Supplement No. 4 to Part 774 - Commerce Control List Order of Review

Supplement No. 4 to Part 774 - Commerce Control List Order of Review

(a) As described in EAR § 734.3, the EAR govern only items “subject to the EAR,” e.g., items not subject to the exclusive jurisdiction of another agency. Thus, for example, if an item is described in the U.S. Munitions List (USML) (22 CFR Part 121) of the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), including one of its catch-all paragraphs, then the item is a “defense article” subject to the ITAR and there is no need to review the CCL with respect to whether it describes the item. See 22 CFR § 120.6 (“Defense article means any item or technical data designated in § 121.1 of the ITAR. The policy described in § 120.3 is applicable to designations of additional items”). If an item is not described on the USML and is otherwise “subject to the EAR,” then work through each of the following steps to determine where the item is covered by the CCL or, if it is not covered by the CCL, and is therefore designated as EAR99.

(1) Step 1. To classify an item “subject to the EAR” against the CCL, review the general characteristics of the item. This will usually guide you to the appropriate category (0 through 9) on the CCL.

(2) Step 2. Once the potentially applicable CCL categories are identified, determine which product group within the CCL category or categories - i.e., A, B, C, D, or E - is applicable to the item.

(3) Step 3. The “600 series” describes military items that were once subject to the ITAR. The 9x515 ECCNs describe “spacecraft,” related items, and some radiation-hardened microelectronic circuits that were once subject to the ITAR under USML Category XV. Just as the ITAR effectively trumps the EAR, items described in a 9x515 ECCN or “600 series” ECCN trump other ECCNs on the CCL. Thus, the next step in conducting a classification analysis of an item “subject to the EAR” is to determine whether it is described in a 9x515 ECCN or “600 series” ECCN paragraph other than a “catch-all” paragraph such as a “.x” paragraph that controls unspecified “parts” and “components” “specially designed” for items in that ECCN or the corresponding USML paragraph. If so, the item is classified under that 9x515 ECCN or “600 series” ECCN paragraph even if it would also be described in another ECCN.

(4) Step 4. If the item is not described in a 9x515 ECCN or “600 series” ECCN, then determine whether the item is classified under a 9x515 ECCN or “600 series” catch-all paragraph, i.e., one that controls non-specific “parts,” “components,” “accessories,” and “attachments” “specially designed” for items in that ECCN or the corresponding USML paragraph. Such items are generally in the “.x” paragraph of ECCN 9A515 or a “600 series” ECCN.

(i) Step 4.a. Determine whether the item would meet the criteria of either paragraphs (a)(1) or (a)(2) of the “specially designed” definition in § 772.1 of the EAR. (These are informally known as the “catch” paragraphs.) If not applicable, then the item is not within the scope of the ECCN paragraph that contains a “specially designed” control parameter. Skip to Step 5.

(ii) Step 4.b. If the item meets the criteria of either paragraph (a)(1) or (a)(2) of the “specially designed” definition, then determine whether any of the provisions of paragraph (b) of the “specially designed” definition would apply. (These are informally known as the “release” provisions.) If so, then the item is not within the scope of the ECCN paragraph that contains a “specially designed” control parameter.

Note to paragraph (a)(4):

The emphasis on the word “control” in Steps 4.a and 4.b is deliberate. Some ECCNs use “specially designed” as a de-control parameter. If an item would not be classified under a particular ECCN because it falls within the scope of either subparagraph (a)(1) or (a)(2) of the “specially designed” definition, then there is no need to analyze whether any element of paragraph (b) of the definition would apply to the item. One needs only review the “release” provisions in paragraph (b) of the “specially designed” definition if paragraph (a) of the “specially designed” definition applies to the item in a “control” paragraph of an ECCN that uses the term “specially designed.”

(5) Step 5. If an item is not classified by a “600 series” or in a 9x515 ECCN, then starting from the beginning of the product group analyze each ECCN to determine whether any other ECCN in that product group describes the item. If any ECCN uses the term “specially designed,” see Steps 4.a and 4.b above in paragraphs (a)(4)(i) and (a)(4)(ii) respectively. If the item is described in one of these ECCNs, then the item is classified under that ECCN.

(6) Step 6. If the item is not described under any ECCN of any category of the CCL, then the item is designated as EAR99. EAR99 items may require a license if destined for a prohibited or restricted end user, end use or destination. See paragraphs (g) through (n) of § 732.3 “Steps Regarding the Ten General Prohibitions,” or General Prohibitions Four through Ten of part 736 of the EAR for license requirements other than those imposed by the CCL.

(b) [Reserved]

[78 FR 22735, Apr. 16, 2013, as amended at 79 FR 27443, May 13, 2014; 79 FR 32632, June 5, 2014]