Nationwide Assistance with United States Export Laws and Regulations
Export FAQs
Does My Shipment Require an Export License?
Maybe. A U.S. export license requirement from the Department of Commerce can be triggered by several important factors specific to your transaction.
What types of items does the Department of Commerce regulate?
The Bureau of Industry and Security (BIS) implements and enforces the Export Administration Regulations (EAR). The EAR regulates the export and reexport of most commercial items.
Does the Department of Commerce regulate all exports?
The Department of Commerce does not regulate all goods, services, and technologies. Other U.S. Government agencies have export control responsibilities for regulating more specialized exports. For example, if you are shipping military goods, your item may be subject to the licensing jurisdiction of the Directorate of Defense Trade Controls at the Department of State.
Is there a list of resttricted countries to which I can't export?
Restrictions vary from country to country and from item to item. The most restricted destinations are the embargoed and sanctioned countries.
So how do I know if my shipment needs an export license?
The first step is knowing your item’s Export Control Classification Number (ECCN). ECCN entries are found on the Commerce Control List (CCL) and identify reasons for control which indicate licensing requirements to certain destinations.
Do all items have an ECCN?
Many Commercial goods are not on the Commerce Control List and do not have an ECCN. These goods are designated
as EAR99.
What is the difference between EAR99 and NLR?
EAR99 is a classification for an item. It indicates that a particular item is subject to the Export Administration Regulations (EAR), but not specifically described by an Export Control Classification Number (ECCN) on the Commerce Control List (CCL). While the classification describes the item, the authorization for shipment of that item may change, depending on the circumstances of the transaction.
If I determine my item is classified EAR99 and I can ship under NLR, what do I need to do?
You indicate "NLR" as your authorization for export on the Shipper's Export Declaration or Automated Export System record.
What is an export license exception?
A license exception is an authorization that allows you to export or reexport, under stated conditions, items subject to the Export Administration Regulations (EAR) that would otherwise require a license based on the ECCN and destination.
What do you mean by prohibited end-user or end-use?
If you know or have reason to know your item would support a proliferation activity, such as nuclear, chemical/biological, or missile proliferation activities in a country of concern, a license would be required.
Does it matter if what I'm sending is under $2500 dollars?
No. The value of the shipment does not affect the export license requirements.
Can I just have my freight forwarder fill out the license related information on the Shippers Export Declaration or AES record?
Your freight forwarder is generally not in a position to determine your requirements because a technical assessment of your item is required to determine its ECCN and any associated license requirements. You are ultimately responsible for the proper export authorization.
What if my customer asks me to send the item to their freight forwarder here in the U.S.? Do I still have obligations?
Yes. Just because your customer is directing the U.S. forwarder to ship the items does not relieve you of obligations in the export transaction. The responsibility for determining the proper export authorization and obtaining an export license, if necessary, would be your obligation.
My company has been exporting for years and I've never heard of an ECCN or license requirement. Is this requirement new?
No, this requirement is not new. If you find there have been exports without proper authorization, you should notify Xport Consult ants and your company’s management and consider filing a voluntary disclosure to BIS.
I know the Schedule B number for my item, will that help in determining the ECCN?
No. The ECCN and Schedule B number do not correlate, although you will need to know both when you make a shipment.
I've been told that I can get an official ECCN determination over the phone from the Department of Commerce. Is this true?
No. The ECCN is based on the technical characteristics of the item and requires a detailed analysis of the item in order for it to be classified.
I've found an official classification done by the Department of Commerce back in 1996. Can I still use this?
The Commerce Control List and ECCNs change often - sometimes items are added to the CCL and other times item specifications are changed or removed. In addition, your item may have different technical characteristics than what was classified previously. It’s important to stay up-to-date with changes to the Commerce Control List which may affect your item’s classification.
What happens if I don't get the proper export authorization?
Responsibility for export compliance rests with the exporter. Administrative and criminal penalties exist for violations of U.S. export law. The maximum financial penalty per administrative violation is $50,000.
If I do have to apply for an export license, can I do it online?
Yes. The fastest way to get an export license is to use the Internet-based electronic licensing system, SNAP-R or D-Trade.
Is my item controlled on the U.S. Munitions List (Department of State) or the Commerce Control List (Department of Commerce)?
The Directorate of Defense Trade Controls (DDTC) cannot provide a definitive answer without undertaking a Commodity Jurisdiction (CJ) review of your item and making an official CJ determination.
Who can submit a CJ reuest?
We prefer that the manufacturer submit the request because of the background and sales information required. However, a designated representative or consultant may submit a CJ request on the manufacturer's behalf.
Why does DDTC require full addresses for all parties to the transaction?
All parties listed on a license application are checked against DDTC's internal databases. In order to accurately review and verify the bona fides of the transaction the full address of the party is required. If this information is not available the applicant must explain the situation in a letter of explanation.
Do I have to mail copies of my DSP application that I electronically submit on DTrade?
No, DTrade is completely paperless. Paper applications are not allowed.
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Glossary of Export Terms
Commodity Jurisdiction: Determines whether an item or service is covered by the U.S. Munitions List (USML) and therefore subject to export controls administered by the U.S. Department of State pursuant to the International Traffic in Arms Regulations (ITAR) or export controls administered by the Bureau of Industry and Security pursuant to the Export Administration Regulations (EAR).
Deemed Export: A release of technology or source code to a foreign national / foreign person in the United States. A “deemed export” is considered an export when it is released to a foreign national / foreign person within the United States.
Defense Article: Any item or technical data designated on the United States Munitions List (USML) per ITAR part 121.1. This term includes technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in ITAR Part 121.1
Defense Service: Means as follows:
- The furnishing of assistance (including training) to foreign persons, whether in the U.S. or aboard in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of “defense articles”.
- The furnishing to foreign persons of any technical data controlled under ITAR part 120.10, whether in the U.S. or abroad, or
- Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the U.S. or abroad or by correspondence, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise or military advice.
Dual-use: Items controlled by the EAR and are defined as”items that have both commercial and military or proliferation applications”.
ECCN: The Export Control Classification Number (“ECCN”) is the number assigned to each specific category of items or technology that are listed specifically on the Commerce Control List (CCL) maintained by the U.S. Department of Commerce, Bureau of Industry and Security. Commodities, software and technology that do not fit into a specific ECCN are classified as “EAR99” and, while they may be exported to most destinations, may still be controlled for export to certain sanctioned entities or prohibited destinations and may require an export license.
End User: Person abroad that receives and ultimately uses the exported or re-exported item. This definition does not include a forwarding agent or intermediary but may be the purchaser or ultimate consignee.
Export:
Department of Commerce: The term “export” means (for the purposes of the Export Administration Regulations (EAR)):
- An actual shipment, transfer, or transmission of goods or technology out of the United States;
- A transfer of goods or technology in the United States to an embassy or affiliate of a controlled country, or
- A transfer to any person of goods or technology either within the United States or outside of the United States with the knowledge or intent that the goods or technology will be shipped, transferred, or transmitted to an unauthorized recipient.
Department of State: The term “export” means (for the purposes of the International Traffic in Arms Regulations (ITAR)):
- Sending or taking a defense article out of the United States in any manner, except by mere travel outside the United States by a person whose personal knowledge includes technical data; or
- Transferring registration, control, or ownership to a foreign national/foreign person of any aircraft, vessel, or satellite covered by the U.S. Munitions List (USML), whether in the U.S. or abroad; or
- Disclosing (including oral or visual disclosure) or transferring in the United States any defense article to an embassy, any agency or subdivision or a foreign government (e.g., diplomatic missions); or
- Disclosing (including oral or visual disclosure) or transferring technical data to a foreign national/foreign person, whether in the U.S. or abroad; or
- Performing a defense service on behalf of, or for the benefit of, a foreign national/foreign person, whether in the U.S. or abroad.
Exporter:
Department of Commerce: The term “exporter” means (for the purposes of the Export Administration Regulations (EAR)):
The person in the U.S. who has teh authority of a principal party in interest to determine and control the sending of items out of the U.S.
Department of State: The term “exporter” means (for the purposes of the International Traffic in Arms Regulations (ITAR)):
Any person who engages in the U.S. in the business of either manufacturing or exporting defense articles (including commodities, technology, and software) or furnishing defense services. This definition includes offshore manufacturing facilities of U.S. companies and foreign suppliers of components of defense articles or services.
Foreign National / Foreign Person: Persons who are not U.S. citizens, aliens who are “Lawful Permanent Residents” (Green Card), (8 USC § 1101(a) (20)) or other “Protected Individuals” under the Immigration and Naturalization Act (8 USC §1324b (a) (3)) designated a refugee or a temporary resident under amnesty provisions. A foreign national / foreign person also means any foreign corporation, business association, partnership or any other entity or group that is not incorporated to do business in the U.S. Under ITAR, the term “foreign person” is used, but has the same definition as “foreign national / foreign person” herein.
Item: Hardware, software, or technology. For military usage, the term includes “services” related to these items.
License: Refers to a document bearing the word “license”, issued by the Directorate of Defense Trade Controls or the Bureau of Industry and Security, which permits an export or temporary import of export controlled items.
Re-export: A shipment of a U.S. origin item from one foreign country to another, a shipment of a foreign produced item containing U.S. origin parts, from one foreign country to another or a shipment from one foreign country to another of an item manufactured abroad based on U.S. origin technology.
Release: Technology or software is “released” for export through:
- Visual inspection by foreign national / foreign person of U.S. origin equipment, items and/or facilities; or
- Oral exchanges of information in the United States or abroad; or
- The application to situations abroad of personal knowledge or technical experience acquired in the United States.
Return Without Action (RWA): RWA’s typically occur when a license submission is deemed by the licensing officer to be incomplete, inconsistent, or otherwise substandard.
Technology: Specific information necessary for the “development”, “production”, or “use” of an item. An “item” also takes the form of “technical data” or “technical assistance”.
Technical Assistance: Takes forms such as instruction, skills training, working knowledge, and consulting services. Technical assistance may involve the transfer of “technical data”.
Technology Control Plan: A Technology Control Plan (TCP) defines the requirements for protecting export controlled information, technology and products for a company or organization.
Technical Data:
Department of Commerce: Technical data means for the purposes of the EAR, information of any kind that can be used, or adapted for use, in the design, production, manufacture, utilization, or reconstruction of articles or materials. The data may take a tangible form, such as a model, prototype (models and prototypes are controlled both as technical data and as commodities), blueprint, or an operating manual (the tangible form may be stored on recording media); or they may take an intangible form such as technical service. All software is considered technical data.
Department of State: Technical data means for the purpose of the ITAR:
- Classified information relating to defense articles and defense services;
- Information covered by an invention secrecy order;
- Information which is directly relating to the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification, or reconstruction of “defense articles”. This includes for example information in the form of blueprints, drawings, plans, photographs, instructions, computer software and documentation. This also includes information that advances the state of the art of articles on the USML. This does not include information concerning general scientific, mathematical or engineering principles as defined in ITAR Part 120.10.
Temporary Import: Bringing into the U.S. from a foreign country any defense article that is to be returned to the country from which it was shipped or taken, or any defense article that is in transit to another foreign destination. Temporary import includes withdrawal of a defense article from a customs bonded warehouse or foreign trade zone for the purpose of returning it to the country of origin or country from which it was shipped or for shipment to another foreign destination.
Use: Operation, installation (including “on site” installation), maintenance (including “checking”), repair, overhaul and refurbishing.
Voluntary Disclosure: The act of willfully communicating information to a regulating agency for the purpose of discovery regarding unauthorized exports.
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Links to Other Helpful Export Resources
These links are provided as an outside resource for our visitors. The listing of these links on our website does not constitute endorsement by Xport Consultants; we do not have any control over the information, products or services contained within the external websites.
Government Entities
Reference Sites and Materials
Trade Assistance Organizations
