(Lexology – Jimmie V. Reyna, Williams Mullen)
According to a recently issued interim final rule amending the Export Administration Regulations (EAR), exporters may not rely on commodity classification determinations and advisory opinions issued by the Commerce Department’s Bureau of Industry and Security (BIS) as official U.S. Government determinations of whether an item is subject to the EAR or to another agency’s exclusive jurisdiction. BIS has jurisdiction over items only if they are described in the EAR and not exclusively controlled by another agency.
Some agencies, such as the State Department’s Directorate of Defense Trade Controls, issue “commodity jurisdiction” determinations as official statements of whether a specific item is subject to the agency’s jurisdiction. The EAR does not authorize BIS, however, to issue commodity jurisdiction determinations. Instead, it may provide only “commodity classifications” – official determinations only of which Export Control Classification Numbers (ECCNs) describe an item. BIS may also issue advisory opinions that describe how BIS interprets the EAR.
Thus, while BIS may officially state whether the ECCNs describe an item, BIS may not state officially whether an item is subject to another agency’s exclusive jurisdiction or whether the item is subject to the EAR.
The new rule does not change BIS policy but simply reminds the public that BIS may not make commodity jurisdiction determinations and that exporters may not rely on commodity classifications and advisory interpretations as official U.S. Government determinations of whether an item is subject to the EAR or to another agency’s exclusive jurisdiction.
