We field lots of questions about the difference between ITAR and EAR regulations. Particularly with the changes from Export Control Reform in recent years, the lines between these two regulations can easily get blurred. How can you distinguish ITAR vs. EAR? Which regulation applies to your products, data and technology? How are they the same? Different?
Although there are no blanket answers that apply to every company and every situation, here are some general guidelines to help exporters distinguish between the two.
The International Traffic in Arms Regulations (ITAR)
In the simplest terms, the ITAR regulates the export of defense articles and defense services. However, don’t make the mistake of believing that just because your product is not a rocket, missile or bomb, the ITAR doesn’t apply. In fact, the regulations control a wide array of products, services and technical data. This includes everything from body armor and electronics, to spacecraft, satellites, imaging systems and much, much more.
It’s also important to realize that the ITAR controls exports, re-exports, temporary exports and temporary imports. Furthermore, an “export” can occur simply by having a U.S. Person provide controlled information to a Foreign Person – even if that transfer of information occurs within the same company located in the United States! The list of items controlled by the ITAR is referred to as the United States Munitions List (USML), and it currently consists of 21 different broad categories of products and technical data. This can include such minor items as spare parts, components, sub-assemblies and accessories.
One way to help distinguish between the EAR vs ITAR is to find out which governmental agency is involved in the jurisdiction, licensing review and approval of your items. For the ITAR, you’ll be talking to the U.S. Department of State, Directorate of Defense Trade Controls (DDTC). (More on the EAR in a moment.)
In addition to physical items (“hardware”), the ITAR also controls technical data and services. The scope of this information can be far-reaching. “Defense services” can include a range of assistance or training, such as design, development, production, testing, operation, maintenance and repair services (just to name a few).
If you are unsure whether your item is controlled by ITAR or EAR, the first place to begin is the ITAR and a thorough review of the USML. Sometimes, you may need to seek the expertise of a consultant like Export Solutions to help make this determination. Other times, your customer may be able to provide you with information about the item and its end-use that can be helpful. And still in other cases, your company may wish to obtain a Commodity Jurisdiction (CJ) from DDTC to understand which regulation applies.
Once you have definitively ruled out the ITAR for your item, then it’s time to move over to the EAR …
The Export Administration Regulations (EAR)
One way to think about the EAR is “everything else that is not controlled by the ITAR.” Just be careful! This is not a hard-and-fast rule, since there are some items that do not fall under either regulation’s control, and still other items that may be subject to other U.S. governmental agency controls. (For example, FDA, NRC, USDA and so on). Generally speaking, the EAR will control commercial and dual-use items, information and technology.
It’s important to be aware that the EAR does control certain types of munitions and “military hardware”, including some types of firearms, aircraft, military vehicles, materials, chemicals and more. This also covers items controlled by the Wassenaar Munitions List (WAML). If you don’t believe me, take a look at ECCN 0A918 (“bayonets”) as just one example.
When you’re working with the EAR, you’ll be talking to the U.S. Department of Commerce, Bureau of Industry and Security (BIS). Similar to the DDTC for ITAR, the BIS is responsible for the jurisdiction, licensing, policy and enforcement of the EAR regulations.
So, how do you know if your item is controlled by the EAR? You need to complete a thorough review of the Commerce Control List (CCL). There are 10 different categories and 5 product groups on the CCL. You’ll want to find the Export Control Classification Number (ECCN) that matches your item. And be careful of “jumping to” the catch-all category of EAR99 without ruling out all other ECCNs for your product or technology first. In addition, talking to your customer may help determine the correct classification of your item, or hiring a consultant can also help. Also, like the CJ process for ITAR vs. EAR jurisdiction, the BIS also has a process called CCATS that can help exporters determine the correct ECCN of their item.
Two sides of the same coin
Although they are different in terms of their structure, administration and items controlled, the ITAR and EAR both seek to accomplish the same basic goal – which is to protect the national security of the United States by preventing the unauthorized export of controlled items to foreign persons. Understanding how these regulations apply to your business is critical to avoid violations, even if your company does not “export” in the traditional sense of the word.
Below is a brief table to help you understand some of the key differences between ITAR and EAR regulations:
|U.S. Department of State (DDTC)||U.S. Department of Commerce (BIS)|
|Regulates defense articles and defense services.||Regulates commercial and dual-use items and technology.|
|United States Munitions List (USML)||Commerce Control List (CCL)|
|USML Category and Sub-Category.|
|Exemptions: Some exemptions may authorize export without prior approval from DDTC.||Exemptions: Some exceptions may authorize export without prior approval from BIS.|
|Export license applications submitted through DTrade.||Export license applications submitted through SNAP-R|
If you have questions or need more assistance, please schedule a no-charge consultation with us. We would be happy to learn more about your challenges with import/export compliance and see if there’s any way that we can assist you.
Tom Reynolds is the Vice President of Operations for Export Solutions, a consultancy firm which specializes in ITAR and EAR compliance.