International Traffic in Arms
Regulation (ITAR) and Export
Administration Regulations
(EAR) and Standards
Development
Dan Bart, CTO and Advisor
to the President, TIA
DSPO Conference 2007
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EAR and ITAR
What are they?
Why Do I Care?
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DISCLAIMER
The export laws and regulations of the USA and
other countries are very complex and difficult to
understand and comply with.
Violations are also severely punished.
This presentation is NOT legal advice, nor am I
or TIA providing such legal services, individuals
with an export control issue should seek
competent legal assistance.
This is a simplified overview of many export
control concepts and TIA’s experiences as an
SDO.
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Current Knowledge
Base
POP QUIZ!!
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Pop Quiz
1. What do we call it when you take
something across the border without
the government’s permission?
2. True or False, in order to have an
‘Export’ the article or thing must leave
the geographic area of the USA?
3. True or False, Export Controls have
been around since Biblical time?
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Pop Quiz
4. ‘EAR’ is a term used with or for:
– A. A part of your body
– B. A way to count corn
– C. Regulations dealing with Exports
– D. All of the above
5. True or False, Regulating the Export
of Technology to make a bullet is more
important to your defense than
regulating the shipment of the bullet
itself?
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Answers
Q1. What do we call it when you take
something across the border without the
government’s permission?
A1. SMUGGLING! And smugglers can go
to jail.
Q2. True or False, in order to have an
Export the article or thing must leave the
geographic area of the USA?
A2. False, it can occur in the USA when
control or possession is given to an alien
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Answers
Q3. True or False, Export Controls have
been around since Biblical time?
A3. True, Biblical references to not
having an enemy get technology for a
weapon
Q4. EAR is a term used with or for:
– A. A part of your body
– B. A way to count corn
– C. Regulations dealing with Exports
– D. All of the above
A4. D, All of the answers are correct
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Answers
Q5. True or False, Regulating the Export
of Technology to make a bullet is more
important to your defense than regulating
the shipment of the bullet itself?
A5. True, and that is why we care and why
this segment is on the agenda today!
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Export Administration
Regulations (EAR)
and
International Traffic in
Arms Regulations (ITAR)
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CAVEAT
CAVEAT: This is just an overview, in
simplified terms. I strongly advise
reading the applicable regulations for
any specific issues that arise.
– You do not want to be the reason your boss went
to jail
Exporting is not a right, it is a privilege
that can be restricted or revoked for
reasons of:
• Foreign policy, National security, Short supply
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Why and What?
WHY DO WE HAVE EXPORT CONTROLS?
• National Security: Broad Considerations:
Terrorism; Weapons Control, Foreign
Policy, DoS, DHS, and DoD concerns.
• Trade Protection: Specific Concerns:
Supply Shortages, Crime Control, WMD
Proliferation, Missile Technology, National
Security, Regional Stability, Anti-terrorism,
Instruments of Torture, High Performance
Computers, Communications Intercepting
Devices, “Significant Items, ” DOC and FBI
concerns
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Why and What?
WHAT’S THE EFFECT ON AN SDO?
– May involve controlled items or
information (technology/technical data);
or involve foreign nationals.
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QUICK OVERVIEW - EAR
Export Administration Regulations
(EAR) (15 C.F.R. § 730-774).
Home Agency: Department of
Commerce, Bureau of Industry and
Security (BIS).
What it regulates: Exports of commercial
and dual-use (commercial and military)
items and information (technology).
User-Friendly Guide: 17 CFR § 732.1
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EAR: Commerce Control List
(CCL)
CCL (15 C.F.R. § 774, Supp. 1):
– Dual use items and technology subject to EAR.
– Before exporting them –must have a license,
– Unless an EAR exception applies.
EAR 99: Other items/technology subject
to EAR restrictions, e.g., exports to
embargoed countries; restricted end
uses.
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PROHIBITED
COUNTRIES/USES
Terrorism/Weapons Mass Destruction
– EAR: Embargoed countries; Restricted Persons
and Uses (17 CFR 744, 746; 764): Cuba, Iran, Iraq, Libya,
N. Korea, Sudan, Syria.
– ITAR: Prohibited Exports and Countries (22 CFR §
126.1). Belarus, Cuba, Iran, Iraq, Libya, N. Korea,
Syria, Vietnam. Others: Arms embargoes; U.N.
Sanctions…Check regulations for complete list.
– US Policy: Generally, export licenses will be
denied in these areas; exceptions inapplicable.
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International Traffic In Arms
Regulations (ITAR) (22 CFR § 120 )
Home agency: State Department, Bureau
of Defense Trade Controls.
– What it regulates: Export of military articles and
information and defense services.
– Before export – get a license, unless an ITAR
exception applies.
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ITAR –
U.S. Munitions List (USML)
U.S. MUNITIONS LIST: Defense Articles and
Technical Data (22 CFR § 121.1).
DEFENSE SERVICES: Furnish assistance or
training re: USML articles/data (22 CFR § 120.17).
1999: Commercial satellites from EAR to ITAR.
– Major shift affecting university and the industry
research.
– ITAR complex and inconsistent definitions; more
ambiguous than EAR
– Higher risk – harsher penalties.
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Definitions:
WHAT’S AN “EXPORT” ?
UNDER BOTH EAR AND ITAR -- an export
can occur in two ways:
– ACTUAL shipment or transmission of items
outside of the U.S.; or
– DEEMED exports: Release or disclosure to a
foreign national within or outside U.S.
• Examples: Disclosure at lectures, SDO or
other meetings, conferences; Lab access;
Release of source code; International
collaborations.
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Definitions: RE-EXPORTS
EAR: Transfer of U.S. technology by an
intermediary person or institution, to a national
of a third country. Can be “actual” or “deemed.”
– Example: SDO transfers controlled technology to
Country A, which employs an individual who is a
national of Country B.
BE AWARE: Include applicable restrictions in
sub-licensing agreements involving articles /
information subject to export controls.
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Definitions EAR:
Technical Data
“May take forms such as blueprints,
plans, diagrams, models, formulae,
tables, engineering, designs and
specifications, manuals and instructions
written or recorded on other media such
as disk, tape, read-only memories”
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JUST ONE MORE DEFINITION …
Foreign National or Foreign Person:
– A Company or other entity not organized
to do business in the U.S.
– An Individual who is not:
• A U.S. citizen; or lawful permanent resident (“Green
Card”) - 8 USC 1101(a)(20); or
• A “protected individual” (political asylum) - 8 USC
1324b(a)(3).
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PUTTING IT TOGETHER:
What does it all mean?
IF:
The article or information is of a type
listed on CCL or USML; or
The SDO will train a foreign person in
connection with military articles/data or
defense services; or
Actual or deemed export of EAR99 items
to embargoed country, or for restricted
use;
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PUTTING IT TOGETHER:
What does it all mean?
AND if NO exception is available under the
applicable regulations,
THEN:
A LICENSE must be obtained before any
actual or deemed “export” occurs, or
NO EXPORT allowed and foreign
nationals must be excluded.
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PUTTING IT TOGETHER:
What does it all mean?
What if you mess up?
– Loss of federal funding;
– Fines ($1M personal liability under ITAR);
– Potential civil and criminal liability.
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There are some Exceptions, e.g.,
Encryption Technology (EAR )
Applies to encryption technology and
software source code.
Changes “deemed export” rule to permit
foreign employees of U.S. entities to work
in the U.S. without a license.
(See EAR License exception ENC, updated 1/14/2000)
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Another Exception –
Publicly Available Information
EAR ITAR
Published information Information in “public
(print, film, recordings, domain” (i.e., “published
etc.). and generally
Certain publicly available accessible”) through:
technology and software – Sale, subscription, library
(subject to limitations). – Unlimited distribution at
Under exclusive public meeting, conference
jurisdiction of another – Public release after
agency (e.g. patents / government approval; or
PTO). – Fundamental Research.
Fundamental Research.
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TIA’s Experiences
Encryption Algorithms are used in mobile phones
– Protect signaling channel, minimize toll fraud
– Voice channel for privacy of communications
– Key Pad signaling for sending digits to computers
TIA Algorithms were originally controlled under
ITAR as a munitions item
– Special handling at TIA
With liberalization of controls, became an EAR-
controlled item, now can be posted on web site
after notice to DoC.
– Close contacts with NSA and DoC
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Bottom Line
In general, standards development activity (whether
involving technical discussions or visual
presentations) does not constitute an export because
the information exchanged does not meet the
definition of "technical data" as defined in ITAR
120.10:
– (1) Because the information involved is generally accessible or
available to the public as defined in 120.11., or
– (2) It often involves general scientific, mathematical or engineering
principles commonly taught in schools, colleges, or universities.
For most SDOs, Export controls should not be viewed
as impediments to standards development activities.
BUT, if not sure, talk to knowledgeable attorney
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ITAR / EAR:
ONLINE RESOURCES
EAR Compliance Information (Department of
Commerce) - :
– [Link]
ITAR Compliance Guidelines (Department of State):
– [Link]
U.S. State Department (ITAR):
– [Link]
“Balancing Scientific Publication & National
Security Concerns: Issues for Congress (1/10/03):
– [Link]
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OTHER
ONLINE RESOURCES
DOT/OFAC: [Link]/ofac
DOD/DTRA: [Link]
DHS/CBP: [Link]
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Dan Bart
CTO and Advisor to the President, TIA
Tel: +1-703-907-7703
Fax: +1-703-907-7727
DBart@[Link]
and those folks who held up their hands or
scored a 5 on quiz!
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