Specially designed — 22 CFR 120.41
Defines when a commodity or software counts as specially designed, using a catch in paragraph (a) and 5 releases in paragraph (b).
The entry, quoted as it reads today
§ 120.41 Specially designed. (a) Except for commodities or software described in paragraph (b) of this section, a commodity or software is specially designed if it: (1) As a result of development, 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 in § 121.1 of this subchapter; or Note 1 to paragraph (a)(1): An example of a commodity that as a result of development has properties peculiarly responsible for achieving or exceeding the controlled performance levels, functions, or characteristics in a USML category would be a swimmer delivery vehicle specially designed to dock with a submarine to provide submerged transport for swimmers or divers from submarines. (2) Is a part, component, accessory, attachment, or software for use in or with a defense article. (b) For purposes of this subchapter, a part, component, accessory, attachment, or software is not specially designed if it: (1) Is subject to the EAR pursuant to a commodity jurisdiction determination; (2) Is, 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; (3) 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: (i) Is or was in production ( i.e., not in development); and (ii) Is not enumerated on the USML; (4) Was or is being developed with knowledge that it is or would be for use in or with both defense articles enumerated on the USML and also commodities not on the USML; or (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., a F/A-18 or HMMWV) or type of commodity (e.g., an aircraft or machine tool). Note 2 to paragraph (b): For a defense article not to be specially designed on the basis of paragraph (b)(4) or (5) of this section, documents contemporaneous with its development, in their totality, must establish the elements of paragraph (b)(4) or (5). Such documents may include concept design information, marketing plans, declarations in patent applications, or contracts. Absent such documents, the commodity may not be excluded from being specially designed by either paragraph (b)(4) or (5). Note 3 to paragraph (b): For the purpose of paragraphs (b)(4) and (5) of this section, “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. Such awareness is inferred from evidence of the conscious disregard of facts known to a person and is also inferred from a person's willful avoidance of facts. § 120.42 Form, fit, function, performance capability, equivalent, enumerated, and catch-all control. (a) Form. The form of a commodity is defined by its configuration (including the geometrically measured configuration), material, and material properties that uniquely characterize it. For software, the form means the design, logic flow, and algorithms. (b) Fit. The fit of a commodity is defined by its ability to physically interface or connect with or become an integral part of another commodity. For software, the fit is defined by its ability to interface or connect with a defense article. (c) Function. The function of a commodity is the action or actions it is designed to perform. For software, the function means the action or actions the software performs directly related to a defense article or as a standalone application. (d) Performance capability. Performance capability is the measure of a commodity's effectiveness to perform a designated function in a given environment (e.g., measured in terms of speed, durability, reliability, pressure, accuracy, efficiency). For software, performance capability means the measure of the software's effectiveness to perform a designated function. (e) Equivalent. With respect to a commodity, equivalent means its form has been modified solely f
Corpus last verified 2026-08-29. Skenai never shows unquoted regulation.
In plain language
This definition is the hinge under most USML paragraphs, and it is built as a 2-step test. Paragraph (a) catches an item whose development gave it properties peculiarly responsible for achieving controlled performance levels, characteristics or functions. It also catches any part, component, accessory, attachment or software for use in or with a defense article.
Paragraph (b) then releases items back out. Releases cover items subject to the EAR by commodity jurisdiction, and listed hardware such as fasteners, washers, springs and solder. Another release covers items with the same form, fit, function and performance as something in production and off the USML.
The last 2 releases turn on what was known during development. An item developed for both USML and non-USML use can fall out, as can a general purpose commodity. Note 2 requires contemporaneous documents, and Note 3 treats awareness of high probability as knowledge.
The questions this entry turns on
- 01Did development give the item properties peculiarly responsible for achieving or exceeding a controlled performance level?
- 02Is the item a part, component, accessory, attachment or software for use in or with a defense article?
- 03Is the item on the paragraph (b)(2) hardware release list, such as a fastener, washer, spacer, spring, wire or solder?
- 04Does an item with the same function, performance and equivalent form and fit exist in production and off the USML?
- 05Do contemporaneous development documents establish dual use under (b)(4) or general purpose design under (b)(5)?
Free, no account. Dossier $249 if you want the record.
What typically falls in, and what typically falls out
Typically in
- A wiring harness developed only to route signals inside a targeting pod, which typically meets paragraph (a)(2)
- A control board whose loop gains were developed to reach a controlled tracking rate, typically meeting paragraph (a)(1)
- A gimbal developed for an ISR payload carried on a USML aircraft, which typically meets the definition
Typically out
- An M4 stainless screw used across commercial and defense builds, typically released by paragraph (b)(2)
- A catalogue IMU already in production and not on the USML, used unchanged, typically released by paragraph (b)(3)
- A general purpose flight controller developed with no knowledge of a particular end item, with contemporaneous documents, typically released by paragraph (b)(5)
These are typical cases, not determinations. Which side a specific product lands on turns on the answers in the Interview.
Adjacent entries
- Aircraft and related articles — USML Category VIII22 CFR 121.1, Category VIII(a)
- Imaging systems under fire control, laser, imaging and guidance equipment — USML Category XII22 CFR 121.1, Category XII(c)
- EAR99 designation for items subject to the EAR — 15 CFR 734.3(c)15 CFR 734.3(c)
Does your product land on this entry?
The Interview asks 5 to 9 questions, only the ones this entry turns on, and names the Determination free. The Dossier is the dated, cited record of how it was reached.
Free, no account. Dossier $249 if you want the record.