At the Export Compliance Training Institute, we field questions every day about the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) export control regulations. Complying with these regulations is essential for businesses that seek to export products, technologies, software and services. Yet, individuals charged with overseeing export compliance in their business may not fully understand – or may misinterpret – the specific components of each regulation; how they relate to and interact with one another; and how they apply to their specific situation.
As a result, it can be challenging to know where to begin when pursuing export compliance; how to properly search and utilize the ITAR and the EAR; and which regulation applies to your given item.
No two companies are alike, and the items they seek to export are also unique. That said, this article is designed to provide you with a basic overview of ITAR and EAR export control regulations as they pertain to goods, software, technologies and services.
International Traffic in Arms Regulations (ITAR)
When our ECTI trainers work with business professionals to help them understand the ITAR and EAR to support their exporting efforts, we begin by explaining how today’s export control system consists of multiple sets of regulations of which the ITAR and EAR are most important.
In this article, we’re highlighting the ITAR first because it’s the logical starting point to determine if your products, technologies, or services fall under its jurisdiction. Establishing the correct jurisdiction (i.e. ITAR or EAR) up front is absolutely essential; if you begin by heading down the wrong path, you may reach the right conclusion accidentally; but more likely, you’ll reach incorrect conclusions and waste considerable time, money and effort in the process. And you might expose your organization to significant legal risk.
So, what exactly is the ITAR? Simply put, it is a set of rules which regulates various activities related to defense articles and defense services. To begin, anyone in the U.S. who manufactures, exports, or temporarily imports defense articles, or provides defense services, must register with the Department of State’s Directorate of Defense Trade Controls (DDTC) (www.pmddtc.state.gov). Exports and temporary imports of defense articles, and furnishing defense services, require DDTC authorization, as do manufacturing abroad and arms brokering.
The defense services and defense articles regulated by the ITAR are identified on the U.S. Munitions List (USML), which includes a broad array of items which DDTC has determined provide a critical military or intelligence advantage. The USML itself consists of 21 distinct categories organized around broad platforms or groupings such as aircraft, ground vehicles and firearms. Each of these categories includes tangible items, software, technical data and defense services. Confusion often arises over whether all “defense-related” items are subject to the ITAR. This is not the case, but a careful review of the USML is essential in ascertaining if the ITAR is relevant to your business.
The ITAR also casts a wide net in terms of the people and processes affected. The term “export” as it is defined in the ITAR encompasses cases where a U.S. company delivers technical data to a foreign person even if the transfer takes place in the same business entirely within the U.S. This is but one example of how broadly the ITAR can impact your business. Another consideration deals with the ITAR’s treatment of services. For example, the “defense services” mentioned above includes an array of things such as military training, development, design, testing, production, maintenance, and repair of a wide range of military goods and systems, anywhere in the world. The list goes on.
What’s more, your supply chain could include wholesalers, distributors, software or hardware vendors, contractors and third-party suppliers. Each entity in that supply chain has an independent obligation to be ITAR-compliant. For example, if a manufacturer sells a defense article to your company, and then your company sells that exact part to a foreign entity, both your company and the vendor must take action to ensure ITAR compliance; otherwise, both entities would be in violation of ITAR.
Generally, most exports of USML hardware, software, technical data, and defense services require a license, so to begin the process of determining ITAR applicability, start with a review of the USML. While DDTC administers the ITAR, registers businesses and issues licenses, each company is responsible for establishing its own policies and procedures to comply with ITAR requirements.
If you’ve researched the ITAR and determined your item doesn’t fall within its jurisdiction, the next body of export control regulation to consider is the EAR.
The Export Administration Regulations (EAR)
Envision a circle that represents the universe of export compliance regulations and controls, then draw a small wedge within it. That wedge, metaphorically, represents items controlled by the ITAR. Of all the export activities and issues people consider, that small wedge garners a great deal of attention because it’s highly regulated and challenging to comply with in many ways.
However, the remainder of the circle – i.e., the large majority – represents items that are subject to the EAR. Indeed, the EAR controls nearly everything under the authority of the U.S. government which is not subject to the ITAR. To be specific, the EAR controls commercial goods, dual-use items and many military items that are not on other export control lists such as the USML. Be aware, though, that some items fall outside the ITAR or EAR’s jurisdiction and are subject to control by other federal agencies.
In terms of the EAR, the controlling agency overseeing it is the Bureau of Industry and Security (BIS) in the Department of Commerce (www.bis.doc.gov).
The EAR requires a license based on the relevant items, end use, parties and countries involved in a potential export. That said, most exports under EAR jurisdiction may be made without a license—the challenge is in correctly identifying the transactions which require a license. If you seek to export, and do so compliantly, the burden of analyzing transactions to determine if a license is required falls on you. In this regard, you must implement procedures for analyzing exports to determine when a license is required.
To determine whether your item is subject to the EAR, and how stringently it is controlled for export, you must carefully review the Commerce Control List (CCL). Within the CCL there are 10 distinct categories, each with five product groups. Each individual entry in the CCL is an Export Control Classification Number (ECCN). Look for the ECCN that matches your item—and if you’re unsure, you should get the right training or consult with an experienced export professional to be absolutely certain.
Understanding ITAR and EAR Export Compliance Similarities and Differences
For any given item, the ITAR and EAR are mutually exclusive—if that item is subject to one, it is not subject to the other. Yet, the ITAR and EAR also differ in fundamental ways—most notably, jurisdictional authority over licensing reviews and approvals, applicable item lists (i.e., USML, CCL), exemptions and portals for export license submissions. Still, they both serve a common purpose—i.e., preventing unauthorized export of controlled items, and by extension, protecting U.S. national security and foreign policy interests.
Finally, one last important note to help you pursue export compliance success. In 2013, the Export Control Reform (ECR) initiative was set in motion to improve the U.S. export control system. It largely concluded earlier this year and succeeded in clarifying many grey areas within export compliance, as well as eliminating redundancies and updating key terms and lists within the export compliance universe. Therefore, it is vitally important that you utilize updated and accurate lists in your export compliance efforts. To aid you in this, ECTI has compiled free, downloadable and easily searchable ITAR and EAR export compliance lists. We encourage you to use these as you determine jurisdiction and compliance requirements for your items.
We hope this article helps clarify ITAR and EAR regulations and compliance as you undertake your compliance journey. Export compliance is a complex and detailed undertaking. There is no room for error, and your company’s investments rely on achieving compliance with all applicable export regulations and controls. That said, it is absolutely achievable—you can do it, provided you take the necessary time up front to understand the export regulations and correctly determine jurisdictional authority. In this regard, we think it makes good sense to align with an established and widely acclaimed export compliance training partner who can guide you step by step toward compliance success.
Do you have questions about ITAR compliance training, EAR compliance training or other export compliance challenges? Visit www.learnexportcompliance.com to learn about our company, our faculty, our staff and our esteemed Export Compliance Professional (ECoP®) certification program. To find upcoming e-seminars, live seminars and live webinars and browse our catalog of 80-plus on-demand webinars, visit our ECTI Academy. You can also call the Export Compliance Training Institute at 540-433-3977 for more information.
Scott Gearity is President of ECTI, Inc.