Department of State § 120.38

SUBCHAPTER M—INTERNATIONAL TRAFFIC IN ARMS REGULATIONS

PART 120—PURPOSE AND 120.44 Foreign defense article or defense service. DEFINITIONS 120.45 End-items, components, accessories, attachments, parts, firmware, software, Sec. systems, and equipment. 120.1 General authorities, receipt of li- 120.46 Classified. censes, and ineligibility. 120.50 Release. 120.2 Designation of defense articles and de- 120.51 Retransfer. fense services. 120.52–120.53 [Reserved] 120.3 Policy on designating or determining 120.54 Activities that are not exports, reex- defense articles and services on the U.S. ports, retransfers, or temporary imports. Munitions List. 120.55 Access Information. 120.4 Commodity jurisdiction. AUTHORITY: Secs. 2, 38, and 71, Pub. L. 90– 120.5 Relation to regulations of other agen- 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 cies; export of items subject to the EAR. U.S.C. 2794; 22 U.S.C. 2651a; Pub. L. 105–261, 120.6 Defense article. 112 Stat. 1920; Pub. L. 111–266; Section 1261, 120.7 Significant military equipment. Pub. L. 112–239; E.O. 13637, 78 FR 16129. 120.8 Major defense equipment. 120.9 Defense service. SOURCE: 58 FR 39283, July 22, 1993, unless 120.10 Technical data. otherwise noted. 120.11 Public domain. 120.12 Directorate of Defense Trade Con- § 120.1 General authorities, receipt of trols. licenses, and ineligibility. 120.13 United States. 120.14 Person. (a) Section 38 of the Arms Export 120.15 U.S. person. Control Act (22 U.S.C. 2778), as amend- 120.16 Foreign person. ed, authorizes the President to control 120.17 Export. the export and import of defense arti- 120.18 Temporary import. cles and defense services. The statu- 120.19 Reexport. tory authority of the President to pro- 120.20 License or other approval. mulgate regulations with respect to ex- 120.21 Manufacturing license agreement. ports of defense articles and defense 120.22 Technical assistance agreement. 120.23 Distribution agreement. services is delegated to the Secretary 120.24 Port Directors. of State by Executive Order 13637. This 120.25 Empowered Official. subchapter implements that authority, 120.26 Presiding Official. as well as other relevant authorities in 120.27 U.S. criminal statutes. the Arms Export Control Act (22 U.S.C. 120.28 Listing of forms referred to in this 2751 et seq.). By virtue of delegations of subchapter. authority by the Secretary of State, 120.29 Missile Technology Control Regime. 120.30 [Reserved] these regulations are primarily admin- 120.31 North Atlantic Treaty Organization. istered by the Deputy Assistant Sec- 120.32 Major non-NATO ally. retary of State for Defense Trade Con- 120.33 Defense Trade Cooperation Treaty be- trols, Bureau of Political-Military Af- tween the United States and Australia. fairs. 120.34 Defense Trade Cooperation Treaty be- (b)(1) Authorized officials. All authori- tween the United States and the United ties administered by the Deputy As- Kingdom. 120.35 Australia Implementing Arrange- sistant Secretary of State for Defense ment. Trade Controls pursuant to this sub- 120.36 United Kingdom Implementing Ar- chapter may be exercised at any time rangement. by the Under Secretary of State for 120.37 Foreign ownership and foreign con- Arms Control and International Secu- trol. rity or the Assistant Secretary of 120.38 Maintenance levels. State for Political-Military Affairs. 120.39 Regular employee. (2) The Deputy Assistant Secretary 120.40 Affiliate. 120.41 Specially designed. of State for Defense Trade Controls su- 120.42 Subject to the Export Administration pervises the Directorate of Defense Regulations (EAR). Trade Controls, which is comprised of 120.43 [Reserved] the following offices:

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(i) The Office of Defense Trade Con- other form of authorization to import trols Licensing and the Director, Office defense articles or defense services of Defense Trade Controls Licensing, from any agency of the U.S. Govern- which have responsibilities related to ment, who are ineligible to receive an licensing or other approvals of defense export license or other approval from trade, including references under parts any other agency of the U.S. Govern- 120, 123, 124, 125, 126, 129, and 130 of this ment, or who are subject to a Depart- subchapter. ment of State policy of denial, suspen- (ii) The Office of Defense Trade Con- sion, or revocation under § 126.7(a) of trols Compliance and the Director, Of- this subchapter, are generally ineli- fice of Defense Trade Controls Compli- gible to be involved in activities regu- ance, which have responsibilities related under the subchapter. lated to violations of law or regulation (d) The exemptions provided in this and compliance therewith, including subchapter do not apply to trans- references contained in parts 122, 126, actions in which the exporter, any 127, 128, and 130 of this subchapter, and party to the export (see § 126.7(e) of this that portion under part 129 of this sub- subchapter), any source or manufac- chapter pertaining to registration. turer, broker or other participant in (iii) The Office of Defense Trade Con- the brokering activities, is generally trols Policy and the Director, Office of ineligible as set forth in paragraph Defense Trade Controls Policy, which (c)(2) of this section, unless prior writ- have responsibilities related to the ten authorization has been granted by general policies of defense trade, in- the Directorate of Defense Trade Con- cluding references under parts 120 and trols. 126 of this subchapter, and the com- [78 FR 52684, Aug. 26, 2013, as amended at 79 modity jurisdiction procedure under FR 8084, Feb. 11, 2014] part 120 of this subchapter. (c) Receipt of licenses and eligibility. (1) § 120.2 Designation of defense articles A U.S. person may receive a license or and defense services. other approval pursuant to this sub- The Arms Export Control Act (22 chapter. A foreign person may not re- U.S.C. 2778(a) and 2794(7)) provides that ceive such a license or other approval, the President shall designate the arti- except as follows: cles and services deemed to be defense (i) A foreign governmental entity in articles and defense services for pur- the U.S. may receive a license or other poses of import or export controls. The approval; President has delegated to the Sec- (ii) A foreign person may receive a retary of State the authority to con- reexport or retransfer approval; or trol the export and temporary import (iii) A foreign person may receive a of defense articles and services. The prior approval for brokering activities. items designated by the Secretary of A request for a license or other ap- State for purposes of export and tem- proval by a U.S. person or by a person porary import control constitute the referred to in paragraphs (c)(1)(i) and U.S. Munitions List specified in part (c)(1)(iii) of this section will be consid- 121 of this subchapter. Defense articles ered only if the applicant has reg- on the U.S. Munitions List specified in istered with the Directorate of Defense part 121 of this subchapter that are also Trade Controls pursuant to part 122 or subject to permanent import control 129 of this subchapter, as appropriate. by the Attorney General on the U.S. (2) Persons who have been convicted Munitions Import List enumerated in of violating the U.S. criminal statutes 27 CFR part 447 are subject to tem- enumerated in § 120.27, who have been porary import controls administered debarred pursuant to part 127 or 128 of by the Secretary of State. Designations this subchapter, who are subject to in- of defense articles and defense services dictment or are otherwise charged are made by the Department of State (e.g., charged by criminal information with the concurrence of the Depart- in lieu of indictment) with violating ment of Defense. The scope of the U.S. the U.S. criminal statutes enumerated Munitions List shall be changed only in § 120.27, who are ineligible to con- by amendments made pursuant to sec- tract with or to receive a license or tion 38 of the Arms Export Control Act

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(22 U.S.C. 2778). For a designation or or service is subject to the controls of this determination on whether a particular subchapter. item is enumerated on the U.S. Muni- [78 FR 22753, Apr. 16, 2013] tions List, see § 120.4 of this subchapter. § 120.4 Commodity jurisdiction. [78 FR 22752, Apr. 16, 2013] (a) The commodity jurisdiction pro- § 120.3 Policy on designating or deter- cedure is used with the U.S. Govern- mining defense articles and serv- ment if doubt exists as to whether an ices on the U.S. Munitions List. article or service is covered by the U.S. (a) For purposes of this subchapter, a Munitions List. It may also be used for specific article or service may be des- consideration of a redesignation of an ignated a defense article (see § 120.6 of article or service currently covered by this subchapter) or defense service (see the U.S. Munitions List. The Depart- § 120.9 of this subchapter) if it: ment must provide notice to Congress (1) Meets the criteria of a defense ar- at least 30 days before any item is re- ticle or defense service on the U.S. Mu- moved from the U.S. Munitions List. nitions List; or Upon electronic submission of a Com- (2) Provides the equivalent perform- modity Jurisdiction (CJ) Determina- ance capabilities of a defense article on tion Form (Form DS–4076), the Direc- the U.S. Munitions List. torate of Defense Trade Controls shall (b) For purposes of this subchapter, a provide a determination of whether a specific article or service shall be de- particular article or service is covered termined in the future as a defense ar- by the U.S. Munitions List. The deter- ticle or defense service if it provides a mination, consistent with §§ 120.2, 120.3, critical military or intelligence advan- and 120.4, entails consultation among tage such that it warrants control the Departments of State, Defense, under this subchapter. Commerce, and other U.S. Government NOTE TO PARAGRAPHS (a) AND (b): An article agencies and industry in appropriate or service determined in the future pursuant cases. to this subchapter as a defense article or de- (b) Registration with the Directorate fense service, but not currently on the U.S. of Defense Trade Controls as defined in Munitions List, will be placed in U.S. Muni- tions List Category XXI until the appro- part 122 of this subchapter is not re- priate U.S. Munitions List category has been quired prior to submission of a com- amended to provide the necessary entry. modity jurisdiction request. If it is determined that the commodity is a de- (c) A specific article or service is not fense article or defense service covered a defense article or defense service for by the U.S. Munitions List, registra- purposes of this subchapter if it: tion is required for exporters, manufac- (1) Is determined to be under the ju- turers, and furnishers of such defense risdiction of another department or articles and defense services (see part agency of the U.S. Government (see 122 of this subchapter), as well as for § 120.5 of this subchapter) pursuant to a commodity jurisdiction determination brokers who are engaged in brokering (see § 120.4 of this subchapter) unless su- activities related to such articles or perseded by changes to the U.S. Muni- services. tions List or by a subsequent com- (c) Requests shall identify the article modity jurisdiction determination; or or service, and include a history of this (2) Meets one of the criteria of product’s design, development, and use. § 120.41(b) of this subchapter when the Brochures, specifications, and any article is used in or with a defense arti- other documentation related to the ar- cle and specially designed is used as a ticle or service should be submitted as control criteria (see § 120.41 of this sub- electronic attachments per the instruc- chapter). tions for Form DS–4076. (d)(1) [Reserved] NOTE TO § 120.3: The intended use of the article or service after its export (i.e., for a (2) A designation that an article or military or civilian purpose), by itself, is not service meets the criteria of a defense a factor in determining whether the article article or defense service, or provides

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the equivalent performance capabili- (f) State, Defense and Commerce will ties of a defense article on the U.S. Mu- resolve commodity jurisdiction dis- nitions List set forth in this sub- putes in accordance with established chapter, is made on a case-by-case procedures. State shall notify Defense basis by the Department of State, tak- and Commerce of the initiation and ing into account: conclusion of each case. (i) The form and fit of the article; (g) A person may appeal a commodity and jurisdiction determination by submit- (ii) The function and performance ca- ting a written request for reconsider- pability of the article. ation to the Deputy Assistant Sec- (3) A designation that an article or retary of State for Defense Trade Con- service has a critical military or intel- trols. The Deputy Assistant Sec- ligence advantage such that it war- retary’s determination of the appeal rants control under this subchapter is will be provided, in writing, within 30 made, on a case-by-case basis, by the days of receipt of the appeal. If desired, Department of State, taking into ac- an appeal of the Deputy Assistant Sec- count: retary’s decision can then be made to (i) The function and performance ca- the Assistant Secretary for Political- pability of the article; and Military Affairs. (ii) The nature of controls imposed by other nations on such items (includ- [58 FR 39283, July 22, 1993, as amended at 71 ing the Wassenaar Arrangement and FR 20536, Apr. 21, 2006; 75 FR 46843, Aug. 4, other multilateral controls). 2010; 78 FR 22753, Apr. 16, 2013; 79 FR 8084, Feb. 11, 2014] NOTE 1 TO PARAGRAPH (d): The form of a commodity is defined by its configuration § 120.5 Relation to regulations of other (including the geometrically measured con- agencies; export of items subject to figuration), material, and material prop- the EAR. erties that uniquely characterize it. The fit (a) If a defense article or service is of a commodity is defined by its ability to physically interface or connect with or be- covered by the U.S. Munitions List set come an integral part of another commodity. forth in this subchapter, its export and The function of a commodity is the action or temporary import is regulated by the actions it is designed to perform. Performance Department of State (see also § 120.2 of capability is the measure of a commodity’s this subchapter). The President has effectiveness to perform a designated func- delegated the authority to control de- tion in a given environment (e.g., measured fense articles and services for purposes in terms of speed, durability, reliability, of permanent import to the Attorney pressure, accuracy, efficiency). General. The defense articles and serv- NOTE 2 TO PARAGRAPH (d): For software, the form means the design, logic flow, and al- ices controlled by the Secretary of gorithms. The fit is defined by its ability State and the Attorney General collec- to interface or connect with a defense ar- tively comprise the U.S. Munitions ticle. The function means the action or ac- List under the Arms Export Control tions the software performs directly re- Act (AECA). As the Attorney General lated to a defense article or as a stand- exercises independent delegated au- alone application. thority to designate defense articles Performance capability means the and services for purposes of permanent measure of the software’s effectiveness import controls, the permanent import to perform a designated function. control list administered by the De- (e) The Directorate of Defense Trade partment of Justice has been sepa- Controls will provide a preliminary re- rately labeled the U.S. Munitions Im- sponse within 10 working days of re- port List (27 CFR part 447) to distin- ceipt of a complete request for com- guish it from the list set out in this modity jurisdiction. If after 45 days the subchapter. In carrying out the func- Directorate of Defense Trade Controls tions delegated to the Attorney Gen- has not provided a final commodity ju- eral pursuant to the AECA, the Attor- risdiction determination, the applicant ney General shall be guided by the may request in writing to the Director, views of the Secretary of State on mat- Office of Defense Trade Controls Policy ters affecting world peace and the ex- that this determination be given expe- ternal security and foreign policy of dited processing. the United States. The Department of

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Commerce regulates the export, reex- reached a stage in manufacturing port, and in-country transfer of items where they are clearly identifiable by on the Commerce Control List and mechanical properties, material com- other items subject to its jurisdiction, position, geometry, or function as de- as well as the provision of certain pro- fense articles. It does not include basic liferation activities, under the Export marketing information on function or Administration Regulations (EAR) (15 purpose or general system descriptions. CFR parts 730 through 774). For the relationship of this subchapter to regula- [79 FR 61227, Oct. 10, 2014] tions of the Department of Energy and § 120.7 Significant military equipment. the Nuclear Regulatory Commission, see § 123.20 of this subchapter. (a) Significant military equipment (b) A license or other approval (see means articles for which special export § 120.20) from the Department of State controls are warranted because of their granted in accordance with this sub- capacity for substantial military util- chapter may also authorize the export ity or capability. of items subject to the EAR (see (b) Significant military equipment § 120.42). An exemption (see parts 123, includes: 124, 125, and 126 of this subchapter) may (1) Items in § 121.1 of this subchapter only be used to export an item subject which are preceded by an asterisk; and to the EAR that is for use in or with a (2) All classified articles enumerated defense article and is included in the in § 121.1 of this subchapter. same shipment as any defense article. [58 FR 39283, July 22, 1993, as amended at 62 No exemption under this subchapter FR 67275, Dec. 24, 1997] may be utilized to export an item subject to the EAR if not accompanied by § 120.8 Major defense equipment. a defense article. Separate approval Pursuant to section 47(6) of the Arms from the Department of Commerce is Export Control Act (22 U.S.C. 2794(6) not required for these items. Those note), major defense equipment means items subject to the EAR exported pur- any item of significant military equip- suant to a Department of State license ment (as defined in § 120.7) on the U.S. or other approval would remain under Munitions List having a nonrecurring the jurisdiction of the Department of research and development cost of more Commerce for any subsequent trans- than $50,000,000 or a total production actions. The inclusion of items subject cost of more than $200,000,000. to the EAR on a Department of State license or other approval does not § 120.9 Defense service. change the licensing jurisdiction of the (a) Defense service means: items. (See § 123.1(b) of this subchapter (1) The furnishing of assistance (infor guidance on identifying items sub- cluding training) to foreign persons, ject to the EAR in a license application whether in the United States or abroad to the Department of State.) in the design, development, engineer- [78 FR 22753, Apr. 16, 2013; 78 FR 61754, Oct. 3, ing, manufacture, production, assem- 2013, as amended at 81 FR 54735, Aug. 17, 2016] bly, testing, repair, maintenance, modification, operation, demilitariza- § 120.6 Defense article. tion, destruction, processing or use of Defense article means any item or defense articles; technical data designated in § 121.1 of (2) The furnishing to foreign persons this subchapter. The policy described of any technical data controlled under in § 120.3 is applicable to designations this subchapter (see § 120.10), whether of additional items. This term includes in the United States or abroad; or technical data recorded or stored in (3) Military training of foreign units any physical form, models, mockups or and forces, regular and irregular, in- other items that reveal technical data cluding formal or informal instruction directly relating to items designated in of foreign persons in the United States § 121.1 of this subchapter. It also in- or abroad or by correspondence cludes forgings, castings, and other un- courses, technical, educational, or in- finished products, such as extrusions formation publications and media of and machined bodies, that have all kinds, training aid, orientation,

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training exercise, and military advice. (3) Through second class mailing (See also § 124.1.) privileges granted by the U.S. Govern- (b) [Reserved] ment; (4) At libraries open to the public or [62 FR 67275, Dec. 24, 1997] from which the public can obtain docu- § 120.10 Technical data. ments; (5) Through patents available at any (a) Technical data means, for purposes patent office; of this subchapter: (6) Through unlimited distribution at (1) Information, other than software a conference, meeting, seminar, trade as defined in § 120.10(a)(4), which is re- show or exhibition, generally acces- quired for the design, development, production, manufacture, assembly, op- sible to the public, in the United eration, repair, testing, maintenance States; or modification of defense articles. (7) Through public release (i.e., un- This includes information in the form limited distribution) in any form (e.g., of blueprints, drawings, photographs, not necessarily in published form) after plans, instructions or documentation. approval by the cognizant U.S. govern- (2) Classified information relating to ment department or agency (see also defense articles and defense services on § 125.4(b)(13) of this subchapter); the U.S. Munitions List and 600-series (8) Through fundamental research in items controlled by the Commerce science and engineering at accredited Control List; institutions of higher learning in the (3) Information covered by an inven- U.S. where the resulting information is tion secrecy order; or ordinarily published and shared broad- (4) Software (see § 120.45(f)) directly ly in the scientific community. Funda- related to defense articles. mental research is defined to mean (b) The definition in paragraph (a) of basic and applied research in science this section does not include informa- and engineering where the resulting in- tion concerning general scientific, formation is ordinarily published and mathematical, or engineering prin- shared broadly within the scientific ciples commonly taught in schools, community, as distinguished from re- colleges, and universities, or informa- search the results of which are re- tion in the public domain as defined in stricted for proprietary reasons or spe- § 120.11 of this subchapter or telemetry cific U.S. Government access and dis- data as defined in note 3 to Category semination controls. University re- XV(f) of part 121 of this subchapter. It search will not be considered funda- also does not include basic marketing mental research if: information on function or purpose or (i) The University or its researchers general system descriptions of defense accept other restrictions on publica- articles. tion of scientific and technical infor- [58 FR 39283, July 22, 1993, as amended at 61 mation resulting from the project or FR 48831, Sept. 17, 1996; 71 FR 20537, Apr. 21, activity, or 2006; 78 FR 22754, Apr. 16, 2013; 78 FR 61754, (ii) The research is funded by the Oct. 3, 2013; 79 FR 61227, Oct. 10, 2014; 79 FR U.S. Government and specific access 27185, May 13, 2014] and dissemination controls protecting § 120.11 Public domain. information resulting from the research are applicable. (a) Public domain means information (b) [Reserved] which is published and which is generally accessible or available to the § 120.12 Directorate of Defense Trade public: Controls. (1) Through sales at newsstands and Directorate of Defense Trade Con- bookstores; trols, Bureau of Political-Military Af- (2) Through subscriptions which are fairs, Department of State, Wash- available without restriction to any in- ington, DC 20522–0112. dividual who desires to obtain or pur- chase the published information; [71 FR 20537, Apr. 21, 2006]

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§ 120.13 United States. governments (e.g., diplomatic mis- sions). United States, when used in the geo- graphical sense, includes the several [71 FR 20537, Apr. 21, 2006] states, the Commonwealth of Puerto Rico, the insular possessions of the § 120.17 Export. United States, the District of Colum- (a) Export, except as set forth in bia, the Commonwealth of the North- § 120.54, § 126.16, or § 126.17, means: ern Mariana Islands, any territory or (1) An actual shipment or trans- possession of the United States, and mission out of the United States, in- any territory or possession over which cluding the sending or taking of a de- the United States exercises any powers fense article out of the United States of administration, legislation, and ju- in any manner; risdiction. (2) Releasing or otherwise transferring technical data to a foreign person § 120.14 Person. in the United States (a ‘‘deemed ex- Person means a natural person as port’’); well as a corporation, business associa- (3) Transferring registration, control, tion, partnership, society, trust, or any or ownership of any aircraft, vessel, or other entity, organization or group, in- satellite subject to the ITAR by a U.S. cluding governmental entities. If a pro- person to a foreign person; vision in this subchapter does not refer (4) Releasing or otherwise transfer- exclusively to a foreign person (§ 120.16) ring a defense article to an embassy or or U.S. person (§ 120.15), then it refers to any of its agencies or subdivisions, to both. such as a diplomatic mission or con- sulate, in the United States; § 120.15 U.S. person. (5) Performing a defense service on U.S. person means a person (as de- behalf of, or for the benefit of, a foreign fined in § 120.14 of this part) who is a person, whether in the United States or lawful permanent resident as defined abroad; or by 8 U.S.C. 1101(a)(20) or who is a pro- (6) The release of previously tected individual as defined by 8 U.S.C. encrypted technical data as described 1324b(a)(3). It also means any corpora- in § 120.50(a)(3) and (4) of this sub- tion, business association, partnership, chapter. society, trust, or any other entity, or- (b) Any release in the United States ganization or group that is incor- of technical data to a foreign person is porated to do business in the United deemed to be an export to all countries States. It also includes any govern- in which the foreign person has held or mental (federal, state or local) entity. holds citizenship or holds permanent It does not include any foreign person residency. as defined in § 120.16 of this part. [81 FR 35616, June 3, 2016, as amended at 84 [71 FR 20537, Apr. 21, 2006] FR 70892, Dec. 26, 2019]

§ 120.16 Foreign person. § 120.18 Temporary import. Foreign person means any natural Temporary import, except as set forth person who is not a lawful permanent in § 120.54, means bringing into the resident as defined by 8 U.S.C. United States from a foreign country 1101(a)(20) or who is not a protected in- any defense article that is to be re- dividual as defined by 8 U.S.C. turned to the country from which it 1324b(a)(3). It also means any foreign was shipped or taken, or any defense corporation, business association, part- article that is in transit to another for- nership, trust, society or any other en- eign destination. Temporary import in- tity or group that is not incorporated cludes withdrawal of a defense article or organized to do business in the from a customs bonded warehouse or United States, as well as international foreign trade zone for the purpose of re- organizations, foreign governments and turning it to the country of origin or any agency or subdivision of foreign country from which it was shipped or

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for shipment to another foreign des- § 120.21 Manufacturing license agree- tination. Permanent imports are regu- ment. lated by the Attorney General under An agreement (e.g., contract) where- the direction of the Department of Jus- by a U.S. person grants a foreign per- tice’s Bureau of Alcohol, Tobacco, son an authorization to manufacture Firearms, and Explosives (see 27 CFR parts 447, 478, 479, and 555). defense articles abroad and which involves or contemplates: [84 FR 70892, Dec. 26, 2019] (a) The export of technical data (as defined in § 120.10) or defense articles or § 120.19 Reexport. the performance of a defense service; or (a) Reexport, except as set forth in (b) The use by the foreign person of § 120.54, § 126.16, or § 126.17, means: technical data or defense articles pre- (1) An actual shipment or trans- viously exported by the U.S. person. mission of a defense article from one (See part 124 of this subchapter). foreign country to another foreign country, including the sending or tak- § 120.22 Technical assistance agree- ing of a defense article to or from such ment. countries in any manner; (2) Releasing or otherwise transfer- An agreement (e.g., contract) for the ring technical data to a foreign person performance of a defense service(s) or who is a citizen or permanent resident the disclosure of technical data, as op- of a country other than the foreign posed to an agreement granting a right country where the release or transfer or license to manufacture defense arti- takes place (a ‘‘deemed reexport’’); or cles. Assembly of defense articles is in- (3) Transferring registration, control, cluded under this section, provided pro- or ownership of any aircraft, vessel, or duction rights or manufacturing know- satellite subject to the ITAR between how are not conveyed. Should such foreign persons. rights be transferred, § 120.21 is applica- (b) Any release outside the United ble. (See part 124 of this subchapter). States of technical data to a foreign person is deemed to be a reexport to all § 120.23 Distribution agreement. countries in which the foreign person An agreement (e.g., a contract) to es- has held or holds citizenship or holds tablish a warehouse or distribution permanent residency. point abroad for defense articles ex- [81 FR 35616, June 3, 2016, as amended at 81 ported from the United States for sub- FR 62008, Sept. 8, 2016; 84 FR 70892, Dec. 26, sequent distribution to entities in an 2019] approved sales territory (see part 124 of this subchapter). § 120.20 License or other approval. License means a document bearing § 120.24 Port Directors. the word ‘‘license’’ issued by the Dep- Port Directors of U.S. Customs and Bor- uty Assistant Secretary of State for der Protection means the U.S. Customs Defense Trade Controls, or his author- and Border Protection Port Directors ized designee, that permits the export, at the U.S. Customs and Border Protec- temporary import, or brokering of a tion Ports of Entry (other than the specific defense article or defense serv- port of New York, New York where ice controlled by this subchapter. their title is the Area Directors). Other approval means a document issued by the Deputy Assistant Sec- [70 FR 50959, Aug. 29, 2005] retary of State for Defense Trade Con- trols, or his authorized designee, that § 120.25 Empowered Official. approves an activity regulated by this (a) Empowered Official means a U.S. subchapter (e.g., approvals for person who: brokering activities or retransfer au- (1) Is directly employed by the appli- thorizations), or the use of an exemp- cant or a subsidiary in a position hav- tion to the license requirements as de- ing authority for policy or manage- scribed in this subchapter. ment within the applicant organiza- [79 FR 8084, Feb. 11, 2014] tion; and

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(2) Is legally empowered in writing by (4) Section 16 of the Trading with the the applicant to sign license applica- Enemy Act (50 U.S.C. app. 16); tions or other requests for approval on (5) Section 206 of the International behalf of the applicant; and Emergency Economic Powers Act (re- (3) Understands the provisions and lating to foreign assets controls; 50 requirements of the various export con- U.S.C. 1705); trol statutes and regulations, and the (6) Section 30A of the Securities Ex- criminal liability, civil liability and change Act of 1934 (15 U.S.C. 78dd–1) or administrative penalties for violating section 104 of the Foreign Corrupt the Arms Export Control Act and the Practices Act (15 U.S.C. 78dd–2 or 78dd– International Traffic in Arms Regula- 3); tions; and (7) Chapter 105 of title 18, United (4) Has the independent authority to: States Code (relating to sabotage); (i) Inquire into any aspect of a pro- (8) Section 4(b) of the Internal Secu- posed export, temporary import, or rity Act of 1950 (relating to commu- brokering activity by the applicant; nication of classified information; 50 (ii) Verify the legality of the trans- U.S.C. 783(a)); action and the accuracy of the infor- (9) Sections 57, 92, 101, 104, 222, 224, mation to be submitted; and 225, or 226 of the Atomic Energy Act of (iii) Refuse to sign any license appli- 1954 (42 U.S.C. 2077, 2122, 2131, 2134, 2272, cation or other request for approval 2274, 2275, and 2276); without prejudice or other adverse re- (10) Section 601 of the National Secu- course. rity Act of 1947 (relating to intelligence (b) For the purposes of a broker who identities protection; 50 U.S.C. 421); is a foreign person, the empowered offi- (11) [Reserved] cial may be a foreign person who other- (12) Section 371 of title 18, United wise meets the criteria for an empow- States Code (when it involves con- ered official in paragraph (a) of this spiracy to violate any of the statutes section. listed in this section); [58 FR 39283, July 22, 1993, as amended at 78 (13) Sections 3, 4, 5, and 6 of the Intel- FR 52685, Aug. 26, 2013] ligence Reform and Terrorism Preven- tion Act of 2004, Public Law 108–458 sec- § 120.26 Presiding Official. tions 6903–6906, relating to missile sys- Presiding Official means a person au- tems designed to destroy aircraft (18 thorized by the U.S. Government to U.S.C. 2332g), prohibitions governing conduct hearings in administrative atomic weapons (42 U.S.C. 2122), radio- proceedings. logical dispersal services (18 U.S.C. 2332h), and variola virus (18 U.S.C. § 120.27 U.S. criminal statutes. 175c); (a) For purposes of this subchapter, (14) Sections 2779 and 2780 of title 22, the phrase U.S. criminal statutes means: United States Code (relating to fees of (1) Section 38 of the Arms Export military sales agents and other pay- Control Act (22 U.S.C. 2778); ments, and transactions with countries (2) Section 11 of the Export Adminis- supporting acts of international ter- tration Act of 1979 (50 U.S.C. app. 2410); rorism); (3) Section 793, 794, or 798 of title 18, (15) Section 542 of title 18, United United States Code (relating to espio- States Code (relating to the entry of nage involving defense or classified in- goods by means of false statements), formation) or section 2332d, 2339A, where the underlying offense involves a 2339B, 2339C, or 2339D of such title (re- defense article, including technical lating to financial transactions with data, or violations related to the Arms the government of a country des- Export Control Act or International ignated as a country supporting inter- Traffic in Arms Regulations; national terrorism, providing material (16) Section 545 of title 18, United support to terrorists or terrorist orga- States Code (relating to smuggling nizations, financing of terrorism, or re- goods into the United States), where ceiving military-type training from a the underlying offense involves a de- foreign terrorist organization); fense article, including technical data,

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or violations related to the Arms Ex- the Foreign Military Sales program port Control Act or International Traf- (Form DSP–94). fic in Arms Regulations; (8) Commodity Jurisdiction (CJ) De- (17) Section 554 of title 18, United termination Form (Form DS–4076). States Code (relating to smuggling (b) Department of Commerce, Bureau goods from the United States), where of Industry and Security: the underlying offense involves a de- (1) International Import Certificate fense article, including technical data, (Form BIS–645P/ATF–4522). or violations related to the Arms Ex- (2) Electronic Export Information port Control Act or International Traf- submitted using U.S. Customs and Bor- fic in Arms Regulations; and der Protection’s electronic system(s). (18) Section 1001 of title 18, United (c) Department of Defense, Defense States Code (relating to false state- Security Cooperation Agency: Letter of ments or entries generally), Section Offer and Acceptance. 1831 of title 18, United States Code (re- [58 FR 39283, July 22, 1993, as amended at 68 lating to economic espionage), and Sec- FR 61100, Oct. 27, 2003; 71 FR 20537, Apr. 21, tion 1832 of title 18, United States Code 2006; 75 FR 46844, Aug. 4, 2010; 76 FR 45197, (relating to theft of trade secrets) July 28, 2011; 77 FR 16597, Mar. 21, 2012; 77 FR where the underlying offense involves a 22670, Apr. 17, 2012; 82 FR 17, Jan. 3, 2017] defense article, including technical data, or violations related to the Arms § 120.29 Missile Technology Control Regime. Export Control Act or International Traffic in Arms Regulations. (a) For purposes of this subchapter, (b) [Reserved] Missile Technology Control Regime (MTCR) means the policy statement [58 FR 39283, July 22, 1993, as amended at 71 among the United States, the United FR 20537, Apr. 21, 2006; 78 FR 52685, Aug. 26, Kingdom, the Federal Republic of Ger- 2013] many, France, Italy, Canada, and § 120.28 Listing of forms referred to in Japan, announced on April 16, 1987, to this subchapter. restrict sensitive missile-relevant transfers based on the MTCR Annex, The forms referred to in this sub- and any amendments thereto. chapter are available from the fol- (b) The term MTCR Annex means the lowing government agencies: MTCR Guidelines and the Equipment, (a) Department of State, Bureau of Software and Technology Annex of the Political-Military Affairs, Directorate MTCR, and any amendments thereto. of Defense Trade Controls, Washington, (c) List of all items on the MTCR DC 20522–0112. Annex. Section 71(a) of the Arms Ex- (1) Application/License for perma- port Control Act (22 U.S.C. 2797) refers nent export of unclassified defense ar- to the establishment as part of the U.S. ticles and related technical data (Form Munitions List of a list of all items on DSP–5). the MTCR Annex, the export of which (2) Statement of Registration (Form is not controlled under Section 6(1) of DS–2032). the Export Administration Act of 1979 (3) Application/License for temporary (50 U.S.C. App. 2405(1)), as amended. import of unclassified defense articles MTCR Annex items specified in the (Form DSP–61). U.S. Munitions List shall be identified (4) Application/License for temporary in § 121.16 of this subchapter or anno- export of unclassified defense articles tated by the parenthetical ‘‘(MT)’’ at (Form DSP–73). the end of each applicable paragraph. (5) Non-transfer and use certificate [78 FR 22754, Apr. 16, 2013; 78 FR 61754, Oct. 3, (Form DSP–83). 2013] (6) Application/License for permanent/temporary export or temporary § 120.30 [Reserved] import of classified defense articles and related classified technical data § 120.31 North Atlantic Treaty Organi- (Form DSP–85). zation. (7) Authority to Export Defense Arti- North Atlantic Treaty Organization cles and Defense Services sold under (NATO) is comprised of the following

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member countries: Albania, Belgium, Northern Ireland Concerning Defense Bulgaria, Canada, Croatia, Czech Re- Trade Cooperation, done at Washington public, Denmark, Estonia, France, Ger- DC and London, June 21 and 26, 2007. many, Greece, Hungary, Iceland, Italy, For additional information on making Latvia, Lithuania, Luxembourg, The exports pursuant to this Treaty, see Netherlands, Norway, Poland, Por- § 126.17 of this subchapter. tugal, Romania, Slovakia, Slovenia, [77 FR 16597, Mar. 21, 2012] Spain, Turkey, United Kingdom, and the United States. § 120.35 Australia Implementing Ar- [77 FR 22670, Apr. 17, 2012] rangement. Australia Implementing Arrangement § 120.32 Major non-NATO ally. means the Implementing Arrangement Major non-NATO ally, as defined in Pursuant to the Treaty between the section 644(q) of the Foreign Assistance Government of the United States of Act of 1961 (22 U.S.C. 2403(q)), means a America and the Government of Aus- country that is designated in accord- tralia Concerning Defense Trade Co- ance with section 517 of the Foreign operation, done at Washington, March Assistance Act of 1961 (22 U.S.C. 2321k) 14, 2008, as it may be amended. as a major non-NATO ally for purposes [78 FR 21526, Apr. 11, 2013] of the Foreign Assistance Act of 1961 and the Arms Export Control Act (22 § 120.36 United Kingdom Imple- U.S.C. 2151 et seq. and 22 U.S.C. 2751 et menting Arrangement. seq.). The following countries are des- United Kingdom Implementing Arrange- ignated as major non-NATO allies: Af- ment means the Implementing Arrange- ghanistan (see § 126.1(g) of this sub- ment Pursuant to the Treaty between chapter), Argentina, Australia, Bah- the Government of the United States of rain, Egypt, Israel, Japan, Jordan, Ku- America and the Government of the wait, Morocco, New Zealand, Pakistan, United Kingdom of Great Britain and the Philippines, Republic of Korea, Northern Ireland Concerning Defense Thailand, and Tunisia. Taiwan shall be Trade Cooperation, done at Washington treated as though it were designated a DC, February 14, 2008, as it may be major non-NATO ally. amended. [81 FR 66805, Sept. 29, 2016] [77 FR 16597, Mar. 21, 2012] § 120.33 Defense Trade Cooperation Treaty between the United States § 120.37 Foreign ownership and for- and Australia. eign control. Defense Trade Cooperation Treaty be- Foreign ownership means more than tween the United States and Australia 50 percent of the outstanding voting se- means the Treaty between the Govern- curities of the firm are owned by one or ment of the United States of America more foreign persons (as defined in and the Government of Australia Con- § 120.16). Foreign control means one or cerning Defense Trade Cooperation, more foreign persons have the author- done at Sydney, September 5, 2007. For ity or ability to establish or direct the additional information on making ex- general policies or day-to-day oper- ports pursuant to this treaty, see ations of the firm. Foreign control is § 126.16 of this subchapter. presumed to exist where foreign persons own 25 percent or more of the out- [78 FR 21526, Apr. 11, 2013] standing voting securities unless one U.S. person controls an equal or larger § 120.34 Defense Trade Cooperation Treaty between the United States percentage. and the United Kingdom. [76 FR 45197, July 28, 2011] Defense Trade Cooperation Treaty between the United States and the United § 120.38 Maintenance levels. Kingdom means the Treaty between the (a) Organizational-level maintenance Government of the United States of (or basic-level maintenance) is the first America and the Government of the level of maintenance that can be per- United Kingdom of Great Britain and formed ‘‘on-equipment’’ (directly on

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the defense article or support equip- (1) An individual permanently and di- ment) without specialized training. It rectly employed by the company, or consists of repairing, inspecting, serv- (2) An individual in a long term con- icing, calibrating, lubricating, or ad- tractual relationship with the company justing equipment, as well as replacing where the individual works at the com- minor parts, components, assemblies, pany’s facilities, works under the com- and line-replaceable spares or units. pany’s direction and control, works full This includes modifications, enhance- time and exclusively for the company, ments, or upgrades that would result in and executes nondisclosure certifi- improving only the reliability or main- cations for the company, and where the tainability of the commodity (e.g., an staffing agency that has seconded the increased mean time between failure individual has no role in the work the (MTBF)) and does not enhance the individual performs (other than pro- basic performance or capability of the viding that individual for that work) defense article. and the staffing agency would not have (b) Intermediate-level maintenance is access to any controlled technology second-level maintenance performed (other than where specifically author- ‘‘off-equipment’’ (on removed parts, ized by a license). components, or equipment) at or by (b) [Reserved] designated maintenance shops or cen- [76 FR 28177, May 16, 2011] ters, tenders, or field teams. It may consist of calibrating, repairing, test- § 120.40 Affiliate. ing, or replacing damaged or unservice- able parts, components, or assemblies. An affiliate of a registrant is a person This includes modifications, enhance- that directly, or indirectly through one ments, or upgrades that would result in or more intermediaries, controls, or is improving only the reliability or main- controlled by, or is under common con- tainability of the commodity (e.g., an trol with, such registrant. increased mean time between failure NOTE TO § 120.40: For purposes of this sec- (MTBF)) and does not enhance the tion, ‘‘control’’ means having the authority basic performance or capability of the or ability to establish or direct the general defense article. policies or day-to-day operations of the firm. (c) Depot-level maintenance is third- Control is rebuttably presumed to exist where there is ownership of 25 percent or level maintenance performed on- or off- more of the outstanding voting securities if equipment at or by a major repair fa- no other person controls an equal or larger cility, shipyard, or field team, each percentage. with necessary equipment and per- sonnel of requisite technical skill. It [78 FR 52686, Aug. 26, 2013] consists of providing evaluation or re- § 120.41 Specially designed. pair beyond unit or organization capability. This maintenance consists of in- (a) Except for commodities or soft- specting, testing, calibrating, repair- ware described in paragraph (b) of this ing, overhauling, refurbishing, recondi- section, a commodity or software (see tioning, and one-to-one replacing of § 120.45(f)) is specially designed if it: any defective parts, components or as- (1) As a result of development, has semblies. This includes modifications, properties peculiarly responsible for enhancements, or upgrades that would achieving or exceeding the controlled result in improving only the reliability performance levels, characteristics, or or maintainability of the commodity functions described in the relevant U.S. (e.g., an increased mean time between Munitions List paragraph; or failure (MTBF)) and does not enhance (2) Is a part (see § 120.45 (d)), compo- the basic performance or capability of nent (see § 120.45(b)), accessory (see the defense article. § 120.45(c)), attachment (see § 120.45(c)), or software for use in or with a defense [78 FR 40927, July 8, 2013] article. (b) For purposes of this subchapter, a § 120.39 Regular employee. part, component, accessory, attach- (a) A regular employee means for ment, or software is not specially de- purposes of this subchapter: signed if it:

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(1) Is subject to the EAR pursuant to ized design ready for large scale production) a commodity jurisdiction determina- and have been or are being produced on an tion; assembly line for multiple commodities (2) Is, regardless of form or fit, a fas- using the approved, standardized design. NOTE 2 TO PARAGRAPH (b)(3): For the pur- tener (e.g., screws, bolts, nuts, nut pose of this definition, ‘‘development’’ is re- plates, studs, inserts, clips, rivets, lated to all stages prior to serial production, pins), washer, spacer, insulator, grom- such as: design, design research, design anal- met, bushing, spring, wire, or solder; yses, design concepts, assembly and testing (3) Has the same function, perform- of prototypes, pilot production schemes, de- ance capabilities, and the same or sign data, process of transforming design ‘‘equivalent’’ form and fit as a com- data into a product, configuration design, integration design, layouts. modity or software used in or with a NOTE 3 TO PARAGRAPH (b)(3): Commodities commodity that: in ‘‘production’’ that are subsequently sub- (i) Is or was in production (i.e., not in ject to ‘‘development’’ activities, such as development); and those that would result in enhancements or (ii) Is not enumerated on the U.S. improvements only in the reliability or Munitions List; maintainability of the commodity (e.g., an (4) Was or is being developed with increased mean time between failure (MTBF)), including those pertaining to qual- knowledge that it is or would be for use ity improvements, cost reductions, or fea- in or with both defense articles enu- ture enhancements, remain in ‘‘production.’’ merated on the U.S. Munitions List However, any new models or versions of such and also commodities not on the U.S. commodities developed from such efforts Munitions List; or that change the basic performance or capa- (5) Was or is being developed as a bility of the commodity are in ‘‘develop- general purpose commodity or soft- ment’’ until and unless they enter into ‘‘production.’’ ware, i.e., with no knowledge for use in NOTE 4 TO PARAGRAPH (b)(3): The form of a or with a particular commodity (e.g., a commodity is defined by its configuration F/A–18 or HMMWV) or type of com- (including the geometrically measured con- modity (e.g., an aircraft or machine figuration), material, and material prop- tool). erties that uniquely characterize it. The fit of a commodity is defined by its ability to NOTE TO PARAGRAPHS (a) AND (b): The term physically interface or connect with or be- ‘‘commodity’’ refers to any article, material, come an integral part of another commodity. or supply, except technology/technical data The function of a commodity is the action or or software. actions it is designed to perform. Performance NOTE TO PARAGRAPH (a)(1): An example of a capability is the measure of a commodity’s commodity that as a result of development effectiveness to perform a designated func- has properties peculiarly responsible for tion in a given environment (e.g., measured achieving or exceeding the controlled per- in terms of speed, durability, reliability, formance levels, functions, or characteristics pressure, accuracy, efficiency). For software, in a U.S. Munitions List category would be a the form means the design, logic flow, and al- swimmer delivery vehicle specially designed gorithms. The fit is defined by its ability to to dock with a submarine to provide sub- interface or connect with a defense article. merged transport for swimmers or divers The function means the action or actions the from submarines. software performs directly related to a de- NOTE TO PARAGRAPH (b): The term ‘‘enu- fense article or as a standalone application. merated’’ refers to any article on the U.S. Performance capability means the measure of Munitions List or the Commerce Control the software’s effectiveness to perform a des- List and not in a ‘‘catch-all’’ control. A ignated function. ‘‘catch-all’’ control is one that does not refer NOTE 5 TO PARAGRAPH (b)(3): With respect to specific types of parts, components, acces- to a commodity, ‘‘equivalent’’ means its sories, or attachments, but rather controls form has been modified solely for fit pur- unspecified parts, components, accessories, poses. or attachments only if they were specially NOTE 1 TO PARAGRAPHS (b)(4) AND (5): For a designed for an enumerated item. defense article not to be specially designed NOTE 1 TO PARAGRAPH (b)(3): For the pur- on the basis of paragraph (b)(4) or (5) of this pose of this definition, ‘‘production’’ means section, documents contemporaneous with all production stages, such as product engi- its development, in their totality, must es- neering, manufacture, integration, assembly tablish the elements of paragraph (b)(4) or (mounting), inspection, testing, and quality (5). Such documents may include concept de- assurance. This includes ‘‘serial production’’ sign information, marketing plans, declara- where commodities have passed production tions in patent applications, or contracts. readiness testing (i.e., an approved, standard- Absent such documents, the commodity may

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not be excluded from being specially de- with an end-item. A major component signed by either paragraph (b)(4) or (5). includes any assembled element that NOTE 2 TO PARAGRAPHS (b)(4) AND (5): For forms a portion of an end-item without the purpose of this definition, ‘‘knowledge’’ which the end-item is inoperable. A includes not only the positive knowledge a circumstance exists or is substantially cer- minor component includes any assem- tain to occur, but also an awareness of a high bled element of a major component. probability of its existence or future occur- (c) Accessories and attachments are as- rence. Such awareness is inferred from evi- sociated articles for any component, dence of the conscious disregard of facts equipment, system, or end-item, and known to a person and is also inferred from which are not necessary for its oper- a person’s willful avoidance of facts. ation, but which enhance its usefulness [78 FR 22754, Apr. 16, 2013; 78 FR 61754, Oct. 3, or effectiveness. 2013, as amended at 79 FR 61227, Oct. 10, 2014] (d) A part is any single unassembled element of a major or a minor compo- § 120.42 Subject to the Export Adminis- nent, accessory, or attachment which tration Regulations (EAR). is not normally subject to disassembly Items ‘‘subject to the EAR’’ are those without the destruction or the impair- items listed on the Commerce Control ment of designed use. List in part 774 of the EAR and all (e) Firmware and any related unique other items that meet the definition of support tools (such as computers, link- that term in accordance with § 734.3 of ers, editors, test case generators, diag- the EAR. The EAR is found at 15 CFR nostic checkers, library of functions, parts 730 through 774. and system test diagnostics) directly related to equipment or systems cov- [78 FR 22755, Apr. 16, 2013] ered under any category of the U.S. § 120.43 [Reserved] Munitions List are considered as part of the end-item or component. § 120.44 Foreign defense article or de- Firmware includes but is not limited to fense service. circuits into which software has been Foreign defense article or defense serv- programmed. ice means any article or service de- (f) Software includes but is not lim- scribed on the U.S. Munitions List of ited to the system functional design, non-U.S. origin. Unless otherwise pro- logic flow, algorithms, application provided in this subchapter, the terms de- grams, operating systems, and support fense article and defense service refer to software for design, implementation, both U.S. and foreign origin defense ar- test, operation, diagnosis and repair. A ticles and defense services described on person who intends to export only soft- the U.S. Munitions List. A defense arti- ware should, unless it is specifically cle or defense service is determined ex- enumerated in § 121.1 of this subchapter clusively in accordance with the Arms (e.g., USML Category XIII(b)), apply Export Control Act and this sub- for a technical data license pursuant to chapter, regardless of any designation part 125 of this subchapter. (either affirming or contrary) that may (g) A system is a combination of be attributed to the same article or parts, components, accessories, attach- service by any foreign government or ments, firmware, software, equipment, international organization. or end-items that operate together to perform a function. [78 FR 52686, Aug. 26, 2013] Note to paragraph (g): The industrial § 120.45 End-items, components, acces- standards established by INCOSE and sories, attachments, parts, NASA provide examples for when com- firmware, software, systems, and modities and software operate together equipment. to perform a function as a system. Ref- (a) An end-item is a system, equip- erences to these standards are included ment, or an assembled article ready for in this note to provide examples for its intended use. Only ammunition or when commodities or software operate fuel or other energy source is required together to perform a function as a to place it in an operating state. system. See the INCOSE standards for (b) A component is an item that is what constitutes a system at: http:// useful only when used in conjunction g2sebok.incose.org/app/mss/asset.cfm?

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ID=INCOSE%20G2SEBOK%202.00&ST=F, viewing, or possession of the and in INCOSE SE Handbook v3.1 2007; unencrypted technical data. ISO/IEC 15288:2008. See the NASA [81 FR 35616, June 3, 2016, as amended at 84 standards for examples of what con- FR 70892, Dec. 26, 2019] stitutes a system in NASA SE Hand- book SP–2007–6105 Rev 1. § 120.51 Retransfer. (h) Equipment is a combination of (a) Retransfer, except as set forth in § 120.54, § 126.16, or § 126.17, means: parts, components, accessories, attach- (1) A change in end use or end user, ments, firmware, or software that oper- or a temporary transfer to a third ate together to perform a function of, party, of a defense article within the as, or for an end-item or system. same foreign country; or Equipment may be a subset of an end- (2) A release of technical data to a item based on the characteristics of foreign person who is a citizen or per- the equipment. Equipment that meets manent resident of the country where the definition of an end-item is an end- the release or transfer takes place. item. Equipment that does not meet (b) [Reserved] the definition of an end-item is a com- [81 FR 62008, Sept. 8, 2016, as amended at 84 ponent, accessory, attachment, FR 70892, Dec. 26, 2019] firmware, or software. §§ 120.52–120.53 [Reserved] [79 FR 61228, Oct. 10, 2014] § 120.54 Activities that are not exports, § 120.46 Classified. reexports, retransfers, or temporary Classified means classified pursuant imports. to Executive Order 13526, and a secu- (a) The following activities are not rity classification guide developed pur- exports, reexports, retransfers, or tem- suant thereto or equivalent, or to the porary imports: corresponding classification rules of (1) Launching a spacecraft, launch another government or international vehicle, payload, or other item into organization. space. (2) Transmitting or otherwise trans- [81 FR 87429, Dec. 5, 2016] ferring technical data to a U.S. person in the United States from a person in § 120.50 Release. the United States. (a) Technical data is released (3) Transmitting or otherwise trans- through: ferring within the same foreign coun- (1) Visual or other inspection by for- try technical data between or among eign persons of a defense article that only U.S. persons, so long as the trans- reveals technical data to a foreign per- mission or transfer does not result in a son; release to a foreign person or transfer to a person prohibited from receiving (2) Oral or written exchanges with the technical data. foreign persons of technical data in the (4) Shipping, moving, or transferring United States or abroad; defense articles between or among the (3) The use of access information to United States as defined in § 120.13 of cause or enable a foreign person, in- this subchapter. cluding yourself, to access, view, or (5) Sending, taking, or storing tech- possess unencrypted technical data; or nical data that is: (4) The use of access information to (i) Unclassified; cause technical data outside of the (ii) Secured using end-to-end United States to be in unencrypted encryption; form. (iii) Secured using cryptographic (b) Authorization for a release of modules (hardware or software) com- technical data to a foreign person is re- pliant with the Federal Information quired to provide access information to Processing Standards Publication 140–2 that foreign person, if that access in- (FIPS 140–2) or its successors, supple- formation can cause or enable access, mented by software implementation, cryptographic key management, and

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other procedures and controls that are PART 121—THE UNITED STATES in accordance with guidance provided MUNITIONS LIST in current U.S. National Institute for Standards and Technology (NIST) pub- ENUMERATION OF ARTICLES lications, or by other cryptographic Sec. means that provide security strength 121.1 The United States Munitions List. that is at least comparable to the min- 121.2–121.15 [Reserved] imum 128 bits of security strength 121.16 Missile Technology Control Regime achieved by the Advanced Encryption Annex. Standard (AES–128); AUTHORITY: Secs. 2, 38, and 71, Pub. L. 90– (iv) Not intentionally sent to a per- 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 son in or stored in a country proscribed U.S.C. 2651a; Pub. L. 105–261, 112 Stat. 1920; in § 126.1 of this subchapter or the Rus- Section 1261, Pub. L. 112–239; E.O. 13637, 78 FR 16129. sian Federation; and SOURCE: 58 FR 39287, July 22, 1993, unless NOTE TO PARAGRAPH (a)(5)(iv): Data in- transit via the internet is not deemed to be otherwise noted. stored. ENUMERATION OF ARTICLES (v) Not sent from a country proscribed in § 126.1 of this subchapter or § 121.1 The United States Munitions the Russian Federation. List. (b)(1) For purposes of this section, (a) U.S. Munitions List. In this part, end-to-end encryption is defined as: articles, services, and related technical (i) The provision of cryptographic data are designated as defense articles protection of data, such that the data or defense services pursuant to sections is not in an unencrypted form, between 38 and 47(7) of the Arms Export Control an originator (or the originator’s in- Act and constitute the U.S. Munitions country security boundary) and an in- List (USML). Changes in designations tended recipient (or the recipient’s in- are published in the FEDERAL REG- country security boundary); and ISTER. Paragraphs (a)(1) through (3) of (ii) The means of decryption are not this section describe or explain the ele- provided to any third party. ments of a USML category: (1) Composition of U.S. Munitions List (2) The originator and the intended categories. USML categories are orga- recipient may be the same person. The nized by paragraphs and subparagraphs intended recipient must be the origi- identified alphanumerically. They usu- nator, a U.S. person in the United ally start by enumerating or otherwise States, or a person otherwise author- describing end-items, followed by ized to receive the technical data, such major systems and equipment; parts, as by a license or other approval pursu- components, accessories, and attach- ant to this subchapter. ments; and technical data and defense (c) The ability to access technical services directly related to the defense data in encrypted form that satisfies articles of that USML category. the criteria set forth in paragraph (2) Significant Military Equipment. All (a)(5) of this section does not con- items described within a USML para- stitute the release or export of such graph or subparagraph that is preceded technical data. by an asterisk (*) are designated ‘‘Sig- nificant Military Equipment’’ (see [84 FR 70892, Dec. 26, 2019] § 120.7 of this subchapter). Note that technical data directly related to the § 120.55 Access Information. manufacture or production of a defense Access information is information article designated as Significant Mili- that allows access to encrypted tech- tary Equipment (SME) is also des- nical data subject to this subchapter in ignated as SME. an unencrypted form. Examples include (3) Missile Technology Control Regime decryption keys, network access codes, (MTCR) designation. Annotation with and passwords. the parenthetical ‘‘(MT)’’ at the end of a USML entry, or inclusion in § 121.16, [84 FR 70893, Dec. 26, 2019] indicates those defense articles that

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