The United States imposes export controls to protect national security interests and promote foreign policy objectives related to dual-use items and less-sensitive military items through the Export Administration Regulations (EAR) (15 CFR Parts 730 – 774). The Bureau of Industry and Security (BIS) is responsible for regulating, implementing, and enforcing export controls for such dual-use items and less sensitive military items. Within BIS, Export Administration (EA) is responsible for processing license applications, counseling exporters, and drafting and publishing changes to the EAR; and Export Enforcement (EE) is responsible for compliance monitoring and enforcement of the EAR. BIS works closely with U.S. embassies, foreign governments, industry, and trade associations to ensure that the export, reexport and transfer (in-country) of items subject to the EAR is accomplished in compliance with the regulations.
Enforcement
BIS officials conduct site visits, known as End-Use Checks (EUCs), globally with end-users, consignees, and/or other parties related to transactions involving items subject to the EAR and shipped under a license or another form of BIS authorization to verify compliance with the EAR and the conditions of the license or authorization. An EUC is an on-site verification of a non-U.S. party to a transaction to determine whether the party is a reliable recipient of items subject to the EAR. EUCs are conducted as part of BIS’s licensing process, as well as its compliance program, to determine if items were exported in accordance with a valid BIS authorization or otherwise consistent with the EAR. Specifically, an EUC verifies the bona fides of transactions subject to the EAR, including confirming the legitimacy and reliability of the end use and end user; monitoring compliance with license conditions; and ensuring items are exported, reexported or transferred (in-country) in accordance with the EAR. These checks might be completed prior to the export of items pursuant to a BIS export license in the form of a Pre-License Check (PLC) or following an export during a Post-Shipment Verification (PSV), regardless of whether a BIS license is required.
BIS officials rely on EUCs to safeguard items subject to the EAR from diversion to unauthorized end uses/users and destinations. The verification of a foreign party’s reliability facilitates future trade, including during BIS license reviews. If BIS is unable to verify the reliability of the company or is prevented from accomplishing an EUC, the company may receive, for example, more regulatory scrutiny during license application reviews or be designated on BIS’s Unverified List or Entity List, as applicable.
Guidance and Training
BIS has developed a list of “red flags”, or warning signs, and compiled “Know Your Customer” guidance intended to aid exporters in identifying possible violations of the EAR. Both resources are publicly available, and their dissemination to industry members is highly encouraged to help promote EAR compliance.
BIS also provides a variety of training sessions for exporters throughout the year. These sessions range from one to two-day seminars that focus on the basics of exporting to coverage of more advanced, industry specific topics. Interested parties can check a list of upcoming seminars and webinars or reference BIS’s online training site. BIS’s Export Control Officers (ECOs) located at U.S. embassies and consulates in seven overseas locations also conduct outreach to raise awareness of reexport and transfer (in-country) requirements with foreign business communities.
Commerce Control List
The EAR regulates transactions involving the export, reexport, or transfer (in-country) of “dual-use” and less sensitive military items (commodities, software, and technology) as well as certain U.S. person activities. Items subject to BIS’s jurisdiction include items found on the Commerce Control List (supplement no. 1 to part 774 of the EAR) (CCL); items on the CCL are listed under individual entry by Export Control Classification Number (ECCN). The EAR also regulates items designated as ‘EAR99’ (a broad basket category of items generally consisting of low-technology consumer goods not listed under an ECCN on the CCL but subject to BIS’s jurisdiction). For advice and regulatory requirements on items under the export control jurisdiction of other U.S. Government agencies, exporters should consult other U.S. Government agencies. For example, the U.S. Department of State’s Directorate of Defense Trade Controls has authority over the defense articles and defense services that are not subject to the EAR. A list of other agencies involved in export controls can be found on the BIS website and in Supplement No. 3 to Part 730 of the EAR.
The EAR is available on the BIS website and on the e-CFR (Electronic Code of Federal Regulations) and is updated as needed.
Consolidated Screening List
The Consolidated Screening List (CSL), available on the International Trade Administration’s Trade.gov website, is a list of parties for which the United States Government maintains restrictions or prohibitions on certain exports, reexports or transfers of items. The CSL consolidates eleven export screening lists implemented by the Departments of Commerce, State, and the Treasury into a single data feed as an aid to industry in conducting electronic screening of parties to regulated transactions. Exporters should determine the export requirements specific to their proposed transaction by classifying their items prior to export and reviewing the EAR’s requirements specific to the item(s) and the proposed end use and end user, as well as consulting the CSL to determine if any parties to the transaction may be subject to specific license requirements.
Assistance is available from BIS by calling one of the following numbers:
- 202) 482-4811 – Outreach and Educational Services Division (located in Washington, DC – open Monday-Friday, 8:30 am-5:00 pm ET);
- (949) 660-0144 – Western Regional Office (located in Irvine, CA – open Monday-Friday, 8:00 am-5:00 pm PT); or
- (408) 998-8806 – Northern California branch (located in San Jose, CA – open Monday-Friday, 8:00am-5:00 pm PT).
You may also e-mail your inquiry to the Export Counseling Division of the Office of Exporter Services at ECDOEXS@bis.doc.gov.
Contact information for BIS’s overseas ECOs can be found at: https://www.bis.doc.gov/index.php/enforcement/oea/eco
When exporting products to other countries, there are a few things that exporters must keep in mind. To determine whether an exporter needs to obtain an export license to ship their product, the exporter should look for an Export Control Classification Number (ECCN). An exporter may check the manufacturer’s website to find the ECCN or do a self-classification on the Bureau of Industry and Security’s (BIS) website. The exporter can also request an online classification from BIS which will take a minimum of 14 days.
90% of products do not have an ECCN. In this case, the goods may be considered EAR99s. EAR99 refers to a basket category that covers most commercial items. Most EAR99s are low-tech goods—like clothing or art. These items can be exported to most places without an export license. However, there are exceptions to this rule:
1. If the good is going to an embargoed country
2. If the good is going to a prohibited end user
3. If the good is in support of a prohibited end use
Screening the end user to determine if they are prohibited is part of the due diligence required of the exporter. EAR99s are also subject to Export Administration Regulations. Companies, persons, and items can be found on the “Lists to Check” database, which will help exporters decide if they can export their goods and whether they need an export license. This list can be found on the BIS website.
Australia is an active member of the major international arms control treaties (Australian treaties library at http://www.austlii.edu.au/au/other/dfat/) and all international export control regimes that seek to monitor and control the global movement of goods and technologies applicable for use in military or weapons of mass destruction programs. This includes items developed either specifically for defense purposes or for civil application that can be adapted for use in arms programs, also referred to as dual-use goods.
A national export control system is the mechanism for ensuring that Australia upholds its international obligations, while also maintaining integrity of its national interest. Australia controls the export of defense and dual-use goods through a comprehensive licensing system established under the Customs Act 1901 and the Weapons of Mass Destruction (prevention of proliferation) Act 1995 (WMD Act) and associated regulations.
Additional Information
The Defense Trade Control Act 2012 (the Act) received Royal Assent on November 13, 2012, putting in place new measures to control the transfer of defense and strategic goods technologies and bringing Australia into line with international best practice. The Act implements the Australia-United States Defense Trade Cooperation Treaty and strengthens Australia’s export controls for defense and dual-use goods.
As of May 2015, individuals or organizations will need to seek permission to supply controlled technology to an entity outside Australia.
The Treaty removes the requirement for individual licenses to be obtained for each export and allows for the license-free movement of eligible defense articles within the Approved Australian and U.S. Communities.
The Customs Amendment (Military End-use) Act 2012 also introduced a power to prohibit the export of “non-regulated” goods that may contribute to a military end-use that may prejudice Australia’s security, defense, or international relations. It is therefore recommended that the regulations mandated by the ITAR discussed above are carefully followed.
A list that consolidates eleven export screening lists of the Departments of Commerce, State, and the Treasury into a single search as an aid to industry in conducting electronic screens of potential parties to regulated transactions is available on the Consolidated Screening List page.
Temporary Entry
Goods may be brought into Australia on a temporary basis without the payment of duty or taxes for of up to twelve months. These goods, referred to as Temporary Imports, are considered temporary according to sections of the Australian Customs Act, or because of entry under a “carnet.” All temporary imports must be re-exported within the period approved by Australian Border Force. The nature of the goods, what they will be used for while they are in Australia, and who is importing them will determine the provisions for which the goods may be eligible. Australia accepts two types of carnets, ATA and CPD carnets (more commonly known as FIA/AIT carnets).
The provisions cover temporary importation of goods owned by tourists and temporary residents. The provisions also include categories such as traveler’s samples and goods imported for display at trade fairs. Goods under the provisions of certain international agreements to which Australia has acceded are also eligible for admission.
Copies of normal commercial import documents such as invoices, packing lists, bills of lading or airway bills, quarantine certificates, and other shipping papers should be lodged with the application for temporary entry. Evidence of intended use of the goods should also be included in accordance with the relevant Customs Convention(s).
Details on the requirements for temporary imports are available on the Australian Border Force website.