Specially designed and the catch-all paragraphs

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1. A two-step test

Many 600 series paragraphs use the term “specially designed”, which the Export Administration Regulations (EAR) define in part 772 (15 CFR 772.1). The definition is applied by following a sequential analysis. Paragraph (a) catches items, and paragraph (b) then releases certain parts, components, accessories, attachments and software that paragraph (a) would otherwise catch.

Except for items described in paragraph (b), an item is specially designed if it meets either of two prongs (15 CFR 772.1). Under the first, development has given it properties that are peculiarly responsible for reaching or surpassing the performance levels, characteristics or functions in the relevant Export Control Classification Number (ECCN) or U.S. Munitions List (USML) paragraph. Under the second, it is a part, component, accessory, attachment or software meant for use in or with a commodity or defense article enumerated or otherwise described on the Commerce Control List (CCL) or the USML.

2. What peculiarly responsible means

A note to the first prong illustrates the standard. In its example, equipment is peculiarly responsible because it has a direct and proximate causal relationship that is central or special to reaching or surpassing the controlled performance levels, characteristics or functions (15 CFR 772.1). The note gives a garage door opener as an example of equipment that does not meet the standard.

3. The six releases

The releases in paragraph (b) apply only to a part, component, accessory, attachment or software that paragraph (a) would otherwise control (15 CFR 772.1). Such an item is not specially designed in six situations. The first is where it has been identified in an ECCN paragraph that does not contain specially designed as a control parameter. The same release covers items identified as EAR99 in a commodity jurisdiction determination or an interagency-cleared commodity classification.

The second release covers, regardless of form or fit, fasteners such as screws, bolts, nuts, rivets and pins, along with washers, spacers, insulators, grommets, bushings, springs, wire and solder (15 CFR 772.1). The third covers an item with the same function, performance capabilities and the same or equivalent form and fit as a commodity or software used in or with another item. That other item must be or have been in production, not development. It must also be either not enumerated on the CCL or USML, or described in an ECCN controlled only for anti-terrorism (AT) reasons.

The fourth release covers an item developed with knowledge that it would be for use in or with commodities or software described in an ECCN. The same knowledge must extend to use with commodities or software not enumerated, or in AT-only ECCNs (15 CFR 772.1). The fifth covers an item developed as a general purpose commodity or software, with no knowledge of use in or with a particular commodity or type of commodity. The sixth covers an item developed with knowledge that it would be for use in or with AT-only ECCN items and EAR99 items, or exclusively for use with EAR99 commodities or software.

4. Production, form and fit

For the third release, development that improves only reliability or maintainability, including quality improvements, cost reductions or feature enhancements, leaves a commodity in production (15 CFR 772.1). New models or versions that alter the commodity’s basic performance or capability stay in development until they move into production. A commodity is equivalent when its form has been modified solely for fit purposes. Form is defined by configuration, including the geometrically measured configuration, material and material properties.

Items in AT-only ECCNs can use the third and fourth releases, but the release criteria must be met by another AT-only ECCN or an EAR99 item in addition to the ECCN being reviewed (15 CFR 772.1).

5. Documents behind the last three releases

The fourth, fifth and sixth releases depend on knowledge at the time of development (15 CFR 772.1). Documents contemporaneous with development must, in their totality, establish the elements of those releases. Such documents may include concept design information, marketing plans, declarations in patent applications or contracts. Without such documents, those three releases cannot be relied on.

Knowledge is itself a defined term. It includes positive knowledge that a circumstance exists or is substantially certain to occur, and an awareness of a high probability of its existence or future occurrence (15 CFR 772.1). Such awareness is inferred from evidence of the conscious disregard of known facts, and from a person’s willful avoidance of facts.

6. Enumerated, described and catch-all

A note defines enumerated as any item on the USML or CCL not controlled in a catch-all paragraph and, when on the CCL, controlled for more than AT reasons only (15 CFR 772.1). Commodities or software in an ECCN controlled only for AT reasons are examples of items described, rather than enumerated, on the CCL. The note also lists certain ECCNs that are treated as controlled exclusively for AT reasons for purposes of the definition.

A catch-all paragraph is one that does not refer to specific types of parts, components, accessories or attachments (15 CFR 772.1). The definitions section gives paragraph 9A610.x as an example, because it controls those items when specially designed for military aircraft.

7. How the .x paragraphs are drawn

ECCN 9A610.x reaches parts, components, accessories and attachments specially designed for a commodity in ECCN 9A610, other than 9A610.y, or for a defense article in USML Category VIII (ECCN 9A610.x). Items specified elsewhere on the USML, or in one of the .y paragraphs of 9A610, 9A619 or 3A611, fall outside it. In ECCN 0A606, forgings, castings and other unfinished products such as extrusions and machined bodies are controlled under 0A606.x once identifiable as 0A606.x items by their mechanical properties, material composition, geometry or function (ECCN 0A606.x).

Not every .x paragraph is the same. ECCN 0A602.x reaches only parts and components specially designed for paragraphs .a or .b of that entry or for a defense article in USML Category II (ECCN 0A602.x). ECCN 3A611.x excludes items enumerated or described in any USML category or in 3A611.y, and items in any paragraph other than the .x paragraph of another 600 series ECCN (ECCN 3A611.x). A note to the definition of required gives an example. Unclassified technology not enumerated on the USML and required to develop or produce a 9A610.x component for installation in a USML VIII(a) aircraft is controlled under ECCN 9E610, not USML Category VIII(i) (15 CFR 772.1). The structure of the series is covered in how the 600 series fits the Commerce Control List. The parallel Munitions List test is covered in specially designed and the terms that scope the list.

Key terms

Specially designed	The two-prong test in 15 CFR 772.1, with six releases for parts and software.
Peculiarly responsible	Described in a note as a direct and proximate causal relationship central or special to controlled performance.
Catch-all paragraph	A paragraph that does not name specific types of parts or components.
Enumerated	Listed on the USML or CCL other than in a catch-all paragraph.
Equivalent form	A form modified solely for fit purposes.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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