Within each revised USML category the parameters have become
increasingly narrower to keep in line with a goal of Export Control Reform of
creating a “positive” list of items that warrant control. Those items that
don’t “make the cut” have been moved to the CCL and newly established Export
Control Classification Numbers (ECCN) have been assigned.
If there is still uncertainty about where a commodity falls,
an exporter can apply for a Commodity Jurisdiction (CJ) per §120.4 of the
International Traffic in Arms Regulations (ITAR). It is not required for an
exporter to be registered with the DoS in order to apply for a CJ. The exporter
should provide as much information as possible on the Commodity Jurisdiction
Determination Request Form (DS-4076) and also provide any amplifying
information as attachments so the reviewers at the DoS and agency levels can
properly identify the product and locate the correct technical authority to
determine the proper classification.
It is important to note that because of the specificity within
the new USML Categories, it is recommended for the exporter to provide details about
the product and its use. For example, instead of just indicating that a
commodity is for use on a F/A-18 aircraft, provide the Model (A-D or E/F or
EA-18G). This aligns with the new breakdown of aircraft within USML Category
VIII. Do your homework before applying for a CJ. Block 17 on the DS-4076 asks for a suggested
USML Category or ECCN. If this block is left blank, the reviewers could make
the determination that the commodity is something other than the exporter’s
desired outcome leaving the exporter unprepared to take the necessary steps to
export their product timely and compliantly. If a USML Category or ECCN is
provided within the application it is much easier for the reviewers to pinpoint
a correct placement of the commodity and helps to advance the application. That’s
not to say that the reviewers will always agree with the exporter’s assessment,
but it does assist in expediting the review.
Once the CJ review is complete, DoS will provide a
determination letter to the exporter indicating whether the commodity falls
under the USML or the CCL. If it is determined that the commodity belongs in a
USML category, the licensing requirements of the ITAR must be followed. However,
if the commodity is determined to belong on the CCL, then a very specific ECCN
must be assigned in order to determine the licensing requirements. There is a
separate process to assist with the proper classification of a commodity within
the CCL. The process falls under the Export Administration Regulations (EAR)
which is Title 15 Code of Federal Regulations (CFR) §748.3. The great thing
about this process is that the Bureau of Industry and Security (BIS) will
provide an ECCN down to the paragraph or subparagraph level. The results are
only considered an “Advisory Opinion” but will provide the exporter with an
answer whether a license is required or not for a particular commodity, end
user and end use.
The DoS Directorate of Defense Trade Controls (DDTC) has a
very useful link for a Commodity Jurisdiction request: http://www.pmddtc.state.gov/commodity_jurisdiction/index.html
The BIS, DoC has a very useful link for Classification
requests: http://www.bis.doc.gov/index.php/licensing/commerce-control-list-classification/classification-request-guidelines
Heidi France is a Lead International Trade Specialist at Technology
Security Associates, Inc.
Email: heidi_france@theTSAteam.com
Choosing the Best Commodity Trading Tips is a bigger challenge that choosing the commodity to trade.
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