Specially designed and the terms that scope the list

← All Insights

1. How a category is laid out

The Munitions List is published in part 121 of the regulations, and changes to designations are published in the Federal Register (22 CFR 120.10(a)). Each category is organized by paragraphs and subparagraphs identified by letters and numbers. A category usually starts with end-items, then major systems and equipment, then parts, components, accessories and attachments, and ends with the technical data and defense services directly related to that category (22 CFR 120.10(b)).

Two annotations carry legal weight. "All items described within a USML paragraph or subordinate paragraph that is preceded by an asterisk (*) are designated Significant Military Equipment (SME)" (22 CFR 120.10(c)). The designation reaches the drawings too: "Note that technical data directly related to the manufacture or production of a defense article designated as SME is also designated as SME" (22 CFR 120.10(c)).

The second marker concerns missile technology. "Annotation with the parenthetical (MT) at the end of a USML entry indicates those defense articles that are on the MTCR Annex" (22 CFR 120.10(d)). An item carrying either marker attracts rules elsewhere in the regulations that an unmarked item does not.

2. The words that describe an item’s place in a system

List entries use a fixed vocabulary, defined in one section. "An end-item is a system, equipment, or an assembled article ready for its intended use" (22 CFR 120.40(b)), needing only ammunition, fuel or another energy source to operate. A component is useful only with an end-item. A major component is an assembled element without which the end-item is inoperable, and a minor component is an assembled element of a major component (22 CFR 120.40(c)).

Accessories and attachments are not necessary for operation but enhance usefulness or effectiveness. A part is a single unassembled element that is not normally taken apart without destroying or impairing its designed use (22 CFR 120.40(d) and 22 CFR 120.40(e)). Firmware and its related unique support tools count as part of the end-item or component they serve (22 CFR 120.40(f)).

Software has its own route. A person who intends to export only software should apply for a license under part 125, unless the software is itself specifically enumerated on the list (22 CFR 120.40(g)). Systems and equipment are defined as combinations that operate together to perform a function, and equipment that meets the definition of an end-item is treated as an end-item (22 CFR 120.40(h) and 22 CFR 120.40(i)).

3. Specially designed, in two parts

Many catch-all paragraphs control items only if they are specially designed, so the definition decides how far a paragraph reaches. It has an inclusion test and a release test. On the inclusion side, a commodity or software is specially designed if, as a result of development, it "has properties peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics, or functions described in the relevant U.S. Munitions List (USML) paragraph" (22 CFR 120.41(a)(1)). It is also caught if it is a part, component, accessory, attachment or software for use in or with a defense article (22 CFR 120.41(a)(2)).

The second limb is very broad on its own, which is why the release test matters. A part, component, accessory, attachment or software is not specially designed if any of five conditions applies (22 CFR 120.41(b)):

• It has been determined to be subject to the Export Administration Regulations through a commodity jurisdiction determination.
• It is one of the listed common hardware items, such as a fastener, washer, spacer, spring, wire or solder, whatever its form or fit.
• It has the same function and performance, and the same or equivalent form and fit, as an item used with a commodity that is or was in production and is not enumerated on the list.
• It was developed knowing it would be used with both listed defense articles and unlisted commodities.
• It was developed as a general purpose item, with no knowledge of use in a particular commodity or type of commodity.

4. The paperwork behind the last two releases

The fourth and fifth releases depend on what the developer knew, and the regulation requires proof from the time. Documents contemporaneous with development must, taken together, establish the release. They may include concept design information, marketing plans, patent declarations or contracts. "Absent such documents, the commodity may not be excluded from being specially designed by either paragraph (b)(4) or (5)" (22 CFR 120.41(b)).

Knowledge is also defined broadly. It covers awareness of a high probability that a circumstance exists or will occur, and that awareness can be inferred from conscious disregard of known facts or willful avoidance of them (22 CFR 120.41(b)).

5. Form, fit, function and the catch-all

The release tests rely on terms defined in the next section. Form is a commodity’s configuration, material and material properties. Fit is its ability to physically interface or connect with, or become part of, another commodity. Function is the action it is designed to perform, and performance capability is the measure of how well it performs in a given environment (22 CFR 120.42(a) to 22 CFR 120.42(d)).

Equivalence is narrow. "With respect to a commodity, equivalent means its form has been modified solely for fit purposes" (22 CFR 120.42(e)). A catch-all control, by contrast with an enumerated entry, is one that "controls unspecified parts, components, accessories, or attachments only if they were specially designed for an enumerated item" (22 CFR 120.42(g)).

6. Development and production

The third release turns on whether the comparison item is in production, so those terms are defined as well. Development covers all stages before serial production, including design, prototypes, pilot production and modification of an existing design (22 CFR 120.43(a)). Production covers product engineering, manufacture, integration, assembly, inspection, testing and quality assurance (22 CFR 120.43(b)(1)).

Improvement work does not always reset the status. Reliability, maintainability, quality, cost and feature improvements leave a commodity in production. However, "any new models or versions of such commodities developed from such efforts that change the basic performance or capability of the commodity are in development until and unless they enter into production" (22 CFR 120.43(b)(2)).

7. What this means in practice

For a parts supplier, classification rarely turns on the end-item. It turns on whether a part falls within a catch-all paragraph and, if so, whether one of the five releases applies. Two of those releases can only be claimed with development records kept at the time. The way to ask the Department of State for a formal ruling is described in commodity jurisdiction and the order of review, and the rules for technical data in technical data and data packages.

Key terms

Significant Military Equipment	Items in a list paragraph marked with an asterisk, and technical data for producing them.
Specially designed	The two-part test, inclusion then release, that decides the reach of a catch-all paragraph.
Catch-all control	An entry controlling unspecified parts only if specially designed for an enumerated item.
End-item	An assembled article ready for use, needing only ammunition, fuel or another energy source.

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.

How Sentfore supports this

Parts and components moving to a program in the field need the same care as the systems they belong to. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.