Items, materials, equipment, biologics, technical data, encryption, software, and source code (collectively “items”) may be controlled under export regulations. To determine whether items require an export license for transfer to a foreign person, an individual must first determine the export jurisdiction and classification of the item.
Jurisdiction refers to the section of export regulations that govern that item. The ITAR applies to defense articles and services, while the EAR applies to dual-use items.
Classification is the process of identifying which specific segment of the relevant regulations applies to the item. The ITAR contains list relevant categories on the United States Munitions List (USML):
EAR items are classified using the Commerce Control List (CCL). The CCL groups items into 9 primary categories, and 5 types, with numerous specific entries in each category:
Determining Jurisdiction and Classification
The process of determining correct jurisdiction and classification is complicated and usually requires extensive experience, technical knowledge and an understanding of the export control regulations.
For items received from a non-university party (i.e. manufacturer, vendor, university, principal investigator, etc.), the best approach is to request that the providing party also provide the export classification. If a classification cannot be obtained from the source of the item, the University will have to self-determine the export control classification. While there are some items (such as, pencils or printer paper) where the classification is obvious (for instance, a ream of printer paper is certainly not on the USML or the CCL and is therefore EAR99), it is not always as clear on more advanced technology.
At times, the export control regulations can be ambiguous, internally inconsistent, and rely on defined and undefined terms that have specific meaning to export control professionals that is different from common usage. The researcher’s technical knowledge may be necessary and helpful to complete the self-classification process, but the researcher should not attempt to determine the classification without consulting Export Control.
An ITAR review takes precedence. The item is ITAR-controlled if it is enumerated on the USML.
- Some items are listed explicitly on the USML. The order of review is specified in 22CFR 121(b) (ITAR 2016) and reflected in the USML Order of Review Decision Tool.
- If the item is not explicitly listed on the USML, it may still be subject to the ITAR if it is “specially designed” for an item on the USML. The steps for this analysis are specified in 22 CFR 121(d) (ITAR 2016) and reflected in the Specially Designed Decision Tool.
Most items that are not ITAR-controlled are EAR-controlled.
- The item may be listed explicitly on the CCL. The order of review is specified in Supplement No. 4 to 15 CFR 774 and reflected in the CCL Order of Review Decision Tool.
- If the item is not explicitly listed in the CCL, it may still be included if it is specially designed. The steps for this analysis are specified in the EAR’s (15 CFR 772.1) definition of specially designed, and reflected in the Specially Designed Decision Tool.
Any EAR-controlled item not specifically identified on the CCL is given an ECCN of EAR99. Like all EAR-controlled items, EAR99 items are subject to controls (such as, the general prohibitions, restricted end users and end uses, and embargoes). The EAR (2016) states, “the majority of commercial products are designated EAR99 and generally will not require a license to be exported or reexported.” EAR99 items can be used in research with few, if any, restrictions. Unfortunately, there is no list of EAR99 items a researcher can check.
Some items previously subject to the ITAR have been moved to the EAR and are now enumerated on the CCL. These items are notable because they are more highly controlled than other ECCNs.
- 9×515 – Space-related items with ECCNs such as, 9A515 (spacecraft, equipment, and components), 9B515 (test, inspection, and production equipment), 9D515 (development, production, or use software), and 9E515 (development, production, or use information).
- 600 series – Defense items with ECCNs such as, 9A610 (military aircraft and related items), 9B610 (test, inspection, and production equipment), 9D610 (development, production, or use software), and 9E610 (development, production, or use information).
University personnel should contact Export Control for assistance in determining the classification of items, materials, equipment, biologics, technical data, software, and/or encryption that may be subject to export controls.