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EAR Definition of Specially Designed

“Specially Designed” – as defined by the EAR Part 772**

Paragraph (a)

Except for items described in (b), an “item” is “specially designed” if it:
(1) As a result of “development” has properties peculiarly responsible for achieving or exceeding the performance levels, characteristics or functions in the relevant ECCN or U.S. Munitions List (USML) paragraph; or

(2) Is a “part”, “component”, “accessory”, “attachment”, or “software” for use in or with a commodity or defence article ‘enumerated’ or otherwise described on the CCL or the USML.

Paragraph (b)

A “part”, “component”, “accessory”, “attachment” or “software” that would be controlled by Paragraph (a) is not “specially designed” if it:
(1) Has been identified to be in an ECCN paragraph that does not contain “specially designed” as a control parameter or as an EAR 99 item in a Commodity Jurisdiction (CJ) determination or interagency cleared commodity classification (CCATS) pursuant to 748.3(e);

(2) Is, regardless of ‘form’, or ‘fit’ a fastener (e.g. screw, bolt, nut, nutplate, stud, insert, clip, rivet, pin) washer, spacer, insulator, grommet, bushing, spring, wire, solder;

(3) Has the same function, performance capabilities, and the same or ‘equivalent’ form and fit, as a commodity or software used in or with an item that:
i. Is or was in production (i.e. not in “development”); and
ii. Is either not ‘enumerated’ on the CCL or USML or is described in an ECCN controlled only for Anti-Terrorism (AT) reasons;

(4) Was or is being developed with the “knowledge” that it would be for use in or with commodities or software (i) described in an ECCN and (ii)also commodities or software either not ‘enumerated’ on the CCL or the USML (e.g. EAR 99 commodities or software) or commodities or software described in an ECCN controlled only for Anti-Terrorism (AT reasons);

(5) Was or is being developed as a general purpose commodity or software, i.e. with no “knowledge” for use in or with a particular commodity (e.g., and F/A-18 or HMMWV) or type of commodity (e.g., an aircraft or machine tool); or

(6) Was or is being developed with “knowledge” that it would be for use with commodities or software described (i) in an ECCN controlled for AT-only reasons and also EAR-99 commodities or software; or (ii) exclusively for use with EAR99 commodities or software.

** Always consult the definition of “specially designed” in the regulations and read all relevant notes to the definition. Always refer to the definition of words in quotation marks. Consult the Commerce Control List Order of Review in Supplement 4 to Part 774 of the EAR to ensure correct application of “specially designed”.

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