Published in the Daily Bugle, October 20, 2023
If you’re still reading these columns, we’re at the stage in our relationship where we can discuss deep subjects, like Specially Designed. For those no longer reading this, the rest of us are free to talk behind their backs. Today, we focus on two aspects of the (b)(3) exclusion.
The latest version of Specially Designed appeared with ECR, with the laudable intent of having a definition that could be consistently applied. The goal of the new definition was to remove, as much as possible, knowledge of design intent. But like “Help Desk” and “Smart car,” “specially designed” inaccurately reflects the item, as it just oozes design intent. We know that instead of a description, “specially designed” is a series of tests, a broad “catch” and several releases. As an aside, that “specially designed” has remarkably little to do with being designed specially (or not) continues to cause great confusion among the general populace; it is one of my life’s goals[1] to combat that misunderstanding.
Briefly, paragraph (a) has the catches – (a)(1) for enumerated items and (a)(2) is guilt by association for parts, components, accessories and attachments. Paragraph (b) has the releases: (b)(1) Because Mommy Said So[2], (b)(2) a narrow release for very specific and simple Thingys, (b)(3) will be discussed below, and despite the aim to banish design intent, it’s the basis of (b)(4) through (6)[3].
The basis of (b)(3) is something isn’t “specially designed” for one application yet be used in a different, less restricted application. An actuator used in a stealth aircraft can’t be “special’ to that aircraft if also used in a Buick. A few years back, a company to remain nameless was found to have incorporated accelerometers originally used in the Very ITAR Minutemen missile (the QRS-11) in the backup display for the 737[4]. It turns out that during the last quarter of the last century[5] lots of military parts had been incorporated into most every aerospace product. Faced with the unpalatable choices of either requiring a State license for every aircraft and spare part everywhere in the world, or declaring the ITAR to be toothless, they dug up 17(c) of the Export Administration Act of 1979. It states that components of FAA civil certified aircraft were not subject to the ITAR, so all non-SME for aircraft was grandfathered as Not ITAR.
With ECR, the narrow 17(c) concept was expanded well beyond FAA-certified aircraft, to, well, everything. If the part, component, accessory, or attachment is used in or with both a higher controlled and a lower controlled item, then it wasn’t “specially designed” for the higher controlled item.
The (b)(3) release is both very powerful and very narrow. In my travels, its misapplication is a significant cause of incorrect JC, and the error results in under-control. Two leading reasons are the term “same” and not having the right evidence.
The entry reads “(H)as the same function, performance capabilities, and the same or ‘equivalent’ form and fit, as a commodity or software used in or with an item that:” and then describes items in production and either not enumerated, or in the case of the EAR, only AT. As longtime readers of the JC Booth[6] know, Read All The Words.
The word “same” means same, as in identical, indistinguishable, or resembling another in every respect. “Same” does not mean similar, close, or on the order of. While the “same” function is usually easy, validating the “same” performance is less so. (‘Equivalent’ form and fit is grist for another time.) I often hear “the commercial version performs much better (faster, more accurate, lighter) than the military version.” Cool, but “better” isn’t “same.” You don’t get to impose meaning where there aren’t words to support it.[7] If you want to say the higher-controlled item isn’t “specially designed” because there is a lower (or not) controlled item that performs better, then get a CJ or CCATS. That’s why (b)(1) is the first release. Ask Mommy.
The other problem is lack of evidence, which comes from Not Reading All The Words. Say Thingy One is used in an ITAR device that’s got a “specially designed” catch-all. Using my best Google-Fu, I find a Thingy Two doppelgänger with the same performance and ‘equivalent’ form and fit, is in wide production, and is EAR99. That means Thingy One is released by (b)(3), right?
Not so fast, Bucko. The release doesn’t say being the same as a lower controlled item, it says being the same as an item used in or with a lower controlled item. It’s not that Thingy Two is in production and controlled at a lower level; what counts is the status of the parent assembly. That’s where the evidence comes in – you might find the right doppelgänger component, but you need to (1) find a parent assembly, (2) determine the parent’s production status, and (3) the parent’s JC. That can be hard, and often you just knowThingy Two is used in a commercial application, but can’t find it. Sorry, but the Regulations Don’t Rely on Faith. Find me Thingy Two’s parent and we’ll talk. Otherwise, (b)(3) doesn’t apply.
Got comments other oddities to discuss, or J&C questions? – please reach out to me at ArtOfJC@arinovis.com
[1] Others include playing in the NBA, and being a whole lot taller so I can play in the NBA.
[2] The role of Mommy is played by BIS or DDTC, depending on if you’re seeking a CCATS or CJ.
[3] For the EAR; no (b)(6) for the ITAR. That only half the entries invoke design intent is a “win.”
[4] Oops.
[5] I’m really starting to feel old here.
[6] It was in Issue 1, after all.
[7] That’s DDTC’s job.