Published in the Daily Bugle, May 17, 2024
Last October, in Part I, we discussed[1] some of the limitations of the (b)(3) release to “specially designed.” Specifically, when it came to function and performance, same means same, as some folks would succumb to wild flights of Close Enough to justify a release. In that column I pushed off “equivalent” form and fit for another time. That time has come.
As a reminder, the basis of the (b)(3) release is that something can’t be “specially designed[2]” for one application while being part of a different, less restrictively controlled application. The (b)(3) release is very powerful but also intended to be very narrow; the pull of the Dark Side can quickly end up with an incorrect J&C.
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.
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. Remember also that the (b)(3) release requires four players – (1) the Thingy in question, (2) the controlled item the Thingy is used “in or with,” (3) the doppelganger item you’re comparing the Thingy to, and lastly (4) the lower controlled item[3] the doppelganger is used in or with. Whew!
Form is the configuration, including the mechanical geometry, material, and material properties, and Fit is the ability to interface or connect to other things. Like function and performance, the form of the Thingy in question must be the SAME as the doppelganger. Same geometry, Same material, Same material properties[4]. The one exception is the Thingy’s geometry can be different from the doppelganger to account for fit changes.
An example is a military truck radiator you’re hoping to release it because it’s substantially the same as the radiator for a civil fire truck. Function – both radiators; check. Performance? – for now, assume they both have the same coolant flow, heat transfer, etc. Form – they’re made from the same material, with the same heat treatments and coatings. The only reason we didn’t use the fire truck radiator for the military application is that to fit the military truck, the radiator pipe needs a 90 degree left elbow whereas the civil radiator has a 90 degree right elbow. As the change only impacts the ability to interface, the Fit is “equivalent.” Bingo, you can release.
The primary (b)(3) release is that the identical item used in higher and lower controlled application isn’t “specially designed” for the higher application. The idea of “equivalent” was to allow a very slight expansion of “same” to allow for a minor modification just to interface. The trick is to have an objective test for “minor modification.”
It’s critical to remember that all four tests – function, performance, form, and fit – need to be satisfied to release. If you modify the fit and the performance changes, you can’t use the (b)(3) release. For example, the outlet of the doppelganger radiator has a four bolt flange and the military has six bolts. The number of bolts isn’t arbitrary; it’s an engineering decision based on gasket type, vibration loads, mechanical tension, and rated coolant pressure and temperature, just to name a few. You’re going to need to do some engineering analysis to show the performance is the “same.” If the two radiators have different outlet pipe lengths and diameters for “fit”, they will have different flow and pressure drop characteristics -both can make for a different “performance.” And “different” isn’t “same.”
Obviously, every change will have some impact on performance, you just have to avoid letting motivated reasoning carry you away. If you have to move the outlet pipe to avoid hitting structure but the performance is still within the specifications, you should be OK.
When it comes to software it would seem to be easier as fit is just the ability of the software to interface (communicate). Bits are bits, right? They either get through or they don’t. But you need to take into account performance requirements such as latency, resolution (e.g., word bit length), update rates, and the like.
If you change the form for fit, you can’t ignore the impact on performance – the (b)(3) release only works if the performance remains identical, and that can be tricky. However, it makes sense when you realize the intent of “equivalent” is to be a very narrow release.
Got J&C questions? – please reach out to me at ArtOfJC@arinovis.com
[1] Technically, I pontificated and you either read or ignored. On average, a realistic description of a discussion.
[2] The EAR uses double quotes to indicate “Specially Designed” is a defined term per part 772; the ITAR merely uses specially designed without quotes or capitalization. This manifesto discussion will use “specially designed” in double quotes to reference the defined term, but equally applicable to the EAR and ITAR.
[3] That was or is in-production
[4] We’re not talking about just the same material – e.g., aluminum, not just “metal” – it has to have the same material properties. The aluminum in the Thingy must have the same strength, fatigue, corrosion resistance, etc., as the doppelganger.