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Archive for the ‘Government’ Category


State Department Questions

Monday, November 12th, 2007
  • What is a foreign person?

    A foreign person is any natural person who
    (a) is not a lawful permanent resident of the United States as defined by 8 USC 1101
    (a)(20), has dual U.S.-foreign citizenship, or is not a protected individual,
    (b) any foreign corporation or other entity that is not incorporated to do business in the United States, and
    (c) international organizations, foreign governments and any part of a foreign government (e.g., foreign diplomatic missions).

  • What is a U.S. persons?

    The term U.S. person encompasses lawful permanent residents of the United States; protected individuals as defined by 8 USC 1324b
    (a)(3); any corporation or other entity incorporated to do business in the United States; and any governmental (federal, state or local) entity.

  • Who can apply for an export or temporary imports license?

    U.S. persons and foreign embassies in the United States are authorized to apply for such licenses.

  • What is the meaning of the term defense service?

    Defense service means:
    (a) furnishing of assistance to foreign persons in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles, whether in the United States or abroad;
    (b) furnishing to foreign persons of any technical data controlled by the ITAR; and
    (c) military training of foreign units and forces, regular and irregular, whether in the United States or abroad, including by correspondence courses, and through media of all kinds, training aids, exercises and through the furnishing of military advise.

  • What do you mean by technical data means:

    For ITAR purposes, the term technical data means:
    (a) information, other than software as defined in 22 CFR 120.10(4), which is required for design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles, including information in the form of blueprints, drawings, photographs, plans, instructions and documentation;
    (b) classified information relating to defense articles and defense services;
    (c) information covered by an invention secrecy order; and
    (d) software, as defined in 22 CFR 121.8(f), directly related to defense articles. (Note that technical data does not include basic marketing information on function or purpose or general system descriptions of defense articles. Nor does it include information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain).

  • Government

    State Department Questions

    Monday, November 12th, 2007
  • I have an item that is on the U.S. Munitions List. Is that all I need to know about it for licensing purposes?

    No. You should determine whether it is designated as Significant Military Equipment (SME). SME means defense articles for which special export controls are necessary because of their substantial military utility or capability.

  • How can I tell if something is SME?

    Its easy. Just take a look at the USML. All items preceded by an asterisk are SME. The term SME also includes all classified USML articles.

  • What kinds of special export controls apply to SME?

    In order to export SME to a foreign person you will need to obtain a signed DSP-83 from that entity providing assurances that it will not
    (a) re-transfer the SME to anyone not specified in your approved license application, not
    (b) allow the SME to be used for purposes other than those for which furnished, without the prior written approval of the U.S. Department of State. If you plan on having your foreign customer manufacture any item of SME under a Technical Assistance Agreement (TAA) or Manufacturing License Agreement (MLA), Congress must be notified before State can approve the TAA or MLA.

    Before you can make a proposal to foreign person for the sale or manufacture of SME, you must obtain ODTCs approval if
    (a) the value of the item is $14 million or more,
    (b) the item is to be sold to a country other than NATO, Australia, Japan or New Zealand, and
    (c) the identical item has not been previously licensed for permanent export or approval for sale under the Foreign Military Sales program to any foreign country. If the item has been licensed previously for permanent export or approved for sale under FMS to any foreign country, you must notify ODTC at least 30 days prior to issuing a proposal. In each case (prior approval or prior notification), an approval license, TAA or MLA will be required in order to export any technical data as part of the proposal effort. If the SME article has a nonrecurring cost of $50 million or more, or a total production cost of $200 million or more, it is categorized as Major Defense Equipment (MDE). Any export of MDE valued at $14 million or more requires Congressional notification prior to receipt of export approval from the Department of State.

  • What is an export?

    For ITAR purposes, the word export means:
    (a) sending or taking a defense article out the United States in any manner. It also means transferring registration, control or ownership to a foreign person of any aircraft, vessel or satellite covered by the U.S. Munitions List, either in the United States or abroad;
    (b) disclosing (orally or visually) or transferring in the United States any defense article to an embassey, any other part of a foreign government, or to a foreign person; or
    (c) performing a defense service on behalf of a foreign person, whether in the United States or abroad.

  • How do you define United States for ITAR purposes?

    For ITAR purposes, United States means the several states, Puerto Rico, the District of Columbia, the Commonwealth of the Northern Mariana Islands, and any territory or possession over which the United States exercise any powers of administration, legislation, and jurisdiction.

  • Government

    State Department Questions

    Monday, November 12th, 2007
  • What if it was designed for military use but my foreign customer only wants to use it for civilian applications?

    The USG does not consider intended use to be a relevant factor in determining whether the item should be on the USML or CCL.

  • What should I include in the package in order to obtain a commodity jurisdiction decision?

    You need only identify the item (or service) and include a history of the products design, development and use. Brochures, specifications and other documentation must be submitted in nine collated sets, plus a cover letter explaining the request. A Part 126.13 certification letter is not required.

  • What if the item is software?

    Then you will need to identify the language level in addition to providing a history of the softwares design, development and use. In addition, you must comply with the Department of Defense Guidelines for International Transfer of Software Documentation (including Source Code).

  • What if theres an argument between State, Defense and Commerce over whether the item should be on the USML or the CCL? Who decides?

    The Department of State.

  • Does the State Department control all exports and imports of defense articles and defense services?

    No. The Treasury Department controls the permanent import of USML items. Nuclear propulsion equipment and nuclear weapons are under the export control of the Department of Energy.

  • Government

    State Department Questions

    Monday, November 12th, 2007
  • Who determines what items are on the USML?

    The Department of State makes the determination, with the concurrence of the Department of Defense and in consultation with the Department of Commerce.

  • If I have an item that is not on the munitions list, can I just go ahead and export it without a license?

    Not necessarily. If the item has dual (military-civilian) use, it is on the Commerce Control List (CCL) and may be licensable by the Department of Commerce pursuant to the Export Administration Regulations (EAR).

  • If Im not sure what list my item is on, USML or CCL, how can I find out?

    You can submit a request for a commodity jurisdiction (CJ) determination. The request should be addressed to Mr. William J. Lowell, Director, Office of Defense trade Controls.

  • How long will it take to get an answer?

    Commodity jurisdiction requests normally require processing times of 4 to 6 months, or even longer. So plan ahead.

  • What are the USGs criteria for determination?

    The USG considers whether the items was specifically designed, developed, configured, adapted or modified for military application; whether it has predominately civil applications; whether it has performance equivalent to an item used for civil applications; or has significant military or intelligence applicability such that ITAR control is necessary.

  • Government

    State Department Questions

    Monday, November 12th, 2007
  • Why do I need to get the U.S. Governments approval to export and import defense articles and defense services?

    Because Section 38 of the Arms Exports Control Acts (AECA) authorizes the President of the United States to control the export and import of defense articles and defense services and to establish regulations for that purpose.

  • How do I obtain approval before I export or import defense articles and defense services?

    The President delegated export control authority to the Office of Defense Trade Controls in the State Departments Bureau of Political-Military Affairs through the Secretary of State.

  • What are the penalties for violating the AECA?

    The civil penalties are a fine up to $500,00 per violation and up to five years in jail. The criminal penalties are a fine up to $1 million per violation and up to ten years in jail. In addition, the violator can be debarred for a period of time from obtaining export licenses and possible debarment from receiving any U.S. Government contracts.

  • The civil penalty of up to $500,000 per violation doesnt seen too bad.

    It does when you consider that a single case may involve more than 100 alleged violations.

  • How does ODTC exercise its authority?

    By administering the International Traffic in Arms Regulations (ITAR). These regulations are found in Section 22 of the Code of Federal Regulations (C.F.R.), Parts 120-130.

  • How do I know whether an article or service is controlled by the ITAR?

    Defense articles are identified in Part 121.1 of the ITAR, known as the U.S. Munitions List (USML). Incidentally, the term defense article includes technical data recorded or stored in any physical form (such as on a computer disc or hard drive).

  • Government

    Goverment Requirements

    Sunday, November 11th, 2007


    For many types of commodities, an endorsement by a foreign goverment or its representative is required to signify that the shipments are authorized for export to the United States. This endorsement, often in the form of an export certificate, certificate of eligibility, or license, serves to describe the type and quantity of merchandise, certifies the country of origin and authorizes the shipment to be charged against any applicable quota. The merchandise covered could be textiles/apparel related to a Tariff Preference Level (TPL) or agricultural commodities such as beef or dairy products. Foreign countries participating in the Electronic Certification System, eCERT, can now transmit export license/certificate data electronically. After transmissions are accepted by U.S. Customs and Border Protection (CBP), results are returned to the country of origin electronically. It should be noted that users of eCERT data that need information specific to the Message Implementation Guidelines (MIG) may go directly to the Technical Guidelines section of this site.

    The Electronic Certification System (eCERT) is a system developed by CBP that uses electronic data transmissions of information normally associated with a required export document such as a license or certificate to facilitate the administration of quotas and ensure that the proper restraint levels are charged without being exceeded.

    Foreign countries participating in eCERT transmit information via a global network service provider. This allows connectivity to the CBP Automated Commercial System (ACS). When making entry, specific data elements transmitted to CBP by the importer/broker must match eCERT data from the foreign country before any applicable quota is reported. The ability to have goverment-to-goverment transmission decreases the potential for circumvention of quotas resulting from counterfeit documents.

    Although the release of the shipment is not precluded by the absence of certificate information, no claims for a preferential duty rate will be considered unless the information transmitted by the filer matches the information transmitted by the foreign goverment. Once this information is processed through ACS, information regarding certificate/license usage is made available to the participating country upon request.


  • SECURITY. eCERT data moves electronically between goverment systems. Safeguards are in place to protect the integrity and confidentiality of the information.
  • REDUCED CERTIFICATE/LICENSE FRAUD. There is an immediate reduction in the chance that counterfeit paper documents will be used because the information provided by the importer/broker must match the information transmitted by the foreign goverment. Paper documents are more susceptible to tampering.
  • IMPROVED COMPLIANCE. There is a decrease in data discrepancies since the importers/brokers entry data must match the foreign goverments export information.
  • IMPROVED MONITORING. Statistical reporting and tracking of certificates/licenses is improved. eCERT allows the participating goverments to monitor certificate/license utilization by electronically requesting a Document Activity Report (DAR).
  • TIMELESS PROCESSING. eCERT participants are authorized to transmit an electronic request to register a certificate/license at any time, seven days a week, 24 hours a day.


    Any country requiring a certificate (i.e., an export license/certificate, certificate of eligibility, etc.) for importation into the United States of specific commodities as a requirement to qualify for in-quota or tariff preference rates of duty is eligible to participate in eCERT.


    Initial design and developmental costs depend on the availability of technical expertise in the participating country. Data transmission costs depend on volume of transactions, software, choice of network, terms of contract with the authorized service provider. CBP may not be held liable for costs incurred for sending or receiving electronic data.

    Minimal Data Requirements

    Participating eCERT countries will be required to transmit eCERT information in compliance with UN/EDIFACT syntax requirements. Listed below are the mandatory data elements that must be transmitted.

  • Unique Certificate Number. The certificate number will consist of nine characters. The first position will be numeric, the second and third positions will be alpha (ISO country code), the fourth through the ninth position can be any combination of alpha/numeric characters.
  • Date of Issuance. The date of issuance shall be the day, month, and year on which the license/certificate was issued.
  • Harmonized Tariff Number (HTS). The HTS will consist of 6 digits provided for in Chapters 1 97 of the Harmonized Tariff Schedule.
  • Quantity. A numeric value given in whole numbers only. Decimals and fractional values are not accepted.
  • Unit of Measure (UOM). The weight, length, area, volume or other unit of measure must be expressed as reflected in the Harmonized Tariff Schedule.
  • Manufacturer Identification (MID), Name, and/or Address. This is optional and is to be provided at the discretion of the participating country.

    Becoming an eCERT Participant

    Foreign goverments wishing to participate in the eCERT program must submit a written request to U.S. Customs and Border Protection (CBP). The request to participate must include the following:

  • The name of the approved Network Service Provider (NSP) contracted to provide connectivity to CBP, a copy of a signed agreement executed between the goverment and the provider appointed by them. Alternatively, the goverment may provide proof of having the technical capability to connect directly to a network that is pre-certified by CBP.
  • The name and contact information for the person(s) responsible for oversight of the eCERT program. This information should be mailed to the U.S. Customs and Border Protection (CBP), Executive Director, Trade Compliance and Facilitation, Office of Field Operations, 1300 Pennsylvania Ave., NW, Room 5.2-A, Washington, D.C. 20229. Once the request is received and reviewed, CBP will notify the requesting party whether testing may commence.

    When testing is ready to commence, communication technicians at the CBP Data Center the CBP Software Development Division (SDD) and Infrastructure Services Division (ISD) will coordinate the establishment of the link between CBP and the NSP. Once communication is successfully established to the satisfaction of both the country and CBP, application testing can begin.

    Application testing involves the receipt of the EDI message in eCERT, validation of the UN/EDIFACT syntax based on the Message Implementation Guidelines, successful processing of the message based on compliance with established business rules, and receipt of the response generated by processing the input. The response could reflect either acceptance of the input or rejection, in which case error codes will be provided. If the response is a rejection of the input, the country will be expected to address the errors and retransmit the message.

    The eCERT test environment is available with few exceptions seven days a week, 24 hour a day. CBP makes every effort to complete testing as quickly as possible by providing as much technical assistance as necessary. All efforts to complete the certification process and the migration to eCERT production must be coordinated with CBP eCERT support team (SDD/ISD).

    Information concerning technical specifications like UN/EDIFACT message sets can be found in the Technical Guidelines section of this site.

    Post Production Evaluation

    After successful completion of application testing, CBP will publish a general notice in the Federal Register notifying the public that testing has been completed and that the foreign goverment will commence transmitting electronic certificates on a specified effective date.

    During the first 30 days in production, CBP will monitor the foreign goverments compliance with the data reporting requirements and its responsiveness to error messages. The foreign country may request a meeting at any time to address operational policies and procedures. Prior to meeting with a foreign country, CBP may request that the country furnish CBP with an advance list of questions and concerns about eCERT.


    For further information on the eCERT program, you may contact the following office.

    U.S. Customs and Border Protection Quota Enforcement and Administration Division Phone: 202.344.2650 Fax: 202.344.2371 Email:

    Service Providers

    A country interested in participating in the eCERT program should contact an in-country communications provider. That provider will be aware of the services available through the global Network Service Providers (NSP) servicing that country. That NSP will then be able to contact the Technical Support group at CBP.

    Currently, CBP has approved the companies listed below to provide data transmission services to CBP. Details regarding the procedures and options to link to CBP may be provided through the following web sites: AT&T Network Services ( AT&T ) , General Electric Global eXchange Service (GE-GXS) ( GE – GXS ) , or Kleinschmidt ( Kleinschmidt ) .