Again, I think your interpretation is off, but we can agree to disagree, and I’m okay with that.

I see 734.6 as speaking to overlap of jurisdiction with regards to categories, like Night Vision or Space-Qualified technologies (See, for example, https://www.bis.doc.gov/news/2003/AnnualReport/chapter1p.pdf - Page 3). As such, 734.6 does not advance an argument for concurrent licensing jurisdiction over a specific commodity. In my opinion, it says that in a given bundle of widegets, some widgets may be ITAR-controlled and other widgets may be EAR-controlled. They apologize for any confusion that may be caused, and assure us they’re trying to work it out - to separate the widgets into piles. But I do not believe 734.6 says that with regard to a specific widget, DDTC and BIS will both claim jurisdiction over the same widget at the same time.

Additionally, I read 734.3(b)(1)(i) as BIS deference to the exclusive jurisdiction over USML items to DDTC. The word “exclusive” in this context is not a qualifier. Rather, it is evidence that BIS has ceded jurisdiction over most items which have been designed or modified for a military purpose to DDTC - in the interests of national security (See, for example, http://library.findlaw.com/1998/Jul/1/130640.html). Those military items which are EAR-controlled are those items for which DDTC has ceded specific jurisdiction to BIS.

The related controls information in the CCL is provided as a courtesy to industry. BIS does not cede jurisdcition to DDTC in the related controls paragraphs. It has already done so in 734.3(b)(1)(i). This makes good sense. Since DDTC controls the international traffic in arms - an important national security concern - BIS should pay great deference to DDTC controls and jurisdiction.

The above analysis leads to a system which vests exclusive licensing jurisdiction over commodities with the appropriate USG agency, which is the type of licensing jurisdiction trumpeted by all BIS and DDTC folks with whom I’ve come into contact. And this is also important. A practioner must have some insight into the law behind the law. For example, while you will not find the “See-through Rule” memorilaized in the ITAR, most practitioners understand it and adhere to its tenants. BIS and DDTC acknowledge its impact on licensing jurisdiction. As such, I need not fear BIS reprisals for the export of the 99% of the system which was controlled under the dual-use provisions of the EAR. The 1% which is ITAR-controlled is sufficient to vest control over the entire system exclusively with DDTC.

Similarly, I’d be interested to know if anyone has ever spoken with anyone at BIS or DDTC who recommended treating a widget as though BIS and DDTC shared concurrent licensing jurisdiction over the widget? I have not. Exclusivity of licensing jurisdcition over widgets has been a basic premise and ruling guide of practice since before I struck the first keystroke of a Commodity Jurisdiction request. I’d be surprised at this late stage in the game to find that I’d been using a checkerboard to play Parcheesi all this time.

When BIS wants to cede jurisdiction in the EAR to DDTC it does it explicitly in the “related controls” portion of the EAR, as it does, for example, in ECCN 6A005, where it directly says that lasers modified for military use aren’t controlled. The term “exclusively” in 734.3(b)(1)(i) is, in my view, a reference to ECCNs like 6A005 where exclusive jurisdiction is explicitly ceded by BIS.

The ITAR states that items designed for a military purpose are ITAR-controlled.

The EAR, at 734.3(b)(1)(i), states that items controlled under the ITAR are not subject to the EAR.

So, if BIS comes for me, I’d cite 734.3(b)(1)(i) and I’ll show them my DDTC license.

I interpert that those instances alluded to by negative inference in 734.6 are where DDTC has ceded control over the items to BIS.

I am not sure that you concede the point that if an item is designed for a military purpose, it is controlled under the provisions of the ITAR unless and until released by a finalized Commodity Jurisdiction (CJ).

If you accept this premise, there will be no overlap or concurrent jurisdiction issues. One simply looks to the purpose for which the item was designed. If military (and, in limited cases, certain specialized civil purpose - See below), it is ITAR-controlled.

As I read it, in the Related Controls language of 3A001, BIS reminds us that some commodities designed for certain civil purposes (those civil purposes specifically called out in USML Category XV) are still ITAR-controlled. USML Category XI contains no language pertaining to controls over commodities designed for civil purposes. USML Category XI only pertains to electronics designed for a military purpose. I take it for grnated that items designed for a military purpose are always ITAR-controlled unless and until released by DDTC via finalized CJ.

If you do not agree with me that an item designed for a military purpose is controlled under the provisions of the ITAR until released by DDTC via finalized CJ, you will continue to find overlapping jurisdiction. And at that point, we can simply agree to disagree.

I read 734.6 to mean that there is category overlap. With respect to a specific commodity, (in other words, “this MPM right here in my hand”), jursidiction is exclusive. For example, the EAR controls some Night Vision Goggles (NVG), but the ITAR controls other NVG. This is category overlap. As it pertains to a specific set of NVG, the commodity itself will always fall under either the jurisdiction of the EAR or ITAR, but not both.

Exporters should note that in a very limited number of cases, the categories of items may be subject to both the ITAR and the EAR. The relevant departments are working to eliminate any unnecessary overlaps that may exist.

That same section, when talking about specially designed military components says “in many instances” they “may” fall under DDTC jurisdiction. It doesn’t say in all instances it will be controlled by DDTC.

Kndl - I’ve heard the same interpretation with respect to CCL parts in a USML item. This is apparently based on section 770.2(b)(1) which says that parts of a component are covered by the license for the component. So the example above only covers separate export of the MPM.

The ITAR and EAR can not have concurrent jurisdiction over a commodity. If the commodity was “designed for a military” anything, it is ITAR-controlled, unless DDTC cedes control over the commodity to the EAR and BIS (See 22 CFR 120.3 and 120.4). While the ITAR qualifies automatic ITAR designation with language pertaining to “predominant civil applications” (120.3(a)(i)) and “performance equivalent to those… for civil applications,” (120.3(a)(ii)) the heavy presumption is that commodities designed for a military purpose are controlled under the provisions of the ITAR. The most obvious reason being that an item which has been specifically designed for a military purpose has been so designed because the commodities in existence and in use in civil applications were insufficient to step into the shoes of the military need.

Until a manufacturer has received a Commodity Jurisdiction (CJ) decision from DDTC ceding jurisdiction over the commodity to the controls of the EAR and BIS, the commodity remains ITAR-controlled. The manufacturer does not treat the item as though it is concurrently controlled by both the ITAR and EAR while the CJ is pending. While the CJ is pending, the commodity is ITAR-controlled. I have heard that one of the quickest ways to make enemies at DDTC and BIS is to submit duplicate license applications to both agencies for the same commodity.

I agree with you that BIS could have been more thorough in the related controls section, but I understand that BIS offers the related controls sections as a courtesy - not an absolute and definitive statement of all related controls on similar technologies and commodities.

For me, it is clear that MPMs designed for a military application remain ITAR-controlled until released from the controles of the ITAR via finalized CJ. The murkier question lies ahead for those manufacturers who have, in the past, found themselves under the controls of the ITAR and USML XI despite designing the MPM for a civil application. What to do now with the next generation of the manufacturer’s MPMs which are very similar to their ITAR-designated predecessors? Here again, I’d recommend geting at least a few CJs finalized and in favor of ceding jurisdiction to the EAR under 3A001 before jumping lock, stock, and barrel over to the EAR.