Published in the Daily Bugle, August 4, 2023
The JC Booth is now open for business
Welcome to the inaugural JC Booth feature in the Daily Bugle, intended to be a mostly regular column on the Art and Science of Jurisdiction and Classification, hence “JC.” I say ‘intended,’ as I have no idea where this will go, including but not limited to, extinct. I chose the title Booth to conjure up a corner café where regulars gather to discuss deep topics and swap silly stories. I hope to get suggestions and questions from readers (or reader) to discuss. The first will be if someone can come up with a name less lame than ‘JC Booth,’ which makes Curl Up And Dye Salon sound like Keats.
If this takes off, Jeb has offered to give me a percentage of the subscription price, so I’m excited about that.
If you’re going to take dubious advice on a subject with felony implications, it shouldn’t be from a stranger. I very recently retired from a large aerospace company after years of dedicated service.[1] 30 of those years were as an engineer, and 20 in what we now call global trade. Those sentences were not served consecutively – there was a five year overlap. I got the attention of the Legal department when Commerce asked for some help on a Wassenaar FADEC proposal, and I could spell FADEC. But what sealed the deal was when I ratted out my own Engineering program for an ITAR violation having to do with the Contractor Clause in the TAA. Not only did I impress the attorneys with just about writing the VD myself, I knew what the Contractor Clause was.
I’ve been on the BIS Transportation Technical Advisory Committee (TAC) since 2010, and the Chair since 2012. I’ve been on the DTAG since 2016, but recently left, because although I loved DTAG, it’s time we saw other people. I’ve had the good luck to sit in on a number of Wassenaar Arrangement meetings over the years as a technical expert[2], and not only watched the sausage being made, occasionally had a hand in suggesting the spices. Critical note – as an Industry representative, I was there to provide technical background and explain consequences. It’s up to the Government to make policy[3].
I am not a lawyer (IANAL) – I am an engineer. I’m not providing legal advice[4]. My hope is to provide some background and a reasoning structure so you can come to your own conclusions with more confidence. And with any luck, have some fun doing it.
JC is the critical first ‘what’ in the What Where Who (and like vowels, sometimes Why) of exporting an item legally[5]. The CCL and USML are both lists – an array of pigeonholes where an item will fit, and from which it gets its label. Once you have that label, you can determine if an authorization is required to send an item with that label to a given location and entity. Get the JC wrong, and you’ll never get the rest of it right. No Pressure.
Today’s first lesson is really simple. Read All The Words. The commonly applied rules of statutory construction state that statues are to be read as a whole, in context, and if possible, give effect to every word in the statute. You can’t skip over a word because it’s unfamiliar. Worse, you can’t always assume the meaning of a word. The CCL and USML have many terms whose meaning runs counter to the common definition, and even other legal definitions. ITAR § 120.34 defines ‘Public Domain’ in a way to induce a stroke in any copyright attorney. “Specially designed” is less a description and more a series of tests that can release some items designed specifically for an application and capture others merely by association. Fodder for another column or twelve.
A great example of this is the word ‘compound’ as it appears in CCL Categories 3 and 6[6]. Take ECCN 3A001.a.3 as an example –
“Microprocessor microcircuits”, “microcomputer microcircuits” and microcontroller microcircuits, manufactured from a compound semiconductor and operating at a clock frequency exceeding 40 MHz;
At first blush, it sure looks like 3A001.a.3 controls just about every microprocessor since 1991, which is pretty harsh even for a NS2 control. Your microwave probably has a 40 Mhz microprocessor, and consumer laptops run 60 times faster. But there’s that adjective compound modifying semiconductor. It’s not clear what it means, and it sure isn’t defined in the EAR[7]. But a little research shows a compound semiconductor is one made from two or more elements; standard chips are made from silicon, which is only one element, and doesn’t count. Yes, silicon chips intentionally contain additional minute amounts of doping agents to make them work, but that doesn’t trigger the ‘compound’ definition, as much as there is a definition. 3A001.a.3 is a control on microprocessors made from compounds like Gallium Arsenide (GaAs) or Gallium Nitride (GaN), to name two. We’re just now starting to see GaN materials show up in consumer products like phone power cubes, but we’re still a long way off from using them in a complex chip like a microprocessor. This, and the other eight CCL entries using the term are pretty much empty boxes. Worse, the Technology for the development or production of a 3A001 microprocessor is controlled under 3E001 for NS1, so over-classifying your computer chip comes with a heavy – and completely unnecessary license burden.
Now, I don’t expect a lot of folks are familiar with groupings on the Periodic Table to figure out which elements make a good compound semiconductor, which make for a tasty desert, and which explode. That brings up another good point – It’s Not Always What You Know, But Who You Know. Doing JC without engineering support is a Bad Idea. As we’ll see in future columns[8], the Control Lists can be highly technical, and the difference between EAR99 and ITAR may rest on one highly technical term, or a parameter that requires a lot of squiggly math. If you’re not an engineer, find those in your organization that are. If you’re an engineer, help an attorney out.
I’ll finish this one up with another rule – if the result of your analysis looks wrong, check again. One day a supplier sent us an aircraft electrical harness marked as 1C351.a.5. That looked off; I don’t usually find electrical components in Cat 1, the “C” indicates a material and not a component, and the lead “3” indicates the Australia Group Chem/Bio control. I called them up, and they pointed me to a website they used for JC. BIS publishes an alphabetical index of the CCL, with Description in one column and the ECCN in the other. It’s not uncommon to see this re-published on various websites. That was their entire JC program – a lookup table they found on the InterWebs. But the particular page they chose was formatted poorly, and the ECCN column was offset from the description, with ‘Harness, complete’ right below ‘Hantaan virus.’ They grabbed 1C351[9] instead of 9A991.c. Just in case, we gloved up before opening the box.
That’s enough for now. Got a JC question? Send it to me at ArtOfJC@arinovis.com.
No, we won’t classify the 15,231 items to satisfy your Consent Agreement, nor is this intended to replace using many of the fine JC services out there. If you need an official answer avoid advice columns and get a CJ or CCATS. And like Dear Abby, we’re only going to pick the fun ones, or at least the ones we can answer -I’m retired-ish, remember?
[1] 1979, 1997, and a seven month stretch in 2014 – rounding up, that’s three, and justifies the use of the plural.
[2] “You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time.” Abraham Lincoln. Taking his advice, I got out before the third clause kicked in.
[3] After which I get to say I Told You So.
[4] My attorney advises me the official term is ‘enjoined.’
[5] For the alternative, see my other column on the Dark Web.
[6] See also 3A001.a.2, 3A001.a.11, 3A991.n, 3B001.a.2, 6A002.a.2.a.3.c, 6A002.a.2.b.3, 6A002.a.2.c.3 and the release note to same.
[7] The local definition in License Requirement Note 3 to ECCN 1C350 or Note 2 to 1C355 don’t count.
[8] Presumptions, yes.
[9] Because the EAR is ever-changing, today you’ll find Hantan virus under 1C351.a.17, but I stuck with the original for historical accuracy.