(a) For purposes of this subchapter, a specific article or service may be designated a defense article (see § 120.31) or defense service (see § 120.32) if it:
(1) Meets the criteria of a defense article or defense service on the U.S. Munitions List (USML) (part 121 of this subchapter); or
(2) Provides the equivalent performance capabilities of a defense article on the USML.
(b) For purposes of this subchapter, a specific article or service shall be determined in the future as a defense article or defense service if it provides a critical military or intelligence advantage such that it warrants control under this subchapter.
Note 1 to paragraphs (a) and (b):An article or service determined in the future pursuant to this subchapter as a defense article or defense service, but not currently on the USML, will be placed in Category XXI of § 121.1 of this subchapter until the appropriate category of the USML has been amended to provide the necessary entry.
(c) A specific article or service is not a defense article or defense service for purposes of this subchapter if it:
(1) Is determined to be under the jurisdiction of another department or agency of the U.S. Government (see § 120.5) pursuant to a commodity jurisdiction determination (see § 120.4) unless superseded by changes to the USML or by a subsequent commodity jurisdiction determination; or
(2) Meets one of the criteria of § 120.41(b) when the article is used in or with a defense article and specially designed is used as a control criteria.
Note 2 to § 120.3:The intended use of the article or service after its export (i.e., for a military or civilian purpose), by itself, is not a factor in determining whether the article or service is subject to the controls of this subchapter.
Notes of Decisions
United States v. Zhen Zhou Wu, 711 F.3d 1 (1st Cir. 2013).
“if it: (a) Is specifically designed, developed, configured, adapted, or modified for a military application, and (i) Does not have predominant civil applications, and (ii) Does not have performance equivalent (defined by form, fit and function) to those of an article or service…”
United States v. Twenty Miljam-350 IED Jammers, 669 F.3d 78 (2d Cir. 2011).
“il applications, and (ii) Does not have performance equivalent (defined by form, fit and function) to those of an article or service used for civil applications; or (b) Is specifically designed, developed, configured, adapted, or modified for a military application, and has…”
United States v. Electrodyne Sys. Corp., 28 F. Supp. 2d 213 (D.N.J. 1998).
· cites it 5× “The Diplexer is a defense article within'the meaning of ITAR, 22 C.F.R. §§ 120.3 and 121.8(b). See Presentence Investigation Reports, ¶45.”
United States v. Elizabeth Martinez & Mario Valladares, 904 F.2d 601 (11th Cir. 1990).
· cites it 2× “” 22 C.F.R. § 120.3 . 3 Relying principally upon the constitutional framework of the separation of powers between the coordinate branches of Government, the Supreme Court has recognized that some questions are so inherently political as to be excluded from judicial review.”
United States v. Yindeear-Rom, 217 F. Supp. 3d 348 (D.D.C. 2016).
· cites it 3× “Warren used the word ‘critical,’ because that word is used in the version of 22 C.F.R. § 120.3 that came into effect on October 14, 2013,” after the charged events.”
United States v. Burden, 217 F. Supp. 3d 348 (D.D.C. 2016).
· cites it 3× “Warren used the word ‘critical,’ because that word is used in the version of 22 C.F.R. § 120.3 that came into effect on October 14, 2013,” after the charged events.”
State of Washington v. United States Dep't of State (W.D. Wash. 2019).
“3 The federal defendants, citing 22 C.F.R. § 120.3 (b), argue that only items that “provide[] 4 a critical military or intelligence advantage” belong on the USML and that a multi-year, inter- 5 agency review process led to the determination that firearms up to .”
State of Washington v. United States Dep't of State (W.D. Wash. 2020).
“at *8 (citing 22 C.F.R. § 120.3 (b)). There is evidence 21 to support the States’ contention that the federal defendants again failed to make their 22 decision based on consideration of the relevant Congressional factors, such as the impact 23 on world peace and national…”
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