Published in the Daily Bugle, February 5, 2024
The USG had the best intentions for ECR, and No Good Deed Goes Unpunished. The (b)(3) release in “specially designed” is a brilliant solution, but it’s been misinterpreted more than song lyrics on drunk karaoke night. The .y entries for 600 series and 9A515 ECCNs is a great concept, yet most Global Trade people complain that while extensive, their biggest fault is not including their company’s product catalog. Add in Printed Circuit Cards (PCBs) and 3A611, and well, Dry January couldn’t have ended too soon.
Bringing up the treatment of PCBs in ITAR XI(c)(2) is a great way to start a bar fight[1], but it’s not like the EAR has it easy. There are differing opinions on how to treat PCBs for 600 series items, and proponents break down into three groups: (1) those confident PCBs belong in 3A611.g, (2) those positive they belong in the .x entry of their higher assembly, and (3) those that regret asking what you do for a living.
I’ve gotten both interpretations from various licensing officers, officials, compatriots, and my specially designed J&C Magic Eight Ball. Time for a random pundit to weigh in.
Ground rules –we’re talking about items subject to the EAR, and that when it comes to the Order of Review, Enumerated beats Catch-all[2].
ECCNs 3A611.f, .g., and .h, control ASICs, PCBs, and multi-chip modules (respectively) “specially designed” for 600 series items. ECCNs 3A611.y.14/15/16 control the same things for an item called out in .y paragraphs. The regulatory construction of “Specific Thingy “specially designed” for A Different Specific Thingy or Groups of Thingies” is the very definition of an enumerated entry. The 3A611.f/.g/.h and the numbered 600 series .y entries are enumerations, and therefore take precedent over catch-all .x paragraphs. In some cases, .x includes text to explicitly state it doesn’t control items in .y[3]; not necessary, but a nice touch.
This brings us to the conclusion that a PCB for a 600 series item is either 3A611.g or 3A611.y.15[4]. It is NOT in a 600 series .x entry. Enumerated over catch-all. No matter how desperately I want the PCB for a 9A610.x control panel to be 9A610.x, or an ASIC programmed for a 9A619.b FADEC to be 9A619.x, the regulation wording doesn’t support it.
Like 600.x, the 600.y entries are recursive – they enumerate/specify certain items – a switch or a life raft – but also include a catch-all for Parts, Components, Accessories, and Attachments “specially designed” therefore. Unless specified elsewhere, the toaster “specially designed” for a 9A610.y.9 aircraft galley is also 9A610.y.9. But a PCB “specially designed” for the toaster is described in both the catch-all of 9A610.y.9 and the enumeration of 3A611.y.15 – and the 3A611.y.15 enumeration wins. No matter the best intentions, that toaster PCB ends up back in 3A611.y.15, not 9A610.
It feels right that parts for a .x item belong in .x, and shouldn’t require reaching into a completely different category. But we’re talking J&C here, and “it feels right” doesn’t get a say. Enumerated comes before catch-all. If we bend that here, where else do we get to bend it? The foundations of our civilization are already buckling; I don’t want this to be the final straw.
You do you – this is an opinion piece, not an AO result, and most assuredly NOT legal guidance. But the only way to get repeatable and defensible J&C results is to establish rules and then stick by them. To be honest, until I did the detailed analysis for this piece, I’d opine that an aircraft PCB should be in 9A610.x. But I’ve read all the words, and that result just doesn’t hold up. If BIS changes the regulations to allow the ASICs, PCBs, and modules to live in 3A611 or the 600.x entries (as it allows you to pick and choose among .y entries[5]), I’ll lead the parade. If they issue an AO to the contrary, I’ll be puzzled but line up behind it.
But until then, ASICs, PCBs, multi-chip modules specially designed for 600 series items live in 3A611, not in the .x entry of the higher assembly.
Got J&C questions? – please reach out to me at ArtOfJC@arinovis.com
[1] Biker bars have nothing on a Global Trade bar.
[2] As described in Supplement No. 4 to Part 774. Amen.
[3] The December 2014 3A611.y clarification was supposed to update the .x paragraph for ECCNs 0A606, 1A613, 8A603, 8A620, 9A610, and 9A619 to specifically exclude commodities in 3A611.y. For some reason, that change didn’t take in 0A606 and 1A613, but did make it to the others.
[4] We’ll get into the difference shortly.
[5] Fodder for another column