Licensing Information

For export purposes, a license is the relevant U.S. government department grant of permission for the transfer, release, transmission, or export. The U.S. government departments of Commerce, State, and Treasury grant licenses to applicants for specific transactions (commodities/technologies/data/services) to specified end-users, for specified end-uses, to specific countries. 

No matter how “benign” an item may appear, it still may require a license to export or release it to foreign nationals. In addition, some destinations and persons (including individuals or groups) are subject to comprehensive export controls, including controls on all manner of consumer products. This is especially true of exports to OFAC comprehensively-sanctioned countries and regions (Cuba, Iran, North Korea, and certain regions of Ukraine).

A license may also be needed to "re-export" an item that was produced or originated in the United States. A "re-export" is the shipment or transmission of an item from one foreign country to another foreign country. A re-export also occurs when there is "release" of technology or software (source code) in one foreign country to a national of another foreign country.

The Commerce Department is responsible for licensing dual use items and “low-level” military items. The regulations on the export of goods and related technology are identified on the Commodity Control List (CCL) (15 CFR 774, Supplement 1). The State Department is responsible for licensing most items with military applications. The Treasury Department licenses services and financial transactions. In some situations, licenses from multiple departments may be required.

The following general questions can be used to help determine whether an activity may require a license:

1. Is the person a U.S. citizen or permanent resident (holder of a “green card”), or a protected individual as defined by 8 U.S.C § 1324b(a)(3) (e.g., foreign persons such as refugees and asylees who are protected persons and considered U.S. persons for export control purposes)?
2. Is the information already published?
3. Is it educational information covered in a course catalog course?
4. Is the technology disclosed in a published patent application or an issued patent?
5. Is the research considered fundamental research that will be published?
6. What is the jurisdiction and classification of the product – is it EAR99, or something else?
7. Do the results of restricted-party screening raise any “flags”?
8. Is the destination country subject to comprehensive sanctions or embargoes?
9. Does a license exclusion or exemption apply?
10. If none of the above apply, a license may be required.

If an activity is controlled under the export regulations, then a license or other approval is needed from the respective oversight agency unless an exemption or exception applies. Examples of situations where a license may be required include:

• Research that involves defense, military, weapons, or space technologies.
• Export of a commodity or good outside of the U.S.
• Attending a conference outside of the U.S.
• Activities where export control exceptions do not apply.
• Transfer of technical data about a controlled technology to a foreign national within or outside of the U.S.
• Providing anything of value to someone from a sanctioned country, or on one of the of restricted-party lists.

When exclusions or exceptions do not apply (or if the transaction involves dealings with a sanctioned entity or country), then a license must be obtained for any export, deemed export, or re-export prior to the transfer of any commodity, data, or, in the case of sanctions, the provision of any service or financial value.

The following information is then needed to determine whether the U.S. origin product requires a license:

1. Classification. Items controlled on the U.S. Munitions List, and their related technology, will require an export license for almost all destinations. Certain items, notably those controlled by multilateral export control regimes, are on the Commerce Control List (CCL) (part 774 of the EAR) and are described under a specific Export Control Classification Number (ECCN). The ECCN in the CCL will also tell you the reason(s) for control, which can then be used to determine to which destinations an export license would be required (see below). Classifications can be obtained from the item manufacturer, or they can be “self-classified” based on their technical specifications. Alternatively, classifications can be requested from BIS. The ORC should be contacted for assistance with any classifications. Items not listed on the CCL or controlled by another agency are designated as EAR99, and generally can be exported without a license, unless the export is to an embargoed country, to a prohibited person, or for a prohibited end-use.
2. The ultimate destination of the item. The reason(s) for control listed in ECCNs on the CCL needs to be matched with the country of ultimate destination in the Country Chart (part 738 of the EAR). The reason(s) for control, when used in conjunction with the Country Chart, will help to determine if a license is required to the ultimate destination. If it is determined that your export transaction requires a license, review the EAR to determine if any License Exceptions are available (part 740 of the EAR).
3. The end-user and end-use for the item. Even if determined that a license is not required based on the ultimate destination (or a license would be required but a License Exception would generally apply), a license might be required because of the specific end-use or end-user. These are referred to under the regulations as the “General Prohibitions,” and are found at Part 736 of the EAR. There are certain special restrictions that apply to persons (or entities) identified in the EAR, as well as to persons who are involved in certain activities (e.g., nuclear weapons proliferation or chemical or biological weapons activities).