Export Control Reform

The New “Specially Designed” Definition: Speed Dating for Export Classification

There are several problems with the title to this article.  For one thing, the definition of “specially designed” is not all that new anymore.

As it turns out, this definition first became effective in October 2013, and it had been published in the Federal Register for everyone’s reading pleasure some six months earlier.  So after nearly two years, maybe the novelty has worn off this particular facet of export controls reform.  However, an ITAR streamline final rule in October 2014 revised the specially designed definition to clarify certain catch-all controls.  So, in that sense, you could say the current definition is still relatively new.

The second thing that’s wrong with this title is that it’s not really a definition at all; not in Webster’s dictionary style at least. Instead, this “definition” functions more as an analytical “road map.” And rather than tell you what is specially designed, most of the verbiage is spent informing you as to what types of things are NOT specially designed.

Two sweeping “catch” paragraphs are followed by five or six “release” paragraphs (the number depending on which agency’s ‘definition’ you happen to be using).  These questions then, as previewed in the subtitle above, function something like speed dating (not that I’ve ever done that you understand). You ask a series of predetermined, rapid-fire queries – a short list – and you ask nearly the same set of questions of each ‘candidate’ (in this case those ‘candidates’ would be either USML or CCL listings).  Once those questions are resolved, you speedily move along to the next list of ‘candidates’ with your series of questions until you find your match . . . for better or for worse.

“Specially Designed” (SD) is therefore sometimes referred to as a ‘cascading review’ because you start out with the USML, using the ITAR’s Order of Review (22 CFR 121.1(b)(1)) and associated SD steps (22 CFR 120.41).  If you fail to find your ‘dream date,’ then you move along to the EAR’s Order of Review (15 CFR 774, Supplement No. 4) and the associated SD ‘definition’ steps as they have been spread out over four pages (15 CFR 772) and some 1700 words (Webster would not be pleased). And you may well have to perform these reviews a total of three times; once for USML, once for the Commerce Munitions List items (the so-called “600 series” listings), and perhaps again for the rest of the (non-“600 series”) Commerce Control List.

As with any “road map” there are uncharted potholes. These can usually be avoided by a very careful reading of the associated notes (which comprise the lion’s share of the verbiage in this SD ‘definition’).  If you speed past those, however, you will almost certainly careen down the wrong road after hitting one of those proverbial pot holes. Or in export controls jargon, you will have determined a very methodical, yet very likely a wrong, item classification.