Published in the Daily Bugle, March 1, 2024
Because of recent events, the general public learned what the Global Trade community has known forever – supply chains are complicated. Not only is an End Item made up of lots of Thingies[1], where the lack of any one Thingy leaves your End Item an expensive doorstop, but each of those Thingies may have undergone multiple transmogrifications along the way. Long gone are the days when they shoveled ore into one side of the factory and tanks rolled out the other side. With globalization chasing efficiencies, evolving forms of that item may travel tens of thousands of miles and be worked on by many hands on its path from a shovelful of dirt to the Thingy doing duty in your product. Knowing the J&C of that Thingy, and just as importantly, the J&C of the technical data to make, inspect, and test it at each stage is critical as it makes its way around the globe.
Pre-ECR, the ITAR treated partially completed items (such as forgings, castings, extrusions and machined bodies) as Defense Articles when they were clearly identifiable as defense articles. And in typical ITAR fashion, clearly identifiable was not clearly identified. With ECR came a definition, first under 121.10, most recently under 120.31(a)(2), that states items “have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles.” There are four criteria listed, and design intent isn’t one of them.
Another way to look at clearly identifiable is in that journey from dirt to final part, at some point the item undergoes an irreversible change that determines the final outcome. Like that one decsion that turned you towards a career in Trade Compliance, and not something honest, like Mafia hit man. An EAR99 block of 6061 aluminum alloy’s options are endless. It could be machined into an EAR99 bicycle derailer, but once it takes on the form of a gear for a F-35 pump, it’s VIII(h)(1). The gear doesn’t have to be in its finished form – when its geometry is such that it can’t be anything other than that gear, its fate is sealed and it’s USML. Similarly, I can have a 1C010.b carbon fiber with a NS2 control that becomes EAR99 once it’s been formed into tubing to make high-end bicycles.
That’s a useful demarcation in the transition from “material” to “part”. But “parts”, and indeed, “components” can come to Robert Frost’s two roads diverging in a yellow wood. You can have an item (e.g., a gear) in a near-final state that undergoes one course of heat treatments (i.e., “material properties”) for a commercial version and a different course for the ITAR version. Up until that gear is heat treated, it is not “clearly identifiable” as the ITAR part; once it is heat treated, the die is cast, the road is taken, you’ve peeked at Schrodinger’s cat, and it[2] is now “clearly identifiable” as one or the other. The only way to go back is to melt it down and start over. Similar to the (b)(3) release, there needs to be a viable commercial version with the same configuration to differentiate it from. Robert Frost’s poem would be a lot less compelling if it was just one path.
Just because I know a semi-finished part is destined for a military end use does not make it clearly identifiable. As an example, a rotor disk for a jet engine starts out as a rough forging that looks not unlike a thick manhole cover. At that point it may be made into many different parts, depending on how the geometry changes through the various forming/shaping steps, and how the material properties change, intentionally or not. Let’s say I etch a part number into the side, so I can keep track.
If none of the four criteria are unique to that metal lump, it’s not “clearly identifiable” as a military item, even if it has a military part number etched into it. It’s not about where it’s going as much as where it is now. Labeling isn’t one of the four criteria.
The EAR 600 series entries repeat the ITAR 120.31(a)(2) language, so it’s satisfyingly consistent across military items for the two lists. The Classic EAR doesn’t use “clearly identifiable”, but instead does the inverse by laying out when something is still a material. See the Technical Note at the beginning of 1C.
The technical data to bring an item to a stage prior to being “clearly identifiable” as a 600 series or ITAR item isn’t 600 series or ITAR data. The data/information/instructions that bring it over that threshold, and directly related data beyond (e.g., finishing, testing, operation) is 600 series/ITAR data.
Got J&C questions? – please reach out to me at ArtOfJC@arinovis.com
[1] AKA “parts” or “components.”
[2] The gear, not the cat.