Identifying which regulatory body governs a particular item, software, technology, or information has a profound impact on both the exporter and Florida Atlantic University (FAU). Nearly all items, software, technology, and information in the U.S. has been designated a particular identification number that is located on either the U.S. Munitions List (USML) or the Commerce Control List (CCL). These lists are regulated and maintained under the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). The identification number provided under the USML or the CCL allows an exporter to determine the existence and extent of any export restrictions for that item, software, technology, or information. It is recommended that the exporter obtain the proper classification from the original source itself, whether it is from a manufacturer, vendor, or developer. However, not all manufacturers, vendors, or developers publish their self-classified USML or CCL identification number leaving the responsibility of classification to the exporter.
The classification process should always begin with the International Traffic in Arms Regulations (ITAR) as it takes precedence over the Export Administration Regulations (EAR). Many items, software, technology, and information may appear to fall under EAR when, in fact, they are governed by the ITAR as the item has been “specially designed” for military applications as defined in 22 CFR 120.41.
The general approach to classifying under the ITAR begins with the characteristics of the item, software, technology, or information. The characteristics will assist in determining the correct USML category, of which there are twenty-one. Once the category has been identified, the next step is to match the characteristics of the item, software, technology, or information with its function to determine the applicable sub-category. If the item, software, technology, or information does not align with any of the USML categories, the item will need to be reviewed under EAR.
22 CFR 121 – The United States Munitions List
The EAR’s Commerce Control List assists with identifying and classifying “dual-use” items, software, technologies, and information. “Dual-use” refers to items, software, technologies, and information that may have both a civilian and military application. The analysis of the item under EAR will follow the same procedures as it did under the ITAR, however the CCL is comprised of ten categories compared to the USML’s twenty-one. If, even after the after the attempt to self-classify by either the Principal Investigator or the Export Control Officer, it is unclear whether an item falls under the ITAR or EAR, a commodity classification request should be submitted to the appropriate regulating authority.
15 CFR 774 – The Commerce Control List
NOTE: Determining the correct classification of an item, software, technology, or information can be challenging as it requires an understanding of export control regulations in addition to the technical knowledge of the item. If there is any doubt in the attempt to self-classify the item, the Principal Investigator should contact FAU’s Export Control Officer for assistance. For more information regarding the ITAR’s USML and the EAR’s CCL, please visit the “Federal Regulations” page.