DTAG Discusses its Draft USML Definition of "Specially Designed"
On May 3, 2011, an official at the Defense Trade Advisory Group's plenary session gave a presentation and introduced a draft definition of the term "specially designed" to initially be used in Category VII of the U.S. Munitions List, and eventually to other categories and lists.
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(In December 2010, the State Department issued an advanced notice of proposed rulemaking (ANPR) on revisions to make the USML positive and tiered. The department also issued a proposed rule to revise category VII (tanks and military vehicles) of the USML. See ITT's Online Archives or 12/10/10 news, 10121021 and 10121013, for BP summaries.)
"Specially Designed" Appears in USML, CCL, and Agreements, but Never Defined
The official stated that DTAG chose to use the term “specially designed” because it appears in the USML, the Commerce Control List (CCL), and a majority of other arrangements, including the Missile Technology Control Regime (MTCR) and the Wassenaar Arrangement.
The term "specially designed" is largely used to describe end-items and catch-alls; however, the official notes that the term is not yet been defined by any of these arrangements. DTAG’s goal is to apply a definition of "specially designed" wherever it appears within in the USML and CCL, and eventually in all circumstances.
Draft Definition of "Specially Designed" Contains Two Parts
The DTAG official presented the following draft definition of “specially designed”:
(1) A specially designed item is an item enumerated in the USML or CCL and as a result of “development” has properties peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics, or functions of the referenced item in the USML.
(2) A specially designed part or component is a part or component (as determined by its form, fit, or function) in or with an item enumerated in a category of the USML.
DTAG notes that a specially designed part or component does not include separately enumerated items. Additionally, items not separately enumerated are, for purposes of this definition, also not considered specially designed in any category of the USML in certain circumstances, such as if they are single, unassembled parts used in multiple types of civil and military items, or specifically excluded from control on the USML or CCL, etc.
DTAG Requests Industry Feedback, USML Categories, CCL Need to be Reviewed
According to the official, this two-part definition is aimed to capture all specially designed items and DTAG is currently requesting industry feedback on whether this control structure will work if implemented. However, because the U.S. will be the first country to define the term in writing, the international effects of this definition in the USML and CCL will also need to be reviewed. He states this draft definition has been created in the context of Category VII of the USML and it is not known how the definition will affect other USML categories.
Definition to be Published in Federal Register for Formal Comment
The official stated that an interagency review process regarding this definition should be completed by the first week of May and that the definition will be published in a Federal Register notice for formal comment.
(See ITT’s Online Archives or 03/30/11 news, 11033023, for BP summary comments BIS received on its December 2010 ANPR to revise the CCL, in which some associations suggested that BIS eliminate the use of term “specially designed”.
See ITT's Online Archives or 03/03/11 news, 11030314, for BP summary of the Under Secretary for Industry and Commerce stating that "specially designed" is a priority definition that needs to be clarified.)