. Specific notice is to be given only by, or at the direction of, the Principal Deputy Assistant Secretary for Strategic Trade and Technology Security or the Deputy Assistant Secretary for Strategic Trade. When such notice is provided orally, it will be followed by a written notice within two working days signed by either the Principal Deputy Assistant Secretary for Strategic Trade and Technology Security or the Deputy Assistant Secretary for Strategic Trade. However, the absence of any such notification does not excuse persons from compliance with the license requirements of this section.
(5) Industrial Goods. A license is required to export, reexport, or transfer (in-country) any item subject to the EAR listed in supplement no. 4 to this part to or within Russia or Belarus.
(6) Itemized Items. A license is required to export, reexport, or transfer (in-country) any item subject to the EAR listed in supplement no. 6 to this part to or within Russia or Belarus.
(7) 'Luxury goods.' A license is required to export, reexport, or transfer (in-country) any item subject to the EAR listed in supplement no. 5 to this part to or within Russia or Belarus.
Note 2 to paragraph (a)(7):For purposes of paragraph (a)(7) of this section, a 'luxury good' means any item that is identified in supplement no. 5 to this part.
(8)-(11) [Reserved]
(12) Exclusions from license requirements and scope of U.S.-origin controlled content. Paragraphs (a)(12)(i), (ii), and (iii)(A) of this section exclude certain exports, reexports, and transfers (in-country) from the scope of the license requirements of this section. Paragraph (a)(12)(iii)(B) excludes certain items from the scope of U.S.-origin content for purposes of de minimis calculations from certain destinations.
(i) Deemed exports and deemed reexports. The license requirements in paragraph (a) do not apply to deemed exports or reexports. However, the exclusion for deemed exports and deemed reexports is limited to the license requirements specified only in this section of the EAR . Any deemed export or deemed reexport to a Russian or Belarusian national must be made in accordance with all other applicable EAR license requirements, such as CCL -based license requirements. For example, the release of NS1 controlled technology to a Russian or Belarusian national in the United States or in a third country would require a CCL -based deemed export or deemed reexport license (as applicable). Consequently, authorization (in the form of a deemed export or deemed reexport license, or license exception eligibility) would be required under the EAR notwithstanding the exclusion in this paragraph (b).
(ii) Mass market encryption commodities and software. Commodities specified under ECCN 5A991, and commodities and software classified under ECCN s 5A992.c or 5D992.c that have been 'classified in accordance with § 740.17,' do not require a license to or within Russia or Belarus for the following civil end-users:
(A) Wholly owned U.S. subsidiaries, branches, or sales offices;
(B) Joint ventures between two or more U.S. companies, including the wholly owned subsidiaries, branches, or sales offices of such joint ventures;
(C) Joint ventures between U.S. companies and companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR , including the wholly owned subsidiaries, branches, or sales offices of such joint ventures;
(D) Wholly owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740; or
(E) Joint ventures between two or more companies headquartered in Country Group A:5 and A:6 in supplement no. 1 to part 740, including the wholly owned subsidiaries, branches, or sales offices of such joint ventures.
(iii) Global Export Control Coalition (GECC). The countries listed in supplement no. 3 to this part have committed to implementing substantially similar export controls on Russia, Belarus, and the temporarily occupied Crimea region of Ukraine under their domestic laws. Therefore, exports or reexports from the countries listed in supplement no. 3 to this part or transfers (in-country) within the countries listed in this supplement are not subject to the following license requirements in paragraph (a) of this section unless a limit to the exclusion is described in the Scope column in supplement no. 3 to this part:
(A) Foreign direct product rules. The license requirement described in paragraphs (a)(2) and (3) of this section;
(B) De minimis. For purposes of determining U.S.-origin controlled content under supplement no. 2 to part 734 of the EAR , when making a de minimis calculation for reexports and exports from abroad to Russia or Belarus, the license requirements in paragraphs (a)(1) and (a)(4) through (7) of this section are not used to determine controlled U.S.-origin content in a foreign-made item, provided the criteria of paragraphs (a)(12)(B)(1) and (2) of this section are met:
(1) The U.S.-origin content is described in an Anti-Terrorism (AT)-only ECCN or is designated EAR 99. For purposes of this paragraph, AT-only items mean any ECCN that only specifies either only AT in the reason for control paragraph of the ECCN or is classified under ECCN 9A991; and
(2) The foreign made item will be reexported or exported from abroad from a destination described in supplement no. 3 to this part.
(b) Licensing policy. (1) License applications required under paragraph (a)(3) of this section will be reviewed under a policy of denial in all cases.
(2) Applications for the export, reexport, or transfer (in-country) of any item pursuant to paragraph (a)(4) of this section that require a license for Russia or Belarus will be reviewed under a policy of denial when for use directly or indirectly for exploration or production from deepwater (greater than 500 feet), Arctic offshore, or shale projects in Russia or Belarus that have the potential to produce oil or gas.
(3) Applications for the export, reexport, or transfer (in-country) of any item pursuant to paragraphs (a)(1), (2), and (5) through (7) of this section will be reviewed under a policy of denial. However, the following types of license applications submitted pursuant to paragraphs (a)(1), (2), and (5) through (7) of this section will be reviewed on a case-by-case basis to determine whether the transaction in question would benefit the Russian or Belarusian government or defense sector:
(i) Applications for export, reexport, or transfer (in-country) of items that may be necessary for health and safety reasons, including the safety of flight, maritime safety, and civil nuclear safety;
(ii) Applications for the disposition of items by companies not headquartered in Country Group D:1, D:5, E:1, or E:2 in supplement no. 1 to part 740 that are winding down or closing all operations in Russia or Belarus;
(iii) Applications for items that meet humanitarian needs, including applications for items that are predominantly agricultural or medical in nature;
(iv) Applications for government-to-government activities or to support government space cooperation;
(v) Replacement licenses for exports and reexports to and transfers within Russia and Belarus of items described in HTS-6 Codes or items described in supplement no. 6 to part 746 that were added to the EAR and made subject to license requirements after the validation date of the BIS license.
(vi) Applications for items destined to:
(A) Wholly owned U.S. subsidiaries, branches, or sales offices;
(B) Foreign subsidiaries, branches, or sales offices of U.S. companies that are joint ventures with other U.S. companies;
(C) Joint ventures of U.S. companies with companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR ;
(D) The wholly owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740; or
(E) Joint ventures of companies headquartered in Country Groups A:5 and A:6 with other companies headquartered in Country Groups A:5 and A:6; and
(vii) Applications for companies headquartered in Country Groups A:5 and A:6 to support civil telecommunications infrastructure.
Note 3 to paragraph (b):See also § 750.7(c)(1)(xi) of the EAR for the divesture of items within Russia or Belarus or the transfer of items within Russia or Belarus for the purpose of reexporting such items from Russia or Belarus. For purposes of § 750.7(c)(1)(xi), divesture means the action or process of selling off subsidiary business interests or investments involving items subject to the EAR .
(c) License exceptions. Consistent with § 740.2(b), BIS may revise, suspend, or revoke License Exception availability under this section consistent with U.S. national security and foreign policy interests, including on a case-by-case basis, to prevent Russian or Belarusian persons from circumventing the restrictions in this section.
(1) No license exceptions may overcome the license requirements in paragraph (a)(3) of this section, except as specified in the entry for a Footnote 3 entity on the Entity List in supplement no. 4 to part 744 of the EAR .
(2) No license exceptions may overcome the license requirements in paragraphs (a)(1), (2), and (4) through (7) of this section except the following:
(i) License Exception TMP for items for use by the news media as set forth in § 740.9(a)(9) of the EAR may overcome the license requirements in paragraphs (a)(1), (2), (7) of this section.
(ii) License Exception GOV (§ 740.11(b) of the EAR ) may overcome the license requirements in paragraphs (a)(1), (2), and (4) through (7) of this section.
(iii) License Exception TSU for software updates for civil end-users that are wholly-owned U.S. subsidiaries, branches, or sales offices; foreign subsidiaries, branches, or sales offices of U.S. companies that are joint ventures with other U.S. companies; joint ventures of U.S. companies with companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR countries; the wholly-owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740; or joint ventures of companies headquartered in Country Group A:5 and A:6 with other companies headquartered in Country Groups A:5 and A:6 (§ 740.13(c) of the EAR ) may overcome the license requirements in paragraphs (a)(1), (2), and (7) of this section.
(iv) License Exception BAG, excluding firearms and ammunition (§ 740.14, excluding paragraph (e), of the EAR ) may overcome the license requirements in paragraphs (a)(1) and (2) of this section.
(v) License Exception AVS, excluding any aircraft registered in, owned or controlled by, or under charter or lease by Russia or Belarus or a national of Russia or Belarus (§ 740.15(a) and (b) of the EAR ) may overcome the license requirements in paragraphs (a)(1) and (2) of this section.
(vi) License Exception encryption commodities, software, and technology (ENC) for civil end-users that are wholly-owned U.S. subsidiaries, branches, or sales offices; foreign subsidiaries, branches, or sales offices of U.S. companies that are joint ventures with other U.S. companies; joint ventures of U.S. companies with companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740 of the EAR countries; the wholly-owned subsidiaries, branches, or sales offices of companies headquartered in countries from Country Group A:5 and A:6 in supplement no. 1 to part 740; or joint ventures of companies headquartered in Country Group A:5 and A:6 with other companies headquartered in Country Groups A:5 and A:6 (§§ 740.13(c) and 740.17 of the EAR ) may overcome the license requirements is paragraphs (a)(1) and (2) of this section.
(vii) License Exception CCD (§ 740.19 of the EAR ) may overcome the license requirements in paragraphs (a)(1), (2), and (4) through (7) of this section.
(viii) License Exception MED (§ 740.23 of the EAR ) may overcome the license requirements in paragraphs (a)(5) through (7) of this section.
(d) License Applications. License applications submitted to BIS under this section may include the phrase “§ 746.8” and identify the paragraph (a) license requirement(s) from this section that are applicable. You should include a description such as “paragraph (a)(1) or any of the other paragraph (a) paragraphs that may be applicable to a license application” in Block 9 (Special Purpose) of your license application as described in supplement no. 1 to part 748 of the EAR .
[89 FR 51662, June 18, 2024]