EAR vs. ITAR Compliance: Can You Name 5 Differences?
Compliance to the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) are rooted in the same concept behind many government regulations: Sometimes you need to ask the government for permission before doing something.Β Especially if that βsomethingβ can potentially endanger othersβ¦even if your particular activity means no harm.Β The tricky part is figuring out when you need to ask for permission.Β In this post, we’ll cover the basics to ITAR and EAR compliance.
#1: Β Whoβs in Charge?
While both the EAR and ITAR are key U.S. export controls regulations, they are administered by two different departments. Β Determining the commodity jurisdiction of your intended activity is one of the first steps in determining your export compliance requirements. Β Sometimes both departments have jurisdiction over different parts of the same research project at your university or company.
Department of Commerce
Bureau of Industry and SecurityΒ (BIS)
Export Administration Regulations (EAR)
Department of State
Directorate of Defense Trade ControlsΒ (DDTC)
International Traffic in Arms Regulations (ITAR)
As youβll see below, the EAR and ITAR differ in many ways. Β Focusing on the wrong commodity jurisdiction can lead to significant mis-steps in your export compliance program.
#2: Β Dual-Use?
The EAR covers both dual-use and pure military items. Β βDual-useβ simply means that there is a civilian and military use for the item. Β A dual-use item is still dual-use even if your company or university is not using it or developing it for military applications.Β Meanwhile, the ITAR covers purely military and defense-related items that are more sensitive to national security.
#3: Β Which Control List?
The framework behind the lists of controlled βitemsβ is quite different under the EAR and ITAR. Β Yes, both sets of regulations have their own control list. Remember that itβs not just tangible goods on these lists β certain sensitive technical data, software, and services are listed, too. Β Unfortunately, these lists are more like reference guides rather than lists. When I think of a list, I think of a shopping list. In that regard, the lists are like complicated shopping lists. Rather than listing βshirtββ¦a description would be βstriped blue long-sleeve button-down shirt with a rounded collar that is machine-washable and made of 50% or more cotton.β Β These lists required careful and detailed analysis.
Export Administration Regulations
Commerce Control ListΒ (CCL)
Organized by Export Control Classification Numbers (which indicate a Category, Group, Reason for Control, and Serial Number)
International Traffic in Arms Regulations
United States Munitions List (USML)
Organized by Categories
With the prior Administrationβs Export Control Reform and the current Administrationβs USML to CCL Review Process, as well as theΒ Export Control Reform Act of 2018, there are many changes happening with both lists. Β In fact, proposed changes were recently published for moving certain items fromΒ USML Category I, II, and III to the CCL.
#4:Β Use or Using?
While both the EAR and ITARΒ generallyΒ regulate access to export controlled items by individuals located in the U.S., there is a key difference. Β The EAR has a stated definition of βuseβ technology that is helpful to many universities. In other words, there is a high bar that needs to be met in order to possess or generate βuseβ technology.
Export Administration Regulations
βUseβ technology is a defined word in the EAR that has 6 elements which must all be met. Β The elements generally relate to the installation and maintenance of an item. Using export controlled equipment does not necessarily mean that βuseβ technology has been shared with the user. Β Your researchers might only be using technology in the dictionary sense, rather than handling βuseβ technology. Misunderstanding this aspect of the regulations can lead to unnecessarily conservative compliance measures. Β
International Traffic in Arms Regulations
There is no parallel definition of βuseβ technology under the ITAR. Β The ITAR has a much higher bar for access by a foreign national individual located in the U.Ss. Β Requiring pre-authorization by DDTC is the norm, unless a specific exemption works in your favor. Β Check for requirements in advance!
#5: Β To Publish or NotΒ to Publish?
While both the EAR and ITAR have a notion of public information being exempt from the regulations, important details vary between the two. Β One key difference is around pre-approval. Lack of awareness around this difference can quickly lead to unintentional violations in the university environment where publishing is a fundamental objective.
Export Administration Regulations
Pre-approval by BISΒ is not requiredΒ to publish technology that would otherwise be subject to the EAR.
International Traffic in Arms Regulations
Pre-approval by an appropriate government agencyΒ is requiredΒ to publish technology that would otherwise be subject to the ITAR. Β (Which exact agencies require more details and are case-specific.)
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