Published in the Daily Bugle, August 11, 2023
Welcome to Issue 2 of the Art and Science of Jurisdiction and Classification. This week we examine how the sausage gets made, or in this case, updated.
The Control Lists, and the Commerce Control List (CCL) in particular, are an agglutination of the our Regime Partner lists, with numerous US-specific entries[1]. Items controlled for National Security (NS) in the ‘000’ series – e.g., 3A001 – come from the Wassenaar Arrangement (WA) control list.
The WA evaluates list changes – new controls, elimination of obsolete controls, or updates – like clockwork. Very. Slow. Clockwork. In the US, Agencies, separately or together (and Technical Advisory Committees) submit proposals in mid-fall[2]. The proposals undergo Inter Agency review through the winter, and the survivors submitted in February to the WA. Discussions occur in the spring (April), summer (July) and fall (late September[3]). Updates are common. The year’s proposals are voted on at the December Plenary. As a Consensus regime, all members must agree to accept a list change, or at least no-one objects. Correction – nobody actually objects; as an outwardly polite Arrangement, they either Approve, or put a proposal on Study Reserve. A Favorable Study Reserve is just that –requires a little more study. Just Study Reserve is usually not a good sign – silence is a polite No. We all know that there are Study Reserves With Extreme Prejudice, where the proposal is consigned to a locked file cabinet in a basement that floods. Approvals aren’t final until the Plenary votes, and items can come off Study Reserve at the last moment
Approved proposals appear in the updated WA list published in December, and each participating state incorporates it into their regulations, as and when they see fit. The US usually incorporates updates by fall of the next year; the best-case scenario is two years from proposal inception to CCL update. For those not approved, many are resubmitted the next year, possibly updated. There are proposals that took five years in the WA cycle before approval, and there are some still being thrashed in their sixth year.
In this business, you need the sense of urgency of a Bonsai master.
So what about candy wrappers and crisps[4] bags? Back in 2015 a manufacturer of machines that make candy wrappers and food packages approached BIS about their equipment being caught by 2B005.a (Chemical vapor deposition) or .d (plasma spray on continuous feed equipment.). The substrates aren’t exotic – polyethylene wrappers or mylar party balloons.
How did we get there? 2B005 supports 2E003.f coatings, and CCL aficionados know 2E003.f is a multi-year junkyard fire. The header of the 2015 version of 2B005 is migraine inducing:
2B005 – Equipment specially designed for the deposition, processing and in-process control of inorganic overlays, coatings and surface modifications, as follows, for non-electronic substrates, by processes shown in the Table and associated Notes following 2.E.3.f., and specially designed automated handling, positioning, manipulation and control components therefor:
It only requires a non-electronic substrate, which does describe a candy wrapper – and pizza stones, glass windows, and livestock. The entry predates the WA Control List; the earliest instance I found is from the 1989 CoCOM list, and continued essentially unchanged for 26 years. As a (US) NS2 control. BIS probably routinely granted licenses for wrapper machines even to China[5]. But “development” and “production” technology for mylar balloon machines is NS1 and requires a license, even if the coating process doesn’t.
While ‘non-electronic’ substrates (i.e., the thing you put the coating on) is broad, 2E003.f is very specific in the combination of coating process, substrate, and resultant coating. There is a extensive table that goes into painful detail. Even the coating processes are specific – it’s not just Plasma spray, but only Plasma spray done in a low pressure environment, or if the spray exceeds a velocity threshold. Plasma spray at room pressure is not controlled. With that sort of lovely specificity, it just makes sense to control only machines that are capable of putting That coating on That Substrate using That specific coating process. A machine designed to apply pretty coatings to candy wrappers can’t apply thermal barrier coatings to jet engine turbine blades.
That last bit is consequential –changes to wording can have unintended consequences, just as the original text (probably) didn’t mean to catch equipment for crips bags. After many discussions at the 2016 WA meetings[6] all it took was to replace ‘non-electronic’ substrates with (only) those substrates listed in 2E003.f.
2B005 – Equipment “specially designed” for the deposition, processing and in-process control of inorganic overlays, coatings and surface modifications, as follows, for substrates specified in column 2, by processes shown in column 1 in the “Materials Processing Table; Deposition Techniques” following 2E003.f (see List of Items Controlled), and “specially designed” automated handling, positioning, manipulation and control “components” therefor.
The change was approved in December 2016, and the US CCL updated August 15, 2017 via a Federal Register notice – approximately two years after BIS was made aware of the problem.
There it is – how a small group of dedicated bureaucrats battled daunting odds to lift the onerous regulatory boot from the neck of candy, bag, and party balloon manufacturers after more than a quarter-century of oppression.
Got a J&C question? Send it to me at ArtOfJC@arinovis.com.
[1] Examples being the 500, 600, and 900 series entries.
[2] October 31 is the traditional deadline, a fitting date.
[3] Alignment with Octoberfest is a complete coincidence, or so I’ve been repeatedly told.
[4] ‘Potato chips’ in the US, but this newsletter has an international readership.
[5] In 2015. Given the present geopolitical situation, it’s unlikely the USG would authorize anything to allow China to close the Candy Wrapper Technology Gap.
[6] And at the 1516 Pub and other watering holes around Vienna – it’s tough duty but somebody has to do it.