International Legal Affairs: Volume 5, Number 2
Classification: (noun) A way or condition of being arranged. The act of putting into classes. A subdivision of a larger group.
Classification. What’s the big deal? Often, parties to an export transaction are aware that a particular item requires an export license. In general terms, if the item being exported is firearms related, an export license will be required. But – what kind of license? In some instances, a firearm might even be exportable without an export license. Classification begins with a determination of whether the item being exported is governed by the U.S. State Department, or the U.S. Commerce Department. In basic terms, shotguns and shotgun ammunition are governed by the Commerce Department, but there are exceptions. If a rifle optic is being exported, the licensing requirements may fall to State or Commerce. If the item being exported is a center fire pistol or rifle, center fire or rimfire ammunition, a sound suppressor, machine gun or grenade launcher, one can count on a State Department DSP-5 export license being required.
The U.S Commerce Department regulates the export of most items from the United States. Items exported are classified by numbers – specifically, Export Control Classification Numbers, also known as an ECCN. An ECCN is an alpha-numeric classification used in the Commerce Control List to identify items for export control purposes. Note that the ECCN system is different than the U.S. Census Bureau’s Schedule B classification, which is used to collect trade statistics. One may determine whether an ECCN exists for a particular commodity by searching the Commerce Control List, a supplement to the Export Administration Regulations. The most up-to-date version of the CCL may be found online at the U.S. Commerce Department, Bureau of Industry and Security website. A good place to start is here: www.bis.doc.gov/policiesandregulations/index.htm. A link to the Commerce Control List is linked about halfway down the page. Many exportable items are classified under the ECCN system, but the majority of exportable items have no ECCN classification.
If after careful review, the item to be exported is not listed, one may wish to consult the manufacturer, producer, or developer of the exportable item. Review of more than one ECCN description may be required. In addition, the item to be exported may be described in a unique manner that defies easy determination. If the item to be exported is indeed not listed in the CCL, the item will carry the classification of “EAR99.” The EAR99 classification is a catch all for items that are covered by the EAR, but are not specified on the Commerce Control List. EAR99 items can be shipped without a license to most destinations under most circumstances. The majority of the commercial exports from the United States fall into this category. Holsters, belts, and backpack usually, but do not always fall under the EAR99 category.
A short note on EAR99 items: Just because an item is classified as EAR99 does not automatically mean that the item may be exported. If an EAR99 item is being exported to an embargoed or sanctioned country, to a party of concern, or in support of a prohibited end-use, an export license may be required.
Exportation of Shotguns
What if the item to be exported has been classified with an ECCN number? Then what? Two items in particular bear discussion – shotguns and firearm optics. Shotguns are classified as ECCN number 0A984, while optics are classified as ECCN number 0A987. A review of classification number 0A984 notes that the CCL applies to: “Shotguns with barrel length 18 inches (45.72 cm) or over; receivers; barrels of 18 inches (45.72 cm) or longer but not longer than 24 inches (60.96 cm); complete trigger mechanisms; magazines and magazine extension tubes; complete breech mechanisms; buckshot shotgun shells; except equipment used exclusively to treat or tranquilize animals, and except arms designed solely for signal, flare, or saluting use.”
By definition, shotguns that are fully automatic, or shotguns with barrels under 18-inches in length are governed by the U.S. State Department, and are outside the purview of the U.S. Commerce Department.
Additional review of classification 0A984 will note that reason for controls on shotguns are due to Crime Control (CC), Firearms Convention (FC) and United Nations (UN) purposes. Further examination shows that licensing requirements will vary, depending upon the barrel length of the shotgun in question.
The controls for shotguns, ECCN No. 0A984:
Reason for Control: FC, CC, UN
If (as in this case) there are UN restrictions in place, it goes without saying that the export will require a license, will be closely scrutinized, and may not be permitted. What about the FC and CC restrictions? To determine the license requirements for FC and CC restrictions, one must consult the Commerce Country Chart. The chart is listed at 15 CFR 738, and may be found online via a simple search, or on the Government Printing Office website. The Commerce Country Chart lists almost every possible country within the world. Locate the final destination for the item being exported. Determine whether the FC or CC columns are checked. Germany has no checkmarks in the FC or CC columns. It may be possible to export a shotgun with a barrel greater than 18-inches in length to Japan without an export license. Jamaica has checkmarks in both the FC and CC columns; a Commerce Department export license will be required.
Export of Optics
If the export of shotguns was that straightforward, the export of optics should be easier, right? Not exactly. ECCN Number 0A987, governs optical sighting devices for firearms (including shotguns controlled by 0A984); and parts. The entry goes on to list the following items specifically:
a. Telescopic sights.
b. Holographic sights.
c. Reflex or “red dot” sights.
d. Reticle sights.
e. Other sighting devices that contain optical elements.
f. Laser pointing devices designed for use on firearms.
g. Lenses, other optical elements and adjustment mechanisms for articles in paragraphs a, b, c, d or e.
Continuing to the controls on optics reveals:
Reason for Control: FC, CC, UN
So far, this seems easy. Under the 0A987 heading, it appears that nearly every type of firearm optic is covered, and as such, the U.S. Department of Commerce should govern the export of firearm optics. This is not entirely accurate. Returning to the Country Control Chart, we again see that the export of some optics to Japan may occur without a Commerce Department export license, while Jamaica still requires a Commerce Department export license.
Why are only some optics exportable to Japan without a Commerce Department export license? Answer: the International Trade in Arms Regulations, also known as the ITAR. Some optics are classified as ITAR restricted, while others have no such restriction. In very basic terms, an optic manufactured to U.S. military specifications will be governed by the ITAR. A Redfield rifle scope is a low priced optic built for hunters. It will fall under the ECCN 0A987 restrictions. In contrast, the Leupold and Stevens Mark 4 CQBSS optic was built to U.S. military specifications and is governed by ITAR. As a result, the export of a CQBSS optic requires a U.S. State Department export license. Mistakenly shipping a CQBSS optic to Japan without an export license under the misguided notion that no export license is required for ECCN 0A987 items may result in a seizure by U.S. Customs and Border Protection, civil fines, or criminal charges.
As a final reminder, how an item is transported outside of the United States does not matter in determining export license requirements. An item can be sent by U.S. Postal mail or hand carried on an airplane. Technical drawings may be sent via fax, or as an email attachment to a recipient outside of the United States. Software may be uploaded to, or downloaded from a foreign Internet site. Technology can be transmitted via e-mail or during a telephone conversation. In every example listed above, the transaction is considered an export, and may require an export license.
An item is also considered an export if leaving the United States temporarily, or if the item is leaving the United States but is not for sale (i.e., is intended as a gift). A foreign-origin item exported from the United States, transmitted or transshipped through the United States, or being returned from the United States to its foreign country of origin is considered an export. Finally, release of technology or source code subject to the EAR to a foreign national in the United States is “deemed” to be an export to the home country of the foreign national under the EAR.
Knowing the nature and classification of the item being exported is important. Classification of the item being exported is important. Determine what kind of license is required. Is the item governed by the U.S. Commerce Department, or the U.S. State Department? Does the EAR govern the transaction? Or, as in the case of short barreled shotguns and Mil-Spec optics, does the ITAR govern the transaction? If the item is governed by the U.S. Commerce Department, does it have an ECCN, or can the item be classified as EAR99? What is the final destination of the item? Is the item being transshipped, or being shipped direct to the foreign destination? When in doubt, seek help from qualified legal experts that are knowledgeable in the export process.
Jason M. Wong is an attorney licensed by the State of Washington and acts as the managing partner of the Firearms Law Group. This article is not intended as legal advice or restatement of law, and should not be construed as such. When in doubt, seek competent legal counsel. Mr. Wong also maintains an import/export company that assists foreign and domestic clients that do not wish to wade into the regulatory morass of U.S. import/export regulation. Mr. Wong may be contacted via email at jmwong@FirearmsLawGroup.com.