ITAR or EAR, which one applies to me?
Two regimes, two agencies, and the wrong guess is expensive. The test is what the item is and what it was designed for, not what industry you are in.
Written for: Anyone building physical or technical products in the United States
The short answer
- Munitions List first, then the Commerce Control List, then EAR99.
- Design intent can control even when the finished item looks commercial.
- Software and technical data inherit the treatment of what they describe.
- A Commodity Jurisdiction or classification request is the way to resolve real doubt.
The short version
The ITAR covers defense articles, defense services, and the technical data behind them, administered by the State Department. The EAR covers nearly everything else that is commercial or dual use, administered by the Commerce Department. An item is subject to one or the other, not usually both, and the boundary is drawn by lists rather than by intuition.
How the question is actually decided
You look at the U.S. Munitions List first. If the item is described there, it is a defense article and the ITAR applies. If it is not, you work through the Commerce Control List to find an entry that describes it, and if none does, it is EAR99. That order matters: an item enumerated on the Munitions List does not become a Commerce item because it also fits a Commerce entry.
What trips people up
Design intent carries weight. An item specially designed for a military application can be controlled even when a nearly identical commercial version is not, which is why the same aluminium bracket can be two different things depending on the drawing it was made from. Software and technical data follow the hardware they relate to, so writing the firmware for a controlled item can put you in scope without ever touching the hardware.
When you are genuinely unsure
Doubt about jurisdiction has two official routes. A Commodity Jurisdiction request asks the State Department to decide whether an item is on the Munitions List. A classification request to the Bureau of Industry and Security asks Commerce for the Export Control Classification Number. Both take time and both produce a written answer you can rely on, which is more than an internal opinion gives you.
The rules behind this
- 22 CFR 120.4
- 22 CFR 121.1
- 15 CFR 734.3
- 15 CFR 748.3
This is a plain reading of published rules, not legal advice, and it is not a determination about your item. What decides your case is your exact configuration, your parties, and your destination. The limits, in full.
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Related questions
What does EAR99 actually mean?
It means no Commerce entry describes your item. It does not mean you can ship it anywhere, and it is not a licence.
Can I hire an engineer who is not a U.S. citizen?
Yes. Export control regulates what you show them, not who you employ, and treating it as a hiring rule creates a different legal problem.
What is a deemed export?
Showing controlled technology to a foreign person inside the United States counts as exporting it to their country. Nothing has to ship.
Does encryption in my product trigger export controls?
Often yes, and it is a separate question from whatever else the product does. There are workable exceptions, and each has conditions you must actually meet.