Published in the Daily Bugle December 15, 2023
The holiday shopping season is upon us and thoughts turn to finding the right gift for that special someone. What does that Significant Other deserve more than an item of Significant Military Equipment (SME)? Maybe a new XI(a)(3)(xxi) radar for the avid birder that literally has everything? Or maybe a muffler for Uncle Fred’s allegedly decommissioned HMMWV?[1]
As practitioners know, SME items are designated on the USML with an asterisk. That leaves CME -Common Military Equipment (i.e., non-SME enumerated items) and TME- Trivial Military Equipment (non-SME items in a catch-all)[2].
Technical data directly related[3] to the manufacture or production of a SME item is itself SME, due to an almost incidental non-note Note tucked onto the tail end of 120.10(c). Way to bury the lede, guys!
The ITAR doesn’t define the word “manufacture,” and only recently adopted the EAR definition of “production” which in a rampant case of duplicative government redundancy, itself contains “manufacture[4].” I find it interesting the technology to produce a SME item is worthy of a higher level of control than to design a SME item, but that aside, clearly[5] SME technical data is the information necessary to make a SME item.
This brings us to an interesting problem – most SME items are comprised of non-SME defense articles and non-defense articles (i.e., 600 series or Classic EAR). The F-16 is a SME VIII(a)(2) defense article, but most of the airframe and equipment are 600 series. If SME data is what is used to “produce” a F-16, doesn’t that include the data to build a wing spar or upholster the pilot seat?
Clearly[6], the data to built the 9A610.x wing spar is 9E610.b.1, or to upholster the 9A610.g seat is 9E610.a, and neither data are even ITAR, much less SME, even though used to (eventually) “produce” the SME aircraft. Ergo, not all data used to eventually produce a SME item is SME.
This is a good place to use the “clearly[7] identifiable” standard in 120.31(a)(2), as although a non-SME Thingy might be a finished item, the final SME item it goes into is still unfinished. A wing spar is not clearly identifiable as a F-16. Any other approach would not only break ECR, it would break a good part of the ITAR. That brings up an interesting question – if the data leading up to the final SME Thingy is not SME, what data IS SME? If the finishing touch of a *XIX(a) JSF engine is to bolt on an identification plate, does that make the bolt torque SME data? What if it’s not the last thing I do to the engine?
Welcome to a vast, grey, very fact pattern dependent area– AKA “It Depends[8].” There are cases where most of the “production” data is SME, for example, a *XIX(f)(2) cooled turbine vane. Once you’ve cast the turbine blade, it’s “clearly identifiable” by geometry as the final product, even though it’s not officially “cooled” as the cooling holes haven’t been drilled yet.
But what data for the F16 or the Non-Cooperating Bird detecting radar is SME? These are high level items assembled from non-SME items. I would venture that in most cases[9], the only SME data for the aircraft or radar is the final acceptance test, including the acceptance criteria. “Production” includes testing and qualityassurance, but based on the discussion above, not for the individual bits that make it up. I would even venture to say most of the data to assemble the SME item isn’t SME (see ID plate bolt torque). This interpretation is for a Thingy assembled from lots of non-SME bits, and is quite different from the turbine blade example.
There are a number of fact-pattern dependent cases on the spectrum between those two extremes. But I feel pretty comfortable stating that the data to attach the F-16 wing spar to the fuselage isn’t SME.
This brings up an interesting[10] scenario, where what would seem to be ordinary ITAR maintenance data is SME. As an example, if the exhaust nozzle on a fighter jet engine is cooled, then it’s *XIX(f)(2). I have seen cases where the field inspection limits just repeat the production limits. That can make the portions of the maintenance manual SME, which is important if you’re supporting foreign sales.
If you’re analyzing a document to determine the J&C, these are critical points to be aware of. If it contains inspection data for a SME part, or includes post-maintenance testing for SME equipment, you may need to consult with the engineers to determine if that data is the same as for production, because it’s probably not obvious. If you’re looking to authorize what was on the surface as mundane maintenance data, you may need to ask for SME, and explain why.
Got J&C questions? – please reach out to me at ArtOfJC@arinovis.com.
[1] *XIII(j)(2) clearly speaks to equipment that modifies the “acoustic” signature of a 600 series item, and don’t tell me being somewhat quieter to sneak up on the Bad Guys isn’t a design goal. Don’t blame me that XIII(j)(2) is overly-broad.
[2] Two of the three terms are not endorsed by DDTC.
[3] Fodder for another column, or possibly three.
[4] Hence, data for the production and production of a SME item.
[5] In the most general understanding of the word.
[6] There’s that word again.
[7] Gotcha!
[8] An item well known for addressing unpleasant messes.
[9] Significant bet-hedging here, as it is a vast grey area.
[10] “Interesting” in a bad way.