Controlled Commodities How to find out if the item is export controlled.

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Controlled Commodities How to find out if the item is export controlled
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Transcript of Controlled Commodities How to find out if the item is export controlled.

Page 1: Controlled Commodities How to find out if the item is export controlled.

Controlled CommoditiesHow to find out if the item is export

controlled

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Law and Regulations

Commerce Department

State Department

Treasury Department

Export Administration

Act

Arms Export Control Act

Trading with the Enemy Act, Int’l

Emergency Economic

Powers Act, & Others

Export Administration

Regulations (“EAR”)

15 C.F.R. Parts 700-799

International Traffic in Arms

Regulations (“ITAR”)

22 C.F.R. Parts 120-130

Iraq Sanctions Regulations,

Terrorism Sanctions

Regulations, & Others

31 C.F.R. Parts 500-599

Commerce Control List

15CFR Part 774

U.S. Munitions List

22 CFR Part 121

List of Specially Designated Nationals &

Blocked Persons

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Commerce Control List (CCL), 15CFR Part 774 Category 0 - Nuclear

Materials, Facilities and Equipment and Misc.

Category 1 - Materials, Chemicals, Microorganisms and Toxins

Category 2 - Materials Processing

Category 3 - Electronics

Category 4 - Computers

Category 5 - Telecommunications and Information Security

Category 6 - Lasers and Sensors

Category 7 - Navigation and Avionics

Category 8 - Marine

Category 9 - Propulsion Systems, Space Vehicles and Related Equipment

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Commerce Control List (CCL)

Within each category, items are arranged by group. Each category contains the same five groups. Each Group is identified by the letters A through E, as follows:

A-Equipment, Assemblies and Components B-Test, Inspection and Production Equipment C-Materials D-Software E-Technology (Specific information necessary for the

‘development’, ‘production’, or ‘use’ of a product, including ‘technical data’ or ‘technical assistance’. ‘Technical data’ may take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions.)

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Examples of Items Covered by Category 3 - Electronics

GROUP: Systems, Equipment, and Components General purpose integrated circuits: microprocessor

microcircuits, micro-computer microcircuits, and microcontroller microcircuits, having any of the following: manufactured from a compound semiconductor and operating

at a clock frequency exceeding 40MHz; or storage integrated circuits manufactured from a compound

semiconductor; or digital-to-analogue converters with a resolution of 12 bit or

more, and a ‘settling time’ of less than 10 ns

Microwave integrated circuits or modules having all of the following: containing ‘monolithic integrated circuits’ having one or more active circuit elements, and operating at frequencies above 3GHz

Voice print identification and analysis equipment and parts

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Examples of Items Covered by Category 3 - Electronics

GROUP: Test, Inspection and Production Equipment Equipment for the manufacturing of semiconductor devices

or materials and specially designed components and accessories therefor: ‘Stored program controlled’ equipment designed for epitaxial

growth capable of producing a layer thickness uniform to less than +=2.5% across a distance of 75 nm or more

Molecular beam epitaxial growth equipment using gas or solid sources

‘Stored program controlled’ equipment design for ion implantation, having any of the following– A beam energy (accelerating voltage) exceeding 1MeV; or– Being specially designed and optimized to operate at a beam

energy (accelerating voltage) of less than 2keV; or– Direct write capability; or– Being capable of high energy oxygen implant into a heated

semiconductor material ‘substrate’

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Examples of Items Covered by Category 3 - Electronics

GROUP: Materials Hetero-epitaxial materials consisting of a ‘substrate’ having

stacked epitaxially grown multiple layers of any of the following: Silicon Germanium Silicon Carbide, or III/V compounds of gallium or indium

Resist material and ‘substrates’ coated with controlled resists: Positive resists designed for semiconductor lithography specially

adjusted for use at wavelengths below 350 nm; All resists designed for use with electron or ion beams with a

sensitivity of 0.01 ucoulomb/mm2 or better; All resists designed for use with X-rays, with a sensitivity of

2.5mJ/mm2 or better; All resists optimized for surface imaging technologies, including

silylated resists.

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Examples of Items Covered by Category 3 - Electronics

GROUP: Software Software specially designed for the ‘development’ or

‘production’ of equipment controlled by 3A001.b to 3A002.g or 3B (except 3B991 or 3B992)

Software specially designed for the ‘use’ of ‘stored program controlled’ equipment controlled by 3B (except 3B991 & 992)

Computer-aided-design (CAD) software , having all of the following Designed for the ‘development’ of semiconductor devices or

integrated circuits, and Designed to perform or use any of the folllowing

– Design rules or circuit verification rules;– Simulation of the physically laid out circuits; or– Lithographic processing simulators for design.

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Examples of Items Covered by Category 3 - Electronics

GROUP: Technology ‘Technology’ for the ‘development’ or ‘production’ of equipment or

materials controlled by 3A (except 3A292, 3A980, 3A981, 3A991 or 3A992), 3B (except 3B991 or 3B992) or 3C

‘Technology’ for the ‘development’ or ‘production’ of ‘microprocessor microcircuits’, ‘microcomputer microcircuits’ and microcontroller microcircuits having a ‘composite theoretical performance’ (‘CTP’) of 530 million theoretical operations per second (MTOPS) or more and an arithmetic logic unit with an access width of 32 bits or more

‘Technology’ for the ‘use’ of equipment or ‘software’ controlled by 3A001.a.1 or .2, 3A101, or 3D101

‘Technology’ for the ‘development’ of ‘software’ controlled by 3D101

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Examples of Items Covered by Category 1 Materials, Chem, Microorganisms, & Toxins

Category ExampleSystems, Equip, Chemical Agents, including tear gas containing 1%

& Components or less of CS or CN, except containers net wt <20grm

Test, Inspection, Electrolytic cells for fluorine production with a

&Prod Equip production capacity >250 g of fluorine per hour

Materials Chemical Precursors for toxic chemical agents

(1C350) (Examples:Benzilic acid; sodium bifluoride)

Human pathogens, zoonoses, and “toxins” (1C351)

(Examples: Rickettsia rickettsii, Chlamydia psittaci)Animal pathogens (1C352 (Example:goat pox virus)Plant pathogens (1C354) (Example: Puccinia graminis)

Software “Software” for process control that is specifically

configured to control or initiate “production” of chemicals controlled by 1C350

Technology Technical data for the development of production of any of the above items

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Commerce Control List: how to use

Once you find the commodity on the CCL, note the ECCN number & check the “reason for control” at the beginning of each entry, under License Requirements: CB: Chemical & Biological Weapons NP: Nuclear Non-Proliferation NS: National Security MT: Missile Technology RS: Regional Stablity FC: Firearms Control CC: Crime Control AT: Anti-Terrorism

Check the country list at EAR Part 738, Supplement 1 Determine whether country to which item will be shipped has

check (X) under the applicable ‘reason for control’ column If no (X), ship item as “NLR” (No License Required). See EAR

Parts 758 and 762 for export clearance procedures and recordkeeping requirements for NLRs.

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Commerce Control List: how to use

If box is checked for the country under the applicable ‘reason for control’ column, then a license may be required.

Check “License Exceptions” heading that appears after the “License Requirements” section for the ECCN. See EAR Part 740 for all license exceptions. Some commonly used ones are: LVS: Limited Value Shipment (Part 740.3) CIV: Civil End-Users (Part 740.5) TSR: Technology & Software under Restriction (Part 740.6) CTP: Computers (Part 740.7) TMP: Temporary Imports, Exports, & Reexports (Part 740.9) (See Tools of

Trade for personal use abroad, at 740.9(a)(2)(i) and ‘Beta Software’ at 740.9(c)) TSU: Technology and Software Unrestricted (Part 740.13)(See publicly

available encryption source/object code at 740.13(e) and(f)) BAG: Baggage (Part 740.14) ENC: Encryption Commodities and Software (Part 740.17)

If no license exception applicable, apply for license using BIS-748P, MultiPurpose Appl.

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Commerce Control List: how to use

Note: Many ECCNs have more than one “reason for control”. Each reason must be checked on the country chart before concluding No License Required (NLR)

Note: Each license exception has specific criteria that must be met to qualify for the license exception. Also, many license exceptions require special record-keeping and some require notification to the government of use of the license exception. See especially the notification requirements described in EAR Part 742.15(b)(1) and (b)(2) for certain encryption items controlled under ECCNs 5A992, 5D992, and 5E992.

A good explanation of the structure of the CCL, how to read the ECCNs, and how to determine if an export license is required is found in Part 738. A good ‘diagram’ of the process is found in Part 732, Supplements 1 & 2

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Commerce Control List: how to use

Note: In addition to checking the “Reason for Control”/Country Chart, as well as the “License Exceptions”, there are General Prohibitions listed in EAR Part 736. Whether the shipment will be subject to one of these prohibitions depends upon: 1) the ECCN classification of the item; 2) the destination; 3)the end-user; 4) the end-use; and 5) conduct. Prohibitions 4-10 are: Denial Order issued under EAR Part 766 Export to prohibited end-uses or end-users under EAR Part 744 Export to embargoed destination described in EAR Part 746 Support of Proliferation Activities described in EAR Part 744 Intransit Shipments through specified countries listed in EAR Part

736(b)(8)(ii) Violation of terms and conditions of an exception or license Proceeding with knowledge that a violation has or is about to

occur

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Commerce Control List: how to use

If the commodity does not appear on the CCL, then the item is shipped under category EAR99, NLR (unless Prohibitions 4 through 10 apply).

If you have trouble locating the Section of the CCL that includes the commodity you are looking for, try the alphabetical listing of all items on the CCL found at EAR Part 774, Supplement 1, and then work backwards to the ECCN

Search for items by both the common name and scientific name. Consult with the faculty member. If you conclude the item is not included in the CCL, write a note to the file documenting the search conducted.

If you aren’t sure, you can contact the BIS regional office in San Jose (408) 998-7402, or request a Commodity Classification (See Part 748.3)

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U.S. Munitions List (USML)

I - Firearms II - Artillery Projectors III - Ammunition IV - Launch Vehicles, etc... V - Explosives, Propellants,

Incendiary Agents and Their Constituents

VI - Vessels of War and Special Naval Equipment

VII - Tanks and Military Vehicles VIII - Aircraft and Associated

Equipment IX - Military Training Equipment X - Protective Personnel

Equipment XI - Military Electronics XII - Fire Control, Range Finder,

Optical and Guidance and Control Equipment

XIII - Auxiliary Military Equipment

XIV - Toxicological Agents and Equipment and Radiological Equipment

XV - Spacecraft Systems and Associated Equipment

XVI - Nuclear Weapons Design and Related Equipment

XVII - Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated

XVIII - Reserved XIX - Reserved XX - Submersible Vessels,

Oceanographic and Associated Equipment

XXI - Miscellaneous Articles

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U.S. Munitions List (USML)

The list of items controlled under ITAR is more straightforward and is only 40 pages long. There are no subdivisions within categories.

Some of the items listed are broadly defined, such as those included in Category XV, Spacecraft Systems and Associated Equipment: a) Spacecraft, including . . scientific satellites, research satellites, etc. b) Ground control stations for telemetry, tracking and control of

spacecraft or satellites c) All specifically designed or modified systems, components, parts,

accessories, attachments, and associated equipment for articles in this category

Many of the other broad category items are qualified with the phrase “specifically designed or modified for military application”

There is no ‘country chart’ or categories of ‘license exception’; if the article is on the list, you will need to secure a license for permanent or temporary export or temporary import of the item.

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Take Home Messages

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Do’s and Don’ts Do NOT Ship Any Item Outside the U.S. without

first checking the ITAR and EAR Lists to determine if the item is controlled (This includes Outgoing MTA’s, Software Licenses, and any Agreement Deliverables)

Secure License Approval or verify license exception PRIOR to Shipment for all controlled items

Make sure that technical data about export controlled commodities qualifies as “public domain” (ITAR term) or “publicly available” (EAR term), so that a license for shipment of technical data out of the U.S. or the ‘deemed export’ to a foreign national in the U.S. is not required.

Qualify software as ‘publicly available’, or otherwise secure licenses prior to shipment if the software is on CCL or USML

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Is the Item “Export Controlled?”

EAR List at: http://www.access.gpo.gov/bis/ear/ear_data.html See Part 774, Categories 0 through 9; Also see the Alphabetical Listing

ITAR List at: http://www.pmdtc.org/docs/ITAR/22cfr121_Part_121.pdf

For EAR Items: 1)Check the “reason for control”; 2)Check country chart at Part 738, Supplement 1; 3)Determine if license required in the column for the country where item to be shipped; 4) Determine if any license exceptions apply; 5) If license required, apply using BIS Form 748P

For EAR Item, if no “check” in control column for country, then ship under NLR (no license required); If item being shipped is not on Commodity Control List, then ship EAR99 (exempt)

For ITAR Item, if on list, contact UCOP; license will be required because there is no EAR equivalent “country chart”

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Questions?