Obviously, not everyone who exports needs an export license. But some exports do, and knowing the difference is an important part of export compliance.
Before you can decide if your product requires an export license, you need to understand what constitutes an export. According to U.S. export regulations, an export is any item sent from the United States to a foreign destination, organization or individual.
Here are some examples of when an item is being exported:
- It is sent to a foreign embassy in the U.S.
- It is leaving the U.S. temporarily.
- It is leaving the United State but is not for sale.
- It is going to a wholly-owned U.S. subsidiary in a foreign country.
- It is a foreign origin item exported from the U.S., which is transmitted or transshipped through the U.S.
- It is being returned from the U.S. to its foreign country of origin.
- Release of technology or source code subject to the EAR to a foreign national in the U.S. is “deemed” to be an export to the home country of the foreign national under the EAR. (For more information about deemed exports, see Surprise! You May Be an Exporter without Even Knowing It.)
It doesn’t matter how the items are being sent. These are all exports:
- A package sent through the regular mail.
- An item is hand carried on an airplane.
- A set of schematics are faxed to a foreign destination.
- Software is downloaded from an Internet site.
- Technology is transmitted via e-mail or during a telephone conversation.
Most goods exported from the United States don’t require an export license; they’re permitted to be exported under the designation NLR—no license required. However, there are some select classes of merchandise that do require an export license.
Export License Determination
Never assume your product doesn’t need an export license. An export license requirement isn’t just about the product’s technical characteristics; it’s also about the destination, end use and end user.
Export Jurisdiction
The first step is always determining what U.S. agency has jurisdiction over your products. While most items that are exported are controlled by the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) under the Export Administration Regulations (EAR), they are not the only one. If your item has a military application, it may fall under the jurisdiction of the State Department’s Directorate of Defense Trade Controls (DDTC), which manages the International Traffic in Arms Regulations (ITAR).
See A Summary of Government Agencies That Regulate U.S. Exports for a more complete list. And learn more about this process in our chapter five of our free resource, Export Procedures and Documentation: An In-Depth Guide. (If you have trouble with determining jurisdiction, you can ask for a ruling from the Commerce Department.)
Export Control Classification Number
Once you know the jurisdiction, you need to review your item to determine if there are any technical characteristics that would require your goods to have a license. For products controlled by BIS, you need to review the Commerce Control List (CCL) to see if your item has an Export Control Classification Number (ECCN). If it does, compare that number to the Commerce Country Chart (Supplement No. 1 to Part 738) to see if a license is required.
You can do this classification yourself, rely on the product vendor to give you this information, or submit a SNAP-R request to BIS for a ruling. You can learn more about these options in our article, Export Codes: ECCN vs. HS, HTS and Schedule B.
You can also use Shipping Solutions Product Classification and Export Controls Software to find the ECCN for your product and determine if a license is required. Try it for free here.
Other Considerations
Even if your good doesn’t have an ECCN classification or the Commerce Country Chart indicates you don’t need a license for your product based on where you are exporting it, there are additional factors that may determine whether you need to apply for a license before you can export.
1. End Use
Find out how customers are going to use the product.
Your goal in understanding end use is to make sure the customer won’t use your good for purposes deemed illegal. An example of a prohibited end use would be if the items that were shipped were ultimately used to further the proliferation of chemical, biological or nuclear weapons.
2. End User
Several U.S. departments and other government agencies publish restricted party lists (also known as denied parties) with whom you shouldn’t do business. Restricted parties are individuals, businesses and other organizations that have been identified as engaging in activities related to the proliferation of weapons of mass destruction, known to be involved in terrorism or drug trafficking, or having had their export privileges suspended.
There are also certain countries you can’t export to except under very specific circumstances. These countries include Cuba, Iran, North Korea, Sudan and Syria. Part 746 of the Export Administration Regulations (EAR) describes embargoed destinations and refers to certain additional controls imposed by the Office of Foreign Assets Control (OFAC) of the Treasury Department.
You can find out more about embargoed countries and export regulations in our article, The Three R’s of Export Compliance: FTR, EAR and ITAR.
The Importance of Restricted Party Screening
Exporters should check all the parties in every export transaction against the various restricted party lists to prevent penalties. The restricted parties lists are all updated at random times on their individual websites, and the only place to guarantee you’re identifying every restricted party on the more than 140 lists is on the Federal Register. You—or your export compliance software provider—should check the Federal Register every single day.
Want to make it easier?
Shipping Solutions Professional export documentation and compliance software includes an Export Compliance Module that makes running restricted party screening checks as easy as clicking a button. With Shipping Solutions:
- You can quickly check multiple lists at once.
- You can make sure your screening against the very latest list of names and addresses. Shipping Solutions continuously monitors the Federal Register and updates the lists every day as necessary. And Shipping Solutions has foreign country staff monitor and update foreign country and international organization lists as well.
- You can check all the required government lists with the click of a button, so you have (at least!) 140 fewer things to worry about.
- You get a more comprehensive review of each list and an indication of the likelihood of a potential match. The Export Compliance Module relies on sophisticated algorithms that identify the close matches in your screening process, including misspellings, alternate spellings, and different formats for addresses and company names.
- You know if there’s a 100% match on a name or address. More importantly, it tells you if a contact is a 95% match, a 72% match, or some other potential match. With that information, you can make more informed decisions about your potential international business partners.
In addition, the Export Compliance Module makes checking the Commerce Country Chart easier. The click of a button in Shipping Solutions compares the ECCN or U.S. Munitions List classification for your goods in a specific shipment and the destination country against the appropriate country charts and tells you if an export license is required.
Schedule a free, private online demo of the Shipping Solutions Professional software to see how easy export compliance can be.
Now that you have a basic understanding about how to determine if you need an export license, check the following frequently asked questions, answered by the Bureau of Industry and Security (BIS), to learn more.
The Consequences of Failure
If you or your company fails to obtain a required export license, you put yourself at risk for significant fines, restrictions on future exports, and—in the most egregious cases—jail time. You can read about real-life investigations and consequences in the BIS publication, Don’t Let This Happen to You.
Need Help?
If you still have questions, the BIS website is a great place to start. In addition to articles, you can access webinars and register for seminars in your area.
The International Trade Blog has an archive of more than 600 articles related to international trade. More than 100 of these articles talk specifically about export compliance and regulations.
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This article was first published in October 2016 and has been updated to include current information, links and formatting, along with information from a previous article by Catherine J. Petersen.