By Bruce Leeds, Senior Counsel, Braumiller Law Group
Congratulations, – you have now been given the responsibility for classifying products on the Commerce Control List (CCL), in addition to your current job of Customs compliance. You are not receiving a promotion or pay raise, and your boss tells you it is a “great opportunity.” You have experience with classification in the Harmonized Tariff Schedule (HTS), but not the CCL. Actually, that experience will prove useful in CCL classification.
The goal of CCL classification is to find an Export Commodity Control Number – or ECCN – for the article you are dealing with. The CCL is found in the Export Administration Regulations (EAR) that govern export of commercial, dual-use, and certain defense articles. Just as an HTS classification will indicate what duty rate applies, and if an article is eligible for a free trade agreement, the ECCN will indicate what controls apply, and whether the article is eligible for a license exception.
The starting point for CCL classification is to find out about the article being classified. You will need a good description, and possibly an illustration of the article. The CCL is broken down into 10 categories (actually 11 categories if you count Categories 5 and 5A separately). Each category covers a group of related products. A first step is to take a look at those categories to see if the article falls within the description of one of them.
You will next want to find out a little more about the article to be classified, such as, what exactly is it, and what is it used for? That is because each category in the CCL is further broken down into 5 subcategories. Each describes a different aspect of the articles subject to control.
- Subcategory A is for the article or end item itself
- Subcategory B covers production or test equipment for the controlled article
- Subcategory C applies to materials used in the controlled article
- Subcategory D is for software used for or with the controlled article
- Subcategory E controls technology used in the design and production of the controlled article
For example, a semiconductor microprocessor may be classified in ECCN 3A001. Semiconductor manufacturing equipment would fall in 3B001. Materials used in semiconductors would be classified in 3C001. Software for the development or production of semiconductors would be classified in 3D001. Finally, technology to develop or produce semiconductors would be classified in 3E001. So, the question is, would the article you are classifying fall into one of these subcategories?
The EAR and CCL are administered by the Bureau of Industry & Security (BIS), which has some useful tools at its website: www.bis.doc.gov. The first is an index to the CCL. From the main web page, click on Regulations, then on Commerce Control List Index. You can do a key word search on this list. If you don’t find anything at first, try other names by which the article may be called, or the class of articles to which it belongs. If you get some matches, it will highlight the ECCNs that use the word you searched under.
Don’t stop there. The matches on the index are only potential classifications. You need to note them and look at the details of each ECCN to determine if it may possibly describe the article you are classifying.
Under the same tab at the BIS website you will find the complete CCL. You can bring it up by category number, or you can bring up the complete document. If looking at the individual chapters, you can search through the provisions for ECCNs that potentially describe the article you are classifying. If you bring up the complete CCL you can do a key word search on the entire document. This may result in too many matches, so you need to use the most specific terms possible. For example, if you were classifying a chemical used in an end item you could search under the name of the chemical, or its CAS number.
These searches may result in several matches to examine. The ECCNs often read in very technical language. Unless you have a technical or scientific background, you will need to consult with someone who does. A good approach is to show the expert the text of the ECCN provision, and ask if the article being classified is described there. If they say it isn’t, ask them why it is not described there. Hopefully, they will be able to help classify the article. Be sure to thank the engineer or scientist for their assistance and buy them lunch, as you may need their help again.
One other tool available at the BIS website is the “specially designed” tool. Many defense articles previously subject to controls under the International Traffic in Arms Regulations (ITAR) have been transferred to the CCL. They are found in the -500 or -600 series ECCNs, meaning that the last three characters in the ECCN begin with a 5 or 6. Many of these ECCNs , and possibly others too, use the term “specially designed”. That term has a specific meaning in this context. There are also exclusions to “specially designed” that may apply. When that term is used in a specific ECCN you will need to use the tool at the BIS site to determine if the article is specially designed, and if any of the exclusions apply. Print a copy of the results for your file.
To help determine the HTS classification of an imported article you can write to U.S. Customs & Border Protection for a written ruling. A similar method can be used for determining the correct ECCN. You can request a commodity classification from BIS through what is termed a CCATS request. To do this you will need to apply for a SNAP-R account (also done through the BIS website). Through SNAP-R you can apply for a commodity classification online and receive the determination as a PDF document. Obtaining a CCATS is useful , especially if there is a question about how an article is classified, or if your company is planning many exports of an article and you want to have certainty of how it is classified.
What if you go through all this and find there is no ECCN that describes the article to be exported? In that event it is classified under EAR99 and not subject to export controls. (But still cannot be exported to prohibited or embargoed parties and countries,)
Finally, a couple of cautions. First, none of the foregoing will apply if the articles are subject to ITAR controls. Those controls take priority over the EAR and CCL. If there is any hint that an article may be used in a military application, look at the ITAR first before even peeking at the CCL.
Second, you should memorize how you determined the ECCN for an article. Record the process you used to classify an article in the CCL. This will demonstrate reasonable care and help you (or your replacement after you have been promoted to Vice President) determine why the article was classified under a particular ECCN. Create a database in Excel or Access of the articles your company exports, their ECCNs and Schedule B (or HTS) numbers, and their export authority. Make the database available to those who need it, such as the people in Shipping or Traffic.
Now go ask for that promotion and pay raise!