Oct
25
Don’t Leave Home With It
Posted by Clif Burns at 3:58 pm on October 25, 2006
Category: DDTC • OFAC
Since not much is in the news today export-wise, other than OFAC’s addition of “El Mono” Sabogal to the SDN list1, I thought I would bring up something I’ve been wondering about since seeing a Nextel television ad for the Motorola i580. This is something that would only bother an export lawyer, so I thought I would mention here. When I’ve mentioned it to friends they’ve told me that I need to take a vacation.
Anyway, here’s my query regarding the Nextel i580. The commercial, and advertising materials, make a big deal that the phone is made to “810F military specs.” That means, presumably, it has been “ruggedized,” which is military-speak for saying you can drop it from a plane, or throw it on the ground, or run over it with a tank and you can still call your wife, er, lieutenant on it. Assuming that this is true, doesn’t that put the phone on the USML and specifically in Category XI(a)(5)? After all, it is a communication system “specifically designed, modified or configured for military application.” Do I need an export license from DDTC if I take it with me on my next trip to Europe?
Leave your thoughts on this in the comments.
____________
1And that really isn’t news because you shouldn’t be doing business with anyone with the alias “El Mono” (The Monkey) in any event.
Permalink
Copyright © 2006 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)
8 Comments:
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.
Forign National
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.
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.
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)
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. 🙂
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:
*****
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.
[…] 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? […]
