Jan
18
Mystery Solved (Maybe)
Posted by Clif Burns at 6:29 pm on January 18, 2012
Category: BIS • DDTC
In a post back in December titled “Imaginary Numbers,” I noted that the list of commodity jurisdiction determinations by the Directorate of Defense Trade Controls had some puzzling entries:
Three entries on the list, two for a high mobility electron transistor (“HMETâ€) and one for a microwave monolithic integrated circuit (“MMICâ€), indicate that the correct classification for these items is ECCN 3A982. The problem is that there is no ECCN 3A982, and there has never been, at least that I could find.
Well today I came across a notice of a final rule by the Bureau of Industry and Security, dated January 9, 2012, and effective on the same date, which creates a new ECCN 3A982 for HMETs and MMICs. Of course, the mystery remains as to how the DDTC could classify something as ECCN 3A982 before the ECCN actually existed, but I suppose that only bothers people concerned about the rule of law and other minor details.
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3 Comments:
Its stuf like this which demands that classification decisions be subject to administrative due process and judicial review. While AECA Section 38(h) may exempt the addition of generic items to the USML from judicial review, the determination of whether a particular thing is actually described by the USML should be subject to the same 2 step decision rule used by the CIT and Federal Circuit in HTS classification decisions, and given that DDTC does not always engage in notice and comment rulemaking when it drafts the USML categories (and even when it does issue a NOPR, does not perform Regulatory Flexibility Act analysis, per US v. Mead, DDTC’s CJs should only be given Skidmore review instead of Chevron deference.
Clif — The subject Federal Register notice you discovered today, 77 FR 1017-1019, was printed as Item #1 in the 9 Jan edition of the NGC Ex/Im Daily Update (The Daily Bugle”). Mottos of the Daily Bugle: “You gotta read it every day!” and “Nobody scoops the Bugle!”
– Jim Bartlett
It seems to me that what happened is the company submitted a CJ to (hopefully) confirm the items were not regulated under the ITAR and DDTC agreed to allow regulation under the EAR as long as there were appropriate export controls applied. If there was no current applicable CCL category, instead of returning an EAR99 classification, BIS created new categories. The confusion having to do with the timing of the DDTC notice and the CCL update.
