Published in the Daily Bugle, March 29, 2024
Thingies tend not to move around on the CCL and USML. The jurisdiction and category/sub-category are typically based on the item’s characteristics or performance. If the performance does change, then it’s a different item.
Yes, things move around the CCL and USML all the time, but that’s usually due to changes to the lists; I’d argue that the items didn’t move, the lists changed underneath them. Again, the point is the characteristics or performance didn’t change, yet they’re shuffled from one identifier (e.g., ECCN) to another.
Aero gas turbine engines (GTEs) for civil aircraft can change ECCN – and from NS1 to AT control – with absolutely no change to their performance – just a stroke of a pen on some paperwork. This was brought up briefly in the December 1, 2023 column on supersonic engines for civil aircraft, Go Fast And Don’t Break Things, but deserves a deeper dive.
ECCN 9A001 controls GTEs “incorporating” – regulation-speak for “designed or produced with” – 9E003 “technology.” These are the critical dual-use technologies for designing and producing parts that run hotter, which in this case means higher performance, and for more advanced controls (“FADEC Systems”). Requiring the incorporation of 9E003 is a way to differentiate newer, higher performance engines from the “kerosine heaters with a fan” engines of the 1950’s and early ‘60s.
Commercial aircraft fly all over the world, and while a civil aircraft is 9A991.d even if it has a 9A001 engine[1], engines still come off the aircraft to be repaired. Requiring a license to move engines (and critical parts) around the global maintenance network is impractical. A way was needed to release civil engines from control[2] while keeping high performance (i.e., incorporating 9E003) developmental or experimental engines out of nefarious hands. After thinking long and hard to find some differentiating performance characteristic, a brilliant idea bubbled up[3] – punt the problem to another agency!
Civil aviation authorities have all sorts of rigorous methods to certify engines and aircraft, so the approach is to piggy-back on that. The 9A001 release note is straightforward, even if the wording is not – when an aircraft is certified for civil use by the civil aviation authority of any Wassenaar member state, then the engine for that aircraft is no longer controlled in 9A001. The release note requires that the engine also be certified by an aviation authority, but that’s always a pre-requisite – you can’t certify an aircraft with uncertified engines. And when an aircraft is certified, it’s only with specific model and configuration of engine.
That’s for propulsion engines; the trip from 9A001 to 9A991 for auxiliary power units[4] is a little easier – they only need to be civil certified; and don’t need to be associated with a certified aircraft.
Upon certification of the aircraft, the engine is booted from 9A001, and lands in 9A991.c. Interesting point – eight years after the engine is certified, it moves from 9A991.c to 9A991.d[5]. Critical parts – those “incorporating” 9E003 technology, like some turbine blades or engine controls – are caught pre-certification in 9A003, and released to 9A991.c along with the parent engine.
Interesting thing about the technologies in 9E003 is they remain controlled even when the engine moves to 9A991. That’s because the 9E003 entries don’t reference a commodity ECCN; they only reference Gas Turbine Engines. That was necessary for this devil’s bargain – the commodities can freely roam the world, but the critical dual-use technology remains controlled. It doesn’t even require it to be for aircraft engines; 9E003.a, .c, .h, and .i apply to ALL GTEs, even marine or ground vehicle engines, or the industrial engine bolted to the floor of a power plant providing electrical power.
I simplified the release note by saying the engine is part of the aircraft configuration; the actual wording is the engine is “Intended to power non-military manned “aircraft.”” In this case, BIS interprets “intended” as the engine being part of the as-certified aircraft configuration. The engine becomes 9A991 on the first instance of certification on a civil aircraft, and remains 9A991 even if used on a non-certified aircraft[6]. Many other countries use the word “intended” as an end-use control – if that identical engine is used on a non-certified aircraft, that particular one suddenly springs back to 9A001. The U.S. has a more liberal interpretation because U.S. regulations are bursting with end use controls[7] to counter nefarious uses, whereas other countries trail the U.S. in that regard. Lacking detailed end-use controls, other countries need a way to force the exporter to ask permission.
What if I change the engine’s configuration? Companies do upgrades[8] all the time! If the engine is changed enough that it requires re-certification, that new configuration goes back to 9A001 until re-certified on a civil aircraft.
Got J&C questions? – please reach out to me at ArtOfJC@arinovis.com
[1] See Interpretation 2 – 770.2(b)
[2] 9A001 is a Wassenaar control, so all member states are required to regulate them; this isn’t just a U.S. problem.
[3] I strongly suspect carbonated adult beverages were involved.
[4] These are small engines that produce electrical power and (allegedly) air conditioning when the main engines aren’t running – hopefully only when the aircraft is on the ground.
[5] Saving “why” and “who cares?” for another column.
[6] Note that it’s really hard to change applications without some changes to the engine, but the interpretation holds.
[7] Parts 742, 744, and 746, to name three.
[8] The Legal department insists that NOT bursting into flames is an upgrade, not a fix.