BIS and DDTC Seek Comments on the Proposed "Specially Designed" Definition

On June 19, 2012, Bureau of Industry and Security (BIS) and the State Department Directorate of Defense Trade Controls (DDTC) concurrently posted proposed rules (BIS rule & DDTC rule) in the Federal Register modifying the term "specially designed" for use in the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).

On July 15, 2011, BIS proposed a single definition of the term "specially designed" as it would be used in the proposed "600 series" and the rest of the Commerce Control List (CCL). 

The overall goal of the new definition is to differentiate between those articles "enumerated" on the United States Munitions List (USML) and those articles not enumerated but captured in "catch-all" paragraphs. The government objectives for the "specially designed" definition are to: 

    1    Preclude multiple or overlapping controls of similar items within and across the two control lists; 
    2    Be easily understood and applied by exporters, prosecutors, juries, and the U.S. Government; 
    3    Be consistent with definitions used by the international export control regimes;
    4    Not include any item specifically enumerated on either the USML or the CCL and, in order to avoid a definitional loop, do not use "specially designed" as a control criterion;
    5    Be capable of excluding from control simple or multi-use parts such as springs, bolts, and rivets, and other types of items the U.S. Government determines do not warrant significant export controls;
    6    Apply to both descriptions of end items that are "specially designed" to have particular characteristics and to parts and components that were "specially designed" for particular end items;
    7    Apply to materials and software because they are "specially designed" to have a particular characteristic or for a particular type of end item;
    8    Not increase the current control level to "600 series" control or other higher end controls of items (i.e., not moving items currently subject to a lower control status to a higher level control status), particularly current EAR99 items, that are now controlled at lower levels; and
    9    Not, merely as a result of the definition, cause historically EAR controlled items to become ITAR controlled.

The revised "specially designed" definition provided in the notice proposes a simplified two paragraph structure. Paragraph (a) is to identify what commodities, as a result of development, are "specially designed," and paragraph (b) is to identify what parts, components, accessories, and attachments are excluded from "specially designed."

This current proposed rule would revise that proposed July 15, 2011 definition. DDTC is concurrently publishing a proposed rule to create, to the extent possible, a common definition of "specially designed" in the ITAR.