EXPORT CONTROLS | 2026-10-19

ITAR or EAR? How U.S. Exporters Determine Which Export-Control Regime Governs a Product, Technology, or Service — and Why Getting Jurisdiction Right Comes First

Before an exporter can classify an item, apply for a license, or decide whether an export is even allowed, it must answer a threshold question: is the item controlled by the State Department’s ITAR or the Commerce Department’s EAR? That jurisdictional determination drives everything that follows, and getting it wrong is one of the most serious and common export-control mistakes.

Every U.S. export-control analysis begins with a single threshold question that determines everything else: which regime governs the item ? U.S. export controls are split primarily between two systems. The International Traffic in Arms Regulations (ITAR) , administered by the State Department’s Dire

Export controls are among the most consequential and least forgiving areas of U.S. regulation for companies that make or move technology, hardware, software, or technical know-how across borders — or share it with foreign persons at home. The system is built on a foundational divide between two regulatory regimes, and nearly every downstream decision depends on knowing which one applies. Classifying an item, finding the right license, claiming an exemption, screening a transaction, and assessing penalties all branch from the answer to one question: ITAR or EAR? For a California exporter, getting that jurisdictional determination right — and documenting how it was reached — is the first and most important step in export compliance.

Two Regimes, One Threshold Question

The United States controls exports chiefly through two regulatory systems with different agencies, lists, and philosophies. The ITAR controls defense articles and defense services — items and services specifically designed, developed, or modified for a military application — through the USML, administered by DDTC at the State Department. The EAR controls dual-use items (things with both commercial and potential military or proliferation applications), certain purely commercial items, and some less-sensitive military items, through the CCL and the broader category of items “subject to the EAR,” administered by BIS at the Commerce Department. Because the two regimes impose different requirements, an exporter cannot evaluate licensing, exemptions, or permissibility until it first determines which regime has jurisdiction over the specific item or service. That threshold determination is the hinge on which the entire analysis turns.

The Statutory and Regulatory Framework

The two regimes rest on separate statutes and regulations, and knowing the governing citations is the starting point of any serious analysis. The ITAR is issued under the Arms Export Control Act, 22 U.S.C. § 2778, and appears at 22 C.F.R. Parts 120–130; the USML itself is set out at 22 C.F.R. § 121.1, "defense article" is defined at 22 C.F.R. § 120.6, and "defense service" at 22 C.F.R. § 120.9. The EAR is issued under the Export Control Reform Act of 2018, 50 U.S.C. § 4801 et seq., and appears at 15 C.F.R. Parts 730–774; what is "subject to the EAR" is defined at 15 C.F.R. § 734.3, and the residual EAR99 designation is defined at 15 C.F.R. § 772.1. These are not academic references: the exemptions, license exceptions, recordkeeping rules, and penalty provisions an exporter must satisfy all live in these parts, and they differ in structure and stringency between the two regimes. An exporter that can locate the controlling section for each step of its analysis is far better positioned to document its determinations and defend them later.

What the ITAR Controls: Defense Articles and Services

The ITAR governs defense articles and defense services enumerated on the United States Munitions List. A defense article is generally an item specifically designed, developed, configured, adapted, or modified for a military application, along with its technical data. A defense service includes furnishing assistance (including training) to foreign persons in the design, development, manufacture, or use of defense articles, and furnishing controlled technical data. The ITAR regime is strict: companies that manufacture, export, or broker defense articles or services must generally register with DDTC, exports typically require licenses or other authorizations, and the exemptions are narrow and conditional. Because the ITAR reaches technical data and defense services — not just hardware — software, drawings, and even know-how for USML items can be controlled, and sharing them with a foreign person can be a controlled export even without anything crossing a border.

What the EAR Controls: Dual-Use and the CCL

The EAR governs items that are “subject to the EAR,” a broad category that includes items in the United States, U.S.-origin items wherever located, and certain foreign-made items with controlled U.S. content or produced from U.S. technology. Items with specific control concerns are listed on the Commerce Control List under Export Control Classification Numbers (ECCNs), which identify the reasons for control (national security, missile technology, chemical and biological weapons, anti-terrorism, and others). Items subject to the EAR that are not described by any ECCN are designated EAR99 — a residual category covering many ordinary commercial goods, which can often be exported without a license to most destinations but still cannot go to embargoed countries, prohibited end users, or prohibited end uses. The EAR’s licensing turns on the interplay of the item’s ECCN, the destination country, the end user, and the end use, evaluated through the Commerce Country Chart and the regulations.

Why Jurisdiction Must Be Determined First

Determining jurisdiction before anything else is not a formality; it is a logical necessity, because the two regimes are not interchangeable. The ITAR and the EAR have different lists (USML vs. CCL), different licenses and authorizations, different exemptions and license exceptions, different registration requirements, different recordkeeping rules, and different penalty structures. An exporter that assumes its item is EAR when it is actually ITAR may export without the required DDTC authorization and without registering — a serious violation — while an exporter that wrongly treats an EAR item as ITAR may impose needless burdens and still misapply the rules. Every practical step — classifying the item, finding the applicable license or exception, screening the transaction, and deciding whether the export is allowed at all — depends on first knowing which regime governs. Jurisdiction is the root of the decision tree.

The “Specially Designed” Concept and Export Control Reform

A central concept in drawing the ITAR/EAR line is “specially designed,” a defined term that both regimes use — at 22 C.F.R. § 120.41 under the ITAR and 15 C.F.R. § 772.1 under the EAR — to help determine whether an item is captured by a control list. Under the Export Control Reform initiative, many items were moved from the USML to the CCL, and the USML was revised toward more positive (objective, specification-based) control criteria, with a set of “600 series” ECCNs on the CCL capturing certain military items that are not on the USML. The “specially designed” definition — with its catch-and-release structure of inclusions and exclusions — is often decisive in determining whether a part, component, or piece of software is ITAR-controlled, EAR-controlled under a 600-series or other ECCN, or EAR99. Because these definitions are technical and their application fact-specific, the jurisdictional analysis frequently requires careful engineering input alongside legal judgment, particularly for parts and components that could fall on either side of the line.

Commodity Jurisdiction (CJ) Requests

When jurisdiction is genuinely unclear, an exporter can ask the government for an official determination through a Commodity Jurisdiction (CJ) request to DDTC under 22 C.F.R. § 120.4. A CJ request asks the State Department to decide whether a particular item or service is covered by the USML (and thus subject to the ITAR) or falls under the jurisdiction of another agency, typically Commerce under the EAR. DDTC coordinates the CJ determination with the Departments of Commerce and Defense. A CJ determination provides authoritative certainty about jurisdiction, which can be invaluable for a product line, but the process takes time, so companies often cannot wait for a CJ on every item and must make reasoned, well-documented self-determinations for routine matters while reserving CJ requests for genuinely ambiguous or high-stakes items. For EAR classification questions (which ECCN applies), the analogous tool is a classification request to BIS. Using these government mechanisms appropriately is part of a mature compliance program.

Technology, Software, and Deemed Exports

Export controls reach far beyond shipping hardware. Both regimes control technology/technical data and software, and both treat the release of controlled technology or source code to a foreign person — even within the United States — as an export to that person’s country. Under the EAR this is called a deemed export, defined at 15 C.F.R. § 734.13(a)(2); the ITAR has a parallel concept for releasing technical data or defense services to foreign persons. This means a California company can “export” controlled technology simply by giving a foreign-national employee, visiting researcher, or contractor access to controlled drawings, specifications, or software — without anything leaving the building. The jurisdictional determination matters here too: whether the technology is ITAR technical data or EAR technology dictates which rules, licenses, and exemptions apply to the deemed export. For universities, research institutions, and technology companies with international staff, the deemed-export rules make the ITAR/EAR analysis a daily operational concern, not just a shipping-department issue.

Licensing, Exemptions, and License Exceptions

Once jurisdiction is settled and the item is classified, the exporter determines whether the specific transaction needs a license and whether any exemption (ITAR) or license exception (EAR) applies. Under the ITAR, most exports of defense articles and services require a DDTC license or other authorization, and the available exemptions are narrow, conditional, and strictly construed. Under the EAR, whether a license is required turns on the item’s ECCN and reasons for control, the destination (via the Commerce Country Chart), the end user, and the end use; where a license would otherwise be required, a license exception may authorize the export if its specific conditions are met. In both regimes, exemptions and exceptions are not free passes — they carry eligibility criteria and recordkeeping obligations, and misusing one is itself a violation. The correct license or exception can only be identified after the jurisdiction and classification questions are answered, which is why those steps come first.

End-Use, End-User, and Destination Controls

Regardless of regime, an export analysis must also account for who will receive the item and where and how it will be used. Both the ITAR and the EAR prohibit exports to embargoed or sanctioned destinations and to prohibited parties, and both control exports tied to prohibited end uses (such as certain weapons-proliferation activities). Exporters must screen transactions against government restricted-party lists — including the BIS Entity List and Denied Persons List and the State Department’s debarred list — and against sanctions administered by the Treasury Department’s Office of Foreign Assets Control (OFAC), which operates alongside the export-control regimes. Even an EAR99 item that needs no license for a routine destination cannot lawfully go to a sanctioned country, a listed party, or a prohibited end use. These overlapping controls mean that the jurisdictional determination is the start of the analysis, not the end: the exporter must still clear the party, destination, and end-use screens before proceeding.

The Consequences of Getting Jurisdiction Wrong

Export-control violations carry some of the most severe penalties in U.S. regulatory law. Both the ITAR and the EAR provide for substantial civil penalties per violation and for criminal prosecution, including significant fines and imprisonment for willful violations, as well as administrative sanctions such as denial of export privileges and debarment. Misjudging jurisdiction is a frequent root cause of violations: treating an ITAR defense article as an EAR item, and exporting it without DDTC registration and authorization, can produce serious liability even where the exporter acted in good faith. Because the regimes also reach technical data, software, and deemed exports, violations can occur in ways that are easy to overlook — a shared drawing, a foreign-national hire with access to controlled technology, a service provided to a foreign customer. Given the stakes, exporters who identify a potential violation should consider a voluntary self-disclosure, which can significantly mitigate penalties, and should involve experienced counsel promptly.

Building an Export-Control Compliance Program

A sound compliance program operationalizes the jurisdiction-first approach. It establishes a repeatable process to determine jurisdiction (ITAR vs. EAR) and then classify each product, technology, and software release, documenting the basis for each determination (including engineering analysis of “specially designed” questions and, where warranted, CJ or classification requests). It implements restricted-party and destination screening, controls deemed-export access for foreign-national personnel, maintains the required registrations and recordkeeping, trains employees, and audits itself periodically. For California technology companies, manufacturers, and research institutions — many of which employ foreign nationals and collaborate internationally — such a program is essential, because the controls reach everyday activities and the penalties for error are severe. Experienced export-control counsel can help design the program, make and document jurisdictional determinations, handle CJ and classification requests, and manage voluntary disclosures if problems arise.

Related Guides

• California International Trade & Customs Lawyers
• Deemed Exports Under the EAR for California Companies
• Antiboycott Compliance Under the EAR

Frequently Asked Questions

What is the difference between the ITAR and the EAR?

The ITAR, administered by the State Department’s DDTC, controls defense articles and defense services on the United States Munitions List. The EAR, administered by the Commerce Department’s BIS, controls dual-use and less-sensitive military items on the Commerce Control List, plus other items subject to the EAR. They have different lists, licenses, exemptions, registration rules, and penalties.

Why does jurisdiction have to be determined first?

Because the two regimes are not interchangeable. Classification, licensing, exemptions, screening, and the decision whether an export is even allowed all depend on which regime applies. An exporter that wrongly treats an ITAR defense article as an EAR item may export without the required DDTC registration and authorization — a serious violation. Jurisdiction is the root of the entire analysis.

What does “specially designed” mean?

It is a defined term both regimes use to help decide whether an item is captured by a control list. Its structure of inclusions and exclusions is often decisive in determining whether a part, component, or software is ITAR-controlled, captured by a CCL ECCN (such as the 600 series), or EAR99. Because it is technical, applying it usually requires engineering input alongside legal analysis.

What is a Commodity Jurisdiction (CJ) request?

A CJ request asks the State Department’s DDTC to officially determine whether an item or service is on the USML (subject to the ITAR) or falls under another agency’s jurisdiction, typically Commerce under the EAR. DDTC coordinates with Commerce and Defense. A CJ gives authoritative certainty but takes time, so companies reserve it for genuinely ambiguous or high-stakes items. BIS classification requests are the analogous EAR tool.

What is a deemed export?

Under the EAR, releasing controlled technology or source code to a foreign person — even within the United States — is “deemed” an export to that person’s country. The ITAR has a parallel concept for technical data and defense services. This means giving a foreign-national employee or researcher access to controlled technology can be a controlled export without anything crossing a border.

What is EAR99?

EAR99 is the residual designation for items subject to the EAR but not described by any ECCN on the Commerce Control List. Many ordinary commercial goods are EAR99 and can often be exported without a license to most destinations — but even EAR99 items cannot go to embargoed countries, prohibited parties, or prohibited end uses.

What are the penalties for export-control violations?

Both regimes provide substantial civil penalties per violation, criminal prosecution (including large fines and imprisonment for willful violations), and administrative sanctions such as denial of export privileges and debarment. Misjudging jurisdiction is a common root cause. A voluntary self-disclosure can significantly mitigate penalties, so involve counsel promptly if you identify a potential violation. Call Trembach Law Firm at (213) 645-2246.

Do export controls apply to my software and technical data?

Yes. Both regimes control technology/technical data and software, and both treat releasing controlled technology to a foreign person as an export. Whether the technology is ITAR technical data or EAR technology determines which rules apply — which is why the jurisdictional determination matters for software and know-how, not just hardware. Call Trembach Law Firm at (213) 645-2246.

Talk to a California Export-Control Lawyer

Whether the ITAR or the EAR governs your product, technology, software, or service is the first question in any export-control analysis — and getting it wrong is one of the most serious and common mistakes an exporter can make. Trembach Law Firm, led by Anatolii Trembach (LL.M.; admitted in California), helps exporters determine jurisdiction, classify items, handle commodity-jurisdiction and classification requests, manage deemed-export risk, and build compliance programs. Call (213) 645-2246 for a confidential consultation.

Contact Trembach Law Firm at (818) 514-7680 for a confidential consultation.

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