We hear a lot of misconceptions about ITAR and EAR in the process of educating people on these complex regulations. Here are five of the most common misconceptions people make during our various import export training sessions.
1. “Is this ITAR, EAR or both?” Any given product, information or technology could be controlled by either ITAR or EAR, but it cannot be controlled by both regulations. The U.S. government tries to delineate along jurisdictional lines, but sometimes those lines become blurry. That’s when a Commodity Jurisdiction (CJ) Request, Advisory Opinion or some other type of clarification may be needed.
2. “The EAR only controls commercial items. All of my products are used by the military. Therefore, I only have to worry about ITAR.” Wrong. First, the EAR contains many munitions-type items, including those controlled by the Wassenaar Munitions List (WAML). If you don’t believe me, just look at ECCN 0A918.b (“bayonets”) – as just one example. (When was the last time you used a bayonet for anything except, well, bayoneting?) Second, the item’s use does not necessarily determine ITAR or EAR jurisdiction. (The U.S. military probably buys a lot of office chairs for the Pentagon, but you will not find these chairs controlled by the ITAR, even though they are for a military end use.) Finally, don’t make the mistake of assuming that EAR “is the only thing you have to worry about” either. A good approach to export compliance will consider both ITAR and EAR as part of your system.
3. “What about EAR registration?” Unlike Part 122 of the ITAR, there is no blanket registration requirement for companies who manufacture/export EAR-controlled items. (Some exceptions apply. For example, the BIS does impose a registration requirement for companies exporting certain types of encryption software or items.)
4. “We manufacture < insert example of a benign, seemingly harmless product.> Therefore, we do not need to worry about ITAR and EAR, because our products do not harm people.” See #2 above. The simple fact that you manufacture children’s toys or export inflatable beach balls does not mean that you are relieved from all responsibility under U.S. export laws. (By the way, whenever someone tells me, “We don’t have to worry about ____”, I inherently start to worry for them.) Granted, there are many products which are not controlled by ITAR or EAR. However, you as the manufacturer do not have the freedom to decide which laws apply to your products and which ones do not. The U.S. government has already done this for you.
Consider triggered spark gaps, for example. These devices can be used in medical equipment like a defibrillator. (Great product, right? Completely harmless. It saves lives!) However, these same triggered spark gaps can also be used to create a nuclear weapon trigger system. Q: Do you think U.S. manufacturers of defibrillators spend any time “worrying about” ITAR and EAR? A: If they’re smart, they do!
5. “President Obama has combined the ITAR and EAR lists into one now.” Not yet! However, this is one of the stated goals of the Obama Administration’s Export Control Reform Initiative. If/when that actually happens, we might be able to clear up the confusion around this common misconception. Until then, exporters must live with the realities of both ITAR and EAR regulations as they stand today.
Tom Reynolds is the Vice President of Operations for Export Solutions, a consultancy firm which specializes in ITAR and EAR compliance.