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Don’t Leave Home With It

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Posted by Clif Burns at 3:58 pm on October 25, 2006
Category: DDTC • OFAC

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8 Comments:

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• You could take it if you don’t show/sale it to any foreign nation. And you must bring it back to the US. Leaving/exposing it there would be a violation.

  Comment by Garrett on October 25th, 2006 @ 6:03 pm

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• Forign National

  Comment by Garrett on October 25th, 2006 @ 6:03 pm

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• DDTC has said many times, including at the recent BIS update, that MilSpec or MilStd does not mean that the item is automatically subject to the ITAR. It would be prudent to put in a CJ, or course, if you’re unsure. Predominant miltary use, use of any ITAR controlled technical data, incorporation of ITAR controlled defense articles, or other factors that increase or establish the specificity of the item for military use would push it into ITAR jurisdiction.

  Be sure to let us know if ICE confiscates it.

  Comment by A non-Mouse on October 26th, 2006 @ 8:38 am

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• Of course, A non-Mouse, given how quickly DDTC is responding to CJs these days, the phone won’t be working anymore when you finally get DDTC’s opinion!

  I have heard DDTC say before that MilSpec isn’t an automatic qualification for ITAR even if the item is otherwise subject to ITAR such as a communication system. And I suppose designed for military spec rather than military use is, at least in theory, somewhat different. Still, it’s a slippery slope and I wonder if anybody at Motorola even thought about this issue.

  Comment by Clif Burns on October 26th, 2006 @ 10:01 am

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• What Motorola really wants to do is make sure they don’t show the phone being used in a military setting. The real defining point is whether the item is predominately used in military or civilian situations once your in the dual use area. Still it is wise to avoid promoting the MilSpec feature to much, lest you get an unfortunate CJ based on marketing claims.

  If is crosses the border it is exported whether it comes back or not. In a quirk of the EAR, if you happen upon a Cuban outside the US territorial waters and toss them a lifejacket, you have committed an EAR licensing violation, even if you then rescue the Cuban and take back the lifejacket. We won’t even think about what OFAC regs you’ve violated. (8A992.i)

  Comment by JKB on October 26th, 2006 @ 2:50 pm

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• JKB probably has the answer to my tongue-in-cheek question about the i580. The issue of predominant use arises when you have an item that is on the USML that is used in both civilian and military application. Think of a military aircraft part, designed for that aircraft and therefore Cat. VIII(h). That same part may also be used in a civilian version of that aircraft. Although not clear from the ITAR, the DDTC has normally said that whether the part is controlled depends on whether it is predominantly used in the military aircraft. Not a perfect analogy but still it seems reasonable to conclude that if the i580 is never sold to the military, it hasn’t really been designed for military application. At least that would be my argument when ICE grabbed the phone.

  Comment by Clif Burns on October 26th, 2006 @ 6:30 pm

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• My policy has always been that when you don’t know the answer, go to the source – the manufacturer. In response to my inquiry, Motorola returned the following:

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  Dear Matthew,

  Thank you for your inquiry regarding obtaining the Export Control Classification Number, Schedule B Code and other related export controls information for the Motorola iDEN i580. We appreciate your interest in our products.

  To summarize your conversation with our representative T-, the Motorola i580 is considered a regular transceiver radio/cell phone when traveling outside the US. There are no military spec’s on or in the phone. It does not have be treated any differently than any other cell phones.

  We hope that conversation and this response have answered your question regarding obtaining the Export Control Classification Number, Schedule B Code and other related export controls information for the Motorola iDEN i580. Thank you for choosing Motorola.

  *****

  Not exactly the information I was hoping to receive (an ECCN and Schedule B Code), but close.

  Comment by Matthew J. Lancaster on November 17th, 2006 @ 10:03 am

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• [...] Last month I wrote about the Motorola i580, which Motorola advertises as being built to 810F military specifications. That led me to post this smart-alecky query: if the i580 is built to milspec can I take it with me on international trips? [...]

  Comment by ExportLawBlog » Motorola Resolves Export Question by Blaming Its Advertising Department on November 20th, 2006 @ 4:33 pm

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