Determining whether an item is subject to ITAR or EAR is critical. and determining the correct ECCN for EAR items is very important. Mistakes here can have serious consequences to MIT and to individual shippers.
- The best source of export classification for a purchased item is the vendor or manufacturer.
- If it cannot be gotten from the vendor or manufacturer, then it will be necessary in all but the most obvious cases to consult the Export Control Officer. Determining the correct classification can be challenging, requiring technical knowledge about the item as well as understanding of the export control regulations.
Step 1. Jurisdiction (ITAR, EAR)
The ITAR takes precedence:
- If an item is listed on the US Munitions List, it's subject to the State Department's ITAR.
- If the item is "specially designed" for one of the US Munition List items for which "specially designed" applies, it's subject to the ITAR, even thought it might seem to be an EAR item. About half the USML categories include "specially designed" items.
- Otherwise, it's subject to the Commerce Department's EAR.
An item is "caught" by the "specially designed" criteria if its development resulted in properties peculiarly responsible for an item on the USML's achieving the performance, characteristics, or functions that make it ITAR-controlled, or if it's a part, component, accessory, attachment, of software for use with a USML item. However, it can be "released" from the "specially designed" criteria if it's a fastener, is equivalent to a non-USML item already in production, was developed for USML and non-USML items, was developed as a general purpose item, or if determined by the State Department to be subject to the EAR. Note that this is a summary: the ITAR order of review is completely described in §121.1(b)(1). The State Department has designed a decision tool to help determine whether an item is "specially designed".
Step 2a: Classification (ITAR)
Review the general characteristics of the item, which should lead to the appropriate USML category, then match the particular characteristcis and functions of the item to determine the specific entry within that category. All ITAR-controlled exports require a license for the State Department, unless they qualify for one of several exemptions. Some ITAR items are classified as Significant Military Equipment, with stricter controls.
All ITAR-controlled items require a license for export or for transfer to a non-US person anywhere, unless an exemption applies.
Step 2b: Classification (EAR)
Review the general characteristics of the item, which should lead to the appropriate Commerce Control list category.
Determine the applicable product group: A (end items, equipment, accessories, attachments, parts, components, and systems), B (test, inspection, and production equipment), C (materials), D (software, or E (technology).
ECCNs 9x515 (satellites, spacecraft, and related items previously controlled under the ITAR) and "600 series" (nx6nn) ECCNs (other items previously controlled under the ITAR) take precedence over other ECCNs. If the item is described by an entry in 9x515 or nx6xx, other than a "specially designed" paragraph (usually 9x515.x or nx6xx.x), then that is its classification.
Otherwise, if the item is described by a "specially designed" paragraph in ECCN 9x515 or nx6nn (usually 9x515.x or nx6nn.x): An item is "caught" by the "specially designed" criteria if its development resulted in properties peculiarly responsible for the 9x515 or nx6nn item achieving the performance, characteristics, or functions described in the relevant ECCN or USML paragraph, or if it's a part, component, accessory, attachment, of software for use with a CCL or USML item. However, it can be "released" from the "specially designed" criteria if:
- it's in an ECCN paragraph that doesn't include "specially designed"; or
- it's been determined through Commodity Jurisdiction (State Department) or Commodity Classification (CCATS, Commerce Department) to be EAR 99; or
- it's a fastener; or
- it's equivalent to an item already in production, not on the USML and if on the CCL controlled only for anti-terrorism (AT) purposes; or
- it was developed for use with items on the CCL and with items not on the USML and if on the CCL controlled only for anti-terrorism (AT) purposes; or
- it was developed as a general purpose item, not for use in a particular item or type of item; or
- it was developed for use with items controlled by EAR99, or with items controlled by EAR99 and items controlled by an anti-terrorism (AT) ECCN
If the item was "caught" and not "released", then its ECCN is that of the "specially designed" paragraph that "caught" it.
Otherwise, starting at the beginning of the applicable product group (A, B, C, D or E), review each ECCN to determine whether it describes the item — the first (most controlled) match is the item's ECCN.
EAR-controlled items with ECCNs may need a license for export or transfer to a non-US person anywhere, depending on the ECCN, the reasons for control, the destination country, the end user and end use.
If no ECCN describes the item, its classification is EAR99, meaning that it's not on the Commerce Control List, but like all EAR-controlled items subject to controls for restricted end user, end use, or destination.
Note that this is a summary: the EAR order of review is completely described in Supplement No. 4 to §774 and in the "specially designed" definition in §772. The Commerce Department has designed an order of review tool as well as a decision tool to help determine whether an item is "specially designed".
Contact the MIT Export Control Compliance Team at firstname.lastname@example.org, or by phone at 617-253-2762 (Janet Johnston).