How to Determine if a Commodity is Not “Specially Designed”

Navigating the intricate web of regulations surrounding international trade in defense-related articles and services can be daunting, especially when it comes to compliance with the International Traffic in Arms Regulations (ITAR). Among the various provisions outlined in ITAR, the concept of items not being “specially designed” holds significant weight. Determining whether a commodity falls within this category requires careful analysis and understanding of the regulatory framework.

Before delving into the jurisdiction & classification assessment process, it’s essential to grasp the fundamentals of what constitutes an item as not being “specially designed” under ITAR. In essence, items that do not possess characteristics or features tailored for military applications typically fall outside the scope of ITAR controls. This distinction is crucial for ensuring that commodities with purely civilian or commercial uses are not subjected to unnecessary export restrictions.

Key Factors for Determination: To ascertain whether a commodity is not “specially designed” under ITAR, several key factors must be considered:

1. Commercial Off-the-Shelf (COTS) Nature: Commodities readily available in the commercial market and primarily designed for civilian or commercial applications are less likely to be considered “specially designed” under ITAR. These include standard off-the-shelf products with no inherent military utility.
2. Lack of Military Specifications: Items that do not meet military specifications or standards and have not been customized or modified for military use are generally considered not “specially designed.” This includes commodities with standard specifications commonly found in the commercial sector.
3. Absence of Dual-Use Characteristics: Commodities lacking dual-use characteristics or features that are inherently civilian in nature and do not possess attributes conducive to military adaptation are unlikely to be classified as “specially designed” under ITAR.
4. Parts, components, accessories, attachments or software that:
   • Could be considered regardless of form or fit, a fastener (e.g., screws, bolts, nuts, nut plates, studs, inserts, clips, rivets, pins), washer, spacer, insulator, grommet, bushing, spring, wire, or solder.
   • Has the same function, performance capabilities, and the same or equivalent form and fit as a commodity or software used in or with a commodity that is or was in production and is not enumerated in the ITAR.
   • Was or is being developed with knowledge that it is or would be for use in or with both defense articles in the ITAR and also commodities not in the ITAR.  Documents contemporaneous with the development of the commodity, in their totality, must establish this fact.  Further, knowledge includes not only the positive knowledge a circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence.
   • 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. Documents contemporaneous with the development of the commodity, in their totality, must establish this fact. includes not only the positive knowledge a circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence.

Assessment Strategies: When conducting assessments to determine if a commodity is not “specially designed” under ITAR, the following strategies can be employed:

1. Technical Evaluation: Conduct a thorough technical evaluation of the commodity to ascertain its specifications, intended use, and potential military applications. Compare these findings against ITAR criteria to identify any characteristics indicative of “specially designed” status.
2. Documentation Review: Review relevant documentation, including product specifications, manufacturing processes, and design histories, to gather insights into the commodity’s development and intended purpose. Documentation supporting its commercial or civilian nature can bolster arguments for not being “specially designed.”
3. Regulatory Guidance: Seek guidance from regulatory authorities or export control experts to clarify any uncertainties regarding the classification of the commodity under ITAR regulations. Leveraging their expertise can provide valuable insights and ensure accurate determination.

Determining whether a commodity is not “specially designed” under ITAR requires careful analysis and consideration of various factors. By understanding the key criteria and employing effective assessment strategies, organizations can navigate compliance challenges with confidence while ensuring that legitimate trade activities are not unduly impeded. With diligence and expertise, businesses can uphold regulatory compliance within the complex landscape of international trade in defense-related commodities.