Technology Classification Overview
Identifying which authoritative body governs a particular technology or technical data has a profound impact on both the exporter and the University as it determines the applicability and necessity of any licensing requirements. To be able to properly identify which set of regulations is applicable an extensive familiarity with the technology and its technical make-up is required. As this information is often proprietary in nature, it is recommended that the exporter obtain the export classification from the manufacturer, vendor, or creator of the technology. However, not all manufacturers, vendors, and creators are willing to provide such information, which leaves the exporter with the options of either obtaining an official commodity jurisdiction from the U.S. government or self-classifying the technology.
Nearly all technologies and technical data are regulated under either the Department of State's International Traffic in Arms Regulations (ITAR) or the Department of Commerce's Export Administration Regulations (EAR). As discussed in detail on the Federal Regulations page of FAU's export control website, the ITAR regulates defense articles and associated technical data, as well as defense services. Whereas the EAR regulates what are referred to as "dual-use" technologies, which are those with both a military and commercial application.
Both the ITAR and the EAR maintain lists of the technologies and technical data that are subject to the respective set of regulations. Technologies subject to the ITAR may be found under the U.S. Munitions List (USML), and those subject to the EAR may be found under the Commerce Control List (CCL). The EAR includes a "catch-all" category of technologies called EAR99. EAR99 technologies, while technically regulated, receive the least amount of scrutiny in terms of restrictions imposed by export control regulations.
APPROACH TO CLASSIFYING TECHNOLOGY
Step 1: Assessment of ITAR's U.S. Munitions List (USML)
The classification process should always begin with the International Traffic in Arms Regulations (ITAR) as it takes precedence over the Export Administration Regulations (EAR). Technologies and the related information may appear to fall under EAR, when in fact they are governed by the ITAR. Such instances may occur when a technology has been "specially designed" for military applications as defined in 22 CFR 120.41, or when a technology is simply identified on both the ITAR's USML and the EAR's CCL. In such instances, the ITAR prevails over the EAR.
To properly classify a technology under the USML, the exporter should start with the general characteristics of the technology which will assist in determining the correct USML category. After having identified which of the twenty-one categories the technology falls under, the exporter should then look to the function of the technology as it will assist in identifying the proper sub-category. If the technology or its technical data are not listed under the USML, the exporter will then need to perform a similar assessment under the EAR's CCL.
Categories of ITAR's USML (22 CFR 121)
- Category l: Firearms, Close Assault Weapons and Combat Shotguns
- Category ll: Guns and Armament
- Category lll: Ammunition and Ordnance
- Category IV: Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs and Mines
- Category V: Explosives and Energetic Materials, Propellants, Incendiary Agents and Their Constituents
- Category VI: Surface Vessels of War and Special Naval Equipment
- Category VII: Ground Vehicles
- Category VIII: Aircraft and Related Articles
- Category IX: Military Training Equipment and Training
- Category X: Personal Protective Equipment
- Category XI: Military Electronics
- Category XII: Fire Control, Laser, Imaging, and Guidance Equipment
- Category XIII: Materials and Miscellaneous Articles
- Category XIV: Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment
- Category XV: Spacecraft and Related Articles
- Category XVI: Nuclear Weapons Related Articles
- Category XVII: Classified Articles, Technical Data, and Defense Services Not Otherwise Enumerated
- Category XVIII: Directed Energy Weapons
- Category XIX: Gas Turbine Engines and Associated Equipment
- Category XX: Submersible Vessels and Related Articles
- Category XXI: Articles, Technical Data, and Defense Services Not Otherwise Enumerated
Step 2: Assessment of EAR's Commerce Control List (CCL)
If a technology or its technical data are not found under the ITAR's USML, the EAR's Commerce Control List (CCL) must then be assessed in a similar manner. The CCL categorizes those items, technologies, software, and related information that are considered to be "dual-use," which are those with both military and commercial applications. While an analysis under the EAR's CCL is fundamentally similar to that of the ITAR's USML, the two lists differ both in structure and in the designations used to associate the technology with the category of control.
Where the USML uses the designation of "Category # (#)" for the technologies it regulates, the CCL utilizes an "Export Control Classification Number" (ECCN) for its regulations. ECCNs are a five-character alpha-numeric designation that categorizes the dual-use commodity based on its nature. The first character of an ECCN is associated with one of the ten categories under the CCL as seen below. For example, an ECCN of "8_ _ _ _" would be used for items, software, or technologies that are marine-related. The second character within an ECCN is used to identify the product group within that specific category. Continuing with the previous example, an ECCN that starts with "8D _ _ _" would be used for marine-related software.
The final three characters of an ECCN identify the “reason for control”, which are: (1) Anti-Terrorism (AT), (2) Chemical & Biological Weapons (CB), (3) Chemical Weapons Convention (CW), (4) Crime Control (CC), (5) Encryption Items (EI), (6) Firearms Convention (FC), (7) Missile Technology (MT), (8) National Security (NS), (9) Nuclear Nonproliferation (NP), (10) Regional Stability (RS), (11) Short Supply (SS), (12) Significant Items (SI), (13) Surreptitious Listening (SL) and (14) United Nations sanctions (UN).
In the event the attempt to self-classify the technology is unsuccessful, a commodity jurisdiction request will need to be submitted to the appropriate regulatory authority, which will then provide sufficient information to determine potential export restrictions or requirements.
Illustration of an ECCN
Categories of EAR's CCL (15 CFR 774)
Category 0: Nuclear Materials, Facilities, and Equipment (and Miscellaneous Items)
Category 1: Special Materials and Related Equipment, Chemicals, "Microorganisms," and "Toxins"
Category 2: Materials Processing
Category 3: Electronics
Category 4: Computers
Category 5: Telecommunications and "Information Security"
Category 6: Sensors and Lasers
Category 7: Navigation and Avionics
Category 8: Marine
Category 9: Aerospace and Propulsion
Product Groups (Subcategories) of the EAR's CCL
A: "End Items", "Equipment", "Accessories", "Attachments", "Parts", "Components" and "Systems"
B: "Test", "Inspection", and "Production Equipment"
Step 3: EAR99 - Items not designated under the USML, CCL, or other agency list
The "catch-all" classification provided to an item that falls under the jurisdiction of the Department of Commerce's EAR, but is not identified on the CCL will be assigned "EAR99" as its ECCN. EAR99 items most often do not require a license to be exported and may utilize the "No License Required" or "NLR" designation on its shipping label. However, an export of an EAR99 item will still require a license in almost all instances of an export destined for a sanctioned or embargoed country, to a prohibited party, or in support of a prohibited end-use.
Export Control Decision Tree
The following material is adapted from the content of Stanford University's Decision Tree. The pages will walk you through a series of "Yes" or "No" questions, leading to a determination of whether an export control license may be necessary to your circumstances. Florida Atlantic University appreciates Stanford University in granting us permission to use its content for the benefit of Florida Atlantic University.
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.