Published in the Daily Bugle, August 25, 2023
The Control Lists (CCL and USML) are a series of pigeonholes, each with a specific label and set of characteristics. Get the item into the right pigeonhole, read the label, and you’ve got the Jurisdiction and Classification. Sometimes that pigeonhole is shared by unlikely bedfellows, like an entire developmental airplane and its specially designed L-bracket (VIII(f)). Sometimes it’s the only item in existence (9A002[1]). Related items might be in adjacent slots (high turbine blade for a F110 fighter engine in XIX(f)(2), low turbine blade in (f)(3)), and sometimes very far apart (rocket launcher in IV(b), and the bolt holding to the ship in EAR99.). There are rules for sorting – ITAR § 120.11 and EAR Supplement No. 4 to Part 774 – Order of review. There are the After You, Alphonse(s) of Not Elsewhere Specified (n.e.s.,) ‘other than those described in, ‘not controlled in,’ and similar constructs to help the J&C process. Sometimes we have two equally applicable options. Nobody said it was easy to be the Sorting Hat With Too Many Choices.
Both the EAR and ITAR suggest starting with the general characteristics of the item to point to the proper category, and then work down through the specifics. The place to look is the header. Each major Category has a general description: EAR Cat 9 Aerospace and Propulsion or ITAR Cat XVIII Directed Energy Weapons. But it’s the lower-level headings and sub-headings that contain the details.
As one delves into those details, it is important to remember that the Lists were written by many hands, over three or more decades, with inconsistent (or non-existent) editorial voices. In the case of the CCL, it is the agglutination of wording from four different Regime lists, each with their own spottily enforced editorial guidelines. The result are strict rules that are usually correct, but sometime open to interpretation. Your mileage may vary.
Word order can be critical, and the topic of this column[2] is as follows. Yes, that’s it. As follows. Examine two forms:
- Thingies, as follows, and specially designed parts and components therefor:
Vs
- Thingies, and specially designed parts and components therefor, as follows:
The placement of ‘as follows’ is critical because what follows is list of characteristics that determine if you’ve got the right pigeonhole. What precedes the ‘as follows’ is what must be measured against those characteristics; what follows ‘as follows’ does not.
Version 1 – Thingies as follows, and then specially designed parts and components, is quite broad and found in the EAR 600.y entries (and 5A001.f, among others). If you’ve got a 0A606.y.12 lighting system, every “specially designed” part or component (or accessory or attachment) for said lighting system is also controlled. The Thingy is described, and the specially designed parts and components are dragged in, kicking and screaming.
Version 2 is much narrower. For example, 6A003.a. controls ‘Instrumentation cameras and “specially designed” “components” therefor, as follows:’
This header is followed by six sub-headings. The first two are reserved, but like entries a.3 through a.5, called out ‘cameras.’ Entry a.6 calls out plug-ins, for cameras meeting certain characteristics. The only “specially designed” “components” controlled in 6A003.a are the a.6 plug-ins; if you’re evaluating a focal plane array, or just a specially designed L-bracket, look elsewhere.
As you can see, the placement of ‘as follows’ in relation to a catch-all can greatly impact how All the catch-all is. Which brings us to our puzzler for today – XV(e)(11), which reads:
‘Space-based systems, and specially designed parts and components therefor, as follows:’
What follows are all systems. Not a part or component is described, not even the wildcard ‘equipment.’ Entries (i) through (iii) are all nuclear, and (iv) is electric. As written, parts and components specially designed for these powerplant/power systems aren’t listed in XV, and don’t appear in 0A617. It would seem that they fall to 9A515.x. It’s possible, but surprising, to think that parts specially designed for spacecraft nuclear propulsion/power systems wouldn’t be ITAR controlled. And they would be, if only the ‘as follows’ slid seven words to the left,[3] becoming ‘Space-based systems, as follows, and specially designed parts and components therefor:’
I can neither confirm nor deny my experience with space-based nuclear propulsion or power systems, so won’t weigh in on the proper J&C of their parts and components. But it’s tough to overlook what the plain language says. Maybe DDTC does want these parts and components to be EAR. Maybe it’s an oversight caused by inauspicious editing. If anybody wants to comment, or has other oddities to discuss, or J&C questions, please reach out to me at ArtOfJC@arinovis.com, and we can discuss it in this very forum.
[1] Fodder for another column.
[2] Yes, we’re finally getting to the topic.
[3] And the comma moved as necessary to keep the grammarians happy.