News & Noteworthy

As technical specialists, we often get asked about Commodity Jurisdiction. The questions are simple but important and the answers are invaluable for newcomers to export control.

What is a Commodity Jurisdiction (CJ) determination? The first and most basic step in export control is determining if your item (be it a physical product, software, technology, or service) requires an export license. To ascertain this, you must first verify which set of regulations pertain to that item. It may be the International Traffic in Arms Regulations (ITAR) or it may be the Export Administration Regulations (EAR).  Since the ITAR is administered by the State Department and the EAR is overseen by the Department of Commerce, you are trying to determine which jurisdiction your product belongs to, based on its technical characteristics or capabilities.

We're back with Part III of our blog series in understanding “technology” controlled under the EAR. In Part I, we explored the concept of controlled technology. Then, in Part II, we examined the three different types of technology (“development,” “production,” and “use”) and how they are applied in practice. Now, in this Part III post, we’re examining what it means when an ECCN controls technology that is “required” for the development, production, or use of an item on the CCL (and also what it means when a control entry doesn’t include the defined term “required”).

This week the Bureau of Industry and Security (BIS) published an advance notice of proposed rulemaking (ANPRM) seeking comments from the public on criteria for identifying “emerging technologies” essential to U.S. national security. As part of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA), the Export Control Reform Act of 2018 (ECRA) authorized the Department of Commerce to establish appropriate controls for exports of “emerging and foundational technologies.” However, at the time, what was covered under this phrase was not clear. BIS took a step forward this week by identifying several technology sectors of concern. 

Compliance practitioners know that commodity classifications are the essential first step in determining export control requirements, responsibilities and risks. However, in situations where the exporter is not the original manufacturer of an item or specific product specifications are unavailable, making an export classification determination can be difficult. One valuable and often overlooked piece of information is the National Stock Number (NSN) but it must be used with caution.

 On top of the background buzz regarding the ZTE zigzag, the latest shoe has dropped in the ongoing export control reforms. Three shoes actually, since we can now read about the proposed move of certain items controlled in Categories I, II, and III on the U.S. Munitions List (USML) over to the Commerce Control List (CCL). Long awaited by U.S. gun and ammunition manufacturers and exporters, these proposed rules describe how articles the President determines no longer warrant control under USML would be controlled on the CCL and by the Export Administration Regulations (EAR) and describe more precisely articles warranting export and temporary import control on the USML.