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No Simple Sale: Check Export Regulations Before Shipping Abroad

In light of our proximity to so many defense contractors and the federal government, we thought it would be helpful to review some guidelines for exportation of defense-related and hi-tech goods. 

An export is an item sent from the United States to a foreign destination. Most exports from the U.S. do not require any special licenses and may be shipped under the designation “NLR” or “No License Required.” Determination of whether commercial export items require special licenses is governed by Export Administration Regulations (“EAR”).

To export products from the U.S., exporters should be knowledgeable about potential licensing and regulatory requirements they may have to follow. For reasons of national security, foreign policy or short supply, the U.S. controls the export and re-export of goods and technical data through the granting of two types of export license: general licenses and individually validated licenses (IVLs), though there are also special licenses that are used if certain criteria are met, for example, distribution, project and service supply. Except for U.S. territories and possessions and, in most cases, Canada, all items exported from the U.S. require an export license.

The government automatically grants general licenses to exporters for certain products, and therefore such licensees need not apply for such licenses because they are authorized by the EAR.

An IVL is required for specific products headed to a specific destination. The relevant products are usually those of a hi-tech nature, in short supply, or strategic weapons. IVLs are also needed to export goods to destinations where the U.S. has placed an embargo or has other foreign policy concerns. An IVL is a specific grant of authority from the government to a particular exporter to export a specific product to a specific destination if a general license is not available. The IVLs are granted on a case-by-case basis for either a single transaction or for many within a specified period of time. An exporter must apply to the Department of Commerce for an IVL. One exception is munitions, which require a Department of State application and license. Other exceptions are listed in the EAR.

In order to determine if a general license already applies to a product for export, you should take the following steps:

  1. Check the EAR export category listings to determine if the product you are exporting is subject to the EAR.
  2. If so, determine the export control commodity number (“ECCN”). They can be found in the Commerce Control List (“CCL”) of the EAR.
  3. Determine whether the ECCN fall sunder the ambit of general prohibitions. If so, a license is required.
  4. If the ECCN does not fall under general prohibitions, check the country chart in the EAR to see if the country of destination is marked. If it is, refer to the License Exception section of the EAR to see if the item to be exported is excepted for that country and, therefore, not subject to licensing.  
  5. Determine who will receive the export and ensure they are not listed in the Denied Persons List in the EAR.
  6. Determine what the end use of the export will be to ensure that such use does not violate end use restrictions set forth in the EAR. If an item is governed under the exclusive jurisdiction of a federal department or agency, the respective regulations of that agency or department will apply and supersede the authority of EAR.

For more information please contact Gary Almeter at 410-583-2400 or almeter@bowie-jensen.com.

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