Section 748.3(a) of the Export Administration Regulations (EAR) sets forth a procedure for how the public may seek and receive determinations regarding where or if items “subject to the EAR” 1 are classified on the EAR’s Commerce Control List (CCL). In essence, if one makes a request in accordance with EAR sections 748.1 and 748.3(b), the Commerce Department’s Bureau of Industry and Security (BIS) will issue a formal classification determination regarding which, if any, ECCN controls the item described in the request.
Classification determinations are only as good as the quality, clarity, and the accuracy of the information provided in the classification request. The rules pertaining to the classification of composite-related information are complex largely because composite-related technology is complex. Small changes in facts can result in significant differences in the control status of technologies. Thus, if a classification request for composite-related information does not describe carefully and address all the potentially applicable regulatory, definitional, and technical issues associated with a particular item at issue (as opposed to broad categories of items), then the classification determination will not likely be as reliable or useful as it should or could be. The most common questions BIS personnel have received in recent years regarding such items pertain to whether information used in the production or development of carbon fiber organic matrix material systems and related structures are within the scope of Export Control Classification Number (“ECCN”) 1E001.
In light of the foregoing, BIS hopes to begin building a public collection of carbon fiber organic matrix composite-related classification determinations that will be the foundation for the development of better and common understandings between and within industry and government regarding the proper classifications of a wide variety of such technologies. For such a collection to be useful, however, the requests should address all the relevant definitional and control variables in the EAR for such composite-related technologies. To assist those preparing such requests, BIS has assembled this guidance document. Section III below contains a description of the various EAR provisions relevant to analyzing the classification status of carbon fiber organic matrix technologies. Drawing upon these descriptions, section IV contains BIS’s recommendations for issues to consider and address when drafting classification requests for carbon fiber organic matrix technologies.
The guidance in this document is limited in scope to descriptions of composite-related EAR provisions in effect at the time of its publication and related suggestions pertaining to the preparation of classification requests. Exporters are reminded that they will need to refer to all relevant EAR provisions in effect at the time of any particular export to determine the export control-related obligations pertaining to the export.
ECCN 1E001 controls 1E001 “‘technology’ according to the General Technology Note for the ‘development’ or ‘production’ of items controlled by 1A001.b, 1A001.c, 1A002, 1A003, 1A004, 1A005, 1A006.b, 1A007, 1A008, 1A101, 1B (except 1B999), or 1C (except 1C355, 1C980 to 1C984, 1C988, 1C990, 1C991, 1C995 to 1C999).” 15 C.F.R. Part 774 (emphasis supplied). The EAR’s General Technology Note states that the “export of ‘technology’ that is ‘required’ for the ‘development,’ ‘production,’ or ‘use’ of items on the Commerce Control List is controlled according to the provisions in each Category. ‘Technology’ ‘required’ for the ‘development,’ ‘production,’ or ‘use’ of a controlled product remains controlled even when applicable to a product controlled at a lower level.” Id. Supplement No. 2 to EAR Part 774 (emphasis supplied). 2 Thus, the EAR’s definition of “required” must be applied when determining whether technology is controlled under ECCN 1E001.
Under the EAR’s definition of “required,” the word “refers to only that portion of ‘technology’. which is peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics or functions. Such ‘required’ ‘technology’. may be shared by different products.” Id. § 772.1 (emphasis supplied). Thus, in light of the citations and conclusions in section III.A of this guidance document, one must determine whether information is “development” or “production” information “peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics or functions” of any of the ECCNs listed as controlled in the heading to ECCN 1E001 to know whether the information is controlled technology under ECCN 1E001. An implication of this conclusion is that ECCN 1E001 does not purport to control all technology that in any way relates to or that is merely capable of use in the “production” or “development” of composite items. As described above and in the next section of this guidance document, other questions must be asked and answered when making a determination about whether ECCN 1E001 controls a particular item of information.
The following is a description of the current performance levels, characteristics, and functions that would cause unpublished technology for an item to be controlled under ECCN 1E001 when the item is controlled under ECCN 1A002.a (as ECCN 1A002.a relates to ECCN 1C010.e-controlled items), ECCN 1C010.e, ECCN 1C010.b (carbon fibers only), ECCN 1C210, ECCN 1E994 (as it relates to ECCN 1C990 items) or is an EAR99 item.
The “performance levels, characteristics or functions” of organic matrix carbon fiber composite structures, laminates or materials peculiarly responsible for causing them to be controlled under ECCNs 1A002.a or 1C010.e 3 are whether they are:
The relevant performance level, characteristic, or function of a structure or laminate controlled under ECCN 1A002.a is whether it “consists of” a prepreg controlled by ECCN 1C010.e. ECCN 1A002.a does not list as a basis for controlling a composite structure or laminate the issue of whether it contains 1C010.b-controlled carbon fibers. Thus, additional parameters – specifically, those identified above regarding ECCN 1C010.e – must be met for a structure or laminate to be controlled under ECCN 1A002.a.
Technology peculiarly responsible for achieving or exceeding these characteristics is equivalent to Technologies “D” and “E” in the EAR’s definition of “required.” 4 That is, they are the technologies “required” to give carbon fiber organic matrix composite materials, structures, or laminates their controlled characteristics under ECCNs 1A002.a or 1C010.e. Technology for the “production” or “development” of carbon fiber organic matrix composite materials, structures, or laminates that does not contain any such information is not controlled under ECCN 1E001, even if it is generally capable for use in the “development” or “production” of 1A002.a- or 1C010.e-controlled structures or materials. Such technology would be equivalent to Technologies A, B, and C in the EAR’s definition of what is not “required” technology. Technologies A, B, and C are capable for use in the “production” or “development” of controlled Product X, but are not “required” to develop or produce it.
The general “performance levels, characteristics or functions” of carbon fibers causing them to be controlled under ECCN 1C010.b are their specific modulus and their specific tensile strength. The specific levels that would need to be “achieved or exceeded” for a carbon fiber to be controlled under ECCN 1C010.b are (a) a specific modulus equal to or exceeding 14.65 x 10 6 m and (b) a specific tensile strength equal to or exceeding 26.82 x 10 4 m. “Development” or “production” technologies that are “peculiarly responsible” for achieving or exceeding the performance thresholds for ECCN 1C1010.b are “required” technology. Conversely, technology for the “development” or “production” of carbon fibers that does not contain any information “peculiarly responsible for achieving or exceeding” such characteristics is not controlled under ECCN 1E001. That technology would also be equivalent to Technologies A, B, and C in the EAR’s definition of what is not “required” technology.
The “performance levels, characteristics or functions” of a material peculiarly responsible for causing it to be controlled under ECCN 1C210 are its status as a continuous monofilament, yarn, roving, tow, or tape as specifically defined in ECCN 1C210 and its status as either (a) a carbon “fibrous or filamentary material” having a specific modulus equal to or exceeding 12.7 x10 6 m, or specific tensile strength equal to or exceeding 235 x 10 3 m or (b) a thermoset resin impregnated continuous yarns, rovings, tows, or tapes, as defined in ECCN 1C210, with a width no greater than 15 mm (prepregs), made from carbon “fibrous or filamentary materials” controlled by ECCN 1C210.a.
For the reasons described above, any particular item of technology capable for use in the “production” or “development” of 1C210-controlled materials cannot be controlled by ECCN 1E001 unless it is also technology that is “peculiarly responsible” for achieving or exceeding these characteristics.
Technology, under the General Technology Note, for the “production” or “development” of composite materials controlled under ECCN 1C990 is not controlled under ECCN 1E001. ECCN 1E994 controls technology for the “production,” “development,” or “use” of 1C990-controlled materials. The performance levels, characteristics, and functions of an organic matrix carbon fiber composite material that would cause it to be controlled under ECCN 1C990 are its specific modulus and specific tensile strength. However, specific technology that is “required” to develop or produce a fiber or a prepreg controlled by an ECCN identified in ECCN 1E001 remains 1E001-controlled even if it is, for example, subsequently “spun” back and used for the “production” or “development” of fibers or a prepreg controlled by ECCN 1C990. This observation addresses the second sentence of the General Technology Note that technology is controlled at the higher level even when it is applicable to a product controlled at a lower level.
Composite-related technology and other information for the production or development of structures or laminates controlled by ECCN 1A002.a that has been “published,” as defined by EAR section 734.7, is not “subject to the EAR.” Id. § 734.3(b)(3). Thus, for example, if the material property data sheets, marketing materials, technical articles and papers, and other information placed into data sharing services are “generally accessible to the interested public in any form,” then they are not “subject to the EAR.” Section 734.3(b)(3) also states that such technology would not be “subject to the EAR” if it arose during, or results from, fundamental research as described in section 734.8, was “educational” as defined in section 734.9, or was included in certain patent applications as described in section 734.10. However, unpublished technology or a combination of published and unpublished technology associating items that constitutes a recipe or part of a recipe peculiarly responsible for achieving a 1A002.a-controlled structure or laminate is considered to be “required” technology subject to the EAR unless that association itself is also published. The EAR does not prohibit a company or individual that owns and otherwise controls all rights to 1E001-controlled technology from “publishing” (as defined in EAR section 734.7) it, including on the Internet, without a license for such technology.
As described in section III above, a key variable in determining whether composite-related information is controlled by ECCN 1E001 is whether it is “required” technology. Those drafting classification requests asserting that a particular type of composite-related technology is not “required” should be sure to address whether any of the following examples and commentary on different types of technologies that are often “required” to produce or develop controlled composites would apply to the technology at issue in the request.
When drafting a classification request that pertains to technology for the development or production of 1C010.e materials, 1C210 materials, or 1C010.b carbon fibers, the request should identify, describe, and analyze whether the information at issue in the request could be or indeed is “peculiarly responsible for achieving or exceeding” the controlled performance levels for the materials or fibers. For example, fiber chemical composition technology, fiber and prepreg processing parameters, and resin chemical composition information for controlled materials usually contain such “required” information.
The reason fiber chemical composition information is often “required” technology is that chemistries vary from fiber to fiber. Such information is, thus, peculiar to the fibers. If the fibers to which the information relates have characteristics that are within the scope of the control parameters in 1C010.e, 1C210, or 1C010.b, then the fiber chemical composition information is, by definition, peculiar to achieving the specified performance levels of the controlled fibers. Examples of fiber chemical composition technology for 1C210- or 1C010.b-controlled fibers include precursor chemistry, finish coating chemistries, and methods for formulating and tailoring precursors.
Fiber and prepreg processing parameter settings are the combinations of information that constitute the manufacturing recipe for controlled fibers and prepregs. Any of the settings in that combination that are peculiar to achieving the specified performance levels, characteristics, or functions of the controlled material are thus “required” technology, as described in section III above. If the combination of settings or recipe for the controlled material is peculiar to achieving a specified performance level of the controlled material system, the combination of settings, or recipe, is also, as described in section III above, “required” technology. However, individual settings within that combination may be the same as those used in the development or production of materials that are controlled at a lower level and are not, by themselves, peculiarly responsible for achieving the higher controlled performance levels. Therefore, BIS recommends that when drafting a classification request for a particular item of composite-related information, the drafter should identify and analyze all pertinent process parameter setting information. The classification determination could be different depending upon whether the information at issue in the request is a combination of settings or an individual setting within that combination.
With respect to classification requests pertaining to individual process step settings or practices used in materials controlled at a lower level, it is important for the drafter to recognize that any information indicating those settings are also part of a combination of settings tailored for a higher controlled material system is controlled at the higher level. BIS does not consider process settings themselves that are common to both controlled and uncontrolled materials to be “required” technology.
If the classification request asserts that the process settings are common, BIS recommends that the request contain sufficient information and attachments to support that assertion. BIS also recommends that the drafter include an analysis of whether any of the information at issue associates those individual, common process settings with the recipe for a material controlled at the higher level. If so, BIS considers such information to be controlled “required” technology. For example, a resin film temperature of 135 degrees Fahrenheit may be used in the manufacture of both a 1C010.e-controlled prepreg and a 1C990-controlled prepreg. Process-setting technology for the development or production of the 1C990-controlled material would be controlled under ECCN 1E994. Any technology that identifies that process setting value (e.g., 135°F) as being part of a recipe “required” to achieve the performance thresholds of a 1C010.e-controlled material would, however, be “required” technology and, according to the General Technology Note, controlled under ECCN 1E001.
An implication of the General Technology Note, the structure of ECCN 1E001, and the definition of “required” is that fiber and prepreg development or production technology peculiarly responsible for achieving the controlled performance levels or characteristics of 1C010.e materials, 1C210 materials, or 1C010.b fibers will be controlled by ECCN 1E001. Examples of information that often fall with the scope of such technology include: (a) precursor mixing, reacting, and spinning information; (b) temperature, pressure, and time recipes for the oxidization and carbonization processes; (c) process settings and methods for the impregnation of controlled combinations of resins and fibers including temperature, pressure, tension, time, and other information in Process Control Documents; and (d) process information for the impregnation and packaging of controlled prepreg tow material having widths of 15 mm or less. Thus, classification requests for fiber or prepreg development or production technology should be sure to address whether the technology at issue includes any such information and, if so, whether and why it is or is not peculiarly responsible for achieving the specified performance levels or characteristics of controlled fibers.
If the classification request pertains to carbon fiber precursors, the drafter should be aware that technology applied to the precursor that is peculiarly responsible for achieving the controlled characteristics of 1C010.b-controlled fibers is still controlled by ECCN 1E001 based on the analysis in section III above, even though ECCN 1E001 does not explicitly refer to carbon fiber precursor technology. This conclusion is an example of the point in the second sentence of the General Technology Note (Supplement 2 to Part 774) that “‘Technology’ ‘required’ for the ‘development,’ ‘production,’ or ‘use’ of a controlled product remains controlled even when applicable to a product controlled at a lower level.”
The chemical make-up and molecular structure of an organic resin matrix system determine the mechanical and physical performance of that matrix material. Specific chemistries of controlled resins are “required” to achieve the controlled performance levels and vary between different resin systems such that the formulations for controlled resins are peculiar to achieving those performance levels. Thus, the chemical composition of resins that are responsible for achieving or exceeding the control thresholds in ECCN 1C010.e are “required” technologies. Thus, if the classification request pertains to, for example: (a) resin formulas for 1C010.e-controlled items; (b) resin mixing and reacting information such as the sequence and process for combining and reacting the ingredients of resin systems in materials controlled by 1C010.e; or (c) resin development methods and techniques for resins in 1C010.e-controlled items, then the technology is likely to be controlled by ECCN 1E001. If a classification request asserts that such technology is not controlled by ECCN 1E001, then the request should explain why the analysis in this paragraph is not applicable.
If the classification request pertains to a design process for laminates or structures, then the drafter should be sure to address whether the technology is common to both 1C010.e- and 1C990-controlled materials. If a design process technology such as that for the estimation of structure design life is specifically “required” for a 1A002.a-controlled structure or laminate, then the drafter should state that it is subject to ECCN 1E001. Drafters of such requests should also analyze carefully any fabrication process for structures utilizing 1C010.e- and 1C990-controlled commodities because they can be quite different. As described in section III above, some will be “required” and others will not be.
In addition, if the classification request pertains to test result data such as tensile and compression strength and modulus, notched tensile and compression strength, open and filled hole tension and compression, fracture toughness, compression after impact, glass transition temperature, hot/wet properties, density, per-ply thickness for test articles made from materials controlled by 1C010.e, and the test result data, for example, is coupled with the processing technology “required” to fabricate the test articles, then the test result data should be identified in the request as being subject to ECCN 1E001. If, however, the test result data at issue in the request are not coupled with the processing technology used to produce the test samples, then, based on the analysis in section III above, BIS would not consider such technology “required” to develop or produce a structure or laminate made from materials controlled by ECCN 1C010.e. Similarly, any such technology for the development of carbon fiber organic matrix composite structures or laminates controlled under ECCN 1C990 or EAR99 would be controlled under ECCN 1E994 or EAR99, respectively, because they would be peculiarly responsible for the performance of structures or laminates “consisting of” or “made from” 1C990- or EAR99-controlled materials.
As described in section III above, production technology for 1A002.a-controlled structures and laminates is controlled under ECCN 1E001 if it is peculiarly responsible for the development or production of composite structures or laminates “consisting of” the materials controlled under ECCN 1C010.e. The manufacturing “recipe” for producing controlled structures and laminates consists of a combination of many different process parameter settings. If a classification request pertains to any of the settings in that combination which are peculiarly responsible for achieving the specified characteristics of 1A002.a-controlled structures or laminates, then the request should identify them as 1E001-controlled technology and why they are “required.” If the request includes technology that constitutes a combination of settings or “recipe” for the 1A002.a-controlled item that is peculiarly responsible for achieving the specified characteristics of 1A002.a-controlled structures and laminates, then that combination of settings or “recipe” should also be described in the request and identified as controlled under ECCN 1E001. If, however, individual settings at issue within that combination are the same as those used in the production of structures or laminates consisting of 1C990- or EAR99-controlled materials or are otherwise unrelated to the technology peculiarly responsible for achieving the specified characteristics described in ECCN 1A002.a, the request should provide sufficient information to support a determination that such technology is not controlled by ECCN 1E001 because it is not peculiarly responsible for the development or production of composite structures or laminates “consisting of” the materials controlled under ECCN 1C010.e.
Drafters of requests involving individual process settings or practices that are common to both 1A002.a- and structures made from 1C990-controlled materials should not, however, conclude from the previous suggestion that such technology is per se not “required” technology. If, for example, the request involves 1E001 technology that was “spun” back and used for the production or development of composite laminates or structures made from materials controlled by ECCN 1C990 or EAR99, or the technology at issue specifically associates common process settings or practices with 1A002.a-listed materials systems is developed, then the technology would generally be subject to ECCN 1E001. If, on the other hand, technology such as that regarding, for example, the use of a compaction cycle that includes compaction of a laminate after every three plies of lay-up for 5-10 minutes under a vacuum drawing 25 inches of mercury, then, in most instances, that would not be 1E001-controlled “required” technology because it would describe a common compaction cycle that is not peculiarly responsible for achieving the controlled characteristics described in ECCN 1A002.a. If, however, that same compaction cycle happens to be part of a recipe “required” for production of a specific 1A002.a-controlled structure or laminate, any information that associated that common process setting with the recipe “required” for a controlled structure or laminate would, itself, be “required” technology. As indicated by these examples, final classification determinations for production technology are highly fact-specific. Small changes in facts can result in significantly different classification determinations.
Additional issues classification requests for production technology should be sure to address include whether the technology at issue pertains to (a) machine settings such as for temperature, pressure, and time, including automated lay-up machine settings for nip point temperatures and compaction pressures or (b) materials processing information such as cure or consolidation cycles, post cure cycles, compaction requirements, material out-time handling and mechanical life limits; material storage life limits; resin infusion processing settings, such as infusion temperature, process timing, and infusion pressure; or other shop practices peculiar to the production of 1A002.a-controlled structures. If so, the request should be sure to analyze whether they are peculiarly responsible for achieving the specified characteristics of 1A002.a-controlled structures and laminates and, if not, why not.
An implication of the analysis in section III above is that only “required” technology is controlled under ECCN 1E001 is that “development” and “production” technology not “required” for any of the items controlled by the ECCNs listed in 1E001’s heading is not controlled by ECCN 1E001. Persons preparing classification requests pertaining to composite-related information should be sure to determine whether the information at issue in the request also includes common types of information that are not peculiar to achieving the controlled characteristics of 1A002.a-, 1C010.b-, 1C010.e-, or 1C210-controlled items but which are normally discussed or exchanged during the development and production of carbon fiber organic matrix composite structures or materials. Such information would, by definition, not be controlled by 1E001.
Requirements documents contain information only about the end items to be produced. If a classification request includes within its scope a requirements document and asserts that it is not within the scope of ECCN 1E001, then the request will need to describe, with adequate support, why it does not contain any development or production technology peculiarly responsible for achieving controlled performance thresholds in 1A002.a-, 1C010.b-, 1C010.e-, or 1C210-controlled items. For example, if the request pertains to a requirements document for a civil aircraft, boat, or automobile to be made out of composites, then the request will need to explain why none of its information is peculiar to the type of material out of which the aircraft, boat, or automobile would be built. If the requirements document does, however, contain information affected by the type of material out of which it would be built, then the classification request asserting that the document is not subject to ECCN 1E001 would need to explain and support why it did not contain any technology peculiarly responsible for achieving the specified characteristics of a 1A002.a-controlled composite structure.
If a classification request is for design processes, the drafter needs to address the fact that design processes for structures and laminates made from materials controlled by ECCNs 1C010.e and 1C990 are generally, but not always, the same. If they are the same, then they will not, by definition, contain “required” technologies. If the design processes are not the same, then the request needs to explain which parts of the processes are “required” for 1C010.e materials and which parts are not. Examples of design technology and documents that should be evaluated are design methods, tools, and guidance for design or analysis of a laminate structure.
Design definition technology, in the context of this guidance for preparing requests for classifications of composite-related technology, is used for the production of a single composite part made from resin impregnated fibrous and filamentary materials regardless of whether the material is controlled by ECCN 1C010.e or 1C990. Following the establishment of the part requirements, design and analysis methods are used to arrive at the part composition and configuration that satisfies the requirements. The composition, configuration and the listing of command media controlling the fabrication, coating, and marking of the part is documented and controlled such that production of the specific part will be repeatable. (The part analysis, fabrication control documents, and materials or test data are not part of the design definition for purposes of this guidance.) Requirements for the parts will be peculiar to the specific application and will include magnitude and direction of load, stiffness requirements, fatigue environment, sonic environment, chemical environment, erosion environment, thermal environment, design life, and part reparability. Specific design definition technology, however, generally does not include development or production process details peculiar to structures or laminates made from controlled or uncontrolled materials such as lay-up machine or lay-up process settings, resin infusion process settings, material outlife requirements, material compaction or cure cycle requirements, and material property or other test data that is coupled with manufacturing technology.
If a classification request includes within its scope specific design definition technologies such as those described above, then the drafter should describe whether such technology is “required” for the production of the 1A002.a-, 1C010.b-, 1C010.e-, or 1C210-controlled aspects of the part or component rather than the part or component as such. It may, for example, be the case that the request involves technology only for the production of a part or component that is described in Categories 3 through 9 of the CCL rather than the composite materials described in CCL Category 1 out of which it is made. Such information could be considered technology for the part or component as such because it has been established based on the specific requirements of an individual part application and is not useful for any other application and therefore not considered 1E001-controlled technology.
For example, a design for an exhaust system duct for a marine application will have no practical application on any other platform as that design is optimized only for the marine application regardless of the material out of which it is made. Examples of technology relating to a specific composite part include geometric data including shape and thickness information; dimensional tolerances; part physical attributes such as stiffness, weight, center of gravity; ply lay-up information including ply shape, location, fiber orientation and stacking sequence; references to relevant control media such as material and process specifications (spec numbers and titles only); and listings of incorporated parts and materials.
Therefore, BIS suggests that for requests where the submitter asserts that the specific design definition technology is not controlled by ECCN 1E001, the drafter should explain why it is not generally useful for the development or production of any part made from 1C010.e raw materials rather than that it is information “required” to make a single part from 1C010.e materials. Technology useful for the development of any part will often include the standardized material processing technology for the fabrication of all parts and specific technology relating to the material that is used in the design development such as material property data or other test data that can be coupled with the material processing technology. Under the current EAR, technology useful for the development of any part made from 1C010.e materials such as that above will be covered by 1E001 if the technology is peculiar to the structures or laminates made from 1C010.e materials.
If the information and documents for which the exporter seeks a classification determination include generalized part production practices, then the classification request should explain why such information or documents do not reveal or contain 1E001-controlled “required” technology even if the parts are made from 1C010.e-controlled composite materials. Based on the analysis in section III above, this will be the case so long as the practices or documents do not reveal or contain production technology peculiarly responsible for achieving the controlled performance levels, characteristics, or functions described in ECCN 1A002.a.
If a classification request is for part production practices, BIS recommends that the drafter address the fact that the part production practices for structures and laminates made from materials controlled by ECCNs 1C010.e and 1C990 are generally, but not always, the same. If they are the same, then typically they will not contain “required” technologies. If the production practices are not the same, then the request should explain which parts of the practices are “required” for 1C010.e materials and which parts are generalized part production practices.
When seeking classifications, requestors should be careful to identify, when applicable, generalized part production practices which include facilities requirements; tool design and fabrication requirements (except for development or production technology peculiar to achieving the controlled characteristic of a 1B001- or 1B101-controlled machine tool component or accessory); material handling and storage practice information; allowable contact and non-contact expendable materials and shop aids; marking and handling requirements for kits; information for the operation of equipment for the manufacture of composite parts (provided the “use” criteria is not met per ECCN 1E101) regarding optical ply boundary projectors, autoclaves, lay-up machinery, and ply kitting; lay-up techniques for composites; honeycomb core stabilization methods; ply compaction methods; laminate de-bulking methods; vacuum bagging methods and arrangements; methods to validate cure; laminate inspection methods; part acceptance criteria; part marking and tracking methods; process controls; shop management processes; and process control audits to establish reliable and repeatable processes.
When drafting a classification request pertaining to structural performance characteristics, the drafter should be careful to distinguish whether actual performance characteristics are at issue or merely characteristics desired for the cured or consolidated material to be used to fabricate parts in various lay-up stacks. The former may very well be controlled by 1E001 if it contains “required” development or production information peculiar to achieving the controlled characteristics of a 1A002.a-controlled composite structure or laminate or a 1C010.e-controlled prepreg. The latter generally will not be 1E001-controlled “required” technology because it usually will not contain such information. Examples of such information could include desired material mechanical and physical property and environmental performance requirements; and laminate requirements such as micro cracking issues, solvent sensitivity issues, and procedures.
When drafting composite-related classification requests, the drafter should be sure to identify and put into a separate part of the request all general information that is not specific to 1A002.a-controlled structures or laminates. Such information, based on the EAR provisions described in section III above, is not 1E001-controlled “required” technology. Examples of common general information drafters should be mindful of identifying include fiber selection criteria; fiber architecture choices; defect limits; ply or preform shape generation guidance; and nesting of shapes or preforms information. If a request pertains to such general information, the drafter should explain whether and, if so, why, the information is equivalent to technologies “A,” “B,” and “C” in the EAR’s definition of “required.” Although used in the production and development of carbon fiber organic matrix systems, they are not “peculiarly responsible” for achieving or exceeding any of the characteristics set out in ECCNs 1A002.a, 1C010.b, 1C010.e, or 1C210 that would cause an item to be controlled under one of these ECCNs.
This guidance document is limited to descriptions of EAR provisions in effect at the time of the publication of the guidance and suggestions for issues to consider when preparing classification requests. Exporters are again reminded that they still need to refer to the EAR to determine export control obligations pertaining to any particular export.
For additional guidance or help in preparing commodity classification requests, contact BIS’s Office of Exporter Services at 202-482-4811.
Kevin Wolf
Assistant Secretary of Commerce for Export Administration
1 See 15 C.F.R. § 734.2.
2 Consistent with the rules for applying the definitions of terms used in the EAR set out in the introduction to EAR section 772.1, BIS inserted in the EAR’s definition of “required” the parenthetical references to Categories 4, 5, 6, and 9 to confirm that the term applied to all technology ECCNs in those Categories. (“Parenthetical references following the terms in quotation marks (i.e., (Cat 5)) refer to the CCL category in which that term is found.”) BIS, therefore, did not intend with the specific category references in the definition of “required” to imply that the General Technology Note, which includes the term “required,” was not fully applicable to the technology ECCNs such as 1E001 that incorporate the General Technology Note by reference but which are not in Categories 4, 5, 6, or 9.
3 This Guidance document does not refer to related ECCNs 1C010.c, 1C010.d, and 1A002.b, i.e., ECCNs that describe controls on inorganic fibers, fibers made out of polyetherimides, or other non-fluorinated polymeric substances, or carbon-carbon composite structures. If exporters or others would like guidance pertaining such items or technology for such items then they should contact BIS.
4 The example in the EAR’s definition of “required” is the following: “For example, assume product ‘X’ is controlled if it operates at or above 400 MHz and is not controlled if it operates below 400 MHz. If production technologies ‘A’, ‘B’, and ‘C’ allow production at no more than 399 MHz, then technologies ‘A’, ‘B’, and ‘C’ are not ‘required’ to produce the controlled product ‘X’. If technologies ‘A’, ‘B’, ‘C’, ‘D’, and ‘E’ are used together, a manufacturer can produce product ‘X’ that operates at or above 400 MHz. In this example, technologies ‘D’ and ‘E’ are ‘required’ to make the controlled product and are themselves controlled under the General Technology Note. (see the General Technology Note.)” 15 C.F.R. § 772.1.
