What records exporters must keep

← All Insights

1. Transactions the recordkeeping rules cover

Part 762 of the Export Administration Regulations (EAR) sets the recordkeeping rules. They apply to transactions involving the restrictive trade practices or boycotts covered in part 760 (15 CFR 762.1(a)(1)). They apply to exports of commodities, software or technology from the United States, and to any known reexports, in-country transfers, transshipments or diversions of exported items (15 CFR 762.1(a)(2)).

Exports to Canada are covered in two situations (15 CFR 762.1(a)(3)). One is where, at any stage, it appears that a person outside the United States and Canada has an interest. The other is where the item is to be reexported, transshipped or diverted from Canada to another country (15 CFR 762.1(a)(3)). Any other transaction subject to the EAR is covered too, including the prohibitions on servicing, forwarding and other actions for end-users of proliferation concern (15 CFR 762.1(a)(4)).

The rules also apply to all negotiations connected with those transactions (15 CFR 762.1(a)(4)). For export control matters, a mere preliminary inquiry or offer to do business and a negative response are not negotiations. The exception is an inquiry or offer proposing a transaction that a reasonably prudent exporter would believe likely to lead to a violation of the Export Administration Act, the EAR or any order, license or authorization issued under them.

2. Who must keep records

Any person subject to U.S. jurisdiction who participates in a covered transaction, as principal or agent, including a forwarding agent, keeps the records the part describes that the person makes or obtains (15 CFR 762.1(b)). So does any person in the United States or abroad who must make and keep records under any EAR provision. They produce the records as the inspection rules require.

3. The records to retain

The records include export control documents as defined in part 772 (15 CFR 762.2(a)(1)). Parties filing electronically to the Bureau of Industry and Security (BIS) through the Simplified Network Application Processing system (SNAP-R) need not keep copies of what they filed (15 CFR 762.2(a)(1)). They include memoranda, notes, correspondence, contracts, invitations to bid, books of account and financial records (15 CFR 762.2(a)(2) to 15 CFR 762.2(a)(8)). They also include restrictive trade practice or boycott documents and reports (15 CFR 762.2(a)(9)).

BIS notifications are kept too: an application returned without action, an application denied, or the results of a commodity classification or encryption review (15 CFR 762.2(a)(10)). For exported firearms under Export Control Classification Numbers (ECCNs) 0A501.a, 0A506 or 0A507, and shotguns with barrels under 18 inches under 0A502 and 0A508, the records include the serial number, make, model and caliber (15 CFR 762.2(a)(11)). The exporter or any other party to the transaction that creates or receives those records is responsible for keeping them. Other records about covered transactions made or obtained by covered persons are also kept (15 CFR 762.2(a)(12)).

4. Recordkeeping provisions elsewhere in the EAR

Many other provisions require records (15 CFR 762.2(b)). They include the de minimis calculation, the foreign direct product supply chain certification, the general prohibitions and several license exceptions. Among those exceptions are temporary exports of technology by U.S. persons as tools of trade, servicing and replacement, exports for or on behalf of U.S. Government agencies and humanitarian donations. Reports such as the Wassenaar, high performance computer and conventional arms reports are listed.

License application rules are listed as well (15 CFR 762.2(b)). They cover disclosure of parties and powers of attorney, support documents, the People’s Republic of China (PRC) End-User Statement, the consignee and purchaser statement and the firearms import certificate. So are license issuance, revocation, duplicates and transfers, the Automated Export System record, agents’ authority, routed transactions, destination control statements, violations, voluntary self-disclosures and subpoenas. The list also includes Iraq, annual reports and end-use certificates under part 745, the security safeguard plan, unprocessed western red cedar, Unverified List statements, license name changes and Hong Kong licenses.

5. Originals

The regulated person keeps the original records in the form in which it receives or creates them, unless it meets all the conditions for keeping reproductions (15 CFR 762.4). If an original does not meet the legibility and readability standards for reproductions and the person intends to rely on it, the original must be kept. For documents BIS issues through SNAP-R, either a readable electronic copy or a complete paper printout counts as an original record.

6. A special rule for Libya

A person holding a specific license from the Treasury Department’s Office of Foreign Assets Control for the export to Libya of an item subject to the EAR keeps a record of the items transferred (15 CFR 762.2(c)(1)). The record tracks when they are consumed or destroyed in normal use in Libya, reexported to a third country needing no further BIS authorization, or returned to the United States. It applies only to items that needed an EAR license for Libya as of April 29, 2004.

The record gives the date and details of export (15 CFR 762.2(c)(1)(i)-(v)), including transport, the description, ECCN and dollar value of the items, and the proposed end-use and locations in Libya. It also names other parties who may be given temporary access, and the date of consumption, destruction, reexport or return.

7. Records that are exempt

Some records are exempt from the requirement (15 CFR 762.3(a)). They include the export information page, the special export file list, the freight forwarder’s vessel log, inspection certificates, guarantee certificates, packing material certificates and goods quality certificates. Many routine financial and administrative documents are exempt as well, such as letters of indemnity, cash sheets, check request forms, commission worksheets, summary quotes and sales summaries.

Warranty certificates are generally exempt (15 CFR 762.3(a)(5)). The exception is a warranty certificate issued for an address outside the United States for a firearm under ECCN 0A501.a or .b, 0A506 or 0A507, or a shotgun with a barrel under 18 inches under 0A502 or 0A508. How long records are kept and in what form is covered in keeping and producing export records.

Key terms

Covered transaction	An export, reexport, transfer or boycott-related transaction subject to part 762.
Export control document	A document defined in part 772 that must be kept.
Negotiations	Dealings connected with a transaction, beyond a mere inquiry.
SNAP-R filings	Electronic submissions whose copies need not be kept.
Exempt records	Routine documents listed as outside the requirement.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Complete records support every controlled transfer. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.