If you manufacture or export products with potential defense applications, one of the most consequential questions you'll face is: does ITAR or EAR control this item? The answer determines which federal agency regulates you, which export license (if any) you need, and what the penalties look like if you get it wrong.
This guide explains the two regimes, how to work through the Order of Review, and where companies most commonly go wrong on jurisdiction calls.
ITAR vs EAR: The Basic Framework
ITAR — the International Traffic in Arms Regulations — is administered by the State Department's Directorate of Defense Trade Controls (DDTC) under 22 CFR Parts 120–130. ITAR controls defense articles, defense services, and technical data that appear on the United States Munitions List (USML). The USML contains 21 categories covering everything from firearms and ammunition to spacecraft systems and directed energy weapons.
EAR — the Export Administration Regulations — is administered by the Commerce Department's Bureau of Industry and Security (BIS) under 15 CFR Parts 730–774. EAR controls dual-use items that appear on the Commerce Control List (CCL) — commercial goods, software, and technology that have both civilian and potential military applications — as well as items not controlled at all (designated EAR99).
The critical distinction: ITAR is primarily about what the item is designed to do (defense use), while EAR covers items designed for commercial purposes that may also have military utility. In practice, the line between the two regimes has shifted significantly since the Export Control Reform (ECR) initiative that ran from roughly 2009 through 2018.
Export Control Reform: Why the Line Moved
Before ECR, the USML was broadly worded and captured many items that competed commercially. A significant portion of aerospace and defense components that were predominantly commercial were nonetheless ITAR-controlled due to vague catch-all language.
The ECR initiative systematically rewrote USML categories to use positive list descriptions — specific technical parameters that trigger ITAR jurisdiction — and moved large volumes of items formerly on the USML to corresponding 600-series ECCNs on the CCL (e.g., ECCN 9A610 for aircraft parts, ECCN 9A515 for spacecraft parts). Items that fell off both lists became EAR99.
The practical effect: many commercial aircraft components, certain electronics, and a broad range of dual-use technologies moved from ITAR to EAR as part of ECR. If you inherited a compliance program built before ECR was complete, your item classifications may be outdated.
The Order of Review: Step by Step
The Order of Review is the U.S. government's prescribed methodology for determining whether an item is subject to ITAR, EAR, or neither. Work through it in this sequence:
Step 1: Is the item on the USML?
Consult 22 CFR Part 121 — the U.S. Munitions List — and evaluate whether your item fits a specific positive list description in any of the 21 USML categories. ITAR jurisdiction is determined by the item's design characteristics, not its end use. A component "specially designed or modified" for a USML application is generally ITAR-controlled even if sold commercially.
Key questions at this step:
- Does your item meet a specific technical parameter in a USML category description?
- Was the item designed, developed, configured, adapted, or modified for a military application?
- Is it a "specially designed" component or part for a USML end item?
If yes to any of these, the item is subject to ITAR. Stop here — EAR does not apply.
Step 2: Is the item on the Commerce Control List?
If the item is not USML-listed, consult Supplement No. 1 to 15 CFR Part 774 — the CCL. CCL items are assigned Export Control Classification Numbers (ECCNs) organized by category (0–9) and product group (A–E). Items may be controlled for national security (NS), missile technology (MT), nuclear nonproliferation (NP), chemical and biological weapons (CB), and other reasons.
Jurisdiction under EAR does not require military design history — dual-use commercial items may appear on the CCL based on their specifications alone.
Step 3: Is the item EAR99?
If the item appears on neither the USML nor the CCL, it is designated EAR99 — subject to EAR but not to a specific ECCN. EAR99 items generally do not require export licenses to most destinations, but remain subject to EAR and cannot be exported to sanctioned countries or persons on denied-party lists.
EAR99 does not mean "unrestricted." OFAC sanctions, BIS entity list controls, and end-use/end-user restrictions can apply to any item regardless of ECCN.
Common Jurisdiction Mistakes
1. Assuming historical ITAR classification is still accurate. ECR moved many items from USML to CCL. A classification your company obtained in 2010 may not reflect the current positive list. Reclassification reviews are warranted whenever USML categories relevant to your product were rewritten under ECR.
2. The "military customer" fallacy. Selling to a military customer does not make an item ITAR-controlled. Classification is based on the item's design, not who buys it. An off-the-shelf commercial processor sold to a defense prime contractor is not ITAR-controlled unless the processor meets a USML technical parameter.
3. Conflating "defense article" with "military-grade." ITAR controls defense articles as defined in 22 CFR Part 121. Items that are marketed as "mil-spec" based on environmental, temperature, or reliability specifications — but are not on the USML — are not defense articles for ITAR purposes.
4. Missing 600-series ECCNs. Post-ECR, items that moved from USML to the CCL landed in 600-series ECCNs (e.g., 0A606, 1C608, 9A610). These ECCNs have stricter export licensing requirements than ordinary CCL items and resemble ITAR in many respects. Failing to identify a 600-series ECCN can result in unauthorized exports with significant penalty exposure.
5. Ignoring technical data separately from hardware. ITAR covers technical data related to USML items independently of the hardware itself. Technical drawings, manufacturing specifications, and software source code that would enable production of a USML item are themselves defense articles. The same logic applies under EAR — technology for 600-series CCL items is controlled separately from the hardware.
Dual-Use Products: When Both Regimes Apply in a Single Transaction
Many defense contractors produce product lines with both ITAR and EAR variants. A sensor with military-grade specifications may be a USML item, while a commercial variant with lower performance specifications is an EAR-controlled CCL item. Maintaining separate classification records for each variant — with documented technical differentiation — is essential for a documented compliance program.
If your product sits close to the USML/CCL boundary, consider obtaining a commodity jurisdiction (CJ) determination from DDTC. A CJ is an official ruling on whether an item is subject to ITAR or EAR and is binding on the government. CJ filings take time but provide regulatory certainty and legal protection.
Using ITAR Screen for Jurisdiction Determination
ITAR Screen classifies products against all 21 USML categories and provides a specific category citation, risk level, and AI-generated reasoning for each screening result. The screening record is timestamped and immutable — supporting 22 CFR §122.5 recordkeeping requirements.
For preliminary jurisdiction screening before a CJ filing, or as ongoing documentation for products you regularly classify, ITAR Screen gives your compliance team a documented starting point without a six-month enterprise software implementation.
Classify your products against the USML in seconds — no account required for your first two classifications.
This article is for informational purposes only and does not constitute legal advice. Consult qualified export control counsel before making compliance decisions.