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Department of State § 120.38

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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: 453 VerDate Sep<11>2014 10:03 Sep 16, 2020 Jkt 250079 PO 00000 Frm 00463 Fmt 8010 Sfmt 8010 Y:\SGML\250079.XXX 250079 § 120.2 22 CFR Ch. I (4–1–20 Edition) (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 re- lated 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 454 VerDate Sep<11>2014 10:03 Sep 16, 2020 Jkt 250079 PO 00000 Frm 00464 Fmt 8010 Sfmt 8010 Y:\SGML\250079.XXX 250079 Department of State § 120.4 (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.
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