ITAR and EAR

Quite often, I see people who confuse ITAR and EAR. Both of them are treated as US export control, but they are different. Focusing into ITAR, some tips for understanding ITAR.

Definition of ITAR
International Traffic in Arms Regulations (ITAR) is a set of United States government regulations that control the export and import of defense-related articles and services on the United States Munititions List.

Difference between ITAR and EAR
ITAR covers military items or defense articles, EAR covers dual use items.

ITAR regulates goods and technology designed to kill or defend against death in a military setting, EAR regulates items designed for commercial purpose but which could have military applications (computers, civilian aircraft, pathogens).

ITAR is strict regulatory regime. EAR is licensing regime encourages balancing competing interests.

ITAR's purpose of regulations is to ensure U.S. security and No balancing of commercial or research objectives. EAR is balance foreign availability, commercial and research objectives with national security.

Scope of ITAR

• Munitions List includes items with NO clear military application, e.g. commercial satellites.
• Brokering of US and Non-US items
• Most ITAR controlled exports requires licenses, which take 60+ days, and arms embargoes include China.
  

Commodity Jurisdiction Process

If there is any question as to whether the product is controlled by the ITAR Munitions List or the EAR commerce control list, consider filing a "Commodity Jurisdiction Request" with DDTC, with a copy to BIS, to obtain a formal determination as to whether the product is controlled by the ITAR or the commerce control list.

Limited Re-export Exemption

Unlike the EAR, the ITAR has very few exemptions for re-export.

>>> ITAR section 123.9(d) -- Written approval of DDTC must be obtained prior to reselling, transferring, transshipping, or otherwise disposing of Defense Articles to any destination, end-user, or end-use other than as stated on the license.

Unlike the EAR, the ITAR does not contain any de-minimis rule

Items covered by the ITAR are not "subject to the EAR", so the EAR De-Minimis rule does not apply to USML items.

Thus, if a Non-US company receive USML articles, there is no de-minimis authority under ITAR to incorporate them into Non-US items and re-export.

Interesting Controversy of ITAR (quotation from wikipedia)

There is an open debate between the Department of State and the industries and academia regulated by ITAR concerning how harmful the regulatory restrictions are for U.S. businesses and higher education institutions. The Department of State insists that ITAR has limited effect and provides a security benefit to the nation that these sectors must bear. Every year the Department of State can cite multiple arrests of ITAR violators by U.S. Immigration and Customs Enforcement agents. However, many companies and institutions within the affected areas argue that ITAR is stifling U.S. trade and science. Companies argue that ITAR is a significant trade barrier that acts as a substantial negative subsidy, weakening U.S. industries' ability to compete. U.S. companies point to announcements in Europe by EADS and Alcatel promoting their "ITAR-free" satellites and defense items. Higher education institutions argue that ITAR prevents the best international students from studying and contributing in the U.S. and prevents cooperation on international scientific projects.
Currently, officials at the Department of State dismiss the burden on industry and educational institutions as minor compared to the security provided by ITAR. They also view the announcements of "ITAR-free" items as anecdotal and not systemic.