Section 120.3 - Policy on designating or determining defense articles and services on the U.S. Munitions List(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agency of the U.S. Government (see § 120.5 ) pursuant to a commodity jurisdiction determination (see § 120.4 ) unless superseded by changes to the USML or by a subsequent commodity jurisdiction determination; or(2) Meets one of the criteria of § 120.41(b) when the article is used in or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.