Published in the Daily Bugle, September 15, 2023
The through line of precise and accurate J&C remains the mantra Read All The Words. A while back we delved into the word “compound” which while easily overlooked, at eight letters it too big to hide. There are two words that punch well above their size – “and” and “or.” I like them because this is a great opportunity to use the twenty-dollar words of “conjunctive” and “disjunctive.” Mrs. Rivers, my 7th grade English teacher, would be proud.
When it comes to performance characteristics in the regulations, “and” and “or” (without quotes) are used as in logic operators. In the case of “and,” all the elements in the statement must be true for the statement to be true. In the case of “or”, any one element being true is sufficient for the statement to be true.
For example, USML XII(a)(3) (xxiii) controls radar that sends interceptor guidance commands OR provides illumination keyed to an interceptor seeker. If a given radar does either of those two functions, it’s described there. However, nearby (xxv) calls out radar that sends AND receives communications – it must both receive and transmit communications (not just a radar ‘ping’) to be described in xxv; doing just one isn’t enough. Note that the sub-header (a)(3) calls out “Radar systems and equipment, as follows” – that’s not the same logical AND; it could have just as easily said “Radar systems or equipment, as follows” and mean the same thing.
The EAR uses the same format, but since it tends to be even more parameter driven, can end up with some complex constructions. For example, 9E003.c is a combination of ANDs and ORs:
“Technology” “required” for manufacturing cooling holes in gas turbine engine components incorporating any of the “technologies” specified by 9E003.a.1, a.2, or a.5, and having ANY of the following:
c.1. Having ALL of the following:
c.1.a. Minimum ‘cross-sectional area’ less than 0.45 mm2;
c.1.b. ‘Hole shape ratio’ greater than 4.52; AND
c.1.c. ‘Incidence angle’ equal to or less than 25°; OR
c.2. Having ALL of the following:
c.2.a. Minimum ‘cross-sectional area’ less than 0.12 mm2;
c.2.b. ‘Hole shape ratio’ greater than 5.65; AND
c.2.c. ‘Incidence angle’ more than 25°;
To meet c.1, all three characteristics – essentially diameter[1], length, and angle must be met. The c.2 entry describes a different set of holes – technology for either type is controlled.
The headers contain the terms “any” and “all” to help clarify the “and” and “or.” Important point – the “and” in the header following some mumbo-jumbo and a few ECCNs is just as critical. It’s not just drilling holes that meet c.1 or c.2 – they have to be for gas turbine engine components AND (which is implied) which incorporate any one of three specific “technologies” (yet another “or.”) The combination of conjunctive/disjunctive performance characteristics in the cascade structure – and in this case, the header – can become confusing, so a good tactic is to diagram them out (kudos again to Mrs. Rivers, Rest Her Soul.)
One workhorse term that leans heavily on a conjunction is the EAR term “use,” defined in Part 772 as “operation, installation (including on-site installation), maintenance (checking), repair, overhaul AND refurbishing.” This definition comes directly from the Wassenaar Control List. And that’s where it gets complicated.
BIS has a long-standing policy that all six elements in the definition must be present for an item to be classified under an ECCN paragraph that employs “use” to describe the technology[2]. In my experience, there isn’t much in this world that contains all six elements – not only operation, but also four other disparate acts[3]. An EAR99 bicycle pump manual may contain all those elements – including how to replace the seal, but when considering items with a level of technology that triggers an export control, the operator’s manual tends to get split off from the maintenance manual, and ditto with the overhaul manual. Bottom line – if someone says something is “use” technology, I toss the BS flag and they need to prove it.
That BIS interpretation of “use” is why all the x515 and x600 technology entries spell out the individual elements, joined by that all-encompassing “Or” – that data was individually controlled on the ITAR[4] and DDTC wasn’t going to let that slide when it hit the EAR.
Here’s where it gets interesting: The BIS – and therefore United States – interpretation of “use” is just that – the U.S. exercising national discretion as to the implementation and interpretation of the Wassenaar regulations. Many countries treat the “and” in “use” as an “or.” They don’t do that for the parameter entries, or all hell would break loose. But if the U.S. can exercise national discretion, so can the rest of the world[5]. A 4A001.a.1 computer Operators Manual which is EAR99 (U.S.) may still be 4.E.1.a elsewhere in the world. Caveat Exportius.
if you have comments other oddities to discuss, or J&C questions, the offer still stands – please reach out to me at ArtOfJC@arinovis.com.
[1] Get used to this example; it’ll pop up in later columns because it really isn’t diameter.
[2] See Federal Register/Vol. 81, No. 107/Friday, June 3, 2016, particularly page 35596, “Use” Elements.
[3] I’m lumping the last two together, until someone can provide a non-laughable differentiation between “overhaul” and “refurbishment”
[4] § 120.33(a)(1) Technical Data is a Whole Bunch Of Verbs joined by “or.”
[5] Shocking concept, I know.