Rule2022-05629
International Traffic in Arms Regulations: Consolidation and Restructuring of Purposes and Definitions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 23, 2022
Effective
September 6, 2022
Issuing agencies
State Department
Abstract
The Department of State is amending the International Traffic in Arms Regulations (ITAR) to better organize the purposes and definitions of the regulations. This rule consolidates and co-locates authorities, general guidance, and definitions.
Full Text
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<title>Federal Register, Volume 87 Issue 56 (Wednesday, March 23, 2022)</title>
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[Federal Register Volume 87, Number 56 (Wednesday, March 23, 2022)]
[Rules and Regulations]
[Pages 16396-16426]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05629]
[[Page 16396]]
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DEPARTMENT OF STATE
22 CFR Parts 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, and
130
[Public Notice: 11657]
RIN 1400-AE27
International Traffic in Arms Regulations: Consolidation and
Restructuring of Purposes and Definitions
AGENCY: Department of State.
ACTION: Interim final rule.
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SUMMARY: The Department of State is amending the International Traffic
in Arms Regulations (ITAR) to better organize the purposes and
definitions of the regulations. This rule consolidates and co-locates
authorities, general guidance, and definitions.
DATES:
Effective date: This interim final rule is effective September 6,
2022.
Comment due date: The Department of State will accept comments on
this interim final rule until May 9, 2022.
ADDRESSES: Interested parties may submit comments by one of the
following methods:
<bullet> Email: <a href="/cdn-cgi/l/email-protection#a6e2e2f2e5f6d3c4cacfc5e5c9cbcbc3c8d2d5e6d5d2c7d2c388c1c9d0"><span class="__cf_email__" data-cfemail="d99d9d8d9a89acbbb5b0ba9ab6b4b4bcb7adaa99aaadb8adbcf7beb6af">[email protected]</span></a> with the subject line,
International Traffic in Arms Regulations: Definitions.
<bullet> Internet: At <a href="http://www.regulations.gov">www.regulations.gov</a>, search for this document
using Docket DOS-2022-0004.
FOR FURTHER INFORMATION CONTACT: Sarah Heidema, Director, Office of
Defense Trade Controls Policy, Department of State, telephone (202)
663-1282; email <a href="/cdn-cgi/l/email-protection#8fcbcbdbccddeafcffe0e1fceadbeaeee2cffcfbeefbeaa1e8e0f9"><span class="__cf_email__" data-cfemail="0a4e4e5e49586f797a6564796f5e6f6b674a797e6b7e6f246d657c">[email protected]</span></a>. ATTN: Regulatory Change,
Consolidation of Definitions and Restructuring of Part 120.
SUPPLEMENTARY INFORMATION: The Directorate of Defense Trade Controls
(DDTC), U.S. Department of State, administers the International Traffic
in Arms Regulations (ITAR) (22 CFR parts 120-130). The regulations,
codified as subchapter M of chapter I, title 22 of the Code of Federal
Regulations (``the subchapter'') implement those authorities of the
Arms Export Control Act (AECA) (22 U.S.C. 2751 et seq.) delegated to
the Secretary of State pursuant to Executive Order 13637. This rule
restructures part 120 of the ITAR to better organize the definitions
previously found in that part and other locations throughout the ITAR
and to consolidate provisions that provide background information or
otherwise apply throughout the regulations. In addition, this rule adds
text not previously found in the ITAR and makes clarifying revisions to
existing text. This rule is intended to be the first in a series of
rulemakings that will further streamline and clarify the subchapter.
The Department makes the following revisions to the ITAR in this
interim final rule:
Revisions of General Application
Prior to this rulemaking, generally applicable information and
definitions were spread throughout the subchapter. As a result of this
rulemaking, part 120 is dividing into three subparts: Subpart A--
General Information; Subpart B--General Policies and Processes; and
Subpart C--Definitions. The division into subparts is intended to
provide the reader with a roadmap for the regulations. Subpart A--
General Information, consolidates and explains the legislative
authority and purpose of the regulations to aid in understanding their
importance and source. Subpart B--General Policies and Processes,
outlines the general processes and policies of the ITAR. Finally,
Subpart C--Definitions, provides a consolidated list of defined terms
that are applicable throughout the ITAR. Part and section-specific
information and definitions continue to be located in the applicable
part or section of the regulations. DDTC notes that the definitions in
subpart C are not included in alphabetical order. DDTC endeavored to
include definitions in a logical order so as to provide larger
conceptual definitions first, to keep like concepts together, to nest
related definitions in single sections, and to match the framework of
the regulations. DDTC believes that this structure outweighs any ease
in finding a definition through the use of alphabetization,
particularly considering modern methods of electronic search. Finally,
DDTC believes that the relatively limited number of defined terms
within the subchapter makes this subpart manageable in this way.
DDTC is revising those sections affected by this rule that use
acronyms to follow a standard format. Where a single term for which
there is a known acronym appears on more than two occasions within any
one section, the first instance is followed by a parenthetical
containing the acronym and subsequent use of the term is by acronym.
This will provide consistency of format without sacrificing clarity and
limits unnecessary text.
Section-Specific Revisions
The following descriptions explain non-editorial changes in text to
sections in this rule. Further, when discussing amended text that also
involves the movement of text to a new location or the creation of new
text modeled on existing language, the former or existing location is
provided. When discussing amended text below, citations are to the
section cites of this rule (i.e., the new location). When discussing
text that has been moved by this rule, the location of the text prior
to this rule is referred to as its ``former'' location. When discussing
a section or text that is not moved by this rule, the location is
referred to as its ``existing'' location. The table at the conclusion
of the preamble provides both the former and new ITAR citations for all
relocations of regulatory text at the section or sentence level for
assistance in associating new citations with former citations. It also
identifies all existing (i.e., non-relocated) sections that have been
revised. This rule does not amend or relocate any ITAR provisions not
included in the table below. In order to maintain focus on changes to
the text of the ITAR as it appeared prior to this rule and to the
addition of new text to the subchapter and to minimize unnecessary
explanation, the following preamble text does not describe the new
location of the text formerly located in the section cites discussed.
Persons interested in the movement of sections should review the table
at the end of this section.
Section 120.1 General Authorities
Revising the section heading of existing Sec. 120.1 from ``General
authorities, receipt of licenses, and ineligibility'' to ``General
Authorities'' to reflect the revised focus of the section. Revising the
introductory paragraph of Sec. 120.1(a) to clarify the manner of
delegation by the Secretary of State to the Deputy Assistant Secretary
of State for Defense Trade Controls, Bureau of Political-Military
Affairs of the authority to administer the ITAR.
Section 120.2 Designation of Defense Articles and Defense Services
Revising the fifth sentence of existing Sec. 120.2 to include a
limitation to defense articles and defense services ``on the USML in
part 121 of this subchapter'' in order to account for the delegation to
the Attorney General of the authority to designate defense articles and
services subject to control for permanent import by section 1(n)(ii) of
Executive Order 13637.
Section 120.4 Commodity Jurisdiction
Revising existing Sec. 120.4 to limit it to a statement of policy,
by relocating its procedural aspects. Former paragraphs (c) through (g)
of Sec. 120.4, which provide
[[Page 16397]]
information about the procedures and processes for submitting a
commodity jurisdiction request, have been relocated to new Sec. 120.12
titled Commodity Jurisdiction Determination Requests.
Section 120.5 Relation to Regulations of Other Agencies
Revising the title of Sec. 120.5 to eliminate reference to export
of items subject to the EAR in order to more accurately describe the
scope of the revised section, which is expanded to include relation to
nuclear related controls and the Department of Energy and Nuclear
Regulatory Commission (formerly found at Sec. 123.20). In addition,
revising Sec. 120.5 to provide introductory headings to each paragraph
to identify the related agencies. Revising existing Sec. 120.5(a) by
limiting its scope to the relation to the Department of Justice, moving
the language regarding the relation to the Department of Commerce
beginning at sentence 7 to a new paragraph (b), and by removing the
cross-reference to former Sec. 123.20 which is no longer necessary
given the addition of Sec. 120.5(c) (formerly found at Sec. 123.20).
Revising Sec. 120.5(b)(2) (formerly Sec. 120.5(b)) by moving the
sentence that says items subject to the Export Administration
Regulations (EAR) but exported under authorization from DDTC do not
require separate authorization from the Department of Commerce. That
sentence now appears just before the sentence prohibiting the use of
ITAR exemptions for items subject to the EAR that are unaccompanied by
a defense article. DDTC believes this change minimizes possible
confusion regarding requirements for Commerce approval and the use of
ITAR exemptions. The change also clarifies that the reference to
``these items'' in new sentence three applies to the items discussed in
sentences one and two. Also, the final parenthetical to Sec. 120.5(b)
is removed as an unnecessary restatement of general information.
Section 120.6 U.S. Criminal Statutes
Revising Sec. 120.6(b) and (d) (formerly found at Sec.
120.27(a)(2) and (4), respectively) to update U.S. Code citations to
the Export Administration Act, to add a reference to the Export Control
Reform Act, and to reflect the elimination of the Appendix to Title 50.
Section 120.10 Introduction to the U.S. Munitions List
Revising in Sec. 120.10(a) (formerly found at Sec. 121.1(a))
reference from ``[i]n this part'' to ``part 121 of this subchapter'' in
order to reflect the move of the ``Introduction to the U.S. Munitions
List'' from part 121 to new subpart A. Revising the paragraph heading
in Sec. 120.10(c) (formerly found at Sec. 121.1(a)(2) from
``Significant Military Equipment.'' to ``Significant Military Equipment
paragraphs in the USML.'' in order to more clearly distinguish the
explanation of identifiers in the USML from the definition of
significant military equipment at Sec. 120.36(a) (formerly found at
Sec. 120.7(a)).
Section 120.11 Order of Review
Adding in Sec. 120.11(c) a statement of the Department's
interpretation that defense articles remain controlled following
incorporation or integration into non-defense articles.
Section 120.12 Commodity Jurisdiction Determination Requests
Revising Sec. 120.12 in its entirety from its former purpose as
the address of the Directorate of Defense Trade Controls to a new
purpose describing the process for obtaining a CJ determination. The
revised section is constructed by moving parts of former Sec. 120.4(a)
and all of Sec. 120.4(f) to Sec. 120.12(a) and former Sec. 120.4(c)
and (d)(2) to Sec. 120.12(b). Specific reference to part 121 is added
to paragraph (a) in order to clarify that DDTC determinations using the
CJ process are limited to defense articles and services in that part.
Persons with questions regarding the U.S. Munitions Import List (USMIL)
should first address those questions to the Bureau of Alcohol, Tobacco,
Firearms and Explosives. The references to ``designation'' (formerly
found at Sec. 120.4(d)(2) and (3)) is revised to ``determination'' in
Sec. 120.12(b) and (c) in order to minimize possible confusion
regarding commodity jurisdiction determination requests. In addition, a
reference to Category XXI (Articles, Technical Data, and Defense
Services Not Otherwise Enumerated) is added to paragraph (c) in order
to clarify that the determination of the request is that the article or
service warrants control, but that at the time of the request the
article or service does not meet the criteria of a defense article or
defense service on the USML, or provide the equivalent performance
capabilities of a defense article on the USML.
Revising in Sec. 120.12(f) (formerly found at Sec. 120.4(b)) the
statement regarding registration and the CJ process. The second
sentence of former Sec. 120.4(b) regarding the requirement to register
following a determination that a commodity is covered by the USML is
removed from Sec. 120.12(f) as it is a duplicative statement of the
general registration requirements found in part 122 and therefore
unnecessary. Removal is for clarification purposes only and does not
reflect a change in policy.
Section 120.13 Registration
Adding in Sec. 120.13(b) a statement of registration policy
regarding brokering derived from the requirements of Sec. Sec.
129.2(a) and 129.3(a). This statement is for clarity and does not
reflect a change in policy or regulation.
Section 120.14 Licenses and Related Authorizations
Adding in Sec. 120.14 a general statement of policy regarding
activities that are controlled and require a license or related
authorization. Those activities are divided into three paragraphs: (a)
Export, reexport, retransfer, or temporary import of defense articles,
derived from existing Sec. 123.1(a); (b) furnishing or providing
defense services, derived from existing Sec. 124.1(a); and (c)
brokering activities, derived from existing Sec. 129.4(a). The general
statement of policy is slightly revised from the language of the
existing authorization sections in that it distinguishes between
authorizations requiring a request for approval to be obtained from
DDTC (i.e., the existing authorization sections), and the use of an
exemption, for which no request is required to be submitted to DDTC.
Section 120.15 Exemptions
Adding in Sec. 120.15(a) an explicit statement that persons
otherwise required to register with DDTC may not utilize an exemption
without being registered, derived from existing Sec. 120.1(c) and the
Note to Sec. 122.1(b). Relocating to Sec. 120.15(b) the statement in
former Sec. 120.1(d) that exemptions are not available when parties to
the export are generally ineligible. Stating in Sec. 120.15(c) that
exemptions generally are not available for use with Sec. 126.1
countries, except as provided in that section. Stating in Sec.
120.15(d) that exemptions are limited as described by each specific
exemption section, and adding in Sec. 120.15(f) (formerly found in
Sec. 125.6) an overview of the certification requirements to utilize
an exemption to the licensing requirements of the ITAR for the export
of technical data, which is removed and reserved.
Section 120.16 Eligibility for Approvals
Revising in Sec. 120.16(a)(3) (formerly found at Sec.
120.1(c)(1)(iii)) reference to brokering authorizations from ``prior
approval'' to ``approval'' to reflect current usage in part 129. Adding
in Sec. 120.16(c) (formerly found at Sec. 120.1(c)) a new reference
to publicly announced
[[Page 16398]]
Department of State policies regarding eligibility in order to address
concerns regarding the use of exemptions and public awareness of the
status of end-users or other consignees.
Section 120.17 End-Use Monitoring
Adding in Sec. 120.17 a description of the Blue Lantern End-Use
Monitoring program. This description did not previously appear in the
ITAR, but is added here to provide an explanation to the regulated
community of the Department's obligations pursuant to 22 U.S.C. 2785 to
vet regulated transactions both before and after licensing
determinations.
Section 120.18 Denial, Revocation, Suspension, or Amendment of Licenses
and Other Approvals
Revising in Sec. 120.18(a)(2) (formerly found at Sec.
126.7(a)(2)) reference from ``Export Administration Act'' to ``Export
Administration Regulations'' to more accurately reflect the mechanism
through which the Department of Commerce authorizes exports. Revising
in Sec. 120.18(a)(6) (formerly found at Sec. 126.7(a)(6)) reference
from ``debarment'' to ``order denying export privileges'' in relation
to Department of Commerce actions in order to reflect the language of
the EAR. Adding in Sec. 120.18(a)(9) the statement that an unfavorable
finding of an end-use monitoring check may be the basis for
disapproving, revoking, suspending, or amending any existing license or
license application.
Section 120.19 Violations and Penalties
Adding in Sec. 120.19 a general statement in paragraph (a) of the
authority to impose penalties for violations of the ITAR and a
reference to part 127 (conduct that constitutes a violation), and in
paragraph (b) a statement derived from existing Sec. 127.12(a) of the
Department's encouragement of the voluntary disclosure of violations
when discovered.
Section 120.20 Administrative Procedures
Adding in Sec. 120.20 general statements (derived from revised
language at existing Sec. 128.1) regarding administrative procedures
under the ITAR and the relationship of the AECA to the Administrative
Procedure Act, respectively.
Section 120.21 Disclosure of Information
Removing in Sec. 120.21(b) (formerly found at Sec. 126.10(b))
reference to section 12(c) of the Export Administration Act, to
streamline the text while restating the substantive requirements stated
in the AECA.
Section 120.23 Organizations and Arrangements
Creating in Sec. 120.23 a new grouping of various international
organizations and arrangements. Revising in Sec. 120.23(a) (formerly
found at Sec. 120.31) the description of NATO from a static list of
member countries to include reference to admitted member states not
listed. This will prevent unnecessary amendment to the section or
public confusion regarding references to NATO in the ITAR and the
status of member states. Adding in Sec. 120.23(c) reference to the
Wassenaar Arrangement on Export Controls not formerly found in the
subchapter. Removing in Sec. 120.23(d)(3) (formerly found at Sec.
120.29(c)) an unnecessary reference to the relevant statutory authority
regarding Missile Technology Control Regime items and the USML in order
to streamline the text.
Section 120.37 Major Defense Equipment
Revising Sec. 120.37 (formerly found at Sec. 120.8) to more
closely follow the definitions structure by beginning the paragraph
with the defined term.
Section 120.38 Classified
Adding in Sec. 120.38 (formerly found at Sec. 120.46) the phrase
``or predecessor order'' to the definition of classified to conform the
single instance definition with the individual definitions of
classified previously found within the individual categories of the
USML. This change does not expand the applicable scope of the
definition of classified. Corresponding changes are made to remove from
Categories I through XXI of Sec. 121.1 individual ``Note to
paragraph'' definitions of classified wherever found within the USML.
Section 120.40 Compositional Terms
Revising the section heading from ``End-items, components,
accessories, attachments, parts, firmware, software, systems, and
equipment'' to ``Compositional terms'' to more accurately address the
contents of the section (formerly found at Sec. 120.45). The section
as formerly written included items that could be either an element of a
defense article, or a defense article in and of itself, or might be a
part (or component, etc.) of a defense article without being a defense
article itself. In order to clarify that the section defines terms that
can be used in relation to articles other than defense articles, the
section heading is expanded. Other changes include: Adding in Sec.
120.40 a new paragraph (a) to include a single instance definition of
commodity, formerly found in Note to paragraphs (a) and (b) of Sec.
120.41, in order to clarify its application throughout the ITAR; and
revising the explanatory note to the definition of system in paragraph
(h) (formerly found at Note to paragraph (g) of Sec. 120.45) in order
to eliminate the redundant second sentence as unnecessary and to limit
reference to the relevant source materials and delete the citations to
outdated versions of those materials.
Section 120.41 Specially Designed
Revising existing Sec. 120.41 to move from Sec. 120.41 those
notes that contain definitions of broad applicability to single
instance definitions in Sec. Sec. 120.42 and 120.43 and to make
certain non-substantive revisions to the order and numbering of notes
to the section in accordance with Code of Federal Regulations drafting
requirements.
Section 120.42 Form, Fit, Function, Performance Capability, Equivalent,
Enumerated, and Catch-All Control
In Sec. 120.42 incorporating single instance definitions of form,
fit, function, and performance capability (formerly found at Notes 1
and 2 to paragraph (d) of Sec. 120.4 and Note 4 to paragraph (b)(3) of
Sec. 120.41); and single instance definitions of equivalent,
enumerated, and catch-all control (formerly found at Note 5 to
paragraph (b)(3) and Note to paragraph (b) of Sec. 120.41). Revising
in Sec. 120.42(f) (formerly found at Note to paragraph (b) of Sec.
120.41) reference from ``article on the U.S. Munitions List'' to ``item
designated on the U.S. Munitions List'' to more accurately reflect the
constitution of the USML and to distinguish from the reference to
``item'' in the same sentence as applied to the Export Administration
Regulations.
Section 120.43 Development, Production, and Related Terms; Basic and
Applied Research
Adding in Sec. 120.43(a) and (b) single instance definitions of
development and production formerly found in Sec. 120.41 specifically.
These single instance definitions were originally included in a
previous proposed rule (80 FR 31525, June 3, 2015), and were to be
taken from existing Notes 2 and 1, respectively, to Sec. 120.41(b)(3).
Although not adopted at that time, DDTC now implements the revision. In
response to the 2015 proposed rule, the Department received several
public comments regarding the single instance definitions for
[[Page 16399]]
development and production. Those comments are addressed here.
One commenter suggested that the department add ``but not limited
to'' following ``such as'' in the definition of ``development.'' The
Department does not make this change. The use of the term ``such as''
necessarily implies that the following list is non-exclusive, so the
addition of the phrase ``but not limited to'' is redundant.
Several commenters requested that the Department insert a note to
the definition of ``development'' to state that fabrication of
prototypes by universities for academic demonstration or to otherwise
test a hypothesis is not development, because the inclusion of these
activities within the definition of ``development'' somehow limits the
fundamental research exception. The Department does not make this
change. The Department believes that the activity is appropriately
captured by the definition of ``development''.
A commenter requested that the Department remove the last sentence
of the definition of ``development,'' which stated ``[d]evelopment
includes modification of the design of an existing item.'' The
Department does not make this change. Modification of an existing
design creates a distinct design, regardless of the modification.
A commenter suggested that the Department add engineering analysis
and design methodology to the definition of ``development'' in place of
design analysis and design concepts, and add manufacturing know-how to
the definition of ``production'' in place of manufacture. The
Department does not make this change. The terms suggested by the
commenter are used in specific places in the ITAR for specific
purposes, and their inclusion within these definitions would not
provide additional clarity. Additionally, the definitions of
``development'' and ``production'' are being moved from within the
definition of specially designed and made applicable to the entire
ITAR, in part, to harmonize the definition of ``technical data'' with
the definition of technology in the EAR. To modify these definitions
would result in unnecessary variation from the EAR without significant
benefit.
One commenter suggested that the Department add the Defense Federal
Acquisition Regulations Supplement (DFARS) term ``advanced
technological development'' to the definition of ``development.'' The
Department notes the actual term is ``advanced technology development''
and does not make this change. While any advanced technology
development would be included within this definition of
``development,'' the value of adding the DFARS term is outweighed by
the loss of harmonization with the EAR and multilateral export control
regimes.
One commenter suggested that the Department replace the term
``serial production'' with ``production.'' The Department does not make
this change. Products generally pass through multiple phases of
development, some of which may include the production of prototypes or
prototype production facilities. All of these activities are included
within the development phase of the products.
Several commenters noted that the definition of ``production''
includes manufacture and assert that this creates a conflict with the
definitions of ``manufacturing license agreement'' (MLA) and
``technical assistance agreement'' (TAA) in Sec. Sec. 120.21 and
120.22. The Department does not make any change. An MLA is an
``authorization to manufacture defense articles abroad. . . .'' There
may be an agreement that involves technical data for the production of
a defense article that is not an ``authorization to manufacture defense
articles abroad,'' and in these instances, an MLA would not be
required. However, in instances where there is an ``authorization to
manufacture defense articles abroad'' that involves the export of
technical data, an MLA is required regardless of the type of technical
data exported. One commenter noted that the provisions of Sec.
124.4(b)(1) through (4) apply to agreements that involve coproduction
or licensed production outside of the United States of defense articles
of United States origin, and asserts that the new definition of
``production'' may implicate some TAAs, in addition to MLAs. The
commenter requested that Sec. 124.4(b) be revised to limit the scope
of that provision to ``licensed manufacturing.'' The Department does
not make this change. The reporting requirements of Sec. 124.4(b)
apply only to ``coproduction or licensed production outside of the
United States,'' which is only authorized via MLAs that involve
offshore production. Additional revisions are not necessary.
One commenter stated that the definitions would undermine the
utility of the exemption at Sec. 125.4(b)(6), which authorizes the
export of technical data ``related to firearms not in excess of caliber
.50 and ammunition for such weapons, except detailed design,
development, production or manufacturing information.'' The Department
confirms that these definitions do not change the scope of this
exemption.
In reviewing the definition of development from the 2015 proposed
rule, and not in response to public comment, the Department determined
to revise the final sentence of the definition to focus on design
rather than items. This is intended to be in keeping with the attempt
to better align definitions across the EAR and ITAR, as expressed in
the 2015 proposed rule, and to clarify that development is common to
pre-production for all goods and is not specific to the USML. Although
the final sentence of the definition of development is not found
directly in the EAR definition of development, an analogous provision
is found in Note 2 to the definition of technology (see 15 CFR 772.1).
Adding in Sec. 120.43(c) through (i) single instance definitions
and explanations of terms for design methodology, engineering analysis,
manufacturing know-how, build-to-print, build/design-to-specification,
basic research, and applied research (the definition of which was
formerly found within the definition of basic research and which this
rule separates into two definitions), formerly found at Sec. Sec.
124.2(c)(4) and 125.4(c). Although formerly described in Sec. Sec.
124.2(c)(4) and 125.4(c), for purposes of clarity as to the application
of an exemption the terms were used in other locations in the ITAR,
demonstrating that the explanations were intended to have broader
applicability. Conforming changes are made to citation references in
Category XIII(i)(6) of Sec. 121.1, Supplement No. 1 to part 126, and
Note 5 and Note 12 to that supplement. In addition, revisions are made
to existing Sec. 124.2(c)(4) to eliminate the unnecessary duplication
of definitions of design methodology, engineering analysis, and
manufacturing know-how by deleting existing Sec. 124.2(c)(4)(i)
through (iii). Also, the parenthetical explanation of build-to-print at
existing Sec. 124.13(b) is removed for the same reason.
Section 120.57 Authorization Types
In Sec. 120.57 consolidating and incorporating single instance
definitions for the various authorization types for transactions
subject to the ITAR (formerly found in Sec. Sec. 120.20, 120.21,
120.22 and 120.23) and adding in Sec. 120.57(c) a single instance
definition of exemption to provide a single reference for the concept,
used throughout the ITAR, for an authorization other than by license or
other written approval.
[[Page 16400]]
Section 120.68 Party to the Export
Establishing in Sec. 120.68 (formerly found at Sec. 126.7(e)) a
single instance definition of ``party to the export''.
Part 121 The United States Munitions List
Adding a new Sec. 121.0 to provide cross-reference to Sec. Sec.
120.10 and 120.11, Introduction to the U.S. Munitions List and Order of
review, respectively (formerly found at paragraphs (a) and (b) of Sec.
121.1). Removing and reserving paragraphs (a) and (b) of Sec. 121.1.
Revising for purpose of consistency only the technical data and defense
service definition parentheticals in the technical data paragraphs for
all categories previously revised as part of the multi-year process of
reviewing and revising the USML as part of the USML to the Commerce
Control List (CCL) process, beginning with 78 FR 22740, Apr. 16, 2013.
These revisions are not intended to make any substantive change.
Previously, these paragraphs used ``see'' and ``as defined in''
interchangeably. Removing from the USML those notes to category
paragraphs that contain definitions for ``classified'' in order to
preclude any variation from the definition of classified in Sec.
120.38 (formerly found at Sec. 120.46). Removing the parentheticals
``(see Sec. 120.4 of this subchapter)'' relating to commodity
jurisdiction, ``(see Sec. 120.42 of this subchapter)'' relating to
``subject to the EAR'', and the phrase ``(see Sec. 120.10(a)(2) of
this subchapter)'' relating to ``classified'' as they are either used
inconsistently or because they are generally understood by the
regulated community and defined elsewhere in the regulations. Finally,
cross-references to sections moved by this rule are updated.
Section 128.1 Exclusion of Functions From the Administrative Procedure
Act
Revising Sec. 128.1 to clarify that the Secretary of State has
been delegated authority to make licensing decisions.
Section 128.2 Administrative Law Judge
Revising Sec. 128.2 regarding authorities of an Administrative Law
Judge to eliminate reference to Sec. 127.7. This change clarifies that
an Administrative Law Judge may only recommend debarment pursuant to
that section, and any such order is issued by the Assistant Secretary
of State for Political-Military Affairs.
Other Revisions
Removing and reserving Sec. 120.26, Presiding Official, as
unnecessary as the term does not otherwise appear in the regulations.
Removing the list of forms referenced in the ITAR and formerly
found at Sec. 120.28. This section, which provides the list of forms
referred to in the ITAR, is being removed in its entirety as an
unnecessary inclusion to the regulations. Due to previous revisions to
the regulations, the list presented is not accurate. In order to
prevent unnecessary regulatory activity in the form of future
conforming revisions to the section, due to expected changes to the
forms that appear in the regulations, it is being removed and the
section reserved.
Reserving Sec. 120.29 (formerly Missile Technology Control Regime)
and moving the former text of Sec. 120.29 to paragraph (d) of new
Sec. 120.23, Organizations and arrangements.
Reserving Sec. 120.46 (formerly Classified) and moving the former
text of Sec. 120.46 to new Sec. 120.38.
Reserving Sec. 123.20 (formerly Nuclear related controls) and
moving the former text of Sec. 123.20 to new Sec. 120.5(c).
Reserving Sec. 123.26 (formerly Recordkeeping for exemptions) and
moving the requirements of the former Sec. 123.26 to new Sec.
120.15(e).
Reserving Sec. 125.6 (formerly Certification requirements for
exemptions) and moving and revising the former text of Sec. 125.6 as
described in the discussion of Sec. 120.15 above.
Reserving Sec. 126.7 (formerly Denial, revocation, suspension, or
amendment of licenses and other approvals) and moving the former text
of Sec. 126.7(a)-(d) and (e) to new Sec. Sec. 120.18 and 120.68,
respectively.
Reserving Sec. 126.9 (formerly Advisory opinions and related
authorizations) and moving the former text of Sec. 126.9 to new Sec.
120.22.
Reserving Sec. 126.10 (formerly Disclosure of information) and
moving the former text of Sec. 126.10 to new Sec. 120.21.
Reserving Sec. Sec. 126.11 and 126.12 (formerly Relations to other
provisions of law, and Continuation in force, respectively) and moving
the former text of each to new Sec. 120.7(a) and (b), respectively.
Removing in its entirety the MTCR Annex formerly found at Sec.
121.16, as the relevant information of the MTCR Annex is conveyed
directly through notations in the USML and to eliminate unnecessary
sections of the ITAR and the obligation to amend to reflect revisions
to the MTCR Annex in both the USML and in former Sec. 121.16, in
conjunction with the adoption of reference to the Missile Technology
Control Regime in new Sec. 120.23(d).
Revising references to ``U.S. Government'' from ``U.S. government''
at Sec. Sec. 120.11(d), 120.18(a)(6), and 120.34(a)(7).
Revising order and numbering of notes to affected sections in
accordance with Code of Federal Regulations drafting requirements.
Revising formatting of cites and signals wherever found for
consistency of application.
The following former paragraphs of the ITAR were marked as reserved
and are removed by this rule: Sec. Sec. 120.27(a)(11), 120.27(b), and
125.4(d).
Definitions of general applicability from throughout the subchapter
are consolidated in Part 120--Purpose and Definitions, Subpart C--
Definitions. These movements are identified in the table below. Cross
references are revised throughout the subchapter and efforts were made
to standardize certain terminologies (e.g., reference to ``subject to
the ITAR'' revised to the more commonly used ``subject to this
subchapter'') and in the use of abbreviations and acronyms.
This rule primarily moves and reorganizes existing regulatory text
without revision. Much of this text was drafted at different times, by
different authors. The Department intends to propose additional
revisions to regulatory text to improve readability and flow.
The table below identifies to the sentence level all:
1. Movements or renumbering of text made by this rule from their
former location to the location as effected by this rule. The former
location of moved text is italicized.
2. All text revised in any manner by this rule, whether moved or
not. Revised sections, paragraphs, and text locations appear in
bold.
3. All text removed/reserved from the ITAR in any location.
Removed sections, paragraphs, and text locations appear as
strikethrough.
4. Any new general information text sections that are derived
from an existing ITAR section which is not revised or removed are
identified in the ``Model for'' column and the source material
identified by underlined text.
5. Where a section or paragraph is moved, revised, and/or formed
the basis for new text elsewhere, it is identified by each font type
(e.g., the text of Sec. 123.26 is revised and moved and the section
reserved, so it appears in the table as bold struck through text).
6. Each level (to the sentence) of any section affected by this
rule is identified by a unique row and then by font type within the
row. For example, the first six rows of the table identify changes
to Sec. 120.1. Row 1 shows Sec. 120.1 in bold, indicating a change
to the text of the section title. Row two shows paragraph (a) in
bold, indicating a change to the text of that paragraph. Row three
shows
[[Page 16401]]
paragraph (b) in bold, indicating a change to the text of that
paragraph. Row four shows paragraph (1) under paragraph (b) in bold,
indicating a change to the text of paragraph (b)(1). Row five shows
paragraph (ii) in bold and paragraph (2) in regular text under
paragraph (b), indicating a change in text to paragraph (b)(2)(ii),
but no change to the text of paragraph (b)(2) itself. Finally, row
six shows paragraph (c) in italic and underlined, indicating that
the paragraph has been moved (but not revised) and relocated to
post-rule location Sec. 120.16 as well as providing the basis for
new text at Sec. 120.15(b). Subsequent rows show the new locations
of paragraphs within prior Sec. 120.1(c).
7. Where consecutive paragraphs within a section are affected in
the same manner, they are combined into a single row. See, e.g.,
Sec. 120.9, where paragraph (a)(1) is in a single row and
identified in italic as having been moved to Sec. 120.32(a)(1), and
paragraphs (a)(2) and (3) are in a single row and both identified in
bold and italic as having been revised and moved to Sec.
120.32(a)(2) and (3).
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Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is of the opinion that controlling the
import and export of defense articles and services is a military or
foreign affairs function of the United States Government and that rules
implementing this function are exempt from sections 553 (rulemaking)
and 554 (adjudications) of the Administrative Procedure Act (APA).
Although the Department is of the opinion that this interim final rule
is exempt from the rulemaking provisions of the APA, the Department is
publishing this rule as an interim final rule and with a 45-day
provision for public comment and without prejudice to its determination
that controlling the import and export of defense services is a foreign
affairs function.
Regulatory Flexibility Act
Since the Department is of the opinion that this interim final rule
is exempt from the provisions of 5 U.S.C. 553, there is no requirement
for an analysis under the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This amendment does not involve a mandate that will result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any year and it
will not significantly or uniquely affect small governments. Therefore,
no actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Congressional Review Act
This rulemaking has been found not to be a major rule within the
definition of Small Business Regulatory Enforcement Fairness Act of
1996.
Executive Orders 12372 and 13132
This rulemaking will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rulemaking does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this rulemaking.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributed impacts, and equity). These executive orders
stress the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
Although the Department is of the opinion that this rulemaking is
exempt from Executive Order 12866 as this rule pertains to a military
or foreign affairs function of the United States as provided in Section
3(d)(2), the Department nevertheless has determined that, given the
nature of the amendments made in this rulemaking, there will be no
change to any person's substantive rights or obligations as a result of
this rule, and the only cost to the public, the cost of updating
compliance regimes to account for the movement of regulatory text
within the ITAR, is less than the benefit to the public in the
increased utility of the ITAR. Therefore, the benefits of this
rulemaking outweigh the cost. This rule has been designated a
``significant regulatory action,'' although not economically
significant, by the Office and Information and Regulatory Affairs under
Executive Order 12866.
Executive Order 12988
The Department of State reviewed this rulemaking in light of
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burden.
Executive Order 13175
The Department of State determined that this rulemaking will not
have tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not preempt tribal law.
Accordingly, Executive Order 13175 does not apply to this rulemaking.
Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter
35.
List of Subjects
22 CFR Parts 120, 121, and 125
Arms and munitions, Classified information, Exports.
22 CFR Parts 122 and 123
Arms and munitions, Exports, Reporting and recordkeeping.
22 CFR Part 124
Arms and munitions, Exports, Technical assistance.
22 CFR Part 126
Arms and munitions, Exports.
22 CFR Part 127
Arms and munitions, Crime, Exports, Penalties, Seizures and
forfeitures.
[[Page 16411]]
22 CFR Part 128
Administrative practice and procedure, Arms and munitions, Exports.
22 CFR Part 129
Arms and munitions, Brokers, Exports.
22 CFR Part 130
Arms and munitions, Campaign funds, Confidential business
information, Exports, Reporting and recordkeeping requirements.
Amendatory Instructions
Accordingly, for the reasons set forth above and under the
authority of 22 U.S.C. 2778, and 22 U.S.C. 2779, the Department of
State amends title 22, chapter I, subchapter M, parts 120 through 130
as follows:
0
1. Part 120 is revised to read as follows:
PART 120--PURPOSE AND DEFINITIONS
Subpart A--General Information
Sec.
120.1 General authorities.
120.2 Designation of defense articles and defense services.
120.3 Policy on designating or determining defense articles and
services on the U.S. Munitions List.
120.4 Commodity jurisdiction.
120.5 Relation to regulations of other agencies.
120.6 U.S. criminal statutes.
120.7 Relations to other provisions of law.
120.8-120.9 [Reserved]
Subpart B--General Policies and Processes
120.10 Introduction to the U.S. Munitions List.
120.11 Order of review.
120.12 Commodity jurisdiction determination requests.
120.13 Registration.
120.14 Licenses and related authorizations.
120.15 Exemptions.
120.16 Eligibility for approvals.
120.17 End-use monitoring.
120.18 Denial, revocation, suspension, or amendment of licenses and
other approvals.
120.19 Violations and penalties.
120.20 Administrative procedures.
120.21 Disclosure of information.
120.22 Advisory opinions and related authorizations.
120.23 Organizations and arrangements.
120.24-120.29v [Reserved]
Subpart C--Definitions
120.30 Directorate of Defense Trade Controls.
120.31 Defense article.
120.32 Defense service.
120.33 Technical data.
120.34 Public domain.
120.35 [Reserved]
120.36 Significant military equipment.
120.37 Major defense equipment.
120.38 Classified.
120.39 Foreign defense article or defense service.
120.40 Compositional terms.
120.41 Specially designed.
120.42 Form, fit, function, performance capability, equivalent,
enumerated, and catch-all control.
120.43 Development, production, and related terms; Basic and applied
research.
120.44 [Reserved]
120.45 Maintenance levels.
120.46-120.49 [Reserved]
120.50 Export.
120.51 Reexport.
120.52 Retransfer.
120.53 Temporary import.
120.54 Activities that are not exports, reexports, retransfers, or
temporary imports.
120.55 Access information.
120.56 Release.
120.57 Authorization types.
120.58 Subject to the Export Administration Regulations (EAR).
120.59 [Reserved]
120.60 United States.
120.61 Person.
120.62 U.S. person.
120.63 Foreign person.
120.64 Regular employee.
120.65 Foreign ownership and foreign control.
120.66 Affiliate.
120.67 Empowered official.
120.68 Party to the export.
120.69 Port Directors.
Authority: 22 U.S.C. 2651a, 2752, 2753, 2776, 2778, 2779, 2779a,
2785, 2794, 2797; E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp., p.
223.
Subpart A--General Information
Sec. 120.1 General authorities.
(a) Authority and delegation. Section 38 of the Arms Export Control
Act (22 U.S.C. 2778), as amended, authorizes the President to control
the export and import of defense articles and defense services. The
statutory authority of the President to promulgate regulations with
respect to exports of defense articles and defense services is
delegated to the Secretary of State by Executive Order 13637. This
subchapter implements that authority, as well as other relevant
authorities in the Arms Export Control Act (22 U.S.C. 2751 et seq.).
The Secretary of State delegates the authority to administer the
regulations in this subchapter to the Deputy Assistant Secretary of
State for Defense Trade Controls, Bureau of Political-Military Affairs.
(b) Authorized officials. (1) All authorities administered by the
Deputy Assistant Secretary of State for Defense Trade Controls pursuant
to this subchapter may be exercised at any time by the Under Secretary
of State for Arms Control and International Security or the Assistant
Secretary of State for Political-Military Affairs.
(2) The Deputy Assistant Secretary of State for Defense Trade
Controls supervises the Directorate of Defense Trade Controls, which is
comprised of the following offices:
(i) The Office of Defense Trade Controls Licensing and the
Director, Office of Defense Trade Controls Licensing, which have
responsibilities related to licensing or other approvals of defense
trade, including references under this part and parts 123, 124, 125,
126, 129, and 130 of this subchapter.
(ii) The Office of Defense Trade Controls Compliance and the
Director, Office of Defense Trade Controls Compliance, which have
responsibilities related to violations of law or regulation and
compliance therewith, including references contained in parts 122, 126,
127, 128, and 130 of this subchapter, and those portions under this
part and part 129 of this subchapter pertaining to registration.
(iii) The Office of Defense Trade Controls Policy and the Director,
Office of Defense Trade Controls Policy, which have responsibilities
related to the general policies of defense trade, including references
under this part and part 126 of this subchapter, and the commodity
jurisdiction procedure under this part.
Sec. 120.2 Designation of defense articles and defense services.
The Arms Export Control Act (22 U.S.C. 2778(a) and 2794(7))
provides that the President shall designate the articles and services
deemed to be defense articles and defense services for purposes of
import or export controls. The President has delegated to the Secretary
of State the authority to control the export and temporary import of
defense articles and services. The items designated by the Secretary of
State for purposes of export and temporary import control constitute
the U.S. Munitions List (USML) specified in part 121 of this
subchapter. Defense articles on the USML specified in part 121 of this
subchapter that are also subject to permanent import control by the
Attorney General on the U.S. Munitions Import List enumerated in 27 CFR
part 447 are subject to temporary import controls administered by the
Secretary of State. Designations of defense articles and defense
services on the USML in part 121 of this subchapter are made by the
Department of State with the concurrence of the Department of Defense.
The scope of the USML shall
[[Page 16412]]
be changed only by amendments made pursuant to section 38 of the Arms
Export Control Act (22 U.S.C. 2778). For a designation or determination
on whether a particular item is enumerated on the USML, see Sec.
120.4.
Sec. 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 Sec. 120.31) or defense
service (see Sec. 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 Sec. 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 Sec. 120.5) pursuant
to a commodity jurisdiction determination (see Sec. 120.4) unless
superseded by changes to the USML or by a subsequent commodity
jurisdiction determination; or
(2) Meets one of the criteria of Sec. 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 Sec. 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.
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 (USML). It may also be used for
consideration of a redesignation of an article or service currently
covered by the USML. The Department must provide notice to Congress at
least 30 days before any item is removed from the USML.
(b) The procedure for submitting a Commodity Jurisdiction
Determination Request to the Directorate of Defense Trade Controls is
set forth in Sec. 120.12.
Sec. 120.5 Relation to regulations of other agencies.
(a) The Department of Justice, the U.S. Munitions Import List
(USMIL), and permanent imports. Defense articles and defense services
covered by the U.S. Munitions List set forth in this subchapter are
regulated by the Department of State (see also Sec. 120.2) for
purposes of export, reexport, retransfer, and temporary import. The
President has delegated the authority to control the permanent import
of defense articles and services to the Attorney General. The defense
articles and services controlled by the Secretary of State and the
Attorney General collectively comprise the U.S. Munitions List under
the Arms Export Control Act. As the Attorney General exercises
independent delegated authority to designate defense articles and
services for purposes of permanent import controls, the permanent
import control list administered by the Department of Justice has been
separately labeled the U.S. Munitions Import List (27 CFR part 447) to
distinguish it from the list set out in this subchapter. In carrying
out the functions delegated to the Attorney General pursuant to the
Arms Export Control Act, the Attorney General shall be guided by the
views of the Secretary of State on matters affecting world peace and
the external security and foreign policy of the United States.
(b) The Department of Commerce and the Export Administration
Regulations--(1) Export of items subject to the Export Administration
Regulations by authority of the Department of Commerce. The Department
of Commerce regulates the export, reexport, and in-country transfer of
items on the Commerce Control List and other items subject to its
jurisdiction, as well as certain activities performed by U.S. persons,
including those that may contribute to the proliferation of weapons of
mass destruction, under the Export Administration Regulations (EAR) (15
CFR parts 730 through 774).
(2) Export of items subject to the EAR by authority of the
Department of State. A license or other approval (see Sec. 120.57)
from the Department of State granted in accordance with this subchapter
may also authorize the export of items subject to the EAR (see Sec.
120.58). An exemption (see Sec. 120.57 and parts 123, 124, 125, and
126 of this subchapter) may only be used to export an item subject to
the EAR that is for use in or with a defense article and is included in
the same shipment as any defense article. Separate approval from the
Department of Commerce is not required for these items. No exemption
under this subchapter may be utilized to export an item subject to the
EAR if not accompanied by a defense article. Those items subject to the
EAR exported pursuant to a Department of State license or other
approval would remain under the jurisdiction of the Department of
Commerce for any subsequent transactions. The inclusion of items
subject to the EAR on a Department of State license or other approval
does not change the licensing jurisdiction of the items.
(c) Nuclear related controls; Department of Energy and the Nuclear
Regulatory Commission. (1) The provisions of this subchapter do not
apply to articles, technical data, or services in Category VI, Category
XV, Category XVI, and Category XX of Sec. 121.1 of this subchapter to
the extent that exports of such articles, technical data, or services
are controlled by the Department of Energy or the Nuclear Regulatory
Commission pursuant to the Atomic Energy Act of 1954 (AEA), as amended,
and the Nuclear Non-Proliferation Act of 1978, as amended, or are
government transfers authorized pursuant to these Acts. For Department
of Commerce controls, see 15 CFR 742.3 and 744.2, administered pursuant
to Section 309(c) of the Nuclear Nonproliferation Act of 1978, as
amended (42 U.S.C. 2139a(c)), and 15 CFR 744.5, which are not subject
to this subchapter.
(2) The transfer of materials, including special nuclear materials,
nuclear parts of nuclear weapons, or other, non-nuclear parts of
nuclear weapons systems involving Restricted Data or of assistance
involving any person directly or indirectly engaging in the production
or use thereof is prohibited except as authorized by the AEA. The
transfer of Restricted Data or such assistance is prohibited except as
authorized by the AEA. The technical data or defense services relating
to nuclear weapons, nuclear weapons systems or related defense purposes
(and such data or services relating to applications of atomic energy
for peaceful purposes, or related research and development) may
constitute Restricted Data or such assistance, subject to the foregoing
prohibition.
(3) A license for the export of a defense article, technical data,
or the furnishing of a defense service relating to defense articles
referred to in
[[Page 16413]]
Category VI(e) or Category XX(b)(1) of Sec. 121.1 of this subchapter
will not be granted unless the defense article, technical data, or
defense service comes within the scope of an existing Agreement for
Cooperation for Mutual Defense Purposes concluded pursuant to the AEA
with the government of the country to which the defense article,
technical data, or defense service is to be exported. Licenses may be
granted in the absence of such an agreement only:
(i) If the proposed export involves an article which is identical
to that in use in an unclassified civilian nuclear power plant;
(ii) If the proposed export has no relationship to naval nuclear
propulsion; and
(iii) If it is not for use in a naval propulsion plant.
Sec. 120.6 U.S. criminal statutes.
For purposes of this subchapter, the phrase U.S. criminal statutes
comprises the following:
(a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778);
(b) Section 1760 of the Export Control Reform Act of 2018 (50
U.S.C. 4819) or section 11 of the Export Administration Act of 1979 (50
U.S.C. 4610);
(c) Section 793, 794, or 798 of title 18, United States Code
(relating to espionage involving defense or classified information) or
section 2332d, 2339A, 2339B, 2339C, or 2339D of such title (relating to
financial transactions with the government of a country designated as a
country supporting international terrorism, providing material support
to terrorists or terrorist organizations, financing of terrorism, or
receiving military-type training from a foreign terrorist
organization);
(d) Section 16 of the Trading with the Enemy Act (50 U.S.C. 4315);
(e) Section 206 of the International Emergency Economic Powers Act
(relating to foreign assets controls; 50 U.S.C. 1705);
(f) Section 30A of the Securities Exchange Act of 1934 (15 U.S.C.
78dd-1) or section 104 of the Foreign Corrupt Practices Act (15 U.S.C.
78dd-2 or 78dd-3);
(g) Chapter 105 of title 18, United States Code (relating to
sabotage);
(h) Section 4(b) of the Internal Security Act of 1950 (relating to
communication of classified information; 50 U.S.C. 783(a));
(i) Sections 57, 92, 101, 104, 222, 224, 225, or 226 of the Atomic
Energy Act of 1954 (42 U.S.C. 2077, 2122, 2131, 2134, 2272, 2274, 2275,
and 2276);
(j) Section 601 of the National Security Act of 1947 (relating to
intelligence identities protection; 50 U.S.C. 421);
(k) Section 371 of title 18, United States Code (when it involves
conspiracy to violate any of the statutes listed in this section);
(l) Sections 3, 4, 5, and 6 of the Intelligence Reform and
Terrorism Prevention Act of 2004, Public Law 108-458 sections 6903-
6906, relating to missile systems designed to destroy aircraft (18
U.S.C. 2332g), prohibitions governing atomic weapons (42 U.S.C. 2122),
radiological dispersal services (18 U.S.C. 2332h), and variola virus
(18 U.S.C. 175c);
(m) Sections 2779 and 2780 of title 22, United States Code
(relating to fees of military sales agents and other payments, and
transactions with countries supporting acts of international
terrorism);
(n) Section 542 of title 18, United States Code (relating to the
entry of goods by means of false statements), where the underlying
offense involves a defense article, including technical data, or
violations related to the Arms Export Control Act (AECA) or
International Traffic in Arms Regulations (ITAR) in this subchapter;
(o) Section 545 of title 18, United States Code (relating to
smuggling goods into the United States), where the underlying offense
involves a defense article, including technical data, or violations
related to the AECA or ITAR;
(p) Section 554 of title 18, United States Code (relating to
smuggling goods from the United States), where the underlying offense
involves a defense article, including technical data, or violations
related to the AECA or ITAR; and
(q) Section 1001 of title 18, United States Code (relating to false
statements or entries generally), Section 1831 of title 18, United
States Code (relating to economic espionage), and Section 1832 of title
18, United States Code (relating to theft of trade secrets) where the
underlying offense involves a defense article, including technical
data, or violations related to the AECA or ITAR.
Sec. 120.7 Relations to other provisions of law.
(a) The provisions in this subchapter are in addition to, and are
not in lieu of, any other provisions of law or regulations. The sale of
firearms in the United States, for example, remains subject to the
provisions of the Gun Control Act of 1968 and regulations administered
by the Department of Justice. The performance of defense services on
behalf of foreign governments by retired military personnel continues
to require consent pursuant to part 3a of this title. Persons who
intend to export defense articles or furnish defense services should
not assume that satisfying the requirements of this subchapter relieves
one of other requirements of law.
(b) All determinations, authorizations, licenses, approvals of
contracts and agreements, and other action issued, authorized,
undertaken, or entered into by the Department of State pursuant to
section 414 of the Mutual Security Act of 1954, as amended, or under
the previous provisions of this subchapter, continue in full force and
effect until or unless modified, revoked, or superseded by the
Department of State.
Sec. Sec. 120.8-120.9 [Reserved]
Subpart B--General Policies and Processes
Sec. 120.10 Introduction to the U.S. Munitions List.
(a) The U.S. Munitions List. The articles, services, and related
technical data designated as defense articles or defense services
pursuant to sections 38 and 47(7) of the Arms Export Control Act appear
in part 121 of this subchapter and constitute the U.S. Munitions List
(USML). Changes in designations are published in the Federal Register.
Paragraphs (b) through (d) of this section describe or explain the
elements of a USML category.
(b) Composition of U.S. Munitions List categories. USML categories
are organized by paragraphs and subparagraphs identified
alphanumerically. They usually start by enumerating or otherwise
describing end-items, followed by major systems and equipment; parts,
components, accessories, and attachments; and technical data and
defense services directly related to the defense articles of that USML
category.
(c) Significant Military Equipment paragraphs in the USML. All
items described within a USML paragraph or subordinate paragraph that
is preceded by an asterisk (*) are designated Significant Military
Equipment (SME). Note that technical data directly related to the
manufacture or production of a defense article designated as SME is
also designated as SME.
(d) Missile Technology Control Regime (MTCR) designation.
Annotation with the parenthetical (MT) at the end of a USML entry
indicates those defense articles that are on the MTCR Annex.
Sec. 120.11 Order of review.
(a) Control. Articles are controlled on the U.S. Munitions List
(USML) because they are either:
(1) Enumerated in a category; or
(2) Described in a catch-all paragraph that incorporates specially
designed as a
[[Page 16414]]
control parameter. In order to classify an item on the USML, begin with
a review of the general characteristics of the item. This should guide
you to the appropriate category, whereupon you should attempt to match
the particular characteristics and functions of the article to a
specific entry within that category.
(b) Specially designed. (1) If the entry includes the term
specially designed, refer to Sec. 120.41 to determine if the article
qualifies for one or more of the exclusions articulated in Sec.
120.41(b).
(2) An item described in multiple entries should be categorized
according to an enumerated entry rather than a specially designed
catch-all paragraph.
(c) Integration of controlled items. Defense articles described on
the USML are controlled and remain subject to this subchapter following
incorporation or integration into any item not described on the USML,
unless specifically provided otherwise in this subchapter.
(d) Other controls. In all cases, articles not controlled on the
USML may be subject to another U.S. Government regulatory agency (see
Sec. 120.5, and Supplement No. 4 to part 774 of the Export
Administration Regulations (EAR) in title 15 of the CFR for guidance on
classifying an item subject to the EAR).
Sec. 120.12 Commodity jurisdiction determination requests.
(a) Upon electronic submission of a Commodity Jurisdiction
Determination Form (Form DS-4076), the Directorate of Defense Trade
Controls (DDTC) shall provide a determination of whether a particular
article or service is covered by the U.S. Munitions List in part 121 of
this subchapter. 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. State, Defense, and Commerce will resolve commodity
jurisdiction determination disputes in accordance with established
procedures. State shall notify Defense and Commerce, and other U.S.
Government agencies as appropriate, of the initiation and conclusion of
each case.
(b) A determination that an article or service meets the criteria
of a defense article or defense service, or provides the equivalent
performance capabilities of a defense article on the U.S. Munitions
List, is made on a case-by-case basis, taking into account:
(1) The form and fit of the article;
(2) The function and performance capability of the article; and
(3) Other applicant-provided information, to include a history of
the product's design, development, and use, as well as specifications
and any other relevant data as described in brochures and other related
documents.
(c) A determination that an article or service has a critical
military or intelligence advantage such that it warrants control under
Category XXI of Sec. 121.1 of this subchapter is made, on a case-by-
case basis, taking into account:
(1) The function and performance capability of the article; and
(2) The nature of controls imposed by other nations on such items
(including the Wassenaar Arrangement and other multilateral controls).
(d) DDTC will provide a preliminary response within 10 working days
of receipt of a complete request for commodity jurisdiction
determination. If after 45 days DDTC has not provided a final commodity
jurisdiction determination, the applicant may request in writing to the
Director, Office of Defense Trade Controls Policy that this
determination be given expedited processing.
(e) A person may appeal a commodity jurisdiction determination by
submitting a written request for reconsideration to the Deputy
Assistant Secretary of State for Defense Trade Controls. The Deputy
Assistant Secretary's determination of the appeal will be provided, in
writing, within 30 days of receipt of the appeal. If desired, an appeal
of the Deputy Assistant Secretary's decision can then be made to the
Assistant Secretary of State for Political-Military Affairs.
(f) Registration with DDTC as described in part 122 of this
subchapter is not required prior to submission of a commodity
jurisdiction determination request.
Sec. 120.13 Registration.
(a) Any person who engages in the United States in the business of
manufacturing or exporting or temporarily importing defense articles,
or furnishing defense services, is required to register with the
Directorate of Defense Trade Controls as set forth in part 122 of this
subchapter. For the purpose of this subchapter, engaging in such a
business requires only one occasion of manufacturing or exporting or
temporarily importing a defense article or furnishing a defense
service. A manufacturer who does not engage in exporting must
nevertheless register.
(b) Any U.S. person; foreign person located in the United States;
or foreign person located outside the United States that is owned or
controlled by a U.S. person, who engages in brokering activities is
required to register with the Directorate of Defense Trade Controls as
set forth in part 129 of this subchapter.
Sec. 120.14 Licenses and related authorizations.
(a) Export, reexport, retransfer, or temporary import, of defense
articles. The approval of the Directorate of Defense Trade Controls
(DDTC) must be requested and obtained before the export, reexport,
retransfer, or temporary import of a defense article, unless an
exemption under the provisions of this subchapter is applicable.
(b) Furnishing defense services. The approval of DDTC must be
requested and obtained before a defense service may be furnished,
unless an exemption under the provisions of this subchapter is
applicable.
(c) Brokering activities. The approval of DDTC must be requested
and obtained before engaging in the business of brokering activities
for the defense articles described in Sec. 129.4(a) of this subchapter
by a person who is required to register as a broker under part 129 of
this subchapter, unless an exemption under the provisions of part 129
is applicable.
Sec. 120.15 Exemptions.
(a) Persons otherwise required to register with the Directorate of
Defense Trade Controls in accordance with this subchapter must do so
prior to utilization of an exemption.
(b) Exemptions provided in this subchapter may not be utilized for
transactions in which the exporter, any party to the export, any source
or manufacturer, broker or other participant in the brokering
activities, is generally ineligible as set forth in Sec. 120.16,
unless prior written authorization has been granted by the Directorate
of Defense Trade Controls.
(c) Exemptions provided in this subchapter do not apply with
respect to defense articles or defense services originating in or for
export to any proscribed countries, areas, or persons identified in
Sec. 126.1 of this subchapter, except as provided in Sec. 126.1.
(d) Each exemption provided in this subchapter is subject to
limitation as described in the section or paragraph of this subchapter
in which the exemption is prescribed.
(e) Any person engaging in any export, reexport, transfer, or
retransfer of a defense article or defense service pursuant to an
exemption must maintain records of each such export, reexport,
transfer, or retransfer. The records shall, to the extent applicable to
the transaction and consistent with the
[[Page 16415]]
requirements of Sec. 123.22 of this subchapter, include the following
information: A description of the defense article, including technical
data, or defense service; the name and address of the end-user and
other available contact information (e.g., telephone number and
electronic mail address); the name of the natural person responsible
for the transaction; the stated end-use of the defense article or
defense service; the date of the transaction; the Electronic Export
Information (EEI) Internal Transaction Number (ITN); and the method of
transmission. The person using or acting in reliance upon the exemption
shall also comply with any additional recordkeeping requirements
enumerated in the text of the regulations concerning such exemption
(e.g., requirements specific to the Defense Trade Cooperation Treaties
in Sec. Sec. 126.16 and 126.17 of this subchapter).
(f) To claim an exemption for the export of technical data under
the provisions of this subchapter (e.g., Sec. Sec. 125.4 and 125.5 of
this subchapter), the exporter must certify that the proposed export is
covered by a relevant section of this subchapter, to include the
paragraph and applicable subordinate paragraph. Certifications consist
of clearly marking the package or letter containing the technical data
``22 CFR [insert ITAR exemption] applicable.'' This certification must
be made in written form and retained in the exporter's files for a
period of 5 years. For exports that are oral, visual, or electronic the
exporter must also complete a written certification and retain it for a
period of 5 years.
Sec. 120.16 Eligibility for approvals.
(a) A U.S. person may receive a license or other approval pursuant
to this subchapter. A foreign person may not receive such a license or
other approval, except as follows:
(1) A foreign governmental entity in the U.S. may receive a license
or other approval;
(2) A foreign person may receive a reexport or retransfer approval;
or
(3) A foreign person may receive an approval for brokering
activities.
(b) A request for a license or other approval by a U.S. person or
by a person referred to in paragraphs (a)(1) and (3) of this section
will be considered only if the applicant has registered with the
Directorate of Defense Trade Controls pursuant to part 122 or 129 of
this subchapter, as appropriate.
(c) Persons who have been convicted of violating the U.S. criminal
statutes enumerated in Sec. 120.6, who have been debarred pursuant to
part 127 or 128 of this subchapter, who are subject to indictment or
are otherwise charged (e.g., charged by criminal information in lieu of
indictment) with violating the U.S. criminal statutes enumerated in
Sec. 120.6, who are ineligible to contract with or to receive a
license or other form of authorization to import defense articles or
defense services from any agency of the U.S. Government, who are
ineligible to receive an export license or other approval from any
other agency of the U.S. Government, or who are subject to a publicly
announced Department of State policy of denial, suspension, or
revocation under Sec. 120.18(a), are generally ineligible to be
involved in activities regulated under this subchapter.
Sec. 120.17 End-use monitoring.
(a) Pursuant to section 40A of the Arms Export Control Act (22
U.S.C. 2785) and related delegations of authority, the Department of
State is required to establish a monitoring program in order to improve
accountability with respect to defense articles and defense services,
sold, leased, or exported under Department of State licenses or other
approvals under section 38 of the Arms Export Control Act and this
subchapter.
(b) All exports of defense articles, technical data, services, and
brokering activities made pursuant to this subchapter are subject to
end-use monitoring by the Department of State through the Blue Lantern
program.
Sec. 120.18 Denial, revocation, suspension, or amendment of licenses
and other approvals.
(a) Policy. Licenses or approvals shall be denied or revoked
whenever required by any statute of the United States. Any application
for an export license or other approval under this subchapter may be
disapproved, and any license or other approval or exemption granted
under this subchapter may be revoked, suspended, or amended without
prior notice whenever:
(1) The Department of State deems such action to be in furtherance
of world peace, the national security or the foreign policy of the
United States, or is otherwise advisable; or
(2) The Department of State believes that 22 U.S.C. 2778, any
regulation contained in this subchapter, or the terms of any U.S.
Government export authorization (including the terms of a manufacturing
license or technical assistance agreement, or export authorization
granted pursuant to the Export Administration Regulations in 15 CFR
parts 730 through 774) has been violated by any party to the export or
other person having significant interest in the transaction; or
(3) An applicant is the subject of a criminal complaint, other
criminal charge (e.g., an information), or indictment for a violation
of any of the U.S. criminal statutes enumerated in Sec. 120.6; or
(4) An applicant or any party to the export or the agreement has
been convicted of violating any of the U.S. criminal statutes
enumerated in Sec. 120.6; or
(5) An applicant is ineligible to contract with, or to receive a
license or other authorization to import defense articles or defense
services from, any agency of the U.S. Government; or
(6) An applicant, any party to the export or agreement, any source
or manufacturer of the defense article or defense service or any person
who has a significant interest in the transaction has been debarred,
suspended, or otherwise is ineligible to receive an export license or
other authorization from any agency of the U.S. Government (e.g.,
pursuant to an order denying export privileges issued by the Department
of Commerce under 15 CFR part 766 or by the Department of State under
part 127 or 128 of this subchapter); or
(7) An applicant has failed to include any of the information or
documentation expressly required to support a license application,
exemption, or other request for approval under this subchapter, or as
required in the instructions in the applicable Department of State form
or has failed to provide notice or information as required under this
subchapter; or
(8) An applicant is subject to sanctions under other relevant U.S.
laws (e.g., the Missile Technology Controls title of the National
Defense Authorization Act for FY 1991 (Pub. L. 101-510); the Chemical
and Biological Weapons Control and Warfare Elimination Act of 1991
(Pub. L. 102-182); or the Iran-Iraq Arms Non-Proliferation Act of 1992
(Pub. L. 102-484)); or
(9) Any person involved in the transaction has been the subject of
an unfavorable finding of an end-use monitoring check as described in
Sec. 120.17.
(b) Notification. The Directorate of Defense Trade Controls will
notify applicants or licensees or other appropriate U.S. persons of
actions taken pursuant to paragraph (a) of this section. The reasons
for the action will be stated as specifically as security and foreign
policy considerations permit.
(c) Reconsideration. If a written request for reconsideration of an
adverse
[[Page 16416]]
decision is made within 30 days after a person has been informed of the
decision, the U.S. person will be accorded an opportunity to present
additional information. The case will then be reviewed by the
Directorate of Defense Trade Controls.
(d) Reconsideration of certain applications. Applications for
licenses or other requests for approval denied for repeated failure to
provide information or documentation expressly required will normally
not be reconsidered during the 30 day period following denial. They
will be reconsidered after this period only after a final decision is
made on whether the applicant will be subject to an administrative
penalty imposed pursuant to this subchapter. Any request for
reconsideration shall be accompanied by a letter explaining the steps
that have been taken to correct the failure and to ensure compliance
with the requirements of this subchapter.
Sec. 120.19 Violations and penalties.
(a) Part 127 of this subchapter specifies conduct that constitutes
a violation of the Arms Export Control Act (AECA) and/or the
International Traffic in Arms Regulations in this subchapter and the
sanctions that may be imposed for such violations.
(b) The Department strongly encourages the disclosure of
information to the Directorate of Defense Trade Controls by persons
that believe they may have violated any export control provision of the
AECA, or any regulation in this subchapter, order, license, or other
authorization issued under the authority of the AECA.
Sec. 120.20 Administrative procedures.
The Arms Export Control Act (AECA) authorizes the President to
control the import and export of defense articles and services in
furtherance of world peace and the security and foreign policy of the
United States. Pursuant to delegated authorities, the Secretary of
State is authorized to make decisions on whether license applications
or other written requests for approval shall be granted, or whether
exemptions may be used. The Secretary of State is also authorized to
revoke, suspend, or amend licenses or other written approvals whenever
such action is deemed to be advisable. The administration of the AECA
is a foreign affairs function encompassed within the meaning of the
military and foreign affairs exclusion of the Administrative Procedure
Act and is thereby expressly exempt from various provisions of that
Act. Because the exercising of the foreign affairs function, including
the decisions required to implement the AECA, is highly discretionary,
it is excluded from review under the Administrative Procedure Act.
Sec. 120.21 Disclosure of information.
(a) Freedom of information. Subchapter R of this title contains
regulations on the availability to the public of information and
records of the Department of State. The provisions of subchapter R
apply to such disclosures by the Directorate of Defense Trade Controls.
(b) Determinations required by law. Section 38(e) of the Arms
Export Control Act (AECA) (22 U.S.C. 2778(e)) provides that information
obtained for the purpose of consideration of, or concerning, license
applications shall be withheld from public disclosure unless the
release of such information is determined by the Secretary of State to
be in the national interest. Section 38(e) of the AECA further provides
that the names of countries and types and quantities of defense
articles for which licenses are issued under this section shall not be
withheld from public disclosure unless certain determinations are made
that the release of such information would be contrary to the national
interest. Such determinations required by section 38(e) shall be made
by the Assistant Secretary of State for Political-Military Affairs.
(c) Information required under part 130 of this subchapter. Part
130 contains specific provisions on the disclosure of information
described in that part.
(d) National interest determinations. In accordance with section
38(e) of the AECA, the Secretary of State has determined that the
following disclosures are in the national interest of the United
States:
(1) Furnishing information to foreign governments for law
enforcement or regulatory purposes; and
(2) Furnishing information to foreign governments and other
agencies of the U.S. Government in the context of multilateral or
bilateral export regimes (e.g., the Missile Technology Control Regime,
the Australia Group, and Wassenaar Arrangement).
Sec. 120.22 Advisory opinions and related authorizations.
(a) Preliminary authorization determinations. A person may request
information from the Directorate of Defense Trade Controls (DDTC) as to
whether it would likely grant a license or other approval for a
particular defense article or defense service to a particular country.
Such information from DDTC is issued on a case-by-case basis and
applies only to the particular matters presented to DDTC. These
opinions are not binding on the Department of State and may not be used
in future matters before the Department. A request for an advisory
opinion must be made in writing and must outline in detail the
equipment, its usage, the security classification (if any) of the
articles or related technical data, and the country or countries
involved.
(b) Related authorizations. DDTC may, as appropriate, in accordance
with the procedures set forth in paragraph (a) of this section, provide
export authorization, subject to all other relevant requirements of
this subchapter, both for transactions that have been the subject of
advisory opinions requested by prospective U.S. exporters, or for the
Directorate's own initiatives. Such initiatives may cover pilot
programs, or specifically anticipated circumstances for which the
Directorate considers special authorizations appropriate.
(c) Interpretations of the International Traffic in Arms
Regulations in this subchapter. Any person may request an
interpretation of the requirements set forth in this subchapter in the
form of an advisory opinion. A request for an advisory opinion must be
made in writing. Any response to an advisory opinion provided by DDTC
pursuant to this paragraph (c) shall not be an authorization to export
and shall not bind the Department to grant or deny any such
authorization.
Sec. 120.23 Organizations and arrangements.
(a) North Atlantic Treaty Organization. North Atlantic Treaty
Organization (NATO) refers to the organization of member states that
are parties to the North Atlantic Treaty, which members include:
Albania, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark,
Estonia, France, Germany, Greece, Hungary, Iceland, Italy, Latvia,
Lithuania, Luxembourg, Montenegro, the Netherlands, North Macedonia,
Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Turkey,
the United Kingdom, the United States, and any state not included here
that has deposited an instrument of accession in accordance with
Article 10 of the North Atlantic Treaty.
(b) Major non-NATO ally. (1) Major non-NATO ally, as defined in
section 644(q) of the Foreign Assistance Act of 1961 (22 U.S.C.
2403(q)), means a country that is designated in accordance with section
517 of the Foreign Assistance Act of 1961 (22 U.S.C. 2321k) as a major
non-NATO ally for purposes of the Foreign Assistance Act of 1961 and
the Arms Export Control
[[Page 16417]]
Act (22 U.S.C. 2151 et seq. and 22 U.S.C. 2751 et seq.).
(2) The following countries are designated as major non-NATO
allies: Afghanistan (see Sec. 126.1(g) of this subchapter), Argentina,
Australia, Bahrain, Brazil, Egypt, Israel, Japan, Jordan, Kuwait,
Morocco, New Zealand, Pakistan, the Philippines, the Republic of Korea,
Thailand, and Tunisia. Taiwan shall be treated as though it were
designated a major non-NATO ally.
(c) Wassenaar Arrangement. (1) The Wassenaar Arrangement refers to
the Wassenaar Arrangement on Export Controls for Conventional Arms and
Dual-Use Goods and Technologies among the United States, Argentina,
Australia, Austria, Belgium, Bulgaria, Canada, Croatia, the Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary,
India Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta,
Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, the
Republic of Korea, Romania, the Russian Federation, Slovakia, Slovenia,
South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, and the
United Kingdom, established on 12 July 1996, to promote transparency
and greater responsibility in transfers of conventional arms and dual-
use goods and technologies.
(2) The term Wassenaar Munitions List (WAML) refers to the list of
military items for which all participants have agreed to maintain
national export controls.
(d) Missile Technology Control Regime--(1) Regime. Missile
Technology Control Regime (MTCR) refers to the policy statement among
the United States, the United Kingdom, the Federal Republic of Germany,
France, Italy, Canada, and Japan, announced on April 16, 1987, to
restrict sensitive missile-relevant transfers based on the MTCR Annex,
and any amendments thereto.
(2) MTCR Annex. The term MTCR Annex refers to the MTCR Guidelines
and the Equipment, Software and Technology Annex of the MTCR, and any
amendments thereto.
(3) List of all items on the MTCR Annex. MTCR Annex items specified
in the U.S. Munitions List shall be annotated by the parenthetical (MT)
at the end of each applicable paragraph.
(e) Defense Trade Cooperation Treaty between the United States and
Australia. Defense Trade Cooperation Treaty between the United States
and Australia refers to the Treaty between the Government of the United
States of America and the Government of Australia Concerning Defense
Trade Cooperation, done at Sydney, September 5, 2007. For additional
information on making exports pursuant to this treaty, see Sec. 126.16
of this subchapter.
(f) Australia Implementing Arrangement. Australia Implementing
Arrangement refers to the Implementing Arrangement Pursuant to the
Treaty between the Government of the United States of America and the
Government of Australia Concerning Defense Trade Cooperation, done at
Washington, March 14, 2008, as it may be amended.
(g) Defense Trade Cooperation Treaty between the United States and
the United Kingdom. Defense Trade Cooperation Treaty between the United
States and the United Kingdom refers to the Treaty between the
Government of the United States of America and the Government of the
United Kingdom of Great Britain and Northern Ireland Concerning Defense
Trade Cooperation, done at Washington and London, June 21 and 26, 2007.
For additional information on making exports pursuant to this treaty,
see Sec. 126.17 of this subchapter.
(h) United Kingdom Implementing Arrangement. United Kingdom
Implementing Arrangement refers to the Implementing Arrangement
Pursuant to the Treaty between the Government of the United States of
America and the Government of the United Kingdom of Great Britain and
Northern Ireland Concerning Defense Trade Cooperation, done at
Washington, February 14, 2008, as it may be amended.
Sec. Sec. 120.24-120.29 [Reserved]
Subpart C--Definitions
Sec. 120.30 Directorate of Defense Trade Controls.
Directorate of Defense Trade Controls, Bureau of Political-Military
Affairs, Department of State, Washington, DC 20522-0112.
Sec. 120.31 Defense article.
(a) Defense article means any item or technical data designated in
Sec. 121.1 of this subchapter and includes:
(1) Technical data recorded or stored in any physical form, models,
mockups or other items that reveal technical data directly relating to
items designated in Sec. 121.1 of this subchapter; and
(2) Forgings, castings, and other unfinished products, such as
extrusions and machined bodies, that have reached a stage in
manufacturing where they are clearly identifiable by mechanical
properties, material composition, geometry, or function as defense
articles.
(b) It does not include basic marketing information on function or
purpose or general system descriptions.
(c) The policy described in Sec. 120.3 is applicable to
designations of additional items.
Sec. 120.32 Defense service.
(a) Defense service means:
(1) The furnishing of assistance (including training) to foreign
persons, whether in the United States or abroad in the design,
development, engineering, manufacture, production, assembly, testing,
repair, maintenance, modification, operation, demilitarization,
destruction, processing, or use of defense articles;
(2) The furnishing to foreign persons of any technical data
controlled under this subchapter, whether in the United States or
abroad; or
(3) Military training of foreign units and forces, regular and
irregular, including formal or informal instruction of foreign persons
in the United States or abroad or by correspondence courses, technical,
educational, or information publications and media of all kinds,
training aid, orientation, training exercise, and military advice.
(b) [Reserved]
Sec. 120.33 Technical data.
(a) Technical data means for purposes of this subchapter:
(1) Information, other than software as defined in Sec. 120.40(g),
which is required for the design, development, production, manufacture,
assembly, operation, repair, testing, maintenance, or modification of
defense articles. This includes information in the form of blueprints,
drawings, photographs, plans, instructions, or documentation;
(2) Classified information relating to defense articles and defense
services on the U.S. Munitions List and 600-series items controlled by
the Commerce Control List;
(3) Information covered by an invention secrecy order; or
(4) Software (see Sec. 120.40(g)) directly related to defense
articles.
(b) The definition in paragraph (a) of this section does not
include information concerning general scientific, mathematical, or
engineering principles commonly taught in schools, colleges, and
universities, or information in the public domain as defined in Sec.
120.34 or telemetry data as defined in note 3 to Category XV(f) of
Sec. 121.1 of this subchapter. It also does not include basic
marketing information on function or purpose or general system
descriptions of defense articles.
[[Page 16418]]
Sec. 120.34 Public domain.
(a) Public domain means information which is published and which is
generally accessible or available to the public:
(1) Through sales at newsstands and bookstores;
(2) Through subscriptions which are available without restriction
to any individual who desires to obtain or purchase the published
information;
(3) Through second class mailing privileges granted by the U.S.
Government;
(4) At libraries open to the public or from which the public can
obtain documents;
(5) Through patents available at any patent office;
(6) Through unlimited distribution at a conference, meeting,
seminar, trade show, or exhibition, generally accessible to the public,
in the United States;
(7) Through public release (i.e., unlimited distribution) in any
form (e.g., not necessarily in published form) after approval by the
cognizant U.S. Government department or agency (see also Sec.
125.4(b)(13) of this subchapter); or
(8) Through fundamental research in science and engineering at
accredited institutions of higher learning in the U.S. where the
resulting information is ordinarily published and shared broadly in the
scientific community. Fundamental research is defined to mean basic and
applied research in science and engineering where the resulting
information is ordinarily published and shared broadly within the
scientific community, as distinguished from research the results of
which are restricted for proprietary reasons or specific U.S.
Government access and dissemination controls. University research will
not be considered fundamental research if:
(i) The University or its researchers accept other restrictions on
publication of scientific and technical information resulting from the
project or activity; or
(ii) The research is funded by the U.S. Government and specific
access and dissemination controls protecting information resulting from
the research are applicable.
(b) [Reserved]
Sec. 120.35 [Reserved]
Sec. 120.36 Significant military equipment.
(a) Significant military equipment means articles for which special
export controls are warranted because of their capacity for substantial
military utility or capability.
(b) Significant military equipment includes:
(1) Items in Sec. 121.1 of this subchapter that are preceded by an
asterisk; and
(2) All classified articles enumerated in Sec. 121.1 of this
subchapter.
Sec. 120.37 Major defense equipment.
Major defense equipment, pursuant to section 47(6) of the Arms
Export Control Act (22 U.S.C. 2794(6)), means any item of significant
military equipment on the U.S. Munitions List having a nonrecurring
research and development cost of more than $50,000,000 or a total
production cost of more than $200,000,000.
Sec. 120.38 Classified.
Classified means classified pursuant to Executive Order 13526, or
predecessor order, and a security classification guide developed
pursuant thereto or equivalent, or to the corresponding classification
rules of another government or international organization.
Sec. 120.39 Foreign defense article or defense service.
Foreign defense article or defense service means any article or
service described on the U.S. Munitions List of non-U.S. origin. Unless
otherwise provided in this subchapter, the terms defense article and
defense service refer to both U.S. and foreign origin defense articles
and defense services described on the U.S. Munitions List. A defense
article or defense service is determined exclusively in accordance with
the Arms Export Control Act and this subchapter, regardless of any
designation (either affirming or contrary) that may be attributed to
the same article or service by any foreign government or international
organization.
Sec. 120.40 Compositional terms.
(a) Commodity means any article, material, or supply, except
technology/technical data or software.
(b) An end-item is a system, equipment, or an assembled article
ready for its intended use. Only ammunition or fuel or other energy
source is required to place it in an operating state.
(c) A component is an item that is useful only when used in
conjunction with an end-item:
(1) A major component includes any assembled element that forms a
portion of an end-item without which the end-item is inoperable; and
(2) A minor component includes any assembled element of a major
component.
(d) Accessories and attachments are associated articles for any
component, equipment, system, or end-item, and which are not necessary
for its operation, but which enhance its usefulness or effectiveness.
(e) A part is any single unassembled element of a major or a minor
component, accessory, or attachment which is not normally subject to
disassembly without the destruction or the impairment of designed use.
(f) Firmware and any related unique support tools (such as
computers, linkers, editors, test case generators, diagnostic checkers,
library of functions, and system test diagnostics) directly related to
equipment or systems covered under any category of the U.S. Munitions
List are considered as part of the end-item or component. Firmware
includes but is not limited to circuits into which software has been
programmed.
(g) Software includes but is not limited to the system functional
design, logic flow, algorithms, application programs, operating
systems, and support software for design, implementation, test,
operation, diagnosis, and repair. A person who intends to export only
software should, unless it is specifically enumerated in Sec. 121.1 of
this subchapter (e.g., USML Category XIII(b)), apply for a technical
data license pursuant to part 125 of this subchapter.
(h) A system is a combination of parts, components, accessories,
attachments, firmware, software, equipment, or end-items that operate
together to perform a function.
Note 1 to paragraph (h): The industrial standards established by
the International Council on Systems Engineering (INCOSE), National
Aeronautics and Space Administration (NASA), and International
Organization for Standardization (ISO) provide examples for when
commodities and software operate together to perform a function as a
system.
(i) Equipment is a combination of parts, components, accessories,
attachments, firmware, or software that operate together to perform a
function of, as, or for an end-item or system. Equipment may be a
subset of an end-item based on the characteristics of the equipment.
Equipment that meets the definition of an end-item in paragraph (b) of
this section is an end-item. Equipment that does not meet the
definition of an end-item is a component, accessory, attachment,
firmware, or software.
Sec. 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
[[Page 16419]]
achieving or exceeding the controlled performance levels,
characteristics, or functions described in the relevant U.S. Munitions
List (USML) paragraph in Sec. 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.
Sec. 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 for fit purposes.
(f) Enumerated. Enumerated refers to any item designated on the
U.S. Munitions List or item on the Commerce Control List and not in a
catch-all control.
(g) Catch-all control. A catch-all control is one that does not
refer to specific types of parts, components, accessories, or
attachments, but rather controls unspecified parts, components,
accessories, or attachments only if they were specially designed for an
enumerated item.
Sec. 120.43 Development, production, and related terms; Basic and
applied research.
(a) Development is related to all stages prior to serial
production, such as design, design research, design analyses, design
concepts, assembly and testing of prototypes, pilot production schemes,
design data, process of transforming design data into a product,
configuration design, integration design, and layouts. Development
includes modification of an existing design.
(b)(1) Production means all production stages, such as product
engineering, manufacture, integration, assembly (mounting), inspection,
testing, and quality assurance. This includes serial production where
commodities have passed production readiness testing (i.e., an
approved, standardized design ready for large scale production) and
have been or are being produced on an assembly line for multiple
commodities using the approved, standardized design.
(2) Commodities in production that are subsequently subject to
development activities, such as those that would result in enhancements
or improvements only in the reliability or maintainability of the
commodity (e.g., an increased mean time between failure), including
those pertaining to quality improvements, cost reductions, or feature
enhancements, remain in production. However, any new models or versions
of such commodities developed from such efforts that change the basic
performance or capability of the commodity are in development until and
unless they enter into production.
(c) Design methodology includes the underlying engineering methods
and design philosophy utilized (i.e., information that explains the
rationale for a particular design decision, engineering feature, or
performance requirement); engineering experience (e.g., lessons
learned); and the rationale and associated databases (e.g., design
allowables, factors of safety, component life predictions, failure
analysis criteria) that establish the operational requirements (e.g.,
performance, mechanical, electrical, electronic, reliability and
maintainability) of a defense article. (Final analytical results and
the initial conditions and parameters may be provided.)
(d) Engineering analysis includes the analytical methods and tools
used to design or evaluate a defense article's performance against the
operational requirements. Analytical methods and tools include the
development and/or use of mockups, computer models and simulations, and
test facilities. (Final analytical results and the initial conditions
and parameters may be provided.)
(e) Manufacturing know-how includes information that provides
detailed manufacturing processes and techniques needed to translate a
detailed design into a qualified, finished defense article.
(Information may be provided in a build-to-print package that is
necessary in order to produce an acceptable defense article.)
(f) Build-to-print means that a foreign consignee can produce a
defense article from engineering drawings without any technical
assistance from a U.S.
[[Page 16420]]
exporter. This transaction is based strictly on a hands-off approach
since the foreign consignee is understood to have the inherent
capability to produce the defense article and only lacks the necessary
drawings. Supporting documentation (e.g., acceptance criteria, object
code software for numerically controlled machines) may be released on
an as-required basis (i.e., must have) such that the foreign consignee
would not be able to produce an acceptable defense article without this
additional supporting documentation. Build-to-print does not include
the release of any information which discloses design methodology,
engineering analysis, detailed process information or manufacturing
know-how. Documentation which is not absolutely necessary to permit
manufacture of an acceptable defense article (i.e. nice to have) is not
considered within the boundaries of a build-to-print data package.
(g) Build/design-to-specification means that a foreign consignee
can design and produce a defense article from requirement
specifications without any technical assistance from the U.S. exporter.
This transaction is based strictly on a hands-off approach since the
foreign consignee is understood to have the inherent capability to both
design and produce the defense article and only lacks the necessary
requirement information.
(h) Basic research means a systemic study directed toward greater
knowledge or understanding of the fundamental aspects of phenomena and
observable facts without specific applications towards processes or
products in mind. It does not include applied research.
(i) Applied research means a systemic study to gain knowledge or
understanding necessary to determine the means by which a recognized
and specific need may be met. It is a systematic application of
knowledge toward the production of useful materials, devices, and
systems or methods, including design, development, and improvement of
prototypes and new processes to meet specific requirements.
Sec. 120.44 [Reserved]
Sec. 120.45 Maintenance levels.
(a) Organizational-level maintenance (or basic-level maintenance)
is the first level of maintenance that can be performed on-equipment
(directly on the defense article or support equipment) without
specialized training. It consists of repairing, inspecting, servicing,
calibrating, lubricating, or adjusting equipment, as well as replacing
minor parts, components, assemblies, and line-replaceable spares or
units. This includes modifications, enhancements, or upgrades that
would result in improving only the reliability or maintainability of
the commodity (e.g., an increased mean time between failure) and does
not enhance the basic performance or capability of the defense article.
(b) Intermediate-level maintenance is second-level maintenance
performed off-equipment (on removed parts, components, or equipment) at
or by designated maintenance shops or centers, tenders, or field teams.
It may consist of calibrating, repairing, testing, or replacing damaged
or unserviceable parts, components, or assemblies. This includes
modifications, enhancements, or upgrades that would result in improving
only the reliability or maintainability of the commodity (e.g., an
increased mean time between failure) and does not enhance the basic
performance or capability of the defense article.
(c) Depot-level maintenance is third-level maintenance performed
on- or off-equipment at or by a major repair facility, shipyard, or
field team, each with necessary equipment and personnel of requisite
technical skill. It consists of providing evaluation or repair beyond
unit or organization capability. This maintenance consists of
inspecting, testing, calibrating, repairing, overhauling, refurbishing,
reconditioning, and one-to-one replacing of any defective parts,
components, or assemblies. This includes modifications, enhancements,
or upgrades that would result in improving only the reliability or
maintainability of the commodity (e.g., an increased mean time between
failure) and does not enhance the basic performance or capability of
the defense article.
Sec. Sec. 120.46-120.49 [Reserved]
Sec. 120.50 Export.
(a) Export, except as set forth in Sec. 120.54 or Sec. 126.16 or
Sec. 126.17 of this subchapter, means:
(1) An actual shipment or transmission out of the United States,
including the sending or taking of a defense article out of the United
States in any manner;
(2) Releasing or otherwise transferring technical data to a foreign
person in the United States (a deemed export);
(3) Transferring registration, control, or ownership of any
aircraft, vessel, or satellite subject to this subchapter by a U.S.
person to a foreign person;
(4) Releasing or otherwise transferring a defense article to an
embassy or to any of its agencies or subdivisions, such as a diplomatic
mission or consulate, in the United States;
(5) Performing a defense service on behalf of, or for the benefit
of, a foreign person, whether in the United States or abroad; or
(6) The release of previously encrypted technical data as described
in Sec. 120.56(a)(3) and (4).
(b) Any release in the United States of technical data to a foreign
person is deemed to be an export to all countries in which the foreign
person has held or holds citizenship or holds permanent residency.
Sec. 120.51 Reexport.
(a) Reexport, except as set forth in Sec. 120.54 or Sec. 126.16
or Sec. 126.17 of this subchapter, means:
(1) An actual shipment or transmission of a defense article from
one foreign country to another foreign country, including the sending
or taking of a defense article to or from such countries in any manner;
(2) Releasing or otherwise transferring technical data to a foreign
person who is a citizen or permanent resident of a country other than
the foreign country where the release or transfer takes place (a deemed
reexport); or
(3) Transferring registration, control, or ownership of any
aircraft, vessel, or satellite subject to this subchapter between
foreign persons.
(b) Any release outside the United States of technical data to a
foreign person is deemed to be a reexport to all countries in which the
foreign person has held or holds citizenship or holds permanent
residency.
Sec. 120.52 Retransfer.
(a) Retransfer, except as set forth in Sec. 120.54 or Sec. 126.16
or Sec. 126.17 of this subchapter, means:
(1) A change in end-use or end-user, or a temporary transfer to a
third party, of a defense article within the same foreign country; or
(2) A release of technical data to a foreign person who is a
citizen or permanent resident of the country where the release or
transfer takes place.
(b) [Reserved]
Sec. 120.53 Temporary import.
(a) Temporary import, except as set forth in Sec. 120.54, means
bringing into the United States from a foreign country any defense
article that is:
(1) To be returned to the country from which it was shipped or
taken; or
[[Page 16421]]
(2) Any defense article that is in transit to another foreign
destination.
(b) Temporary import includes withdrawal of a defense article from
a customs bonded warehouse or foreign trade zone for the purpose of
returning it to the country of origin or country from which it was
shipped or for shipment to another foreign destination.
(c) Permanent imports are regulated by the Attorney General under
the direction of the Department of Justice's Bureau of Alcohol,
Tobacco, Firearms, and Explosives (see 27 CFR parts 447, 478, 479, and
555).
Sec. 120.54 Activities that are not exports, reexports, retransfers,
or temporary imports.
(a) The following activities are not exports, reexports,
retransfers, or temporary imports:
(1) Launching a spacecraft, launch vehicle, payload, or other item
into space;
(2) Transmitting or otherwise transferring technical data to a U.S.
person in the United States from a person in the United States;
(3) Transmitting or otherwise transferring within the same foreign
country technical data between or among only U.S. persons, so long as
the transmission or transfer does not result in a release to a foreign
person or transfer to a person prohibited from receiving the technical
data;
(4) Shipping, moving, or transferring defense articles between or
among the United States as defined in Sec. 120.60;
(5) Sending, taking, or storing technical data that is:
(i) Unclassified;
(ii) Secured using end-to-end encryption;
(iii) Secured using cryptographic modules (hardware or software)
compliant with the Federal Information Processing Standards Publication
140-2 (FIPS 140-2) or its successors, supplemented by software
implementation, cryptographic key management and other procedures and
controls that are in accordance with guidance provided in current U.S.
National Institute for Standards and Technology (NIST) publications, or
by other cryptographic means that provide security strength that is at
least comparable to the minimum 128 bits of security strength achieved
by the Advanced Encryption Standard (AES-128); and
(iv) Not intentionally sent to a person in or stored in a country
proscribed in Sec. 126.1 of this subchapter or the Russian Federation;
and
Note 1 to paragraph (a)(5)(iv): Data in-transit via the internet
is not deemed to be stored.
(v) Not sent from a country proscribed in Sec. 126.1 of this
subchapter or the Russian Federation.
(b)(1) For purposes of this section, end-to-end encryption is
defined as:
(i) The provision of cryptographic protection of data, such that
the data is not in an unencrypted form, between an originator (or the
originator's in-country security boundary) and an intended recipient
(or the recipient's in-country security boundary); and
(ii) The means of decryption are not provided to any third party.
(2) The originator and the intended recipient may be the same
person. The intended recipient must be the originator, a U.S. person in
the United States, or a person otherwise authorized to receive the
technical data, such as by a license or other approval pursuant to this
subchapter.
(c) The ability to access technical data in encrypted form that
satisfies the criteria set forth in paragraph (a)(5) of this section
does not constitute the release or export of such technical data.
Sec. 120.55 Access information.
Access information is information that allows access to encrypted
technical data subject to this subchapter in an unencrypted form.
Examples include decryption keys, network access codes, and passwords.
Sec. 120.56 Release.
(a) Release. Technical data is released through:
(1) Visual or other inspection by foreign persons of a defense
article that reveals technical data to a foreign person;
(2) Oral or written exchanges with foreign persons of technical
data in the United States or abroad;
(3) The use of access information to cause or enable a foreign
person, including yourself, to access, view, or possess unencrypted
technical data; or
(4) The use of access information to cause technical data outside
of the United States to be in unencrypted form.
(b) Provision of access information. Authorization for a release of
technical data to a foreign person is required to provide access
information to that foreign person, if that access information can
cause or enable access, viewing, or possession of the unencrypted
technical data.
Sec. 120.57 Authorization types.
(a) License means a document bearing the word ``license'' issued by
the Deputy Assistant Secretary of State for Defense Trade Controls, or
authorized designee, that permits the export, reexport, retransfer,
temporary import, or brokering of a specific defense article or defense
service controlled by this subchapter.
(b) Other approval means a document, other than a license, issued
by the Deputy Assistant Secretary of State for Defense Trade Controls,
or authorized designee, that approves an activity regulated by this
subchapter (e.g., approvals for brokering activities or retransfer
authorizations), or the use of an exemption to the license requirements
as described in this subchapter.
(c) Exemption means a provision of this subchapter that authorizes
the export, reexport, retransfer, temporary import, or brokering of a
specific defense article or defense service without a license or other
written authorization.
(d) Manufacturing license agreement means an agreement (e.g.,
contract), approved by the Directorate of Defense Trade Controls
(DDTC), whereby a U.S. person grants a foreign person an authorization
to manufacture defense articles abroad and which involves or
contemplates:
(1) The export of technical data or defense articles or the
performance of a defense service; or
(2) The use by the foreign person of technical data or defense
articles previously exported by the U.S. person.
(e) Technical assistance agreement means an agreement (e.g.,
contract), approved by DDTC, for the performance of a defense
service(s) or the disclosure of technical data, as opposed to an
agreement granting a right or license to manufacture defense articles.
Assembly of defense articles is included under this section, provided
production rights or manufacturing know-how are not conveyed. Should
such rights be transferred, paragraph (d) of this section is
applicable.
(f) Distribution agreement means an agreement (e.g., a contract),
approved by DDTC, to establish a warehouse or distribution point abroad
for defense articles exported from the United States for subsequent
distribution to entities in an approved sales territory.
Sec. 120.58 Subject to the Export Administration Regulations (EAR).
Items subject to the EAR are those items listed on the Commerce
Control List in part 774 of the Export Administration Regulations (EAR)
and all other items that meet the definition of that term in accordance
with Sec. 734.3 of the EAR. The EAR is found at 15 CFR parts 730
through 774.
[[Page 16422]]
Sec. 120.59 [Reserved]
Sec. 120.60 United States.
United States, when used in the geographical sense, includes the
several states, the Commonwealth of Puerto Rico, the insular
possessions of the United States, the District of Columbia, the
Commonwealth of the Northern Mariana Islands, any territory or
possession of the United States, and any territory or possession over
which the United States exercises any powers of administration,
legislation, and jurisdiction.
Sec. 120.61 Person.
Person means a natural person as well as a corporation, business
association, partnership, society, trust, or any other entity,
organization or group, including governmental entities. If a provision
in this subchapter does not refer exclusively to a foreign person or
U.S. person, then it refers to both.
Sec. 120.62 U.S. person.
U.S. person means a person who is a lawful permanent resident as
defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as
defined by 8 U.S.C. 1324b(a)(3). It also means any corporation,
business association, partnership, society, trust, or any other entity,
organization, or group that is incorporated to do business in the
United States. It also includes any governmental (Federal, state, or
local) entity. It does not include any foreign person as defined in
Sec. 120.63.
Sec. 120.63 Foreign person.
Foreign person means any natural person who is not a lawful
permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a
protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means
any foreign corporation, business association, partnership, trust,
society, or any other entity or group that is not incorporated or
organized to do business in the United States, as well as international
organizations, foreign governments, and any agency or subdivision of
foreign governments (e.g., diplomatic missions).
Sec. 120.64 Regular employee.
(a) Regular employee means:
(1) An individual permanently and directly employed by the company;
or
(2) An individual in a long term contractual relationship with the
company where the individual works at the company's facilities, works
under the company's direction and control, works full time and
exclusively for the company, and executes nondisclosure certifications
for the company, and where the staffing agency that has seconded the
individual has no role in the work the individual performs (other than
providing that individual for that work) and the staffing agency would
not have access to any controlled technology (other than where
specifically authorized by a license).
(b) [Reserved]
Sec. 120.65 Foreign ownership and foreign control.
(a) Foreign ownership means more than 50 percent of the outstanding
voting securities of the firm are owned by one or more foreign persons.
(b) Foreign control means one or more foreign persons have the
authority or ability to establish or direct the general policies or
day-to-day operations of the firm. Foreign control is presumed to exist
where foreign persons own 25 percent or more of the outstanding voting
securities unless one U.S. person controls an equal or larger
percentage.
Sec. 120.66 Affiliate.
(a) Affiliate (of a registrant) means a person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such registrant.
(b) For purposes of this section, ``control'' means having the
authority or ability to establish or direct the general policies or
day-to-day operations of the firm. Control is rebuttably presumed to
exist where there is ownership of 25 percent or more of the outstanding
voting securities if no other person controls an equal or larger
percentage.
Sec. 120.67 Empowered official.
(a) Empowered official means a U.S. person who:
(1) Is directly employed by the applicant or a subsidiary in a
position having authority for policy or management within the applicant
organization; and
(2) Is legally empowered in writing by the applicant to sign
license applications or other requests for approval on behalf of the
applicant; and
(3) Understands the provisions and requirements of the various
export control statutes and regulations, and the criminal liability,
civil liability, and administrative penalties for violating the Arms
Export Control Act and the International Traffic in Arms Regulations in
this subchapter; and
(4) Has the independent authority to:
(i) Inquire into any aspect of a proposed export, temporary import,
or brokering activity by the applicant;
(ii) Verify the legality of the transaction and the accuracy of the
information to be submitted; and
(iii) Refuse to sign any license application or other request for
approval without prejudice or other adverse recourse.
(b) For the purposes of a broker who is a foreign person, the
empowered official may be a foreign person who otherwise meets the
criteria for an empowered official in paragraph (a) of this section.
Sec. 120.68 Party to the export.
(a) Party to the export means:
(1) The chief executive officer, president, vice-presidents, other
senior officers and officials (e.g., comptroller, treasurer, general
counsel), and any member of the board of directors of the applicant;
(2) The freight forwarders or designated exporting agent of the
applicant; and
(3) Any consignee or end-user of any item to be exported.
(b) [Reserved]
Sec. 120.69 Port Directors.
Port Directors means the U.S. Customs and Border Protection Port
Directors at the U.S. Customs and Border Protection Ports of Entry
(other than the port of New York, New York where their title is the
Area Directors).
PART 121--THE UNITED STATES MUNITIONS LIST
0
2. The authority citation for part 121 is revised to read as follows:
Authority: 22 U.S.C. 2752, 2778, 2797; 22 U.S.C. 2651a; Sec.
1514, Pub. L. 105-261, 112 Stat. 2175; E.O. 13637, 78 FR 16129, 3
CFR, 2013 Comp., p. 223.
0
3. Add Sec. 121.0 to read as follows:
Sec. 121.0 United States Munitions List description and definitions.
(a) For a description of the U.S. Munitions List and its
designations, including the use of asterisks and the parenthetical
``(MT)'', see Sec. 120.10 of this subchapter.
(b) As used in this part, EAR means Export Administration
Regulations in 15 CFR parts 730 through 774.
Sec. 121.1 [Amended]
0
4. Section 121.1 is amended as follows:
0
a. Remove and reserve paragraphs (a) and (b); and
0
b. In the United States Munitions List:
0
i. Remove ``i.e.,'', ``See'', and ``see'' everywhere they appear and
add in their places ``i.e.,'', ``See'', and ``see'' respectively;
0
ii. Remove the phrases ``(see Sec. 120.4 of this subchapter)'' and
``(see Sec. 120.42 of this subchapter)'' everywhere they appear;
0
iii. Remove the phrase ``(see Sec. 120.10 of this subchapter) and
defense services
[[Page 16423]]
(see Sec. 120.9 of this subchapter)'' everywhere it appears and add in
its place ``(see Sec. 120.33 of this subchapter) and defense services
(see Sec. 120.32 of this subchapter)'';
0
iv. In Category II, remove Note 1 to paragraph (j)(17);
0
v. In Category III, remove Note 1 to paragraph (d)(15);
0
vi. In Category IV, remove the note to paragraph (h)(30);
0
vii. In Category V:
0
A. In paragraph (h)(2), remove the phrase ``(see Sec. 120.10(a)(2) of
this subchapter)'';
0
B. Remove Note to paragraph (h); and
0
C. In paragraph (j):
0
1. Remove the phrase ``(as defined in Sec. 120.10 of this subchapter)
and defense services (as defined in Sec. 120.9 of this subchapter)''
and add in its place ``(see Sec. 120.33 of this subchapter) and
defense services (see Sec. 120.32 of this subchapter)'';
0
2. Remove ``(see also Sec. 123.20 of this subchapter)'' and add in its
place ``(see also Sec. 120.5(c) of this subchapter for nuclear related
controls)'';
0
viii. In Category VI:
0
A. Remove the phrase ``see Sec. 120.45(g)'' and add in its place ``see
Sec. 120.40(h)'' in Note to paragraph (b)(4);
0
B. Remove ``(see Sec. 123.20 of this subchapter)'' and add in its
place ``(see also Sec. 120.5(c) of this subchapter for nuclear related
controls)'' in paragraphs (e) and (f)(5); and
0
C. Remove the second sentence of paragraph of (f)(9)(iii);
0
ix. In Category VII:
0
A. Remove the phrase ``see Sec. 120.45(g)'' and add in its place ``see
Sec. 120.40(h)'' in Note to paragraph (c); and
0
B. Remove the undesignated sentence following paragraph (g)(14)(iii);
0
x. In Category VIII, remove Note to paragraph (h)(20);
0
xi. In Category IX:
0
A. Remove Note to paragraph (a)(11) and Note to paragraph (b)(5); and
0
B. Remove the phrase ``see, Sec. 120.9(a)(3)'' and add in its place
``see Sec. 120.32(a)(3)'' in paragraph (e)(3);
0
xii. In Category X, remove Note to paragraph (d)(4);
0
xiii. In Category XI:
0
A. Remove the phrase ``(see Sec. 120.10(a)(2) of this subchapter)'' in
paragraph (c)(19)(iii);
0
B. Remove Note to paragraph (c)(19); and
0
C. Remove the phrase ``see Sec. 121.8(f)'' and add in its place ``see
Sec. 120.40(g)'' in Note to paragraph (c)(19)(ii);
0
xiv. In Category XII:
0
A. Remove Note to paragraph (e)(23);
0
B. Remove the phrase ``(see Sec. 120.10) and defense services (see
Sec. 120.9)'' and add in its place ``(see Sec. 120.33 of this
subchapter) and defense services (see Sec. 120.32 of this
subchapter)'' in paragraph (f); and
0
C. Remove the reference ``Sec. 120.4'' and add in its place
``Sec. Sec. 120.4 and 120.12'' in Note to Category XII;
0
xv. In Category XIII:
0
A. Remove the undesignated sentence following paragraph (f)(iii);
0
B. Remove the phrase ``see Sec. 125.4(c)(4)'' and add in its place
``see Sec. 120.43(c)'' in paragraph (i)(6); and
0
C. In paragraph (l):
0
1. Remove the phrase ``(see Sec. 120.10 of this subchapter) directly
related to the defense articles described in paragraphs (a) through
(h), (j), and (k) of this category and defense services (see Sec.
120.9 of this subchapter)'' and add in its place ``(see Sec. 120.33 of
this subchapter) directly related to the defense articles described in
paragraphs (a) through (h), (j), and (k) of this category and defense
services (see Sec. 120.32) of this subchapter)''; and
0
2. Add at the end of the first sentence ``(see also Sec. 120.5(c) of
this subchapter for nuclear related controls)''; and
0
3. Remove the first parenthetical sentence;
0
xvi. In Category XIV:
0
A. Remove Note to paragraph (f)(8); and
0
B. Remove the phrase ``(as defined in Sec. 120.10 of this subchapter)
and defense services (as defined in Sec. 120.9 of this subchapter)''
and add in its place ``(see Sec. 120.33 of this subchapter) and
defense services (see Sec. 120.32 of this subchapter)'' in paragraph
(m);
0
xvii. In Category XV:
0
A. Remove the phrase ``(see Sec. 120.7 of this subchapter)'' in Note 3
to paragraph (a)(7); and
0
B. Remove the second sentence of paragraph (a)(13) and Note to
paragraph (e)(21);
0
xvii. In Category XVI(e):
0
A. Add ``(see also Sec. 120.5(c) of this subchapter for nuclear
related controls)'' at the end of the first sentence; and
0
B. Remove the parenthetical sentence at the end of the paragraph;
0
xviii. In Category XVIII(g), remove the phrase ``(see Sec. 120.10 of
this subchapter) and defense services (as defined in Sec. 120.9 of
this subchapter)'' and add in its place ``(see Sec. 120.33 of this
subchapter) and defense services (see Sec. 120.32 of this
subchapter)'';
0
xix. In Category XIX, remove Note to paragraph (f)(6);
0
xx. In Category XX:
0
A. Remove the phrase ``see Sec. 120.45(g)'' and add in its place ``see
Sec. 120.40(h)'' in Note to paragraph (a)(7); and
0
B. Remove ``(see Sec. 123.20 of this subchapter)'' and add in its
place ``(see also Sec. 120.5(c) of this subchapter for nuclear related
controls)'' in paragraph (b)(1); and
0
xxi. In Category XXI(a), remove the phrase ``(see Sec. 120.7 of this
subchapter)''.
Sec. 121.16 [Removed and Reserved]
0
5. Remove and reserve Sec. 121.16.
PART 122--REGISTRATION OF MANUFACTURERS AND EXPORTERS
0
6. The authority citation for part 122 continues to read as follows:
Authority: Sections 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
Sec. 122.2 [Amended]
0
7. In Sec. 122.2:
0
a. In paragraph (a), remove the reference ``Sec. 120.40'' and add in
its place ``Sec. 120.66'';
0
b. In paragraph (b)(1)(i), remove the reference ``Sec. 120.27'' and
add in its place ``Sec. 120.6''; and
0
c. In paragraph (b)(2), remove the reference ``Sec. 120.37'' and add
in its place ``Sec. 120.65''.
Sec. 122.4 [Amended]
0
8. In Sec. 122.4:
0
a. In paragraph (a)(1), remove the reference ``Sec. 120.27'' and add
in its place ``Sec. 120.6''; and
0
b. In paragraph (b), remove the reference ``Sec. Sec. 120.10 and
126.1(e)'' and add in its place ``Sec. 126.1(e)''.
PART 123--LICENSES FOR THE EXPORT AND TEMPORARY IMPORT OF DEFENSE
ARTICLES
0
9. The authority citation for part 123 continues to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2753; 22 U.S.C. 2651a; 22 U.S.C.
2776; Pub. L. 105-261, 112 Stat. 1920; Sec. 1205(a), Pub. L. 107-
228; Sec. 520, Pub. L. 112-55; Section 1261, Pub. L. 112-239; E.O.
13637, 78 FR 16129.
Sec. 123.1 [Amended]
0
10. In Sec. 123.1:
0
a. In paragraph (b) introductory text, remove the phrase ``(see Sec.
120.42 of this subchapter)''; and
0
b. In paragraph (d), remove the reference ``Sec. 120.9(a)'' and add in
its place ``Sec. 120.32''.
Sec. 123.4 [Amended]
0
11. In Sec. 123.4, in paragraph (c)(1), remove the reference ``Sec.
120.1(c)'' and add in its place ``Sec. 120.16''.
Sec. 123.9 [Amended]
0
12. In Sec. 123.9, in paragraph (b)(2), remove the phrase ``(see
Sec. Sec. 120.5,
[[Page 16424]]
120.42 and 123.1(b) of this subchapter)''.
Sec. 123.15 [Amended]
0
13. In Sec. 123.15, in paragraph (a) introductory text, remove the
reference ``Sec. 120.8'' and add in its place ``Sec. 120.37''.
Sec. 123.16 [Amended]
0
14. In Sec. 123.16:
0
a. In paragraph (a), remove the reference ``Sec. 120.1(c)'' and add in
its place ``Sec. 120.16'';
0
b. In paragraph (b)(4), remove the reference ``Sec. 120.45(b)'' and
add in its place ``Sec. 120.40(c)''; and
0
c. In paragraph (b)(9) introductory text, remove the reference ``Sec.
120.37'' and add in its place ``Sec. 120.65''.
Sec. 123.17 [Amended]
0
15. In Sec. 123.17, in paragraph (k), remove the reference
``Sec. Sec. 120.1(c) and (d)'' and add in its place ``Sec. Sec.
120.15(d) and 120.16(c)''.
Sec. Sec. 123.20 and 123.26 [Removed and Reserved]
0
16. Remove and reserve Sec. Sec. 123.20 and 123.26.
Sec. 123.27 [Amended]
0
17. In Sec. 123.27, in paragraph (a)(1), remove the references ``(see
Sec. 120.31 of this subchapter)'' and ``(see Sec. 120.32 of this
subchapter)''.
PART 124--AGREEMENTS, OFF-SHORE PROCUREMENT, AND OTHER DEFENSE
SERVICES
0
18. The authority citation for part 124 continues to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; 22 U.S.C. 2776;
Section 1514, Pub. L. 105-261; Pub. L. 111-266; Section 1261, Pub.
L. 112-239; E.O. 13637, 78 FR 16129.
Sec. 124.1 [Amended]
0
19. In Sec. 124.1, in paragraph (a), remove the reference ``Sec.
120.9(a)'' everywhere it appears and add in its place ``Sec. 120.32''.
0
20. In Sec. 124.2:
0
a. In paragraph (b), remove the reference ``Sec. 120.9'' and add in
its place ``Sec. 120.32''; and
0
b. Revise paragraph (c)(4).
The revision reads as follows:
Sec. 124.2 Exemptions for training and military service.
* * * * *
(c) * * *
(4) Supporting technical data must be unclassified and must not
include software documentation on the design or details of the computer
software, software source code, design methodology, engineering
analysis, or manufacturing know-how.
* * * * *
Sec. 124.11 [Amended]
0
21. In Sec. 124.11, in paragraph (a), remove the phrases ``as defined
in Sections 120.21 and 120.22 respectively'', ``(see Sec. 120.7 of
this subchapter)'' and ``, as defined in Sec. 120.8 of this
subchapter''.
0
22. In Sec. 124.13, revise the section heading and paragraph (b) to
read as follows:
Sec. 124.13 Procurement by U.S. persons in foreign countries
(offshore procurement).
* * * * *
(b) The technical data of U.S.-origin to be used in the foreign
manufacture of defense articles does not exceed that required for bid
purposes on a build-to-print basis; and
* * * * *
PART 125--LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED
DEFENSE ARTICLES
0
23. The authority citation for part 125 continues to read as follows:
Authority: Secs. 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
Sec. 125.1 [Amended]
0
24. In Sec. 125.1:
0
a. In paragraph (a), remove the phrase ``see Sec. 120.11'' and add in
its place ``see Sec. 120.34''; and
0
b. In paragraph (e), remove the phrase ``please see Sec. 123.20'' and
add in its place ``see Sec. 120.5(c)''.
0
25. In Sec. 125.4:
0
a. In paragraph (a), remove the reference ``Sec. 120.1(c)'' and add in
its place ``Sec. 120.16'';
0
b. Revise paragraph (c); and
0
c. Remove paragraph (d).
The revision reads as follows:
Sec. 125.4 Exemptions of general applicability.
* * * * *
(c) Defense services and related unclassified technical data are
exempt from the licensing requirements of this subchapter, to nationals
of NATO countries, Australia, Japan, and Sweden, for the purposes of
responding to a written request from the Department of Defense for a
quote or bid proposal. Such exports must be pursuant to an official
written request or directive from an authorized official of the U.S.
Department of Defense. The defense services and technical data are
limited to paragraphs (f), (g), and (h) (build-to-print, build/design-
to-specification, and basic research, respectively) of Sec. 120.43 of
this subchapter and must not include paragraph (c), (d), (e), or (i)
(design methodology, engineering analysis, manufacturing know-how, and
applied research, respectively) of Sec. 120.43.
Sec. 125.6 [Removed and Reserved]
0
26. Remove and reserve Sec. 125.6.
PART 126--GENERAL POLICIES AND PROVISIONS
0
27. The authority citation for part 126 continues to read as follows:
Authority: 22 U.S.C. 2752, 2778, 2780, 2791, and 2797; 22
U.S.C. 2651a; 22 U.S.C. 287c; Sec. 1225, Pub. L. 108-375; Sec. 7089,
Pub. L. 111-117; Pub. L. 111-266; Sections 7045 and 7046, Pub. L.
112-74; E.O. 13637, 78 FR 16129.
Sec. 126.1 [Amended]
0
28. In Sec. 126.1, in paragraph (c)(1), remove the reference ``Sec.
120.15'' and add in its place ``Sec. 120.62''.
Sec. 126.5 [Amended]
0
29. In Sec. 126.5:
0
a. In paragraph (a), remove the phrase ``(see Sec. 120.6 of this
subchapter)''; and
0
b. In paragraph (b):
0
i. Remove the reference ``22 CFR 120.1(c) and (d)'' and add in its
place ``Sec. Sec. 120.15(d) and 120.16''; and
0
ii. Remove the reference ``Sec. 126.1 of this subchapter'' and add in
its place ``Sec. 126.1''.
Sec. Sec. 126.7, 126.9, 126.10, 126.11, and 126.12 [Removed and
Reserved]
0
30. Remove and reserve Sec. Sec. 126.7, 126.9, 126.10, 126.11, and
126.12.
Sec. 126.13 [Amended]
0
31. In Sec. 126.13:
0
a. In paragraph (a)(1), remove the reference ``Sec. 120.27'' and add
in its place ``Sec. 120.6''; and
0
b. In paragraph (a)(3), remove the references ``Sec. 126.7(e)'' and
``Sec. 120.27'' add in their places ``Sec. 120.68(a) of this
subchapter'' and ``Sec. 120.6,'' respectively;
Sec. 126.16 [Amended]
0
32. In Sec. 126.16:
0
a. In paragraph (g)(1), remove the reference ``Sec. 120.17'' and add
in its place ``Sec. 120.50''; and
0
b. In paragraph (o)(1)(iii), remove the phrase ``see Sec. 120.7'' and
add in its place ``see Sec. 120.36''.
Sec. 126.17 [Amended]
0
33. In Sec. 126.17:
[[Page 16425]]
0
a. In paragraph (g)(1), remove the reference ``Sec. 120.17'' and add
in its place ``Sec. 120.50''; and
0
b. In paragraph (o)(1)(iii), remove the phrase ``see Sec. 120.7'' and
add in its place ``see Sec. 120.36''.
Sec. 126.18 [Amended]
0
34. In Sec. 126.18:
0
a. In paragraph (a), remove the phrase ``(see Sec. 120.6)''; and
0
b. In paragraph (b), remove the references ``Sec. 127.1(b)'' and
``Sec. 120.16'' and add in their places ``Sec. 127.1(b) of this
subchapter'' and ``Sec. 120.63 of this subchapter,'' respectively.
0
35. In Supplement No. 1 to part 126:
0
a. In the table, revise the 14th entry ``I-XXI'';
0
b. In Note 5:
0
i. Remove the reference ``Sec. 125.4(c)(6)'' and add in its place
``Sec. 120.43(g)''; and
0
ii. Remove the reference ``(e)(1), (e)(2), or (e)(4)'' and add in its
place ``(e)(1), (2), or (4)''; and
0
c. In Note 12:
0
i. Remove the phrase ``applied research (Sec. 125.4(c)(3) of this
subchapter)'' and add in its place ``applied research (Sec. 120.43(i)
of this subchapter)'';
0
ii. Remove the reference ``Sec. 125.4(c)(4)'' and add in its place
``Sec. 120.43(c)'';
0
iii. Remove the reference ``Sec. 125.4(c)(5)'' and add in its place
``Sec. 120.43(d)'';
0
iv. Remove the reference ``Sec. 125.4(c)(6)'' and add in its place
``Sec. 120.43(e);
0
v. Remove the reference ``Sec. 125.4(c)(1)'' and add in its place
``Sec. 120.43(f)'';
0
vi. Remove the reference ``Sec. 125.4(c)(2)'' and add in its place
``Sec. 120.43(g)''; and
0
vii. Remove the phrase ``basic research as defined in Sec. 125.4(c)(3)
of this subchapter'' and add in its place ``basic research as defined
in Sec. 120.43(h) of this subchapter''.
The revision reads as follows:
Supplement No. 1 to Part 126
* * * * *
----------------------------------------------------------------------------------------------------------------
(CA) Sec. (AS) Sec. (UK) Sec.
USML category Exclusion 126.5 126.16 126.17
----------------------------------------------------------------------------------------------------------------
* * * * * * *
I-XXI........................... Defense services or X
technical data specific to
applied research as
defined in Sec.
120.43(i) of this
subchapter, design
methodology as defined in
Sec. 120.43(c) of this
subchapter, engineering
analysis as defined in
Sec. 120.43(d) of this
subchapter, or
manufacturing know-how as
defined in Sec.
120.43(e) of this
subchapter. See Note 12.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
PART 127--VIOLATIONS AND PENALTIES
0
36. The authority citation for part 127 continues to read as follows:
Authority: Sections 2, 38, and 42, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2791); 22 U.S.C. 401; 22 U.S.C. 2651a; 22
U.S.C. 2779a; 22 U.S.C. 2780; E.O. 13637, 78 FR 16129; Pub. L. 114-
74, 129 Stat. 584.
Sec. 127.1 [Amended]
0
37. In Sec. 127.1, in paragraph (d) introductory text, remove the
reference ``Sec. 120.1(c)(2)'' everywhere it appears and add in its
place ``Sec. 120.16(c)''.
Sec. 127.11 [Amended]
0
38. In Sec. 127.11, in paragraph (a), remove the reference ``Sec.
120.27'' and add in its place ``Sec. 120.6''.
Sec. 127.12 [Amended]
0
39. In Sec. 127.12:
0
a. In paragraph (a), remove the phrase ``(see Sec. 120.14 of this
subchapter)'';
0
b. In paragraph (c)(1)(i), remove the reference ``127.12(c)(2)'' and
add in its place ``paragraph (c)(2)'';
0
c. In paragraph (c)(1)(ii), remove the references ``Sec. 120.25'' and
``Sec. 127.12(c)(2)'' and add in their places ``Sec. 120.67'' and
``paragraph (c)(2),'' respectively; and
0
d. In paragraph (e), remove the phrase ``See Sec. 120.25'' and add in
its place ``see Sec. 120.67''.
PART 128--ADMINISTRATIVE PROCEDURES
0
40. The authority citation for part 128 continues to read as follows:
Authority: Sections. 2, 38, 40, 42, and 71, Arms Export Control
Act. 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); 22
U.S.C. 2651a; E.O. 12291, 46 FR 1981; E.O. 13637, 78 FR 16129.
0
41. Section 128.1 is revised to read as follows:
Sec. 128.1 Exclusion of functions from the Administrative Procedure
Act.
The Arms Export Control Act (AECA) authorizes the President to
control the import and export of defense articles and services in
furtherance of world peace and the security and foreign policy of the
United States. Pursuant to delegated authorities, the Secretary of
State is authorized to make decisions on whether license applications
or other written requests for approval shall be granted, or whether
exemptions may be used. The Secretary of State is also authorized to
revoke, suspend, or amend licenses or other written approvals whenever
such action is deemed to be advisable. The administration of the AECA
is a foreign affairs function encompassed within the meaning of the
military and foreign affairs exclusion of the Administrative Procedure
Act and is thereby expressly exempt from various provisions of that
Act. Because the exercising of the foreign affairs function, including
the decisions required to implement the AECA, is highly discretionary,
it is excluded from review under the Administrative Procedure Act.
0
42. Section 128.2 is revised to read as follows:
Sec. 128.2 Administrative Law Judge.
The Administrative Law Judge referred to in this part is an
Administrative Law Judge appointed by the Department of State. The
Administrative Law Judge is authorized to exercise the powers and
perform the duties provided for in Sec. Sec. 128.3 through 128.16.
PART 129--REGISTRATION AND LICENSING OF BROKERS
0
43. The authority citation for part 129 continues to read as follows:
Authority: Section 38, Pub. L. 104-164, 110 Stat. 1437, (22
U.S.C. 2778); E.O. 13637, 78 FR 16129.
Sec. 129.2 [Amended]
0
44. In Sec. 129.2:
[[Page 16426]]
0
a. In paragraph (a) introductory text, remove the phrase ``see Sec.
120.14'' and add in its place ``see Sec. 120.61'';
0
b. In paragraph (a)(1), remove the phrase ``see Sec. 120.15'' and add
in its place ``see Sec. 120.62'';
0
c. In paragraph (a)(2), remove the phrase ``see Sec. 120.16'' and add
in its place ``see Sec. 120.63'';
0
d. In paragraph (b)(2)(iii), remove the phrase ``see Sec. 120.39'' and
add in its place ``see Sec. 120.64'';
0
e. In paragraph (b)(2)(v), remove the reference ``Sec. 120.40'' and
add in its place ``Sec. 120.66''; and
0
f. In paragraph (b)(2)(vi), remove ``see Sec. 120.39'' and ``parts''
and add in their places ``see Sec. 120.64'' and ``part,''
respectively.
Sec. 129.3 [Amended]
0
45. In Sec. 129.3, in paragraph (d), remove the phrase ``see Sec.
120.40'' and add in its place ``see Sec. 120.66''.
Sec. 129.4 [Amended]
0
46. In Sec. 129.4, in paragraph (a)(1), remove the phrase ``see Sec.
120.44'' and add in its place ``see Sec. 120.39''.
Sec. 129.5 [Amended]
0
47. In Sec. 129.5:
0
a. In paragraph (b), remove the phrase ``see Sec. 120.44'' and add in
its place ``see Sec. 120.39''; and
0
b. In paragraph (c)(2), remove the reference ``Sec. 120.1(c)(2)'' and
add in its place ``Sec. 120.16(c)''.
Sec. 129.6 [Amended]
0
48. In Sec. 129.6, in paragraphs (a)(2)(i) and (iii), remove the
reference ``Sec. 120.27'' and add in its place ``Sec. 120.6''.
Sec. 129.8 [Amended]
0
49. In Sec. 129.8:
0
a. In paragraph (a), remove the phrase ``see Sec. 120.40'' and add in
its place ``see Sec. 120.66'';
0
b. In paragraph (c)(1)(i), remove the reference ``Sec. 120.27'' and
add in its place ``Sec. 120.6'';
0
c. In paragraph (c)(2), remove the phrase ``see Sec. 120.37'' and add
in its place ``see Sec. 120.65''; and
0
d. In paragraph (d)(1), remove ``Sec. 120.27'' and ``government'' and
add in their places ``Sec. 120.6'' and ``Government,'' respectively.
PART 130--POLITICAL CONTRIBUTIONS, FEES AND COMMISSIONS
0
50. The authority citation for part 130 continues to read as follows:
Authority: Sec. 39, Pub. L. 94-329, 90 Stat. 767 (22 U.S.C.
2779); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
Sec. 130.4 [Amended]
0
51. In Sec. 130.4, remove the reference ``Sec. Sec. 120.6 and 120.9''
and add in its place ``Sec. Sec. 120.31 and 120.32''.
Bonnie D. Jenkins,
Under Secretary for Arms Control and International Security, Department
of State.
[FR Doc. 2022-05629 Filed 3-22-22; 8:45 am]
BILLING CODE 4710-25-P
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</html>Indexed from Federal Register on March 23, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.