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Summary and Guidance for the University of Rochester Community

Subject: § 744.21 Restrictions on certain ‘military end use’ or ‘military end user’ in the People’s Republic of China, Russia or Venezuela - Export Administration Regulations (EAR)

Applies to:  All University faculty, staff, students, departments/offices sending, carrying, releasing or transmitting tangible items, software or information subject to the EAR to China, Russia or Venezuela

Reason for summary and guidance:  Recent final rule by the U.S. Department of Commerce – “Expansion of Export, Reexport, and Transfer (in-Country) Controls for Military End Use or Military End Users in the People's Republic of China, Russia, or Venezuela" – effective June 29, 2020 – 85 FR 23459

Additional information: Please reach out to Josef Mejido, Export Control Officer at export@rochester.edu with any questions.

Summary of the EAR:
Items subject to the Export Administration Regulations (EAR) have a specific export control classification number (ECCN) and are listed on the Commerce Control List; or if the item does not have a specific ECCN and consequently is not listed on the Commerce Control List then the items receives a designation of “EAR99”. 1, 2 ,   The applicable ECCN provides the specific reasons for control (e.g. national security (NS), missile technology (MT), nuclear nonproliferation (NP), regional stability (RS)), and by matching up the reasons for control with the applicable country in the Commerce Country Chart, 3 an individual can determine if an export license is required prior to sending an item to a certain destination. 4   This framework applies regardless of the intended end use or end user of the item (although such information may impact the ability to receive an export license).

An “export” under the EAR means 5 :

  •  An actual shipment or transmission out of the United States, including the sending or taking of an item out of the United States, in any manner; and/or
  • Releasing or otherwise transferring “technology” or source code (but not object code) to a foreign person in the United States (a “deemed export”)

Summary of ‘military end use’ or ‘military end user’ export restrictions under the EAR for certain items destined for China, Russia or Venezuela:
Part 744 of the EAR provides several end user and end use based controls; some of which apply irrespective of the applicable ECCN.  Part 744.21 covers ‘military end use’ or ‘military end user’ export restrictions for certain ECCNs destined to China, Russia or Venezuela.  While an export license is not inherently required for such items intended for export to China, Russia or Venezuela, if you have “knowledge” (defined term under the EAR) that the item is intended, entirely or in part, for a ‘military end use’ OR a ‘military end user’ in China, Russia or Venezuela, an export license is required (and there is a presumption of denial for any such export license requests).   

Military end use’ is defined to mean “…incorporation into a military item described on the U.S. Munitions List (USML) (22 CFR part 121, International Traffic in Arms Regulations); incorporation into items classified under ECCNs ending in “A018” or under “600 series” ECCNs; or any item that supports or contributes to the operation, installation, maintenance, repair, overhaul, refurbishing, “development,” or “production,” of military items described on the USML, or items classified under ECCNs ending in “A018” or under “600 series” ECCNs.”
  • Note:  This new definition is broader than the previous version

‘Military end user’ is defined to mean “…the national armed services (army, navy, marine, air force, or coast guard), as well as the national guard and national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support ‘military end uses’ as defined in paragraph (f) of this section.”   (emphasis added)  (definition of ‘military end use’ provided directly above)

  • Note:  This definition of ‘military end user’ now applies to exports to China. 
    • “This expansion will require increased diligence with respect to the evaluation of end users in China, particularly in view of China's widespread civil-military integration.”  (85 FR 23459)

Items subject to the ‘military end use’ and ‘military end user’ export restrictions to China, Russia or Venezuela are identified in Supplement No. 2 to Part 744 - List of Items Subject To The Military End-Use or End User License Requirement of §744.21 (attached 4 page document) (partial screenshot below): 

Supplement No. 2 to Part 744

Recommendations:

  • Determine the ECCN for each item (including information and source code/software) you plan to send, carry or transmit out of the U.S. 6   Also, be mindful of potential deemed export concerns if releasing any information or source code that may be subject to U.S. export control laws to a foreign person.
    • Keep in mind that information or software that is published; arises during or results from fundamental research; and/or is released by instruction in a catalog course or associated teaching laboratory is not be subject to U.S. export control laws. 7
    • If the item is commercially sold, the manufacturer of the item may already know the applicable ECCN and be willing to share the ECCN with you (or such information is already available online) 8
  • Know if your item is destined for China, Russia or Venezuela (note that export control laws include hand carrying and electronically transferring items out of the U.S.)
    • If yes, consult Supplement No. 2 to Part 744 to determine if your item has an ECCN covered under these military end use / military end user export restrictions:
      • Note that it may not be obvious from just looking at the ECCN and corresponding item description if an ECCN covers a particular item. 
        • E.g. ECCN 3A991 covers flash/jump drives; 5A992 covers cell phones and laptops; 5D992 covers mass market software (e.g. iPadOS, iTunes; iMovie; iOS); 6A993 covers FLIR thermal video cameras less than 9Hz; 7A994 covers GPS units; 8A992 covers underwater cameras
  • Know the end user AND the end use of such items being exported to China, Russia or Venezuela
    • Be aware that particularly with respect to China, the definition of ‘military end user’ may cover organizations, entities, universities, etc. that you already collaborate with and may not initially think are a military end user.
  • The U.S. Department of Commerce recently came out with helpful FAQs 9 that should be read by anyone planning to export items to China, Russia or Venezuela that may be impacted by these restrictions.
  • Please reach out to Josef Mejido, Export Control Officer, export@rochester.edu with any questions you may have and if you think the University may need to apply for an export license.


8 E.g. Apple Global Trade Compliance:  https://www.apple.com/legal/more-resources/gtc.html