BIS Clarifies Reach of Commodity Classification Determinations and Advisory Opinions

On August 2, 2010, Bureau of Industry and Security (BIS) issued an interim final rule in the Federal Register amending the Export Administration Regulations (EAR) to clarify that commodity classification determinations and advisory opinions BIS issues or has issued under the EAR are not and may not be relied upon as U.S. Government determinations that the items described therein are subject to the EAR, as opposed to the jurisdiction of another U.S. Government agency. 

Section 748.3(a) the EAR, as amended, requires that exporters, before requesting commodity classifications and advisory opinions, determine that the items at issue are not subject to the exclusive export control jurisdiction of one of the other U.S. Government agencies listed in §734.3(b) of the EAR, such as Directorate of Defense Trade Controls (DDTC), Office of Foreign Assets Controls (OFAC), or the Patent and Trademark Office (PTO).

Only DDTC has authority to issue commodity jurisdiction determinations since they are the agency responsible for administering the U.S. Munitions List (USML) and the International Traffic in Arms Regulations (ITAR). Unlike the ITAR, the EAR does not provide authority to make commodity jurisdiction determinations. Thus, because BIS does not have the authority to issue commodity jurisdiction determinations, a BIS commodity classification only reflects whether an item identified in the commodity classification request is described in the Commerce Control List (CCL). 

With respect to advisory opinions, the rule states that they are limited in scope to BIS's interpretation of EAR provisions, and may not be relied upon or cited as evidence of U.S. Government's determination that the items described in the advisory opinion are not subject to the export control jurisdiction of another agency of the U.S. Government. 

Comments on the interim final rule are due October 2, 2010.