Does Your Product Require An Export License?
There are some basic steps you will want to take once you make the commitment to sell your product internationally. You have the responsibility to seriously examine your products and your customers to assure that you comply the Export Administration Regulations (EAR).
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An export is any item sent from the U.S. to a foreign destination, organization or individual. Here are some examples of when an item is being exported:

  • An item 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,
  • A foreign origin item exported from the U.S., which is transmitted or transshipped through the U.S.,
  • An item 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.

It doesn’t matter how it was sent; it could be sent by:

  • Regular mail,
  • Hand-carried on an airplane,
  • A set of schematics can be sent via fax to a foreign destination,
  • Software can be downloaded from an Internet site, or
  • Technology transmitted via e-mail or during a telephone conversation.

There are some basic steps you will want to take once you make the commitment to sell your product internationally. You have the responsibility to seriously examine your products and your customers to assure that you comply the Export Administration Regulations (EAR).

The Bureau of Industry and Security (BIS), part of the U.S. Department of Commerce, enforces the EAR. The BIS and other government agencies require the submission of an export license application on a relatively small percentage of total U.S. exports and reexports.

License requirements are dependent upon four criteria:

  1. An item's technical characteristics,
  2. Destination,
  3. End use, and
  4. End user.

BIS has created a chart called “Processing Your Export.” It asks you a series of questions that trigger a yes, no or don’t know. If your answer is Yes, let the chart guide you to the next step. If you respond to a question with No or Don’t Know, you may have to stop and answer special questions or get some more information.

BIS is responsible for implementing and enforcing the EAR, which regulate the export and reexport of dual use items (see “BIS Dual-Use Licensing”). Dual Use items have a civilian application, but can also be used for military or strategic uses such as weapons of mass destruction.

BIS does not control all goods, services and technologies. The U.S. Department of State controls exports of weapons and military related items, such as Apache helicopters and parts. You can find a list of other agencies involved in export control is at the BIS website.

When determining whether a license is required for your export, consider:

  • What are you exporting and what can be extracted from the product?
  • Where is your export going?
  • Who will receive your export?
  • How will your export be used?

The remainder of this article will focus on understanding the answer to question 1.

What are you exporting?

A key in determining whether an export license is needed from BIS is knowing whether the item you are intending to export is on the Commerce Control List (CCL). The first step in making this determination is to "classify" your item. Is the item listed on the CCL? The proper classification of your item is essential in determining any licensing requirements under the EAR.

You can classify the item on your own, which is generally recommended. Once you have classified the item, you can ask BIS for assistance by sending a request for a commodity classification through BIS's automated Simplified Network Application Process - SNAP. SNAP is free and it speeds up the classification request.

Alternatively, you may use BIS form BXA-748P, "Multipurpose Application Form," to request a classification by mail with return receipt or by courier. You must complete this form with a typewriter. You may request forms by fax at 202-219-9179 or by calling BIS’s Exporter Counseling Division at 202-482-4811 or the Western Regional Office at 949-660-0144. You can also find the form on the BIS website.

The Export Control Classification Number

The key to classifying your item is the Export Control Classification Number (ECCN).

ECCNs are listed in the Commerce Control List (CCL), which is Supplement No. 1 to Part 774 of the EAR. You can view and print the list from the Government Printing Office website. You can also view and download the Alphabetic Index to the Commerce Control List.

In order to determine the ECCN for your item, you must decide in which of the ten broad categories your item is included. The first digit of the ECCN and the associated categories are:

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 – Propulsion Systems, Space Vehicles, and Related Equipment

Once you’ve identified the appropriate category, you will find the specific ECCN (if there is one that applies) by digging deeper into the category.

The ECCN is an alphanumeric code, e.g., 4A003, that describes a particular item or type of item, and shows the export controls placed on that item.

If your item falls under U.S. Department of Commerce jurisdiction and is not listed on the CCL, it will be classified as EAR99. Thus, it will not require a license to deliver the item to most destinations. The designation NLR, which stands for no license required, may be used for these exports on the Shipper’s Export Declaration or in the electronic version called the Automated Export System.

Don’t stop when you’ve determined that the goods are not on the Commerce Control List. If your item does not appear anywhere on the CCL, you need to check to see if it could be controlled for export by one of the other federal agencies (see above). If you are exporting an EAR99 item to an embargoed country, to a prohibited end user, or in support of a prohibited end-use, you may still be required to obtain a license.

In the second part in this series of articles, I will address the second questions I posed in this article, “Where is your export going?” I will show you an excerpt from the CCL and review an order for a shipment to Honduras.
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