Is your business subject to Export Administration Regulations (EAR) or International Traffic in Arms Regulations (ITAR)? Before you export, you must determine whether your technology or goods are subject to ITAR and EAR restrictions; otherwise, your company could face stiff penalties for export control non-compliance.
Learn more about ITAR and EAR regulations and how an international business attorney can help you with foreign export control requirements.
What Is the International Traffic in Arms Regulations (ITAR)?
What does ITAR stand for? ITAR stands for International Traffic in Arms Regulations.
What is the meaning of ITAR? Essentially, it regulates the export of defense items and technology as per U.S. foreign policy, keeping these sensitive materials out of the hands of hostile regimes or foreign nationals.
ITAR regulations cover government contractors, subcontractors, and companies designing and manufacturing said materials. The United States Munitions List (USML) details the items and regulations.
Even if you aren't in the tank or missile business, your company may still be required to comply with ITAR regulations. The USML covers a wide range of technical data and services, classified articles, military materials, and products such as aircraft and other vehicles. Even sharing a document via email or having a phone conversation about classified material could be considered an export of the material.
USML articles are typically restricted to approved U.S. citizens, so a foreign national working at your company could be barred from accessing sensitive hardware, materials, and data to ensure your business complies with ITAR export control.
What is ITAR controlled by? The State Department’s Directorate of Defense Trade Controls (DDTC) administers the ITAR. Restrictions can be complex and change according to U.S foreign policy and perceived threats to national security.
What Are the Export Administration Regulations (EAR)?
What does EAR stand for? Export Administration Regulations, which is a more permissive set of export control policies.
A wider range of items is covered by the EAR, meaning it encompasses regulations for many commercial products and data exported from the U.S. It also covers dual-use items, which may be exported either for military use or commercial purposes. These include high-performance computers, GPS systems, electronics, and avionics materials, information, or technology.
The EAR-controlled Commercial Control List (CCL) lists ten categories:
- Nuclear and miscellaneous
- Telecommunications and information security
- Materials, chemicals, microorganisms, and toxins
- Materials processing
- Aerospace and propulsion
- Navigation and avionics
- Sensors and lasers
These are broad categories, each with its export restrictions. An international business attorney can help ensure that you have the right compliance for each item your company produces.
ITAR vs. EAR: Key Differences
What is the difference between ITAR and EAR? The ITAR covers the export of defense-related materials, and the EAR covers other items, including dual-use items. An international business lawyer can help you remain compliant with each agency.
Who’s in Charge?
ITAR and EAR are overseen by different regulatory agencies. The U.S. Department of State’s Directorate of Defense Trade Controls oversees ITAR, while the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) is responsible for EAR.
The CCL consists of five product groups:
- End items, equipment, accessories, attachments, parts, components, and systems
- Test, inspection, and production equipment
If your company produces items that are subject to U.S. Department of Commerce authority but are not listed on the CCL, then they are typically designated as EAR99: low-tech consumer goods that don’t usually require a special export license.
However, if you're planning to ship an EAR99 article to an end user of government concern or a trade-embargoed nation, your company may need a special license.
The ITAR and EAR’s control lists are structured slightly differently. The UMSL lists items by category, then enumerates specifics within each category. The CCL, on the other hand, lists items by category, group, the reason for control, and serial number.
Because technology and advances in military hardware advance rapidly at times, these lists are in a constant state of flux. A careful, detailed analysis of the lists and the categories that apply to your company's products is necessary to ensure you have the right permits. International business attorneys stay up-to-date with changes in both the Commerce Control List and the United States Munitions List.
Use or Using?
“Use technology” is another area where ITAR and EAR differ. The ITAR has a significantly higher bar for the use of technology by a foreign national in the U.S. and typically requires the DDTC to issue pre-authorization for access, absent a specific exemption.
The EAR expressly defines “use technology,” with six components for installation and maintenance of an item (typically software). Simply using the controlled equipment or technology does not always amount to “use” under the EAR; however, misunderstanding these regulations can result in stricter compliance measures. Ask a lawyer focusing on EAR and ITAR compliance to help ensure you’re compliant.
To Publish or Not to Publish?
Publishing information is also regulated by EAR and ITAR. Technology that would fall under the purview of the EAR does not require pre-approval by the BIS, while technology regulated by ITAR may not be published without authorization from the appropriate government agency.
Key differences between ITAR and EAR:
ITAR vs. EAR Requirements & Compliance Penalties
ITAR / EAR compliance is mandatory, and violating the regulations of each statute can have serious consequences for a company and an individual.
ITAR violations penalties include:
- A criminal penalty of $1 million and 20 years in prison for each violation;
- Civil penalties of $1,163,217 per violation;
- Suspension or debarment from government contracts;
- Revocation of export privileges.
Penalties for EAR violations include:
- Criminal penalties of $1 million in fines;
- Administrative penalties of up to $300,000;
- Up to 20 years in prison;
- Debarment from government contracts;
- Revocation of export privileges;
- Seizure of items in question;
- Loss of federal funds.
Failure to follow ITAR / EAR restrictions can have life-changing consequences. If you've been charged, an international business lawyer may be able to help.
Staying Compliant with EAR and ITAR Requirements in Colorado
The EAR and ITAR are parallel regulating bodies, but there are significant differences between the two agencies. Following the requirements for both is essential for companies exporting items or technology from the U.S.