The Export Administration Regulations
The EAR
In May of 1980, President Carter signed Executive Order 12214, delegating many of the powers granted to him in the Export Administration Act (the “EAA”) of 1979 to the Secretary of Commerce. There had been before many iterations of the EAA, including 1949 and 1969, and attendant Executive Orders delegating authority under them, but it was in 1980 that the Department of Commerce was granted the power that led to the promulgation of the Export Administration Regulations (the “EAR”).
Just as their authorizing legislation - as well as its many predecessors - the EAR pursued many different foreign and domestic policy goals of the United States, through the oversight of exports of many types of material. These rationales, called “Reasons for Control” include Anti-Terrorism, Crime Control, Firearms Convention, National Security, Regional Stability, Short Supply, and United Nations Embargo, among others, though these are the categories that can readily be applied to small arms, accessories, parts, and ammunition.
In line with the wide scope of applicability and justifications for regulation under the EAR, these regulations also seek to achieve the goals of the successor to the CoCom. Following the dissolution of the Soviet Union, the CoCom became obsolete, as there was no longer a Soviet Union and Warsaw Pact to contain, and so it dissolved in 1994. However, with the new purpose of maintaining transparency concerning the global trade in defense articles and “dual-use technologies,” i.e., items with potential applications in both civilian and defense sectors, fostering stability, and preventing unnoticed arms buildups, a new group was formed, called the Wassenaar Arrangement, in 1996. This successor to the CoCom was even larger than its predecessor, adding to the traditional NATO members of the old Committee Mexico and Argentina in the western hemisphere, all of the original non-Soviet members of the former Warsaw Pact except Albania, the former Yugoslav Republics of Slovenia and Croatia, Malta, South Africa, India, New Zealand, the Republic of Korea, and even Ukraine and the Russian Federation.
While the munitions list promulgated by the Wassenaar Arrangement does not have treaty status - and therefore does not have force of law on its own - its provisions, particularly concerning small arms and ammunition, are mirrored by those under the EAR, and regulated for the same ostensible reasons.
Moving most small arms and ammunition from the ITAR to the EAR was justified, at least in part, by a recognition that such items and the technology that underlies them, do not confer a critical defense advantage to the United States over potential foreign adversaries. In keeping with this view of most firearms and ammunition as being less sensitive, the Department of Commerce does not regulate “defense services” to foreign nationals in the way that the ITAR do. However, the EAR do regulate the transfer of “technology” as exports, even to foreign persons in the United States. Furthermore, they define “technology” broadly, as “[i]nformation necessary for the ‘development,’ ‘production,’ ‘use,’ operation, installation, maintenance, repair, overhaul, or refurbishing … of an item.” 15 C.F.R. Therefore, one should not assume that operating under the EAR is necessarily any easier or less restrctive than the ITAR.
In fact, even though exports of most small arms are now under the authority of the Department of Commerce through the EAR, exporters are still not completely free of the ITAR, and must still work under those regulations and with the State Department for various parts of the export process, like reporting and recordkeeping.
Mirroring the ITAR in one more, very important way, the EAR has its own list of regulated items, known as the “Commerce Control List,” or “CCL.” Most small arms (those not on the USML) and their parts, accessories, and ammunition are listed on the CCL, and thus export of them, or technology pertaining to them is subject to the EAR. For a detailed look how the CCL treats small arms and how that applies to your business, see the dedicated page on the Commerce Control List: