Understanding the Critical Differences: "EAR99", "ECCN None," and "Not Subject to the EAR"

First published on March 10, 2025.

EAR99. ECCN None. Not subject to EAR.

In the complex world of export compliance, seemingly similar classification terms can have significantly different implications. Three key designations that often cause confusion are EAR99, "ECCN None," and "Not Subject to the EAR." While they might appear interchangeable to the uninitiated, understanding their distinct meanings is crucial for proper export compliance. Let me clarify these important differences.

What is EAR99?

EAR99 is a positive classification category under the Export Administration Regulations (EAR) administered by the U.S. Bureau of Industry and Security (BIS). It serves as a "catch-all" designation for items that:

1. Are subject to the EAR

2. Are not listed on the Commerce Control List (CCL)

3. Have been properly evaluated and classified

EAR99 items generally consist of low-technology consumer goods that do not require a license for many destinations, except to embargoed countries, to denied parties, or for prohibited end-uses.

What is "ECCN None"?

An Export Control Classification Number (ECCN) is a five-character alphanumeric designation used in the Commerce Control List (CCL) to identify dual-use items (items with both commercial and military or proliferation applications) that are subject to U.S. export controls. If a product is not classified as EAR99, it must be assigned a specific ECCN.

ECCNs follow a structured format:

• First digit: Category (0-9) 0: Nuclear Materials, Facilities and Equipment 1: Materials, Chemicals, Microorganisms, and Toxins 2: Materials Processing 3: Electronics 4: Computers 5: Telecommunications and Information Security 6: Sensors and Lasers 7: Navigation and Avionics 8: Marine 9: Aerospace and Propulsion

• Second character: Product Group (A-E) A: Systems, Equipment and Components B: Test, Inspection and Production Equipment C: Materials D: Software E: Technology

• Last three digits: Specific controls within each category and group

For example, an ECCN of 3A001 indicates Electronics (3), Systems, Equipment and Components (A), and the specific control number 001.

"ECCN None" is not an official classification category but rather indicates that:

1. No Export Control Classification Number has been assigned or determined

2. The classification process is incomplete or has not been performed

3. The item's status under the EAR is uncertain or undetermined

"ECCN None" essentially means "not yet classified" or "classification pending" and represents a placeholder rather than a definitive export classification.

What About Items Not Subject to the EAR?

Not all items fall under the jurisdiction of the Export Administration Regulations. When an item is determined to be "Not Subject to the EAR," this is fundamentally different from both EAR99 and "ECCN None" classifications. This determination means:

1. The item falls outside BIS jurisdiction completely

2. EAR regulations do not apply to the item

3. No ECCN or EAR99 classification is applicable

Items might be "Not Subject to the EAR" for several reasons:

• Exclusively controlled by another agency: Items exclusively controlled by other U.S. government agencies such as:

• Public domain information: Information and software that are published and generally accessible to the public

• Foreign-made items with minimal U.S. content: Items made outside the United States that contain less than the de minimis level of U.S.-controlled content

• Items with no U.S. connection: Foreign-made items that are not the direct product of U.S. technology or software

It is important to properly document when an item is "Not Subject to the EAR" and the rationale for this determination. This classification should never be used as a default when proper analysis has not been conducted.

Key Differences

The Danger of Confusion

Treating "ECCN None" as equivalent to EAR99 can lead to serious compliance violations. When an exporter indicates "ECCN None," they are essentially stating they have not completed the necessary classification work. This can result in:

• Improper license determinations

• Potential unlicensed exports of controlled items

• Export compliance violations

• Significant penalties and fines

• Reputational damage

Determining the Correct Classification

When a product is not EAR99, determining the proper ECCN requires careful analysis:

1. Evaluate product specifications: Review technical parameters, functions, and capabilities

2. Match to CCL entries: Compare the product characteristics to specific entries in the CCL

3. Consider the "catch and release" process: Check if the item is caught by a specific ECCN description but released by exceptions or notes

4. Apply the "specially designed" analysis: Determine if the item meets the criteria for being "specially designed" for particular applications

5. Consider the most specific applicable ECCN: When multiple ECCNs might apply, use the most specific one.

Remember that "ECCN None" is never an acceptable final classification. Every item subject to the EAR must either have a specific ECCN from the CCL or be properly classified as EAR99.

Best Practices

To ensure proper compliance:

1. Always complete classification: Never leave an item as "ECCN None" for export purposes

2. Document your process: Keep records of how you determined an item is EAR99 or assigned a specific ECCN

3. Regularly review classifications: Technologies and regulations change, requiring updates

4. When in doubt, seek guidance: Consult with export compliance experts or request a classification ruling from BIS

5. Implement proper training: Ensure staff understands the classification process and the distinction between these terms

6. Maintain a classification database: Track all product classifications in a centralized system

The Complete Classification Framework

To properly classify items for export control purposes, organizations should follow this hierarchical process:

1. Jurisdiction determination: Is the item subject to the EAR or controlled by another agency?

2. CCL analysis: Does the item match any ECCN description?

3. License determination: Based on the classification (ECCN or EAR99), destination country, end-user, and end-use, determine if a license is required

This structured approach ensures compliance and proper handling of all items according to their regulatory requirements.

Conclusion

Understanding the differences between EAR99, "ECCN None," and "Not Subject to the EAR" is crucial for export compliance. Each designation has distinct meanings and compliance implications:

• EAR99: A positive classification for items subject to the EAR but not on the CCL

• "ECCN None": An incomplete classification state that requires resolution

• Not Subject to the EAR: A determination that the item falls outside EAR jurisdiction entirely

Export compliance requires precision and attention to detail. Understanding these distinctions is fundamental to building a robust compliance program and avoiding costly mistakes.

Patrick Goergen, Founder & CEO, RespectUs

The Export Control Expert & Explainer, 10 March 2025