BIS Issues Advisory Opinion on Application of Licensing Requirement to ECCN 2B350 Chemical Equipment

The Bureau of Industry and Security has issued an advisory opinion regarding whether a licensing requirement applies to Export Control Classification Number (ECCN) 2B350, which controls certain chemical manufacturing facilities and equipment.

According to BIS, the requestor indicates that the licensing requirement note excludes from control under 2B350 equipment that is both (1) specially designed for use in civil applications (e.g., food processing, pulp and paper processing, or water purification) and (2) inappropriate, by nature of its design, for use in storing, processing, producing or conducting and controlling the flow of the chemical weapons precursors controlled by ECCN 1C350 (which controls certain precursor chemicals).

2B350 Equipment Use for Some Chemicals Does Not Automatically Apply to All

BIS asserts that just because a piece of equipment is inappropriate by nature of its design for some of the chemicals listed in 1C350 does not mean that it is automatically inappropriate for all of them.

BIS notes that while the Export Administration Regulations do not provide a specific definition of "inappropriate by nature of its design," the following guidance is provided as to when a particular piece of equipment, otherwise meeting the criteria for control under 2B350, may be inappropriate, by nature of its design, for use in storing, processing, producing or conducting and controlling the flow of the chemical weapons precursors controlled by ECCN 1C350:

(1) The manufacturer of the equipment has stated in writing to BIS that the item is not designed for and is inappropriate for use in storing, processing, producing or conducting and controlling the flow of any of the chemical weapons precursors controlled by ECCN lC350;

(2) The manufacturer of the equipment has stated in writing to BIS that, to their knowledge, the equipment has never been used in storing, processing, producing or conducting and controlling the flow of any of the chemical weapons precursors controlled by ECCN 1C350 and is not used in corrosive service or with hazardous materials;

(3) BIS is not aware of any evidence indicating current or past use of the equipment in storing, processing, producing or conducting and controlling the flow of any of the chemical weapons precursors controlled by ECCN lC350 or use in corrosive service or with hazardous materials;

(4) The equipment is not central to the manufacture of chemical weapons and is used in civilian applications in a peripheral or supporting role.

License Requirement May Apply for Some Chemicals

BIS notes that the use of the word ''any" in the first three criteria indicates that while leak detection, leak containment, or leak avoidance capabilities may be of relevance for some of the chemicals in ECCN 1C350, other 1C350 chemicals are relatively non-toxic and are used in consumer products. (Therefore, the license requirement may apply to ECCN 2B350 equipment when used for certain chemicals.)

(See ITT's Online Archives or news, 08100830 for BP summary of BIS' October 2008 revision of the Commerce Control List, which included revisions to the "items controlled" under ECCNs 1C350 and 2B350.)

BIS advisory opinion (dated 11/10/08) available at http://www.bis.doc.gov/policiesandregulations/advisoryopinions/webcims_20430_outgoing_letter.pdf