Most items that get exported from the United States are handled under the export control classification of EAR99. For many exporters – particularly those shipping relatively low-tech consumer or industrial products – it’s the only export classification they know or use.

But EAR99 should be the last stop in the journey to analyze an item’s export classification; applying it too quickly is often the sign of an inadequate process and opens the company to risk of investigation for export violations.

Explained simply, EAR99 is the classification for any item that is subject to the Export Administration Regulations (EAR), but is not controlled for a specific reason – and therefore doesn’t have its own Export Control Classification Number (ECCN) on the Commerce Control List.

Common mistakes with EAR99

Here are the most common errors we see in the classification of items as EAR99:

1.) Incorrect classification

Many companies that haven’t developed a meaningful competency in export compliance will use EAR99 as the default classification for everything. Perhaps they don’t know what EAR99 really means, or they don’t realize there are other possibilities.

Or maybe someone with expertise told them, “Don’t worry, all that stuff is EAR99.”

The odds that a low-tech item has been correctly classified as EAR99 are in your favor, but jumping to that conclusion typically means responsible individuals within the company haven’t done a proper classification analysis. There can be a financial motivation for this: EAR99 is the least controlled classification under the EAR; landing there quickly saves time and money – at least until your luck runs out.

2.) Not realizing EAR99 items are subject to the EAR

When an item is classified as EAR99, it’s often assumed that the item is exempt from export controls. In fact, every item that’s classified as EAR99 is subject to the EAR. Though the vast majority of transactions involving such items won’t require an export license, that’s not the same as being entirely uncontrolled.

3.) Failing to look for export restrictions

Correctly classifying an item as EAR99 isn’t the end of the process; it’s just one step in the search for license requirements.

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4.) Confusing EAR99 with NLR

Most items classified as EAR99 will eventually be shipped No License Required (NLR). So, EAR99 and NLR go together like milk and cookies. But you’d never confuse a cookie with milk, and neither should EAR99 be confused with NLR.

EAR99 is a classification based on the characteristics of the item itself. NLR is an authorization to export an item. They often go together, but not always. It’s those exceptions that cause the trouble. Here are some factors that may trigger the need to obtain an export license for an EAR99 item:

  • The item is intended for export to a heavily sanctioned destination such as Cuba, Iran, North Korea, or Syria.
  • Someone involved in the transaction is on a restricted party list.
  • There is reason to believe an item is intended for certain sensitive end uses, like chemical weapons or something missile-related.
  • There is reason to believe the item has or will be involved with any of the 10 general prohibitions in Part 736 of the EAR. Example: An item is being sold to a distributor in Dubai who has suggested they are going to turn around and send it to Iran.

5.) Treating EAR99 the same as an ECCN

According to the International Trade Administration of the U.S. Commerce Department (ITA):

“An ECCN … is a designation that an item, which can be a tangible or intangible (i.e., software or technology), is controlled because of its specific performance characteristics, qualities, or designed-end use. Unlike an EAR99 designation, which is a broad basket category, an ECCN is much more narrowly defined and [is] focused on product categories.”

Each ECCN is published on the CCL with its description, the reason(s) it is controlled for export, and other important details. The ECCN is used in combination with reference to the country chart in Supplement No. 1 to Part 738 of the EAR to determine if a license is required.

So, the CCL provides a direct path to finding license requirements for any item with an ECCN number. But the EAR99 classification is different. It’s implied by the absence of a suitable ECCN.

The ITA warns: “EAR99 items can generally be exported without a license but exporters … still need to perform careful due diligence to ensure the item is not going to an embargoed or sanctioned country, a prohibited end-user, or used in a prohibited end-use.” If it is, a license may be required.

6.) Failing to understand the breadth of ECCNs

Some ECCNs come with short, simple descriptions. Others are complicated by multiple cross-references, exceptions, specifications and other details. There are ECCNs with such unique control criteria that it’s unclear if anything under the sun actually comes within their stated scope. Some contain sweeping language that may reference a wide range of related items, getting down to items that are so ubiquitous that you’d imagine they couldn’t be controlled. For example, ECCN 8A992, which applies to all manner of boats and marine-related commodities, includes magnetic compasses – a device that can be found around the world on everything from aircraft carriers to cargo vessels to personal kayaks. Controls over such low-level items are easy to overlook.

How to follow a good process

There’s no list you can reference to determine if an item should be classified as EAR99. It’s a deductive process, arrived at by ruling out everything else. That requires training and practice on how to interpret the regulations and navigate the CCL. It also demands technical information about the item, and, in some cases, knowledge about its real world uses. So, the process will usually involve a team.

The first step is to determine whether the item is subject to the EAR (see our blog post: Subject to the EAR: What It Means and How to Approach It). If so, the process for determining the classification of any item is the Order of Review, defined in Supplement 4 to Part 774 of the EAR, and explained in our blog post, Navigating EAR Export Control Classification.

BIS offers interactive tools to guide you through the process of classifying items, whether or not they meet the definition of “specially designed”  under Part 772.1 of the EAR. Still, the process is technical, and requires training and practice.

Sometimes, following the Order of Review is simple and linear; you can spend 15 minutes and feel confident that your classification is correct. Other times, you can spend hours and feel stuck. BIS offers a commodity classification request process to validate your analysis. When people get into the weeds of the process, they’ll sometimes ask if it really matters whether the classification is correct. The simple answer is that it can matter, and there is no substitute for working all the way through to the end.

Contact the Export Compliance Training Institute

Do you have questions about EAR99 Classification? Visit www.learnexportcompliance.com to learn about our company, our faculty, our staff and our esteemed Export Compliance Professional (ECoP®) certification program. To find upcoming e-seminarslive seminars and live webinars and browse our catalog of 80-plus on-demand webinarsvisit our ECTI Academy. You can also call the Export Compliance Training Institute at 540-433-3977 for more information.

Scott Gearity is President of ECTI, Inc.