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Export License: How to Determine Whether a Product Requires an Export License

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The Bureau of Export Administration (BXA) maintains the Commerce Control List (CCL) within The Electronic Code of Federal Regulations e-CFR (better known as Export Administration Regulations, EAR,. The CCL includes items such as software, commodities and technology, which are subject to the export licensing authority of the BXA. Once you know what you are exporting, where it is going, who will receive it and what it will be used for, you can consult these materials to determine which export license you need and find out whether any restrictions apply. Check:

1. The e-CFR, Part 732, for a step-by-step guide to general license obligations. The referenced Parts and numbering system from the EAR to the e-CFR can change and be re-classified at any given time. Be sure to check with responsible parties to ensure you are taking the appropriate steps for accurate classification.

2. The e-CFR, Parts 738 and 774, to see which country group your destination falls into. Don't let the numbers and abbreviations scare you. Once you find the e-CFR, getting to the right section isn't terribly difficult.

3. The Department of Commerce to determine what export control commodity number (ECCN) has been assigned to your type of product. If they can't help you, check Part 748 in the e-CFR to find it yourself. For items subject to the e-CFR but not listed on the CCL, the proper classification is EAR99. This number, which appears at the end of each category in the CCL, is a "melting pot" classification for items not specified under any CCL entry.

4. Once again, the ECCN listings in Part 774 of the e-CFR -- but this time you are looking for country destinations that require a Validated License (VL). See Supplement No. 1 to Part 738 of the e-CFR for comprehensive instructions on using the Country Chart, along with a detailed example. If your country of destination is not listed there, you do not need a Validated License, unless your commodity meets one of the technical exceptions noted within the ECCN (an item that may be subject to a short supply control, for example).

You can also contact your Department of Commerce (through their Office of Exporter Services) to go over these steps, as they can sometimes assist you over the phone. If not, do the research on your own, then visit one of the DOC counselors to confirm your findings.

A brief alert: Various requirements of the e-CFR depend upon your knowledge of the end use, end-user, ultimate destination, or other details of the export transaction. If you can discuss your transaction in good conscience and with complete confidence, then there should not be any cause for an agency alert.

But if you cannot explain to whom you are selling your product, why the customer is buying it in the first place or what he or she will do with it once it is purchased, you've got a problem. You should then refrain from pursuing the transaction, advise the BXA, and wait. The BXA is there to help you, not hurt you. Their role is to prevent exports and re-exports contrary to the national security and foreign policy interests of the United States.

Must You Obtain the Import License for the Destination Country Too?

No. Your customer is responsible for this. If you have secured payment with him, for example, with an Irrevocable Letter of Credit, your customer must take appropriate measures to determine whether he needs an import license. If he needs a license and neglects to apply, and you ship anyway against the L/C, you are still entitled to payment because you took care of things at your end, even though your customer will not be able to clear the product at the port of entry until he resolves the licensing problem (although I don't recommend such a rigid and inconsiderate course of action if you value your relationship with your customer!). If, on the other hand, your customer fails to get an import license and you ship on open account, you may not get paid until weeks or months later. In either case, you should find out from your customer if an import license is needed, even though it is not your responsibility to arrange it -- and be sure to secure payment whether the license is needed or not.

Other Port-of-Destination Requirements

It's important to be aware of the standards and regulations of the importing country. Ideally, your customer will be knowledgeable about possible barriers to entry, but it helps to be aware of shipping restrictions and documentation requirements yourself. For example, if you are exporting food, medical or electrical goods, your customer may not be able to import these items until she conducts an inspection first to see that the goods meet local standards. Most developed nations have organizations comparable to the U.S. Food & Drug Administration that monitor product safety. So before your customer imports so much as a bologna sandwich, they will have to check with their FDA equivalent to make sure the product can be imported. Once you've made sure that there is no reason why your product should be barred from entry, you may be ready to ship.

Shipping under a General License

Once you've checked the e-CFR and confirmed with your Department of Commerce that you do NOT need a VL, you can proceed with your shipment under a general license without having to make a formal license application. The good news is that the majority of products exported are covered by a general license! You should check to see, however, if your shipment requires an SED, which helps U.S. Customs to monitor shipment licensing.

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