Published in the Daily Bugle, August 18, 2023
The last two issues talked mostly about the EAR; it’s not like the ITAR doesn’t have a quirk or three. However, post Export Control Reform (ECR) it’s difficult to talk about the ITAR without mentioning the EAR. One ECR goal was to transition from two lists – CCL and USML – to a single list. Government projects, like ‘simple’ repairs on an old house, tend to (a) get out of hand, and (b) end up missing one or more primary objectives. The ITAR was to control fewer things – which it does – but requires more detail to define what is and isn’t controlled. The New USML is almost four times more verbose than the pre-ECR version of ‘military – ITAR – done.’ The goal was a single list, but now we have three – USML, 600 series (‘New CCL’) and everything else (‘Classic CCL.’) Don’t fret – the Single List (and a Single Control Agency[1]) was always envisioned as Phase 3, which I believe may still be in the 2053 budget.
In the process of transitioning from Two Lists to One (via Three), and simplifying the USML through embiggification, the control text may not quite align with the intent. Not throwing stones – the authors were charged with moving less critical items to the EAR, but under no circumstances leave something off the USML that belongs there. Keep it short, and by the way, there is a publication deadline. No Pressure. The purpose here is to discuss what do to with the results, not to poke fun at the beleaguered authors[2].
Among many other complications coming with simplification, ECR has issues with tooling and test equipment. Pre-ECR, the terse entries listed ‘and associated equipment’ along with parts, components, accessories and attachments. There were also entries for ‘tools and equipment specifically designed or modified for the production of defense articles.’ Basically, tools and test equipment specific to a defense article was itself a defense article; overly broad but clear. ECR created CCL entries – yB6xx – corresponding to each USML category to specifically capture specially designed tooling and test equipment not controlled on the ITAR. Categories VIII and XIX were first out of the gate, and were prime ground for Learning Through Failure. This was especially true because they contain stealth aircraft and engines, and there was particular concern the associated tools and test equipment might reveal stealth technology.
DDTC and DoD relied on the word ‘equipment’ (but notably not ‘associated equipment’) tacked onto the VIII(h)(1) and XIX(f)(1) catch-all entries to capture tooling and test equipment specially designed for the Stealth Super Friends aircraft and engines. But those entries are catch-alls of last resort to keep items on the USML, and items ‘specially designed’ for stealth aircraft/engines are enumerated elsewhere. For example, a cooled turbine blade for the F135 engine is XIX(f)(2), as ‘enumerated’ takes precedence over ‘catch-all[3].’ Additionally, there were several conflicting statements in Rule Preambles and the CCL Reason for Control entries implying the associated 9B610 and 9B619 entries were valid controls for all tooling. A number of updates through the Terrible Teens eventually saw the addition of enumerated tooling entries, for things with potential to reveal sensitive detail of the associated stealth items. Clearly, there was, and continues to be, discomfort with EAR control of tooling and test equipment for defense articles.
With the Tooling Wars of VIII and XIX behind us, the solution is clear – if you need something controlled on the ITAR, list it on the USML. But it doesn’t always work that way.
Take USML VI(f)(7) as an example – shipborne active protection systems, and specially designed parts and components therefore. No ‘and associated equipment’ in sight. A detailed review of Cat VI shows only one entry for production, testing, and inspection equipment – (f)(5), but limited only to propulsion systems and support thereof as described in VI(e). Per the Order of Review, tooling and test equipment for a shipborne active protection system isn’t on the USML, and there is a welcoming home CCL ECCN 8B609.
While the header of 8B609 controls test, inspection and production equipment for items enumerated or otherwise described in USML Category VI, it specifically exempts said items for Category VI(f)(7), repeated in the only entry, 8B609.a. A test set for a shipborne active protection system is clearly not controlled in 9B609.a. Lacking any other entry, such equipment “specially designed” for the VI(f)(7) system would fall to EAR99.
Why is this? Reading through the proposed rules of 2011-12 (i.e., the ‘ancient scrolls’) reveals nothing; the (f)(7) exception was added last minute to the published rule. As a guess – and it’s only a guess – someone decided that they wanted test, inspection, and production equipment for the protection systems to remain ITAR controlled, and instead of adding an enumerated USML entry, thought blocking 8B609 would do the trick. Alas, the Order of Review flows only one way, and the CCL can’t push things back onto the USML.
Now, such a test set would likely contain software specially designed to test the defense article, and that software would be VI(g). The topic of EAR99 commodities incorporating ITAR data is fodder for another time. But the test set commodity, sans software, seems to be EAR99. Probably not the intent.
If someone has some insight into this, please let me know. And if you have other oddities to discuss, or J&C questions, please reach out to me at ArtOfJC@arinovis.com.
[1] I’ll wait while you stop laughing.
[2] OK, maybe just a little.
[3] See § 120.11(b)(2)