ECR FAQs

Transition Issues

Q.1: I exported an item under the International Traffic in Arms Regulations (ITAR), but it transitioned to the “600 series” while located overseas after I exported it. What do I need to do to bring it back to the U.S. for servicing under the.....

Q.1: I exported an item under the International Traffic in Arms Regulations (ITAR), but it transitioned to the “600 series” while located overseas after I exported it. What do I need to do to bring it back to the U.S. for servicing under the Export Administration Regulations (EAR)?

A.1: Unlike under the ITAR, there are no temporary import licensing requirements under the EAR. No license is required for the item to come back to the United States. To return the serviced item to your customer overseas, consult License Exceptions under part 740 of the EAR to see if any are available for your transaction. Section 740.2 sets forth restrictions on license exceptions in general, with section 740.2 (a)(13) providing a list of license exceptions available for "600 series" items. You may, for example, meet the terms and conditions of License Exception Servicing and Replacement of Parts and Equipment (RPL) in section 740.10 and be able to use that authorization to return the serviced item. If no license exceptions are available, apply to BIS for a license.

Q.2: Many of my formerly ITAR-controlled items became “600 series” items on October 15, 2013 and other items became “600 series” items on January 6, 2014. I am still shipping them under my Directorate of Defense Trade Controls (DDTC) license in......

Q.2: Many of my formerly ITAR-controlled items became “600 series” items on October 15, 2013 and other items became “600 series” items on January 6, 2014. I am still shipping them under my Directorate of Defense Trade Controls (DDTC) license in accordance with the transition procedures. Do I need to report the “600 series” Export Control Classification Numbers (ECCNs) in Automated Export System (AES) along with my DDTC license?

A.2: You are not required to report the ECCNs of "600 series" items shipped under grandfathered DDTC licenses during the transition period. However, you may do so without making an AES error.

 

600 Series Items

Q.1: What is the “600 series”?

A.1: "600 series" refers to ECCNs in the "xY6zz" format on the Commerce Control List (CCL). Items controlled under the "600 series" were previously controlled on the United States Munitions List (USML) or are covered by the Wassenaar Arrangement Munitions List (WAML) and include certain items formerly classified under ECCNs ending in -018. The "6" indicates the entry is a munitions entry on the CCL. The "x" represents the CCL category (0 through 9) and "Y" the CCL product group (A through E). In most cases, the "zz" represents the WAML category. The "600 series" constitutes the munitions ECCNs within the larger CCL.

Q.2: Have “600 series” ECCNs been added to the CCL?

A.2: Yes, twenty-nine "600 series" ECCNs have been added to the EAR. The first ten "600 series" ECCNs were added to the EAR in the April 16, 2013 Initial Implementation of Export Control Reform (ECR) final rule that became effective October 15, 2013. The second set of "600 series" ECCNs (nineteen additional "600 series" ECCNs) were added to the EAR in the July 8, 2013 ECR implementation rule that became effective January 6, 2014.

USML

Description

ECCN

Effective Date

VIII

Aircraft

9A610, 9B610, 9C610, 9D610, and 9E610

10/15/13

XIX

Gas Turbine Engines

9A619, 9B619, 9C619, 9D619, and 9E619

10/15/13

VI

Vessels of War

8A609, 8B609, 8C609, 8D609, and 8E609

01/06/14

VII

Tanks/Military Vehicles

0A606, 0B606, 0C606, 0D606, and 0E606

01/06/14

XIII

Miscellaneous

0A617, 0B617, 0C617, 0D617, and 0E617

01/06/14

XX

Submersible Vessels

8A620, 8B620, 8D620, and 8E620

01/06/14

Q:3: Are there additional “600 series” ECCNs to be added to the CCL?

A.3: Yes, additional ECCNs will be added. For example, additional "600 series" ECCNs were included in the January 2, 2014 final rule. However, these ECCNs will not become effective until July 1, 2014. Specifically, items from USML categories IV, V, IX, and X: military training equipment, energetic materials, personal protective equipment, shelters, articles related to launch vehicles, missiles, rockets, military explosives, and related items the President has determined no longer warrant control on the United States Munitions List will be added to the "600 series" of the CCL. To follow transfers from the ITAR USML to the EAR CCL, see the ECR dashboard at

http://export.gov/static/RedGreenYellow%20ECR%20Dashbaord%20Editor%20081313_Latest_eg_main_044971.pdf

Subsequent final rules will be published creating additional "600 series" entries that correspond with revised USML Categories. After the publication date and prior to the effective date of each final rule, you may pre-position applications for Commerce licenses for items that will transition, as well as submit classification requests to BIS for items that you believe will move to the "600 series." However, until the effective date, you must follow the existing ITAR and EAR.

Q.4: What is the classification of parts and components that are (a) not enumerated or otherwise described on the USML and (b) common to the C-130 and L-100/L-382 aircraft but not any other aircraft?

The manufacturer of the aircraft, the Lockheed Martin Corporation, and the Department of State have confirmed that all models and versions of both types of aircraft are within the scope of USML Category VIII(a)(14) (22 CFR § 121.1). This means that parts, components, accessories, and attachments for use in or with the C-130 or L-100/L-382 aircraft that are not enumerated or otherwise described on the USML are controlled under ECCN 9A610.x, or if specifically identified in 9A610.y, controlled under 9A610.y, unless one of the release provisions in paragraph (b) to the EAR's definition of "specially designed" applies (15 CFR § 772.1). In addition, the Rolls Royce 501 D engine used on L-100/L-382 aircraft and other aircraft in production controlled under ECCN 9A991, is controlled under ECCN 9A991.d. Parts common to the T-56 military engine used on the C-130 and other military aircraft and the 501 D used on the L-100/L-382 aircraft are also controlled under ECCN 9A991.d.

Q.5: What is the classification of parts and components that are (a) not enumerated or otherwise described on the USML, (b) common to the C-130 and L-100/L-382 aircraft and also common to aircraft in production controlled under ECCN 9A991, and (c) not....

Q.5: What is the classification of parts and components that are (a) not enumerated or otherwise described on the USML, (b) common to the C-130 and L-100/L-382 aircraft and also common to aircraft in production controlled under ECCN 9A991, and (c) not enumerated or described on the CCL other than in 9A991.d?

ECCN 9A991.d.

License Exception Strategic Trade Authorization (STA)

Q.1: What happens if my customer reexports or transfers a License Exception STA-eligible item without first obtaining a prior consignee statement?

A.1: Any reexport or transfer of an item under License Exception STA without obtaining and maintaining a prior consignee statement is a violation of the EAR. BIS routinely conducts end-use checks on items authorized for export under STA and will request the foreign party to produce a copy of a prior consignee statement if the item was subsequently reexported or transferred under License Exception STA. If the foreign party cannot provide such documentation, the foreign person may be subject to BIS enforcement action.

Q.2. The STA prior consignee statement requires a non-government consignee of a “600 series” item received under STA (either as an export, reexport, or transfer) to agree to an end-use check. Does this mean that an item exported under the “600 series”....

Q.2. The STA prior consignee statement requires a non-government consignee of a “600 series” item received under STA (either as an export, reexport, or transfer) to agree to an end-use check. Does this mean that an item exported under the “600 series” under other Commerce authorizations, including a license or another license exception, is not subject to an end-use check?

A.2. No, any item subject to the EAR, including any "600 series" item, regardless of the form of its export authorization, may be subject to an end-use check. This includes exports authorized under a BIS license, license exception, and "no license required" status under the EAR, and all items subject to the EAR, including CCL items (including "600 series" items") and items designated as EAR99.

 

Q.3: In order to use License Exception STA (EAR section 740.20), is there a specific form the consignee must use to satisfy the conditions of the exception?

A.3: No. BIS understands that transactions are different and that there are multiple ways to satisfy the educational and recordkeeping objectives of the certification requirements in License Exception STA. Thus, when creating the license exception, BIS did not prescribe that a specific form be used. In response to this question, however, BIS has created the following template following the regulatory text that could be inserted into a form. If completed fully and accurately, the certification requirement of License Exception STA would be satisfied.

CLICK HERE for the template for "600 series" items

CLICK HERE for the template for the 9x515 items

CLICK HERE for the template for other items

Q.4. I exported under License Exception STA a “600 series” item to a defense contractor in a Country Group A:5 country for the ultimate end use by the military of that Country Group A:5 country. I have already obtained a prior consignee statement from....

Q.4. I exported under License Exception STA a “600 series” item to a defense contractor in a Country Group A:5 country for the ultimate end use by the military of that Country Group A:5 country. I have already obtained a prior consignee statement from that defense contractor in the Country Group A:5 country who received and currently possesses the “600 series” item, but do I also need to obtain a separate prior consignee statement from the Country Group A:5 government itself before the defense contractor can furnish that “600 series” item to the Country Group A:5 military?

A.4. You (including the defense contractor in the Country Group A:5 country) do not need to obtain a prior consignee statement from the Country Group A:5 government. While License Exception STA requires a prior consignee statement from the defense contractor for export to the Country Group A:5 country, the subsequent transfer (in-country) from the defense contractor to the Country Group A:5 military does not require an additional authorization under the EAR. A transfer (in-country) for which no license is required does not require an EAR authorization. Therefore, since a prior consignee statement was provided by the defense contractor and the subsequent transfers (in-country) does not require an additional authorization, a separate prior consignee statement is not needed from the Country Group A:5 military or from any other party receiving the "600 series" item in-country prior to the Country Group A:5 military receiving the "600 series" item for its ultimate end use.

Consignees that provide the prior consignee statements should be aware that they are ultimately responsible for ensuring that the "600 series" item is provided to an end-user that is eligible to receive "600-series" items under License Exception STA. Thus, the consignee should take reasonable steps to assure that any parties who will handle the item understand and comply with this STA limitation (in other words, the consignee should take reasonable steps to put any such parties on notice). One potential approach for putting those other parties on notice could include communicating to all parties that the "600 series" item they are receiving was exported under License Exception STA for ultimate end use by the Country Group A:5 military and obtaining written commitments from those parties that they will comply with these requirements. Another potential approach for putting those other parties on notice may be through contractual liability clauses.

 

Q.5. If License Exception STA in most cases is not needed to authorize a transfer (in-country), then why does License Exception STA include various references to transfer (in-country)?

A.5. License Exception STA authorizes certain exports, reexports and transfers (in-country). The most likely scenario for use of License Exception STA to transfer (in-country) would be to comply with the terms of a license. In this scenario, the original export was authorized under a Commerce license to a Country Group A:5 country or the export was authorized under an ITAR license or other approval as a USML paragraph (x) item under the section 120.5(b) process, such as to a defense contractor (Defense Contractor A), and subsequently the defense contractor needed to go outside the scope of the original Commerce license or State license or other approval, such as by selling the "600 series" item to another defense contractor (Defense Contractor B) in that same Country Group A:5 country who was not authorized under the original export license. In this example, Defense Contractor B was not listed on the original license as an authorized end user, and therefore an EAR authorization is required to transfer to Defense Contractor B. If Defense Contractor B will use the "600 series" item for manufacturing a military item for the Country Group A:5 military, then the transfer (in-country) could most likely be authorized under License Exception STA. (Note that you must also then obtain a prior consignee statement from Defense Contractor B, along with satisfying any other applicable requirements of License Exception STA, before you can permit Defense Contractor A to transfer the "600 series" item to Defense Contractor B in reliance on License Exception STA).

Another scenario where License Exception STA may be used for a transfer (in-country) would be if an EAR license exception were no longer available because the proposed particulars of a transaction have changed and it no longer meets the license exception’s terms and conditions. For example, if a Country Group A:5 government received a "600 series" item under License Exception GOV and then subsequently wanted or needed to transfer (in-country) that "600 series" item to a defense contractor or some other non-governmental party, License Exception STA could likely be used to authorize the transfer (in-country) as long as the item would eventually be for that Country Group A:5 government’s ultimate end use. In certain cases, other EAR License Exceptions may also be available to authorize such transfers (in-country), such as License Exceptions TMP or RPL.

Q.6. I am not exporting the “600 series” item to a defense contractor, but rather exporting directly to the Country Group A:5 military. Do I need to obtain a prior consignee statement?

A.6. You would not need to obtain a prior consignee statement from the Country Group A:5 government because you would not need to use License Exception STA for such an export or reexport. Any "600-series" item that may be exported from the United States to a Country Group A:5 military under License Exception STA may be sent to that same consignee under License Exception GOV under section 740.11, paragraph (c)(2)(ii)(A). License Exception GOV does not include a prior consignee statement requirement.

License Exception GOV

Q.1: How long does “temporary” mean for purposes of paragraph (b)(2)(iii)(C) of License Exception GOV?

A.1: "Temporary," for purposes of paragraph (b)(2)(iii) of License Exception GOV, means four years from the date of an item's export, reexport, or transfer (in-country) it must be returned to the exporter, reexporter, or transferor, or its disposition otherwise authorized in accordance with the EAR.

Q.2: If I know at the time of export, reexport or, transfer (in-country) that an item is for a permanent export, reexport, or transfer (in-country), can paragraph (b)(2)(iii)(C) still be used?

A 2: No. Paragraph (b)(2)(iii)(C) may only be used when you know that the item will be temporarily exported, reexported, or transferred (in-country).

Q.4: For purposes of paragraph (b)(2)(iii)(B) of License Exception GOV, does the item being exported, reexported, or transferred (in-country) need to be consigned to the foreign government, international organization or agency?

A.4: No, it does not. The cooperative program, project, agreement, or arrangement between the U.S. Government and the foreign government, international organization or agency at issue must be in force and effect, but the items do not need to be consigned to the foreign government, international organization or agency. For example, the exporter may export directly to a non-governmental organization or aid recipient, provided there was an agreement between the U.S. Government and the foreign government, international organization or agency, and the non-governmental organization was assisting the foreign government, international organization or agency with implementing the cooperative program, project, agreement or arrangement, or the aid recipients were the intended beneficiaries of the program or agreement with the U.S. Government. In such cases, the consignee must be a documented participant in the program, project, agreement, or arrangement. The responsible U.S. Government agency must certify to the exporter that the consignee is a participant.

Q.5: What does the term “Government Furnished Equipment (GFE)” mean in paragraph (b)(2)(iii)(E) of License Exception GOV?

A.5: According to Federal Acquisition Regulation 52.245-1, "'Government-furnished property' means property in the possession of, or directly acquired by, the Government and subsequently furnished to the Contractor for performance of a contract. Government-furnished property includes, but is not limited to, spares and property furnished for repair, maintenance, overhaul, or modification. Government-furnished property also includes contractor-acquired property if the contractor-acquired property is a deliverable under a cost contract when accepted by the Government for continued use under the contract."  For purposes of paragraph (b)(2)(iii)(E), BIS uses this same definition for Government Furnished Equipment (GFE).

Q.6: I am trying to understand what “solely” for United States Government use means in the context of paragraph (b)(2)(iii)(A). For example, if a contractor who maintains a supply and repair depot for off-road vehicles used by USAID will use parts and....

Q.6: I am trying to understand what “solely” for United States Government use means in the context of paragraph (b)(2)(iii)(A). For example, if a contractor who maintains a supply and repair depot for off-road vehicles used by USAID will use parts and components that are to be exported to a contractor solely for the use of maintaining and repairing those off-road vehicles for USAID, would that be within the scope of paragraph (b)(2)(iii)(A) even though the parts and components are not consigned to USAID and are being used by the contractor?

A.6: If the contractor will use those parts and components solely for uses specific to the U.S. Government, such as repairing off-road vehicles for USAID, then such uses would be within the scope of the term "solely for United States Government end use" for purposes of paragraph (b)(2)(iii)(A).

 

CCL Order of Review

Q.1: What is the Commerce Control List Order of Review?

A.1: The CCL Order of Review is set forth in new Supplement No. 4 to Part 774 of the EAR, effective October 15, 2013. As a result of the addition of the "600 series" ECCNs and the addition of the "specially designed" definition, the order of reviewing ECCNs in the CCL to classify your product has changed. The new guidance will help you to identify correct classifications for your products and therefore reach correct export license decisions to comply with the EAR. The BIS website provides an order of review decision tree tool that will take you through the steps at

Q.2: How do the USML Order of Review and CCL Order of Review work together?

A:2: The Department of State has also adopted an Order of Review. When classifying your product, you should always begin with the USML Order of Review. If you determine the item in question is not subject to the ITAR because it is not enumerated or otherwise described on the USML and that it is not subject to the exclusive jurisdiction of another agency (such as the Nuclear Regulatory Commission), the item is subject to the EAR. You should then start your analysis of the CCL and may consult the CCL Order of Review.

Q:3: Where do I begin my review of the CCL?

A:3: First, you will determine the CCL category that applies to the item. In certain cases you may need to review more than one CCL category. Next you will determine the CCL Product Group, A, B, C, D, or E. This will significantly narrow your search of the CCL as you focus in on that part of the CCL in which your item is classified.

Q.4: Do I need to review the “600 series” first?

A.4: Yes. As you begin to review the actual ECCNs on the CCL, you will review the "600 series" to determine if the item is described in a paragraph that does not use "specially designed." If you see the item described in the "600 series," you stop. The item is described in the "600 series," and that is the final classification. However, if the applicable "600 series" paragraph uses "specially designed" as part of the control parameter you will need to determine if the item is, in fact, "specially designed." The results of this will determine if your item is classified in the "600 series" or in another ECCN.

Q.5: What do I do once I determine my item is not classified in the “600 series”?

A.5: You review the beginning of the CCL Category you identified, starting with the "000 series" and working your way toward the end of the CCL category. As you review those other ECCNs, if you see the item enumerated or otherwise described in a paragraph that does not use "specially designed," that is the classification of your item in that ECCN. As you conduct the analysis of these other ECCNs outside the "600 series," you may run into a paragraph that uses "specially designed" as part of the control parameter. In these cases, you would conduct an analysis of "specially designed" for the item in this non-"600 series" ECCN. If the item is "specially designed," the item is classified as a "specially designed" item outside the "600 series." This is the end of the classification analysis.

Q.6: When can I determine my item is designated as EAR99?

A.6: If you complete your analysis of the entire CCL and you have not identified an ECCN in which the item is classified, the item is not elsewhere specified on the CCL and therefore is designated as EAR99. This is the end of the classification analysis and also the end of the CCL Order of Review.

Q:7: What is my liability if I use the order of review guidance or the order of review decision tool and obtain the incorrect classification of my product?

A:7: The questions asked in the decision tool are based on the EAR, so provided you are answering the questions correctly based on the correct facts, you should arrive at the same conclusion whether you are reviewing the EAR or using the decision tool. However, you are still liable for any violations of the EAR you commit based on an incorrect classification or other action, which is true whether you are reviewing the EAR or using one of the decision tools.

Q:8: If I have a question while going through the CCL Order of Review, who should I call or write?

A:8: You may contact Timothy Mooney by email: timothy.mooney@bis.doc.gov or by telephone at (202) 482-2440 for questions specific to the CCL Order of Review Decision Tool. The Office of Exporter Services at (202) 482-4811 or ECDOEXS@bis.doc.gov is also available to answer questions about the EAR, including those related to the CCL Order of Review Decision Tool.

Specially Designed

Q.1: Where can I find the definition of “specially designed” in the EAR?

A.1: The term is defined in 15 CFR Part 772 of the EAR in § 772.1.

Q.2: When was the new definition of “specially designed” added to the EAR and when did it become effective?

A.2: The new definition of "specially designed" was added to the EAR through the April 16, 2013 Initial Implementation of Export Control Reform (ECR) final rule (78 FR 22660). The new definition became effective October 15, 2013.

Q.3: When do I need to review “specially designed” under the EAR?

A.3: You only need to review the definition of "specially designed" when the paragraph you are reviewing uses the term "specially designed." See Specially Designed Q.4. below in regards to the CCL Order of Review. There is a decision tree tool for "specially designed" at http://www.bis.doc.gov/index.php/specially-designed-tool. To access the webinar on the "Export Control Reform Initiative- Implementation and Specially Designed" that was broadcast on April 17 by Assistant Secretary Wolf you can either:

  1. Save it. To do so please click here. Select the option to "save."

2. Download it by using the following information:
Visit mymeetings.com
User Name: PW9710678
Password: LEADER

Please click here  for the transcript of the webinar.

Q.4: How does “specially designed” fit into the larger review of the CCL, given “specially designed” is used in the “600 series,” as well as other ECCNs on the CCL?

A.4: The Commerce Control List Order of Review in Supplement No. 4 to Part 774 was added to the EAR through the April 16, 2013 Initial Implementation of ECR final rule. The CCL Order of Review consists of six steps that guide you through how to analyzes the CCL, starting with the "600 series" and then the other ECCNs on the CCL. The CCL Order of Review specifies when you need to analyze "specially designed" as part of the larger review of the CCL, both when reviewing the "600 series" and then, if needed, when reviewing other ECCNs on the CCL.

Q.5: Does the same definition of “specially designed” apply to the “600 series” and other ECCNs?

A.5: The same definition of "specially designed" applies to all ECCN provisions that use the term "specially designed" as a control parameter

Q.6: Is it possible that I may need to review the “specially designed” definition more than one time?

A:6: Yes, it is possible you may need to review "specially designed" more than one time (potentially one time under the ITAR, and two times under the EAR) as you progress through the analysis of the USML and CCL. You always start your review with the USML following the new USML Order of Review (see 22 CFR 121.1(b)(1)). Under the USML Order of Review, you may need to conduct an analysis of whether an item is "specially designed" under the ITAR. This review is done using the ITAR definition of "specially designed" (see 22 CFR 120.41) If the item is subject to the EAR, you will follow the CCL Order of Review. In following the CCL Order of Review, you may need to review the EAR "specially designed" definition for the "600 series." If you determine the item is not classified in the "600 series," you will need to review the rest of the CCL. As part of the review of the rest of the CCL, you may need to conduct a third analysis of "specially designed." This is why the review of "specially designed" is sometimes referred to as a cascading review.

Q.7: Is the definition of “specially designed” under the EAR and the ITAR the same definition?

A.7: The Departments of State and Commerce have adopted essentially the same definition of "specially designed." There are slight differences in the definitions to make them EAR specific and ITAR specific, but both definitions are based on the catch-and-release construct. In addition, once you become familiar with one definition (either the EAR definition or ITAR definition), it will be easier for you to understand the other definition because they are constructed in the same way. However, it is important to understand that you only use the ITAR "specially designed" definition when reviewing the ITAR and the EAR "specially designed" definition when reviewing the EAR

Q.8: If I review the revised USML Category and determine the item is not “specially designed” under the ITAR, does that also mean it is not “specially designed” under the EAR?

A.8: No, you would need to review the EAR "specially designed" definition to make such a determination. If the item is subject to the EAR and you are following the CCL Order of Review to make a determination whether an item is "specially designed," you must review the EAR "specially designed" definition and NOT the ITAR definition of "specially designed." This is very important to understand because in many cases an item that is not "specially designed" under the ITAR would be "specially designed" under the EAR, such as under a "600 series" .x paragraph. This same concept also applies for the review of "specially designed" under the "600 series" ECCNs and the rest of the CCL. The EAR "specially designed" definition is used for both "600 series" and other ECCNs on the CCL, but even if the item is not a "600 series" "specially designed" item, it still could be a "specially designed" item elsewhere on the CCL, if you are reviewing a paragraph that uses "specially designed."

Q.9: Why does paragraph (a)(1) use the term “items,” but paragraph (a)(2) use the terms “parts,” “components,” “accessories,” “attachments” and “software”?

A.9: Paragraph (a)(1) uses the broader term items (meaning commodities, technology and software) because it applies more broadly than paragraph (a)(2). Paragraph (a)(1) is primarily used for determining whether end items or materials are "specially designed." In certain ECCN paragraphs, "parts," "components," "accessories," "attachments" or "software" have a control parameter for "parts," "components," "accessories," "attachments" or "software" "specially designed" for a particular function or performance characteristics and in these ECCNs an analysis of (a)(1) would be done.

For any item that is not a "part," "component," "accessory," "attachment" or "software," such as an "end item" or "material" ("end item" and "material" are defined in § 772.1 of the EAR) described in a paragraph that uses "specially designed," paragraph (a)(1) functions as the entire "specially designed" definition – meaning (a)(1) acts as the ‘catch’ and ‘release.’ For example, if the end item meets the criteria of (a)(1), it is "specially designed." If it does not meet the criteria of paragraph (a)(1), it is not "specially designed."

Q.10: Why was paragraph (a)(2) needed for “parts,” “components,” “accessories,” “attachments,” and “software?”

A.10: Paragraph (a)(2) was needed because for "parts," "components," "accessories," "attachments," or "software" a broader ‘catch’ was needed.

Q.11: If I am reviewing “specially designed” for a “part,” “component,” “accessory,” “attachment” or “software” in a catch-all paragraph, such as 9A610.x, can I review paragraph (a)(2) first instead of reviewing paragraph (a)(1)?

A:11: Yes. This is a good time saving shortcut. For catch-all paragraphs, such as ECCN 9A610.x or any other paragraph that uses "specially designed" that controls unspecified "parts," "components," "accessories," "attachments" or "software," skipping paragraph (a)(1) and proceeding directly to (a)(2) is the best approach to save time. Remember, for "parts," "components," "accessories," "attachments," "software," if ‘caught’ under (a)(1) or (a)(2) it is "specially designed," unless ‘released’ from "specially designed" under paragraph (b).

Q.13: Why does the introductory text to paragraph (b) of “specially designed” use the word controlled, and how does that change my analysis of “specially designed?”

A.13: Because the CCL uses the term "specially designed" as a control parameter (to let you know what is controlled under a particular ECCN) and also in a small number of ECCNs as a decontrol parameter (to let you know what is not controlled under a particular ECCN), the introductory text to paragraph (b) includes the word controlled. What this means is that if you are reviewing a paragraph on the CCL that uses "specially designed" as part of a decontrol, such as a decontrol note, in those cases you review paragraph (a) of "specially designed," but you do NOT review paragraph (b). Provided the "part," "component," "accessory," "attachment" or "software" met the criteria of paragraph (a), as well as any other criteria specified in the respective decontrol on the CCL, the "part," "component," "accessory," "attachment," or "software" would be "specially designed" for purposes of the decontrol. In simple terms, the decontrols on the CCL that use "specially designed" and the paragraph (b) ‘releases’ are trying to ‘release’ the same types of "parts," "components," "accessories," "attachments," or "software" from control, so the use of the term controlled in the introductory text of paragraph (b) clarifies the applicability of (b) for such decontrols that use "specially designed."

 Q.13: Why does the introductory text to paragraph (b) of “specially designed” use the word controlled, and how does that change my analysis of “specially designed?”

Q.14: If I believe the “part,” “component,” “accessory,” “attachment,” or “software” I am classifying is likely ‘released’ under paragraph (b) because it likely meets the criteria of one of the paragraph (b) ‘releases,’ is it acceptable to skip.....

Q.14: If I believe the “part,” “component,” “accessory,” “attachment,” or “software” I am classifying is likely ‘released’ under paragraph (b) because it likely meets the criteria of one of the paragraph (b) ‘releases,’ is it acceptable to skip paragraph (a) and proceed immediately to reviewing paragraph (b) first?

A.14: Yes, this is referred to informally as the review-paragraph-(b)-first track for analyzing "specially designed." As was noted in response to Specially Designed Q.12 above, if an item is NOT ‘caught,’ under (a), then there is no need to review paragraph (b) for "parts," "components," "accessories," "attachments," or "software." However, the converse also applies. If an item is ‘released’ under paragraph (b) (assuming you are not reviewing a decontrol that uses "specially designed"), then there is no need to review paragraph (a), because you have already determined the "part," "component," "accessory," "attachment," or "software" is ‘released’ from "specially designed." For example, assume you have a fastener you are trying to classify. A fastener is a "part" that is specified under paragraph (b)(2) of "specially designed" as not being "specially designed." Therefore, if you have a fastener, you simply can review paragraph (b)(2) and once you confirm a fastener is specified as one of the "parts" or minor "components" ‘released’ from "specially designed," your analysis of "specially designed" is done.

 

Q.15: If my “part,” “component,” “accessory,” “attachment,” or “software” meets the criteria of more than one paragraph (b) ‘release’ is that a problem?

A.15: No. The "part," "component," "accessory," "attachment," or "software" only needs to meet one of the paragraph (b) ‘releases’ in order to be ‘released’ from "specially designed," but in certain cases a "part," "component," "accessory," "attachment," or "software" may meet more than one of the paragraph (b) ‘releases.’ The result is the same. The "part," "component," "accessory," "attachment," or "software" is not "specially designed."

Q.16: If I have a past commodity jurisdiction determination (CJ) from the Department of State that indicated my item is not subject to the ITAR, and at that time, it was classified on the CCL in a paragraph that does not use “specially designed” or was...

Q.16: If I have a past commodity jurisdiction determination (CJ) from the Department of State that indicated my item is not subject to the ITAR, and at that time, it was classified on the CCL in a paragraph that does not use “specially designed” or was EAR99, will that past CJ be preserved?

A.16: Yes, see paragraph (b)(1) of "specially designed." Paragraph (b)(1) specifies that "parts," "components," "accessories," "attachments," or "software" identified in such a CJ would not be "specially designed" on the CCL. In addition, in conducting your analysis of the CCL Order of Review for the "600 series," having a past CJ that identified the item as subject to the EAR, and that item was classified in an ECCN that did not end in -018 or was designated as EAR99 would mean under the CCL Order of Review, you would skip to Step 5 in your analysis of the CCL. This is because the new General Order No. 5 to Part 736 under paragraph (c) (Prior commodity jurisdiction determinations) specifies such items in past CJs are not classified in the "600 series."

 

Q.17: If I complete the analysis of “specially designed” for my “component” that is subject to the EAR and determine the “component” is “specially designed,” is there any process under the EAR whereby I can request a U.S. Government review to determine...

Q.17: If I complete the analysis of “specially designed” for my “component” that is subject to the EAR and determine the “component” is “specially designed,” is there any process under the EAR whereby I can request a U.S. Government review to determine whether the “component” does not warrant being “specially designed?”

A.17: Yes, see paragraph (b)(1) of "specially designed" and § 748.3(e) (Classification requests to confirm that a "part," "component," "accessory" "attachment" or "software" is not "specially designed"). Under the § 748.3(e) process, if the Departments of Commerce, Defense and State all concur that a "part," "component," "accessory," "attachment," or "software" does not warrant being "specially designed," BIS can issue a classification specifying that the "part," "component," "accessory," "attachment," or "software" is not "specially designed" and provide a classification in an ECCN paragraph that does not use "specially designed" or an EAR99 designation. However, before submitting such a classification request, you should review the entire "specially designed" definition. Your submission should include information on why the item does not meet any of the paragraph (b) tests.

Q.18: Are there any ‘releases’ under paragraph (b) for insignificant “parts” or minor “components”?

A.18: In developing the objective criteria for "specially designed," the U.S. Government avoided using subjective criteria, such as the term insignificant as part of the ‘release’ criteria under paragraph (b). However, paragraph (b)(2) does specify certain "parts," and minor "components," such as fasteners, screws, and bolts that, because of their insignificance are specified as not being "specially designed." This applies regardless of what they were developed for, which materials they are made of, or what item they are used in.

Q.19: If I have a “part” or “component” that I believe is not significant, but it is not specified in paragraph (b)(2), can I rely on paragraph (b)(2) to ‘release’ the “part” or “component?”

A.19: No, only those "parts" or minor "components" (e.g., nut plate) identified in paragraph (b)(2) can be ‘released’ under (b)(2). The "part" or "component," in question, however, may still be ‘released’ from "specially designed" if it meets the criteria of another ‘release’ under paragraph (b) (i.e., (b)(1), (b)(3), (b)(4), (b)(5) or (b)(6)).

Q.20: The “component” I am classifying was “developed” twenty years ago. I am not the original equipment manufacturer (OEM), so I don’t have “knowledge” of what it was “developed” for, but I do “know” it is currently used in basic consumer items in.....

Q.20: The “component” I am classifying was “developed” twenty years ago. I am not the original equipment manufacturer (OEM), so I don’t have “knowledge” of what it was “developed” for, but I do “know” it is currently used in basic consumer items in “production” that are designated EAR99 or in ECCNs that are only controlled for AT reasons on the CCL. Are there any ‘releases’ under “specially designed” that address this scenario?

A.20: The "production" ‘release’ under paragraph (b)(3) may be applicable. This question is not an uncommon fact pattern where a "part," "component," "accessory," or "attachment" was developed decades ago. Criteria under paragraph (b)(3)(i) and (ii) identify when a "part," "component," "accessory," "attachment" or "software" has moved into the lowest controlled items in "production" and therefore warrants ‘release’ from "specially designed."

 

Q.21: I am classifying a “component” and I know the “component” was originally “developed” for use in an item controlled for more than AT-reasons. Does that matter in applying the paragraph (b)(3) ‘release?’

A.21: No, the original "development" history is not relevant when applying the paragraph (b)(3) "production" ‘release.’ For paragraph (b)(3), once the "part," "component," "accessory," "attachment," or "software" meets the criteria of paragraph (b)(3)(i) and is used in or with an item that meets the criteria under (b)(3)(ii), it is no longer "specially designed," regardless of the original design intent.

Q.22: To rely on the paragraph (b)(3) ‘release,’ does the same “part,” “component,” “accessory,” “attachment,” or “software” need to be used in an item that meets the criteria under paragraph (b)(3)(ii)?

A.22: The "part," "component," "accessory," "attachment," or "software" would need to meet the criteria in the introductory text of paragraph (b)(3) – meaning it has to have the same function, performance capabilities, and the same or ‘equivalent’ form and fit as a "part," "component," "accessory," "attachment," or "software" used in an item that meets the criteria of (b)(3)(ii), such as an EAR99 pick-up truck or an (Anti-Terrorism) AT-only controlled aircraft that is in "production." If it is the same "part," "component," "accessory," "attachment," or "software" used in the AT-only ECCN item or in an EAR99 item that is in "production," applying paragraph (b)(3) is simpler. The criteria under paragraph (b)(3) also allow for "parts," "components," "accessories," "attachments," or "software" that have the same function, performance capabilities, and the same or ‘equivalent’ form and fit.

Q.23: What does ‘equivalent’ mean under paragraph (b)(3)?

A.23: Equivalent means the form has been modified solely for fit purposes. The function and performance capabilities must be the same. Any change in form besides a change solely for fit purposes would mean the "part," "component," "accessory," "attachment" or "software" is not ‘equivalent.’

Q.24: Can you provide an example for applying the ‘equivalent’ concept?

A.24: Here is an example of a fuel pump for an aircraft. In the first example, the fuel pump is considered ‘equivalent.’ In the second example, it is not considered ‘equivalent.’

Example 1

(meets the ‘equivalent’ standard): A fuel pump used in AT-only controlled aircraft in "production" is modified for use in a military aircraft. The fuel pump has the same function, performance capabilities, but needed to be modified solely for fit purposes (to fit in an area of a military aircraft). No other changes to the fuel pump were made, such as for fuel flow.

Example 2

(does NOT meet the ‘equivalent’ standard): A fuel pump used in AT-only aircraft in "production" is modified for use in a military aircraft. However, in addition to modifying the fuel pump solely for fit purposes (to fit in an area of a military aircraft), the fuel pump has been made of higher strength materials to allow it to pump at a higher pressure.

Q.25: Are there paragraph (b) ‘releases’ that address scenarios where the “part,” “component,” “accessory,” “attachment,” or “software” was or is being “developed” for use in or with commodities or software described in ECCNs and also for use in or.....

Q.25: Are there paragraph (b) ‘releases’ that address scenarios where the “part,” “component,” “accessory,” “attachment,” or “software” was or is being “developed” for use in or with commodities or software described in ECCNs and also for use in or with EAR99 items or items described in AT-only ECCNs?

A.25: Paragraph (b)(4) addresses these types of scenarios. Provided you have documentation contemporaneous with its "development" establishing "knowledge" that the "part," "component," "accessory," "attachment," or "software" was "developed" for use also in or with AT-only or EAR99 items, paragraph (b)(4) would serve as a ‘release’ from "specially designed."

Q.26: Paragraph (b)(6) looks similar to paragraph (b)(4) in its construction, so what is the purpose of paragraph (b)(6)?

A.26: Paragraph (b)(6) is similar to paragraph (b)(4), but the paragraph (b)(6) ‘release’ is specific to AT-only ECCNs that use "specially designed." Under the paragraph (b)(6) ‘release,’ if the "part," "component," "accessory," "attachment," or "software" was "developed" for use in or with AT-only ECCNs and also EAR99 commodities or software, it would not be "specially designed." Or if the "part," "component," "accessory" was "developed" exclusively for EAR99 commodities or software, it would not be "specially designed." Under both of these scenarios to be ‘released’ from "specially designed" you must have documentation from the "development" phase meeting the paragraph (b)(6) criteria"

Q.27: Under paragraph (b)(4), (b)(5) and (b)(6), does it matter what the first use of the “part,” “component,” “accessory,” “attachment,” or “software” is, or what the predominant market share is for the “part,” “component,” “accessory,” “attachment,”....

A.27: No. Because the criteria of paragraphs (b)(4), (b)(5) and (b)(6) are met during the "development" phase, the first use of the "part," "component," "accessory," "attachment," or "software" or the predominant market share is not relevant.

Q.28: Is there guidance on the type of documentation that is needed for relying on the “development” ‘releases’ under paragraphs (b)(4), (b)(5) and (b)(6)?

A.28: Yes. The Note to paragraphs (b)(4), (b)(5) and (b)(6) identifies the type of documentation required in order to rely on the "development" ‘releases.’ The Note to paragraphs (b)(4), (b)(5) and (b)(6) includes an illustrative list of such documents.

Q.29: If I do not have “knowledge” of the “development” history, does that mean I cannot rely on paragraphs (b)(4), (b)(5) and (b)(6)?

A.29: If you do not have "knowledge" of the "development" history, you cannot rely on paragraphs (b)(4), (b)(5) or (b)(6). However, the other paragraph (b) ‘releases,’ such as paragraph (b)(3), could be reviewed because they are not tied to the "development" history. If at a later time, you do gain "knowledge" of the "development" history and obtain documentation contemporaneous with its development, you may reevaluate paragraph (b)(4), (b)(5) or (b)(6).

Q.30: If I develop a “part,” or “component” for use in different types of commodities, such as machine tools, medical equipment and aircraft, is there a paragraph (b) ‘release’ for such general purpose commodities or software?

A.30: Yes, paragraph (b)(5) ‘releases’ a general purpose commodity or software where the "part," "component," "accessory," "attachment" or "software," was "developed" with no "knowledge" that it was for a particular item or type of item.

Self-determination of an item's jurisdictional and classification status by a foreign person

Q.1: May a foreign person, such as an intermediate consignee or end user, “self-determine” (i.e., assess for itself) the jurisdictional and classification status of a commodity, item of software, or unit of technology under the International Traffic in...

Q.1: May a foreign person, such as an intermediate consignee or end user, “self-determine” (i.e., assess for itself) the jurisdictional and classification status of a commodity, item of software, or unit of technology under the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations (EAR), respectively, absent a U.S. government or other reliable determination pertaining to such items?

A.1: Yes. Absent such a determination, a foreign person may make a self-determination of an item’s jurisdictional and classification status. Indeed, a foreign person is obligated to know whether an item is subject to the ITAR or, if subject to the EAR, how it is classified before reexporting or transferring the item in order to ensure compliance with the ITAR’s and the EAR’s licensing and other obligations. The U.S. exporter is responsible for determining the jurisdictional and classification status of the items it is exporting. However, if reliable jurisdictional and classification information has not already been provided by another party, such as the original equipment manufacturer, then the foreign person may and, indeed, must make these determinations itself in order to avoid violating the ITAR or the EAR if it later reexports or retransfers the article or item. As a matter of due diligence, however, the foreign person should seek jurisdictional and classification information from the manufacturer of the items or the owner of the technology in question and resolve any potential differences in interpretation. If after reviewing the ITAR’s U.S. Munitions List (USML) and all relevant facts, doubt exists regarding whether the item is enumerated or otherwise described on the USML, the foreign person should request from DDTC a commodity jurisdiction determination pursuant to 22 C.F.R. §120.4. If the item is clearly not enumerated or otherwise described on the USML and, after reviewing the EAR and all relevant facts, there is doubt regarding whether or where the item is enumerated or otherwise described on the EAR’s Commerce Control List, then the foreign person should request from the Department of Commerce’s Bureau of Industry and Security a commodity classification determination pursuant to 15 C.F.R. §748.3.

 

Applying the definition of parts

Applying the definition of parts

These ten Q&As provide guidance to assist your understanding of the definition of “parts” in section 772.1 of the EAR, including the different contexts in which this term is used on the Commerce Control List in Supplement No. 1 to part 774 of the EAR. This guidance is intended to assist you in making self-classifications on the CCL, but in no way is intended to classify your commodities. Therefore, if you seek a formal determination whether a specific commodity is classified as a “part,” you may submit a formal classification request to BIS using the free online submission system called SNAP-R.

Q.1: Where can I find a definition for the term “part” as used under the EAR?

A.1: The term “part” is defined in section 772.1 of the EAR.

Q.2: How is the term “part” defined in the EAR?

A.2: A "part" is any single unassembled element of a "component," "accessory," or "attachment" which is not normally subject to disassembly without the destruction or the impairment of design use. Examples include threaded fasteners (e.g., screws, bolts, nuts, nut plates, studs, inserts), other fasteners (e.g., clips, rivets, pins), common hardware (e.g., washers, spacers, insulators, grommets, bushings), springs and wire.

Q.3: If an Export Control Classification Number (ECCN) does not use the term “parts,” does that mean no “parts” are controlled under that ECCN?

A.3: If the term "parts" is not used as part of the control parameters of a particular ECCN that means that "parts" generically are not controlled under that ECCN. However, be advised that certain ECCNs may enumerate or otherwise describe a commodity that would also meet the "parts" definition, such as ECCN 1A005. ECCN 1A005 does not include a generic control on "parts," but 1A005.b does control hard body armor plates that provide ballistic protection less than NIJ level III (NIJ 0101.06, July 2008) or national equivalents. A plate would in most cases also meet the EAR definition of "part." In this case the parts are controlled under that ECCN.

Q.4: The “specially designed” definition in section 772.1 of the EAR includes a release paragraph under paragraph (b)(2) describing how to determine whether “parts” and minor “components” (such as nut-plates) are not “specially designed.” If these.....

Q.4: The “specially designed” definition in section 772.1 of the EAR includes a release paragraph under paragraph (b)(2) describing how to determine whether “parts” and minor “components” (such as nut-plates) are not “specially designed.” If these “parts” and minor “components” were never “specially designed,” why are they not excluded from the definitions of “part” and “component”?

A.4: Do not take paragraph (b)(2) of "specially designed" out of context on the CCL and try to apply a "specially designed" analysis to a paragraph that does not include "specially designed" in its control parameter. An analysis of the "specially designed" definition is only conducted when the paragraph being reviewed uses "specially designed" in the control parameter. In many cases, such as in the "600 series" .x paragraphs, broad catch-all provisions control non-specific "parts," "components," "accessories" and "attachments" that are denoted as being "specially designed" for the respective "600 series" ECCN or the related USML category referenced in those "600 series" ECCN paragraphs. In those cases, a "specially designed" "parts" analysis under paragraph (b)(2) is necessary to assess whether the "parts" and minor "components" are "specially designed." However, other ECCNs on the CCL use the generic term "parts," but without the modifier of "specially designed." In these cases, a "specially designed" "parts" analysis under paragraph (b)(2) is not necessary. However, "parts" and "components" specified in paragraph (b)(2) in the definition of "specially designed" could be controlled under the generic "parts" or "components" definitions or other broader terms used on the CCL such as "commodities." Also as noted, certain ECCNs may enumerate or otherwise describe a "part" or minor "component," including a "part" or minor "component" that was specified under paragraph (b)(2) in the definition of "specially designed."

Q.5: Looking at the definition of “part,” it is clear to me that if I make a cast of a commodity and that commodity is a single unassembled element of a “component,” “accessory,” or “attachment,” which is not normally subject to disassembly without the...

Q.5: Looking at the definition of “part,” it is clear to me that if I make a cast of a commodity and that commodity is a single unassembled element of a “component,” “accessory,” or “attachment,” which is not normally subject to disassembly without the destruction or the impairment of design use, that it would be clearly identifiable as a “part.” However, there are other manufacturing processes that can be used to create the same commodity, i.e. welding or diffusion bonding, which technically would be combining two different elements, but substantively would be creating the same type of commodity (i.e., both would be single unassembled elements of a “component,” “accessory,” or “attachment” which are not normally subject to disassembly without the destruction or the impairment of design use). Does the manufacturing method make a difference in whether a commodity is considered a “part”?

A.5: The questioner is correct that "parts" made from castings are the easiest way to determine whether you are classifying a "part" compared to a "component." However, the definition of "part" also extends to other types of manufacturing processes where the commodity being created is a single unassembled element and, importantly, is not normally subject to disassembly without the destruction or the impairment of design use. These phrases from the definition of "part" help to refine the scope of what is considered a "part."

Must be a single element

. For example, any commodity that includes assembly instructions or blue prints for connecting more than one single element, would take the commodity in question outside the scope of the definition of "part." In this example, the commodity would be considered an assembly, a term which under the EAR, is also referred to as a "component."

Must not normally be subject to disassembly without the destruction or the impairment of the commodity’s design use. Manufacturing methods where a "part" is made by welding or diffusion bonding that permanently combines together elements to make a single unassembled element would meet this criterion from the definition because any disassembly would clearly destroy the commodity or at a minimum impair its design use.

 

Q.6: What about semi-permanent forms of manufacturing? For example, what if the manufacturing process I use to make the “part” consists of gluing two pieces of material together or a press fitting to form a single unassembled element, where the bond.....

Q.6: What about semi-permanent forms of manufacturing? For example, what if the manufacturing process I use to make the “part” consists of gluing two pieces of material together or a press fitting to form a single unassembled element, where the bond could be broken, but could later be reassembled with minimal impairment of design use?

A.6: Any type of manufacturing method that is not permanent (meaning the commodity could be disassembled without the destruction or impairment of the commodity’s design use), such as gluing or press fitting, would take the commodity outside the scope of the definition of "part," which would most likely mean the commodity is a "component."

 

Q.7: If I have a single unassembled commodity that includes certain inserts that can be removed (such as a helix coil that could be pulled out) does that commodity fall under the definition of a “part”?

A.7: Any commodity that includes more than one element where one of the elements is intended to be able to be removed, or is capable of being removed, without the destruction or the impairment of the commodity’s design use would take that commodity outside the scope of the "parts" definition. Such a commodity is most likely a "component."

Q.8: Can a commodity that includes moving elements, such as door hinge, be considered a single element of a “part?

A.8: No, a "part" cannot have any moving elements. In order to have moving elements the commodity would need to consist of more than one single unassembled element, which would take the commodity outside the scope of the "parts" definition.

Note: Flexing and bending are not considered moving elements. Certain "parts" may be capable of flexing and bending or may have been designed to flex and bend.

Q.9: In applying the “parts” definition, does it matter how big or small the “part” is in relation to the larger “component,” “accessory,” or “attachment” and how important of a role must the “part” play in the larger “component,” “accessory,” or.....

Q.9: In applying the “parts” definition, does it matter how big or small the “part” is in relation to the larger “component,” “accessory,” or “attachment” and how important of a role must the “part” play in the larger “component,” “accessory,” or “attachment” to be considered a “part” under the EAR?

A.9: The criteria of the definition of "part" is not based on the overall size of the "part." In many cases, a "part" may be small, but in other cases a "part" may be very large. The importance of the "part" in the overall functioning of the larger "component," "accessory," or "attachment" into which it is incorporated has no bearing on whether a commodity is considered a "part."

Q.10: If I determine my commodity is not classified under an ECCN, such as an ECCN in a “xY0zz” ECCN that does not control “parts,” does that mean that all the “technology” related to my “part” is not controlled either?

A.10: In many cases the classification of a commodity’s "technology" will be related to the classification of the commodity, but there are several exceptions. For example, "technology" may be more highly controlled than the related commodity. But generally speaking if the "part" was not controlled under a specific ECCN then the related "technology" would not likely be controlled either. However, an important qualifier is that if the "technology" is related to other elements of that same commodity, then a separate "technology" analysis must be conducted with respect to the other "component," "accessory," or "attachment."

   
   
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