Under the de minimis rules in § 734.4 of the Export Administration Regulations (EAR), a foreign-made item becomes subject to the EAR when the value of its controlled U.S.-origin content is above a threshold. The threshold is 25 percent for most destinations and 10 percent for destinations in Country Group E:1 and E:2. So a product made in Germany, Malaysia or Mexico can still fall under U.S. export controls if it contains enough controlled U.S. content.
What is the de minimis rule?
A foreign-made item is not subject to the EAR by reason of U.S. content if the value of controlled U.S.-origin content is at or below the de minimis level:
- 25 percent for most destinations;
- 10 percent for destinations in Country Group E:1 and E:2, the most restricted destinations.
Above the threshold, the foreign item is subject to the EAR and must be classified and licensed as if it were a U.S. export. The rule text is in Part 734 on eCFR.
What counts as controlled U.S. content?
Only U.S.-origin commodities, software and technology that would require a licence for export to the foreign item's destination count. U.S.-origin software incorporated in the item counts at its value. If the U.S. content could have been sent to that destination without a licence (NLR), it is left out of the calculation, which is why EAR99 parts usually drop out.
The first step is to classify each U.S. input and check it against the Commerce Country Chart for the destination. Our guide on how to find the ECCN for your product covers the classification part.
Zero de minimis
For some items there is no threshold at all, and any amount of the U.S. content makes the foreign item subject to the EAR. Examples include certain 600 series and 9x515 content for arms-embargoed destinations, and certain high-end items identified in § 734.4. See 600 series ECCNs for how those entries work.
How to do a de minimis calculation
- List the U.S.-origin content in the foreign item.
- Classify each part and decide whether it would need a licence to the destination.
- Take the value of the controlled U.S. content (fair market value).
- Divide by the value of the foreign-made item (its sale price, or fair market value).
- Compare the result with the applicable threshold.
Supplement No. 2 to Part 734 gives guidelines, including one-time reporting for some calculations. Technology has its own rules: foreign technology commingled with U.S. technology is treated separately and may require a report to BIS.
Worked example
A German machine worth €100,000 contains a U.S. controller worth €20,000 that would need a licence to the destination, and U.S. EAR99 sensors worth €5,000. The controlled U.S. content is the controller, €20,000, or 20 percent.
For most destinations that is below 25 percent, so the machine is not subject to the EAR by reason of U.S. content. For an E:1 destination the threshold is 10 percent, so the machine would be subject to the EAR.
De minimis and the foreign direct product rules
De minimis looks at content. The foreign direct product rules (§ 734.9) look at how a foreign item was made, for example with U.S. technology or on U.S.-origin equipment. A foreign item can be subject to the EAR under either route. Recent rules for advanced semiconductors and certain end users rely heavily on the direct product rules.
De minimis in ECCN.help
The first input to a de minimis calculation is the classification of each U.S. part. The ECCN.help Classification Workflow classifies parts step by step and is rule-based, with no AI. Its licence check shows whether each part would need a licence to the destination, which decides whether that part counts.
ECCN.help provides research and assistance, not legal advice. Verify every result against the regulation.