[Code of Federal Regulations]
[Title 22, Volume 1]
[Revised as of April 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 22CFR120.4]

[Page 423-424]
 
                       TITLE 22--FOREIGN RELATIONS
 
                     CHAPTER I--DEPARTMENT OF STATE
 
PART 120_PURPOSE AND DEFINITIONS--Table of Contents
 
Sec. 120.4  Commodity jurisdiction.

    (a) The commodity jurisdiction procedure is used with the U.S. 
Government if doubt exists as to whether an article or service is 
covered by the U.S. Munitions List. It may also be used for 
consideration of a redesignation of an article or service currently 
covered by the U.S. Munitions List. The Department must submit a report 
to Congress at least 30 days before any item is removed from the U.S. 
Munitions List. Upon written request, the Office of Defense Trade 
Controls shall provide a determination of whether a particular article 
or service is covered by the U.S. Munitions List. The determination, 
consistent with Sec. Sec. 120.2, 120.3, and 120.4, entails consultation 
among the Departments of State, Defense, Commerce and other U.S. 
Government agencies and industry in appropriate cases.
    (b) Registration with the Office of Defense Trade Controls as 
defined in part 122 of this subchapter is not required prior to 
submission of a commodity jurisdiction request. If it is determined that 
the commodity is a defense article or service covered by the U.S. 
Munitions List, registration is required for exporters, manufacturers, 
and furnishers of defense articles and defense services (see part 122 of 
this subchapter).
    (c) Requests shall identify the article or service, and include a 
history of the product's design, development and use. Brochures, 
specifications and any other documentation related to the article or 
service shall be submitted in seven collated sets.
    (d)(1) A determination that an article or service does not have 
predominant civil applications shall be made by the Department of State, 
in accordance with this subchapter, on a case-by-case basis, taking into 
account:
    (i) The number, variety and predominance of civil applications;
    (ii) The nature, function and capability of the civil applications; 
and
    (iii) The nature, function and capability of the military 
applications.
    (2) A determination that an article does not have the performance 
equivalent, defined by form, fit and function, to those used for civil 
applications shall be made by the Department of State, in accordance 
with this subchapter, on a case-by-case basis, taking into account:
    (i) The nature, function, and capability of the article;
    (ii) Whether the components used in the defense article are 
identical to those components originally developed for civil use.
    Note: The form of the item is its defined configuration, including 
the geometrically measured configuration, density, and weight or other 
visual parameters which uniquely characterize the item, component or 
assembly. For software, form denotes language, language level and media. 
The fit of the item is its ability to physically interface or 
interconnect with or become an integral part of another item. The 
function of the item is the action or actions it is designed to perform.
    (3) A determination that an article has significant military or 
intelligence applications such that it is necessary

[[Page 424]]

to control its export as a defense article shall be made, in accordance 
with this subchapter, on a case-by-case basis, taking into account:
    (i) The nature, function, and capability of the article;
    (ii) The nature of controls imposed by other nations on such items 
(including COCOM and other multilateral controls), and
    (iii) That items described on the COCOM Industrial List shall not be 
designated defense articles or defense services unless the failure to 
control such items on the U.S. Munitions List would jeopardize 
significant national security or foreign policy interests.
    (e) The Office of Defense Trade Controls will provide a preliminary 
response within 10 working days of receipt of a complete request for 
commodity jurisdiction. If after 45 days the Office of Defense Trade 
Controls has not provided a final commodity jurisdiction determination, 
the applicant may request in writing to the Director, Center for Defense 
Trade that this determination be given expedited processing.
    (f) State, Defense and Commerce will resolve commodity jurisdiction 
disputes in accordance with established procedures. State shall notify 
Defense and Commerce of the initiation and conclusion of each case.
    (g) A person may appeal a commodity jurisdiction determination by 
submitting a written request for reconsideration to the Director of the 
Center for Defense Trade. The Center for Defense Trade will provide a 
written response of the Director's determination within 30 days of 
receipt of the appeal. If desired, an appeal of the Director's decision 
can then be made directly to the Assistant Secretary for Politico-
Military Affairs.