Below are answers to some of the most common questions we receive about ITAR and EAR regulations. Need more help? Schedule a no-charge consultation today.
What is an export?
Most people think of an export as a physical object moving from one country to another. That’s certainly true. But the U.S. government also considers an “export” to be sending or transferring items by any manner out of the United States. This includes, among other things, sending technology, specifications, data, software or technical specifications outside the United States. It also includes sharing this information or performing services for the benefit of a foreign person, whether in the United States or abroad.
For more information, refer to §120.17 of the ITAR and §734.2(b) of the EAR.
Why does the United States have export control laws?
All countries have the right to restrict access to and protect their intellectual property, technologies and products from individuals or countries. Export control laws restrict the flow of certain products, information, technologies and “know-how” to other foreign countries and individuals.
See ITAR §120.1 and EAR §730.1 for more details.
How does the U.S. government enforce its export control laws?
Enforcement rests primarily with three different agencies of the U.S. government. They are:
- The U.S. Department of State: Directorate of Defense Trade Controls (DDTC). This agency is responsible for administration and enforcement of the International Traffic in Arms Regulations (ITAR).
- The U.S. Department of Commerce: Bureau of Industry and Security (BIS). This agency is responsible for administration and enforcement of the Export Administration Regulations (EAR).
- The U.S. Department of the Treasury: Office of Foreign Assets Control (OFAC). This agency is responsible for administering and enforcing a variety of economic and trade sanctions against certain countries and individuals.
Which items are controlled by the ITAR?
The ITAR controls defense articles (120.6), defense services (120.9) and associated technical data (120.10). Generally speaking, if your item has been designed, developed, configured, adapted, or modified for a military application – and is located on the United States Munitions List – it is controlled by the ITAR.
Which items are controlled by the EAR?
The EAR controls commercial and dual-use items. Practically everything that is manufactured in the United States, or produced with U.S. technology, information, software or know-how, is “subject to the EAR.” However, in order to determine export controls, you must be able to classify your item against the Commerce Control List, which is located in Part 774, Supplement 1 of the EAR.
What is a “deemed export”?
Deemed exports involve the transfer of controlled items or information from one person to another. (Compared to the transfer of controlled items from one country to another.) As an example, if a U.S. citizen emails an ITAR-controlled blueprint to a French citizen, then an export is “deemed” to have occurred from the United States to France. The U.S. controls deemed exports in similar ways to actual (physical) movement of items overseas.
What happens if I made a mistake and exported something without the proper license (thereby violating the ITAR, EAR and/or OFAC regulations)?
You need to voluntarily disclose this violation to the appropriate governmental agency. A voluntary disclosure can be a mitigating factor in determining any fines or penalties you may be subject to under the law.
For more information about voluntary disclosures, refer to §127.12 of the ITAR and §764.5 of the EAR.
My company is located in the United States and we work with items controlled by the ITAR. Is it necessary for me to register with the U.S. Department of State?
Yes. With very limited exceptions, all U.S. companies who work with ITAR controlled items are required to register with DDTC – even if your company doesn’t export those items overseas. We strongly recommend that you register now if you haven’t already done so. Failure to do so is a violation of the regulations that could cost your company in fines or other penalties.
Refer to Part 122 of the ITAR for more information. Also see our DDTC Registration assistance if you need help.