A Quick Note On Export Administration Regulations (EAR)

2018-01-05

Working as a software engineer doesn't mean just writing code. At least from my experience a good part of the work involves trying to sell and deploy and product, sometimes to customers overseas, which would require us to determine if our product is subject to Export Administration Regulations, or EAR. This will be a short summary of EAR for software engineers.

Qualification

The United States regulates export activities, especially for what is called "dual-use" items, which means those can be used for civilian and military purposes at the same time. The Bureau of Industry and Security, or BIS, administers EAR and publishes its definitions. § 734.3 describes what kinds of export products are subject to the EAR. Quote (partial),

  1. All items in the Unite States, including [...]
  2. All U.S. origin items wherever located.
  3. [Essentially saying foreign goods that use US parts.]
  4. [A Special clause.]

which basically means every US-related products no matter within or outside of the US. This makes sense since the government do not want any likely "dual-use" items to be exempted from EAR. For this reason software export is automatically under the control of EAR.

ECCN

Export Control Classification Number, or ECCN, tells the BIS what kind of "dual-use" item your product is. The product can either be classified under one of the published ECCN's in the Commerce Control List, or the CCL, or classified to EAR99, which contains products that are subject to the EAR but not found on the CCL. In layman's terms, this is saying, again, all products are under EAR, but only those which can potentially be used with military purposes should be assigned an ECCN, otherwise you are assigned EAR99 as your ECCN code.

Some interesting entries in the CCL:

but mostly the CCL contains military items.

Determining ECCN

According to this page, there are 3 ways to determine the ECCN for the product,

  1. Go to the source. [Meaning ask the manufacturer.]
  2. Self-classify.
  3. [Essentially ask the BIS for help.]

For a piece of software, the developers are the manufacturer, and I suppose asking the BIS will be a long effort. Self-classify is more practical.

In the end, if the product is subject to one of the ECCN's, a license is needed. If the product is EAR99, then it will need, quote, a "license exception NLR specifying no license is required". However, if the product is exported to the enemies of the United States, it always need a license regardless of what code the product is under. See the same link (immediate above) for details. This is saying the US won't give its enemies s\*\*t let alone military items.

Please consume at your own risk. The author is not a law professional and does not assume legal responsibility for materials within this article. © The Responsible Adult 2017 - 2025