[Reserved] SUBCHAPTER M—INTERNATIONAL TRAFFIC in ARMS REGULATIONS

Department of State § 120.1 Subchapter L [Reserved] SUBCHAPTER M—INTERNATIONAL TRAFFIC IN ARMS REGULATIONS

PART 120—PURPOSE AND 120.42 Subject to the Export Administration Regulations (EAR). DEFINITIONS 120.43 [Reserved] 120.44 Foreign defense article or defense Sec. service. 120.1 General authorities, receipt of li- 120.45 End-items, components, accessories, censes, and ineligibility. attachments, parts, firmware, software, 120.2 Designation of defense articles and de- systems, and equipment. fense services. 120.3 Policy on designating or determining AUTHORITY: Secs. 2, 38, and 71, Pub. L. 90– defense articles and services on the U.S. 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 Munitions List. U.S.C. 2794; 22 U.S.C. 2651a; Pub. L. 105–261, 120.4 Commodity jurisdiction. 112 Stat. 1920; Pub. L. 111–266; Section 1261, 120.5 Relation to regulations of other agen- Pub. L. 112–239; E.O. 13637, 78 FR 16129. cies. SOURCE: 58 FR 39283, July 22, 1993, unless 120.6 Defense article. otherwise noted. 120.7 Significant military equipment. 120.8 Major defense equipment. § 120.1 General authorities, receipt of 120.9 Defense service. licenses, and ineligibility. 120.10 Technical data. 120.11 Public domain. (a) Section 38 of the Arms Export 120.12 Directorate of Defense Trade Con- Control Act (22 U.S.C. 2778), as amend- trols. ed, authorizes the President to control 120.13 United States. the export and import of defense arti- 120.14 Person. cles and defense services. The statu- 120.15 U.S. person. tory authority of the President to pro- 120.16 Foreign person. mulgate regulations with respect to ex- 120.17 Export. 120.18 Temporary import. ports of defense articles and defense 120.19 Reexport or retransfer. services is delegated to the Secretary 120.20 License or other approval. of State by Executive Order 13637. This 120.21 Manufacturing license agreement. subchapter implements that authority, 120.22 Technical assistance agreement. as well as other relevant authorities in 120.23 Distribution agreement. the Arms Export Control Act (22 U.S.C. 120.24 Port Directors. 2751 et seq.). By virtue of delegations of 120.25 Empowered Official. authority by the Secretary of State, 120.26 Presiding Official. 120.27 U.S. criminal statutes. these regulations are primarily admin- 120.28 Listing of forms referred to in this istered by the Deputy Assistant Sec- subchapter. retary of State for Defense Trade Con- 120.29 Missile Technology Control Regime. trols, Bureau of Political-Military Af- 120.30 The Automated Export System fairs. (AES). (b)(1) Authorized officials. All authori- 120.31 North Atlantic Treaty Organization. ties administered by the Deputy As- 120.32 Major non-NATO ally. sistant Secretary of State for Defense 120.33 Defense Trade Cooperation Treaty between the United States and Australia. Trade Controls pursuant to this sub- 120.34 Defense Trade Cooperation Treaty be- chapter may be exercised at any time tween the United States and the United by the Under Secretary of State for Kingdom. Arms Control and International Secu- 120.35 Australia Implementing Arrange- rity or the Assistant Secretary of ment. State for Political-Military Affairs. 120.36 United Kingdom Implementing Ar- (2) The Deputy Assistant Secretary rangement. of State for Defense Trade Controls su- 120.37 Foreign ownership and foreign con- pervises the Directorate of Defense trol. 120.38 Maintenance levels. Trade Controls, which is comprised of 120.39 Regular employee. the following offices: 120.40 Affiliate. (i) The Office of Defense Trade Con- 120.41 Specially designed. trols Licensing and the Director, Office

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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 other form of authorization to import (22 U.S.C. 2778). For a designation or defense articles or defense services determination on whether a particular

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item is enumerated on the U.S. Muni- § 120.4 Commodity jurisdiction. tions List, see § 120.4 of this subchapter. (a) The commodity jurisdiction pro- [78 FR 22752, Apr. 16, 2013] cedure is used with the U.S. Govern- ment if doubt exists as to whether an § 120.3 Policy on designating or deter- article or service is covered by the U.S. mining defense articles and serv- Munitions List. It may also be used for ices on the U.S. Munitions List. consideration of a redesignation of an (a) For purposes of this subchapter, a article or service currently covered by specific article or service may be des- the U.S. Munitions List. The Depart- ignated a defense article (see § 120.6 of ment must provide notice to Congress this subchapter) or defense service (see at least 30 days before any item is re- § 120.9 of this subchapter) if it: moved from the U.S. Munitions List. (1) Meets the criteria of a defense ar- Upon electronic submission of a Com- ticle or defense service on the U.S. Mu- modity Jurisdiction (CJ) Determina- nitions List; or tion Form (Form DS–4076), the Direc- (2) Provides the equivalent perform- torate of Defense Trade Controls shall ance capabilities of a defense article on provide a determination of whether a the U.S. Munitions List. particular article or service is covered (b) For purposes of this subchapter, a by the U.S. Munitions List. The deter- specific article or service shall be de- mination, consistent with §§ 120.2, 120.3, termined in the future as a defense ar- and 120.4, entails consultation among ticle or defense service if it provides a the Departments of State, Defense, critical military or intelligence advan- Commerce, and other U.S. Government tage such that it warrants control agencies and industry in appropriate under this subchapter. cases.

NOTE TO PARAGRAPHS (a) AND (b): An article (b) Registration with the Directorate or service determined in the future pursuant of Defense Trade Controls as defined in to this subchapter as a defense article or depart 122 of this subchapter is not re- fense service, but not currently on the U.S. quired prior to submission of a com- Munitions List, will be placed in U.S. Muni- modity jurisdiction request. If it is de- tions List Category XXI until the appro- termined that the commodity is a de- priate U.S. Munitions List category has been fense article or defense service covered amended to provide the necessary entry. by the U.S. Munitions List, registra- (c) A specific article or service is not tion is required for exporters, manufac- a defense article or defense service for turers, and furnishers of such defense purposes of this subchapter if it: articles and defense services (see part (1) Is determined to be under the ju- 122 of this subchapter), as well as for risdiction of another department or brokers who are engaged in brokering agency of the U.S. Government (see activities related to such articles or § 120.5 of this subchapter) pursuant to a services. commodity jurisdiction determination (c) Requests shall identify the article (see § 120.4 of this subchapter) unless su- or service, and include a history of this perseded by changes to the U.S. Muni- product’s design, development, and use. tions List or by a subsequent com- Brochures, specifications, and any modity jurisdiction determination; or other documentation related to the ar- (2) Meets one of the criteria of ticle or service should be submitted as § 120.41(b) of this subchapter when the electronic attachments per the instruc- article is used in or with a defense arti- tions for Form DS–4076. cle and specially designed is used as a (d)(1) [Reserved] control criteria (see § 120.41 of this sub- (2) A designation that an article or chapter). service meets the criteria of a defense NOTE TO § 120.3: The intended use of the ar- article or defense service, or provides ticle or service after its export (i.e., for a the equivalent performance capabili- military or civilian purpose), by itself, is not ties of a defense article on the U.S. Mu- a factor in determining whether the article nitions List set forth in this sub- or service is subject to the controls of this chapter, is made on a case-by-case subchapter. basis by the Department of State, tak- [78 FR 22753, Apr. 16, 2013] ing into account:

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(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 cating 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 FR 20536, Apr. 21, 2006; 75 FR 46843, Aug. 4, ing the Wassenaar Arrangement and 2010; 78 FR 22753, Apr. 16, 2013; 79 FR 8084, other multilateral controls). 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. figuration), material, and material prop- (a) If a defense article or service is erties that uniquely characterize it. The fit covered by the U.S. Munitions List set of a commodity is defined by its ability to forth in this subchapter, its export and physically interface or connect with or become an integral part of another commodity. temporary import is regulated by the The function of a commodity is the action or Department of State (see also § 120.2 of actions it is designed to perform. Performance this subchapter). The President has capability is the measure of a commodity’s delegated the authority to control de- effectiveness to perform a designated func- fense articles and services for purposes tion in a given environment (e.g., measured of permanent import to the Attorney in terms of speed, durability, reliability, General. The defense articles and serv- pressure, accuracy, efficiency). ices controlled by the Secretary of NOTE 2 TO PARAGRAPH (d): For software, the form means the design, logic flow, and al- State and the Attorney General collec- gorithms. The fit is defined by its ability tively comprise the U.S. Munitions to interface or connect with a defense ar- List under the Arms Export Control ticle. The function means the action or ac- Act (AECA). As the Attorney General tions the software performs directly re- exercises independent delegated au- lated to a defense article or as a stand- thority to designate defense articles alone application. and services for purposes of permanent Performance capability means the import controls, the permanent import measure of the software’s effectiveness control list administered by the De- to perform a designated function. partment of Justice has been sepa- (e) The Directorate of Defense Trade rately labeled the U.S. Munitions Im- Controls will provide a preliminary report List (27 CFR part 447) to distin- sponse within 10 working days of re- guish it from the list set out in this ceipt of a complete request for com- subchapter. In carrying out the func- modity jurisdiction. If after 45 days the tions delegated to the Attorney Gen- Directorate of Defense Trade Controls eral pursuant to the AECA, the Attor- has not provided a final commodity ju- ney General shall be guided by the risdiction determination, the applicant views of the Secretary of State on mat- may request in writing to the Director, ters affecting world peace and the ex- Office of Defense Trade Controls Policy ternal security and foreign policy of that this determination be given expe- the United States. The Department of dited processing. Commerce regulates the export, reex- (f) State, Defense and Commerce will port, and in-country transfer of items resolve commodity jurisdiction dis- on the Commerce Control List and putes in accordance with established other items subject to its jurisdiction, procedures. State shall notify Defense as well as the provision of certain pro- and Commerce of the initiation and liferation activities, under the Export conclusion of each case. Administration Regulations (EAR) (15

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CFR parts 730 through 774). For the re- capacity for substantial military util- lationship of this subchapter to regula- ity or capability. tions of the Department of Energy and (b) Significant military equipment the Nuclear Regulatory Commission, includes: see § 123.20 of this subchapter. (1) Items in § 121.1 of this subchapter (b) A license or other approval from which are preceded by an asterisk; and the Department of State granted in ac- (2) All classified articles enumerated cordance with this subchapter may in § 121.1 of this subchapter. also authorize the export of items sub- [58 FR 39283, July 22, 1993, as amended at 62 ject to the EAR (see § 120.42 of this sub- FR 67275, Dec. 24, 1997] chapter). Separate approval from the Department of Commerce is not re- § 120.8 Major defense equipment. quired for these items when approved Pursuant to section 47(6) of the Arms for export under a Department of State Export Control Act (22 U.S.C. 2794(6) license or other approval. Those items note), major defense equipment means subject to the EAR exported pursuant any item of significant military equip- to a Department of State license or ment (as defined in § 120.7) on the U.S. other approval would remain under the Munitions List having a nonrecurring jurisdiction of the Department of Com- research and development cost of more merce for any subsequent transactions. than $50,000,000 or a total production The inclusion of items subject to the cost of more than $200,000,000. EAR on a Department of State license or approval does not change the juris- § 120.9 Defense service. diction of the items. (See § 123.1(b) of (a) Defense service means: this subchapter for guidance on identi- (1) The furnishing of assistance (in- fying items subject to the EAR in a li- cluding training) to foreign persons, cense application to the Department of whether in the United States or abroad State.) in the design, development, engineer- [78 FR 22753, Apr. 16, 2013; 78 FR 61754, Oct. 3, ing, manufacture, production, assem- 2013] 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, reached a stage in manufacturing training exercise, and military advice. where they are clearly identifiable by (See also § 124.1.) mechanical properties, material com- (b) [Reserved] position, geometry, or function as de- [62 FR 67275, Dec. 24, 1997] fense articles. It does not include basic marketing information on function or § 120.10 Technical data. purpose or general system descriptions. (a) Technical data means, for purposes [79 FR 61227, Oct. 10, 2014] of this subchapter: (1) Information, other than software § 120.7 Significant military equipment. as defined in § 120.10(a)(4), which is re- (a) Significant military equipment quired for the design, development, means articles for which special export production, manufacture, assembly, op- controls are warranted because of their eration, repair, testing, maintenance

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or modification of defense articles. not necessarily in published form) after This includes information in the form approval by the cognizant U.S. govern- of blueprints, drawings, photographs, ment department or agency (see also plans, instructions or documentation. § 125.4(b)(13) of this subchapter); (2) Classified information relating to (8) Through fundamental research in defense articles and defense services on science and engineering at accredited the U.S. Munitions List and 600-series institutions of higher learning in the items controlled by the Commerce U.S. where the resulting information is Control List; ordinarily published and shared broad- (3) Information covered by an inven- ly in the scientific community. Funda- tion secrecy order; or mental research is defined to mean (4) Software (see § 120.45(f)) directly related to defense articles. basic and applied research in science (b) The definition in paragraph (a) of and engineering where the resulting in- this section does not include informa- formation is ordinarily published and tion concerning general scientific, shared broadly within the scientific mathematical, or engineering prin- community, as distinguished from re- ciples commonly taught in schools, search the results of which are re- colleges, and universities, or informa- stricted for proprietary reasons or spe- tion in the public domain as defined in cific U.S. Government access and dis- § 120.11 of this subchapter or telemetry semination controls. University re- data as defined in note 3 to Category search will not be considered funda- XV(f) of part 121 of this subchapter. It mental research if: also does not include basic marketing (i) The University or its researchers information on function or purpose or accept other restrictions on publica- general system descriptions of defense tion of scientific and technical infor- articles. mation resulting from the project or [58 FR 39283, July 22, 1993, as amended at 61 activity, or FR 48831, Sept. 17, 1996; 71 FR 20537, Apr. 21, (ii) The research is funded by the 2006; 78 FR 22754, Apr. 16, 2013; 78 FR 61754, U.S. Government and specific access Oct. 3, 2013; 79 FR 61227, Oct. 10, 2014; 79 FR and dissemination controls protecting 27185, May 13, 2014] information resulting from the re- § 120.11 Public domain. search are applicable. (a) Public domain means information (b) [Reserved] which is published and which is gen- § 120.12 Directorate of Defense Trade erally accessible or available to the Controls. public: (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- [71 FR 20537, Apr. 21, 2006] chase the published information; (3) Through second class mailing § 120.13 United States. privileges granted by the U.S. Govern- ment; United States, when used in the geo- (4) At libraries open to the public or graphical sense, includes the several from which the public can obtain docu- states, the Commonwealth of Puerto ments; Rico, the insular possessions of the (5) Through patents available at any United States, the District of Colum- patent office; bia, the Commonwealth of the North- (6) Through unlimited distribution at ern Mariana Islands, any territory or a conference, meeting, seminar, trade possession of the United States, and show or exhibition, generally acces- any territory or possession over which sible to the public, in the United the United States exercises any powers States; of administration, legislation, and ju- (7) Through public release (i.e., un- risdiction. limited distribution) in any form (e.g.,

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§ 120.14 Person. the U.S. Munitions List, whether in the United States or abroad; or Person means a natural person as well as a corporation, business associa- (3) Disclosing (including oral or vis- tion, partnership, society, trust, or any ual disclosure) or transferring in the other entity, organization or group, in- United States any defense article to an cluding governmental entities. If a pro- embassy, any agency or subdivision of vision in this subchapter does not refer a foreign government (e.g., diplomatic exclusively to a foreign person (§ 120.16) missions); or or U.S. person (§ 120.15), then it refers (4) Disclosing (including oral or vis- to both. ual disclosure) or transferring technical data to a foreign person, whether § 120.15 U.S. person. in the United States or abroad; or U.S. person means a person (as de- (5) Performing a defense service on fined in § 120.14 of this part) who is a behalf of, or for the benefit of, a foreign lawful permanent resident as defined person, whether in the United States or by 8 U.S.C. 1101(a)(20) or who is a pro- abroad. tected individual as defined by 8 U.S.C. (6) A launch vehicle or payload shall 1324b(a)(3). It also means any corpora- not, by reason of the launching of such tion, business association, partnership, vehicle, be considered an export for society, trust, or any other entity, or- purposes of this subchapter. However, ganization or group that is incor- for certain limited purposes (see § 126.1 porated to do business in the United of this subchapter), the controls of this States. It also includes any govern- subchapter may apply to any sale, mental (federal, state or local) entity. transfer or proposal to sell or transfer It does not include any foreign person defense articles or defense services. as defined in § 120.16 of this part. (b) [Reserved] [71 FR 20537, Apr. 21, 2006] § 120.18 Temporary import. § 120.16 Foreign person. Temporary import means bringing into the United States from a foreign coun- Foreign person means any natural try any defense article that is to be re- person who is not a lawful permanent turned to the country from which it resident as defined by 8 U.S.C. was shipped or taken, or any defense 1101(a)(20) or who is not a protected in- article that is in transit to another for- dividual as defined by 8 U.S.C. eign destination. Temporary import in- 1324b(a)(3). It also means any foreign cludes withdrawal of a defense article corporation, business association, part- from a customs bonded warehouse or nership, trust, society or any other en- foreign trade zone for the purpose of re- tity or group that is not incorporated turning it to the country of origin or or organized to do business in the country from which it was shipped or United States, as well as international for shipment to another foreign des- organizations, foreign governments and tination. Permanent imports are regu- any agency or subdivision of foreign lated by the Attorney General under governments (e.g., diplomatic mis- the direction of the Department of Jus- sions). tice’s Bureau of Alcohol, Tobacco, [71 FR 20537, Apr. 21, 2006] Firearms, and Explosives (see 27 CFR parts 447, 478, 479, and 555). § 120.17 Export. [71 FR 20537, Apr. 21, 2006] (a) Export means: (1) Sending or taking a defense arti- § 120.19 Reexport or retransfer. cle out of the United States in any Reexport or retransfer means the manner, except by mere travel outside transfer of defense articles or defense of the United States by a person whose services to an end-use, end-user, or des- personal knowledge includes technical tination not previously authorized by data; or license, written approval, or exemption (2) Transferring registration, control pursuant to this subchapter. or ownership to a foreign person of any aircraft, vessel, or satellite covered by [77 FR 16597, Mar. 21, 2012]

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§ 120.20 License or other approval. § 120.24 Port Directors. License means a document bearing Port Directors of U.S. Customs and Bor- the word ‘‘license’’ issued by the Dep- der Protection means the U.S. Customs uty Assistant Secretary of State for and Border Protection Port Directors Defense Trade Controls, or his author- at the U.S. Customs and Border Protec- ized designee, that permits the export, tion Ports of Entry (other than the temporary import, or brokering of a port of New York, New York where specific defense article or defense serv- their title is the Area Directors). ice controlled by this subchapter. Other approval means a document [70 FR 50959, Aug. 29, 2005] issued by the Deputy Assistant Sec- retary of State for Defense Trade Con- § 120.25 Empowered Official. trols, or his authorized designee, that (a) Empowered Official means a U.S. approves an activity regulated by this person who: subchapter (e.g., approvals for (1) Is directly employed by the appli- brokering activities or retransfer au- cant or a subsidiary in a position hav- thorizations), or the use of an exemp- ing authority for policy or manage- tion to the license requirements as de- ment within the applicant organiza- scribed in this subchapter. tion; and [79 FR 8084, Feb. 11, 2014] (2) Is legally empowered in writing by the applicant to sign license applica- § 120.21 Manufacturing license agree- tions or other requests for approval on ment. behalf of the applicant; and An agreement (e.g., contract) where- (3) Understands the provisions and by a U.S. person grants a foreign per- requirements of the various export con- son an authorization to manufacture trol statutes and regulations, and the defense articles abroad and which in- criminal liability, civil liability and volves or contemplates: administrative penalties for violating (a) The export of technical data (as the Arms Export Control Act and the defined in § 120.10) or defense articles or International Traffic in Arms Regula- the performance of a defense service; or tions; and (b) The use by the foreign person of (4) Has the independent authority to: technical data or defense articles previously exported by the U.S. person. (i) Inquire into any aspect of a pro- (See part 124 of this subchapter). posed export, temporary import, or brokering activity by the applicant; § 120.22 Technical assistance agree- (ii) Verify the legality of the trans- ment. action and the accuracy of the infor- An agreement (e.g., contract) for the mation to be submitted; and performance of a defense service(s) or (iii) Refuse to sign any license appli- the disclosure of technical data, as op- cation or other request for approval posed to an agreement granting a right without prejudice or other adverse re- or license to manufacture defense arti- course. cles. Assembly of defense articles is in- (b) For the purposes of a broker who cluded under this section, provided pro- is a foreign person, the empowered offi- duction rights or manufacturing know- cial may be a foreign person who other- how are not conveyed. Should such wise meets the criteria for an empow- rights be transferred, § 120.21 is applica- ered official in paragraph (a) of this ble. (See part 124 of this subchapter). section. § 120.23 Distribution agreement. [58 FR 39283, July 22, 1993, as amended at 78 An agreement (e.g., a contract) to es- FR 52685, Aug. 26, 2013] tablish a warehouse or distribution § 120.26 Presiding Official. point abroad for defense articles exported from the United States for sub- Presiding Official means a person au- sequent distribution to entities in an thorized by the U.S. Government to approved sales territory (see part 124 of conduct hearings in administrative this subchapter). proceedings.

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§ 120.27 U.S. criminal statutes. (14) Sections 2779 and 2780 of title 22, (a) For purposes of this subchapter, United States Code (relating to fees of the phrase U.S. criminal statutes means: military sales agents and other pay- (1) Section 38 of the Arms Export ments, and transactions with countries Control Act (22 U.S.C. 2778); supporting acts of international ter- (2) Section 11 of the Export Adminis- rorism); tration Act of 1979 (50 U.S.C. app. 2410); (15) Section 542 of title 18, United (3) Section 793, 794, or 798 of title 18, States Code (relating to the entry of United States Code (relating to espio- goods by means of false statements), nage involving defense or classified in- where the underlying offense involves a formation) or section 2332d, 2339A, defense article, including technical 2339B, 2339C, or 2339D of such title (re- data, or violations related to the Arms lating to financial transactions with Export Control Act or International the government of a country des- Traffic in Arms Regulations; ignated as a country supporting inter- (16) Section 545 of title 18, United national terrorism, providing material States Code (relating to smuggling support to terrorists or terrorist organizations, 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, (4) Section 16 of the Trading with the or violations related to the Arms Ex- Enemy Act (50 U.S.C. app. 16); port Control Act or International Traf- (5) Section 206 of the International fic in Arms Regulations; Emergency Economic Powers Act (re- (17) Section 554 of title 18, United lating to foreign assets controls; 50 States Code (relating to smuggling U.S.C. 1705); goods from the United States), where (6) Section 30A of the Securities Ex- the underlying offense involves a de- change Act of 1934 (15 U.S.C. 78dd–1) or fense article, including technical data, section 104 of the Foreign Corrupt or violations related to the Arms Ex- Practices Act (15 U.S.C. 78dd–2 or 78dd– port Control Act or International Traf- 3); fic in Arms Regulations; and (7) Chapter 105 of title 18, United (18) Section 1001 of title 18, United States Code (relating to sabotage); States Code (relating to false state- (8) Section 4(b) of the Internal Secu- ments or entries generally), Section rity Act of 1950 (relating to commu- 1831 of title 18, United States Code (re- nication of classified information; 50 U.S.C. 783(a)); lating to economic espionage), and Sec- (9) Sections 57, 92, 101, 104, 222, 224, tion 1832 of title 18, United States Code 225, or 226 of the Atomic Energy Act of (relating to theft of trade secrets) 1954 (42 U.S.C. 2077, 2122, 2131, 2134, 2272, where the underlying offense involves a 2274, 2275, and 2276); defense article, including technical (10) Section 601 of the National Secu- data, or violations related to the Arms rity Act of 1947 (relating to intelligence Export Control Act or International identities protection; 50 U.S.C. 421); Traffic in Arms Regulations. (11) [Reserved] (b) [Reserved] (12) Section 371 of title 18, United States Code (when it involves con- [58 FR 39283, July 22, 1993, as amended at 71 spiracy to violate any of the statutes FR 20537, Apr. 21, 2006; 78 FR 52685, Aug. 26, 2013] listed in this section); (13) Sections 3, 4, 5, and 6 of the Intel- § 120.28 Listing of forms referred to in ligence Reform and Terrorism Preven- this subchapter. tion Act of 2004, Public Law 108–458 sections 6903–6906, relating to missile sys- The forms referred to in this sub- tems designed to destroy aircraft (18 chapter are available from the fol- U.S.C. 2332g), prohibitions governing lowing government agencies: atomic weapons (42 U.S.C. 2122), radio- (a) Department of State, Bureau of logical dispersal services (18 U.S.C. Political-Military Affairs, Directorate 2332h), and variola virus (18 U.S.C. of Defense Trade Controls, Washington, 175c); DC 20522–0112.

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(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 The Automated Export System import of classified defense articles (AES). and related classified technical data The Automated Export System (AES) (Form DSP–85). is the Department of Commerce, Bu- (7) Authority to Export Defense Arti- reau of Census, electronic filing of ex- cles and Defense Services sold under port information. The AES shall serve the Foreign Military Sales program as the primary system for collection of (Form DSP–94). export data for the Department of (8) Commodity Jurisdiction (CJ) De- State. In accordance with this sub- termination Form (Form DS–4076). chapter U.S. exporters are required to (b) Department of Commerce, Bureau report export information using AES of Industry and Security: for all hardware exports. Exports of (1) International Import Certificate technical data and defense services (Form BIS–645P/ATF–4522). shall be reported directly to the Direc- (2) Electronic Export Information torate of Defense Trade Controls filed via the Automated Export Sys- (DDTC). Also, requests for special re- tem. porting may be made by DDTC on a (c) Department of Defense, Defense case-by-case basis, (e.g., compliance, Security Cooperation Agency: Letter of enforcement, congressional mandates). Offer and Acceptance. [68 FR 61100, Oct. 27, 2003] [58 FR 39283, July 22, 1993, as amended at 68 FR 61100, Oct. 27, 2003; 71 FR 20537, Apr. 21, § 120.31 North Atlantic Treaty Organi- 2006; 75 FR 46844, Aug. 4, 2010; 76 FR 45197, zation. July 28, 2011; 77 FR 16597, Mar. 21, 2012; 77 FR North Atlantic Treaty Organization 22670, Apr. 17, 2012] (NATO) is comprised of the following § 120.29 Missile Technology Control member countries: Albania, Belgium, Regime. Bulgaria, Canada, Croatia, Czech Re- public, Denmark, Estonia, France, Ger- (a) For purposes of this subchapter, many, Greece, Hungary, Iceland, Italy, Missile Technology Control Regime Latvia, Lithuania, Luxembourg, The (MTCR) means the policy statement Netherlands, Norway, Poland, Por- among the United States, the United tugal, Romania, Slovakia, Slovenia, Kingdom, the Federal Republic of Ger- Spain, Turkey, United Kingdom, and many, France, Italy, Canada, and the United States. Japan, announced on April 16, 1987, to restrict sensitive missile-relevant [77 FR 22670, Apr. 17, 2012] transfers based on the MTCR Annex, and any amendments thereto. § 120.32 Major non-NATO ally. (b) The term MTCR Annex means the Major non-NATO ally, as defined in MTCR Guidelines and the Equipment, section 644(q) of the Foreign Assistance Software and Technology Annex of the Act of 1961 (22 U.S.C. 2403(q)), means a MTCR, and any amendments thereto. country that is designated in accord- (c) List of all items on the MTCR ance with section 517 of the Foreign Annex. Section 71(a) of the Arms Ex- Assistance Act of 1961 (22 U.S.C.

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2321(k)) as a major non-NATO ally for operation, done at Washington, March purposes of the Foreign Assistance Act 14, 2008, as it may be amended. of 1961 and the Arms Export Control [78 FR 21526, Apr. 11, 2013] Act (22 U.S.C. 2151 et seq. and 22 U.S.C. 2751 et seq.). The following countries § 120.36 United Kingdom Imple- are designated as major non-NATO al- menting Arrangement. lies: Afghanistan (see § 126.1(g) of this United Kingdom Implementing Arrange- subchapter), Argentina, Australia, ment means the Implementing Arrange- Bahrain, Egypt, Israel, Japan, Jordan, ment Pursuant to the Treaty between Kuwait, Morocco, New Zealand, Paki- the Government of the United States of stan, the Philippines, Thailand, and America and the Government of the Republic of Korea. Taiwan shall be United Kingdom of Great Britain and treated as though it were designated a Northern Ireland Concerning Defense major non-NATO ally. Trade Cooperation, done at Washington DC, February 14, 2008, as it may be [77 FR 76865, Dec. 31, 2012] amended. § 120.33 Defense Trade Cooperation [77 FR 16597, Mar. 21, 2012] Treaty between the United States and Australia. § 120.37 Foreign ownership and foreign 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 per- [78 FR 21526, Apr. 11, 2013] sons own 25 percent or more of the outstanding voting securities unless one § 120.34 Defense Trade Cooperation U.S. person controls an equal or larger 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 Northern Ireland Concerning Defense the defense article or support equip- Trade Cooperation, done at Washington ment) without specialized training. It DC and London, June 21 and 26, 2007. consists of repairing, inspecting, serv- For additional information on making icing, calibrating, lubricating, or ad- exports pursuant to this Treaty, see justing equipment, as well as replacing § 126.17 of this subchapter. minor parts, components, assemblies, and line-replaceable spares or units. [77 FR 16597, Mar. 21, 2012] This includes modifications, enhancements, or upgrades that would result in § 120.35 Australia Implementing Ar- improving only the reliability or main- rangement. tainability of the commodity (e.g., an Australia Implementing Arrangement increased mean time between failure means the Implementing Arrangement (MTBF)) and does not enhance the Pursuant to the Treaty between the basic performance or capability of the Government of the United States of defense article. America and the Government of Aus- (b) Intermediate-level maintenance is tralia Concerning Defense Trade Co- second-level maintenance performed

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‘‘off-equipment’’ (on removed parts, (b) [Reserved] components, or equipment) at or by [76 FR 28177, May 16, 2011] designated maintenance shops or cen- ters, tenders, or field teams. It may § 120.40 Affiliate. consist of calibrating, repairing, test- An affiliate of a registrant is a person ing, or replacing damaged or unservice- that directly, or indirectly through one able parts, components, or assemblies. or more intermediaries, controls, or is This includes modifications, enhance- controlled by, or is under common con- ments, or upgrades that would result in trol with, such registrant. improving only the reliability or maintainability of the commodity (e.g., an NOTE TO § 120.40: For purposes of this sec- increased mean time between failure tion, ‘‘control’’ means having the authority (MTBF)) and does not enhance the or ability to establish or direct the general basic performance or capability of the policies or day-to-day operations of the firm. defense article. Control is rebuttably presumed to exist where there is ownership of 25 percent or (c) Depot-level maintenance is third- more of the outstanding voting securities if level maintenance performed on- or off- no other person controls an equal or larger equipment at or by a major repair fa- percentage. cility, shipyard, or field team, each [78 FR 52686, Aug. 26, 2013] with necessary equipment and personnel of requisite technical skill. It § 120.41 Specially designed. consists of providing evaluation or re- (a) Except for commodities or soft- pair beyond unit or organization capa- ware described in paragraph (b) of this bility. This maintenance consists of in- section, a commodity or software (see specting, testing, calibrating, repair- § 120.45(f)) is specially designed if it: ing, overhauling, refurbishing, recondi- (1) As a result of development, has tioning, and one-to-one replacing of properties peculiarly responsible for any defective parts, components or as- achieving or exceeding the controlled semblies. This includes modifications, performance levels, characteristics, or enhancements, or upgrades that would functions described in the relevant U.S. result in improving only the reliability Munitions List paragraph; or or maintainability of the commodity (2) Is a part (see § 120.45 (d)), compo- (e.g., an increased mean time between nent (see § 120.45(b)), accessory (see failure (MTBF)) and does not enhance § 120.45(c)), attachment (see § 120.45(c)), the basic performance or capability of or software for use in or with a defense the defense article. article. [78 FR 40927, July 8, 2013] (b) For purposes of this subchapter, a part, component, accessory, attach- § 120.39 Regular employee. ment, or software is not specially de- (a) A regular employee means for signed if it: purposes of this subchapter: (1) Is subject to the EAR pursuant to (1) An individual permanently and di- a commodity jurisdiction determina- rectly employed by the company, or tion; (2) An individual in a long term con- (2) Is, regardless of form or fit, a fas- tractual relationship with the company tener (e.g., screws, bolts, nuts, nut where the individual works at the com- plates, studs, inserts, clips, rivets, pany’s facilities, works under the com- pins), washer, spacer, insulator, grom- pany’s direction and control, works full met, bushing, spring, wire, or solder; time and exclusively for the company, (3) Has the same function, perform- and executes nondisclosure certifi- ance capabilities, and the same or cations for the company, and where the ‘‘equivalent’’ form and fit as a com- staffing agency that has seconded the modity or software used in or with a individual has no role in the work the commodity that: individual performs (other than pro- (i) Is or was in production (i.e., not in viding that individual for that work) development); and and the staffing agency would not have (ii) Is not enumerated on the U.S. access to any controlled technology Munitions List; (other than where specifically author- (4) Was or is being developed with ized by a license). knowledge that it is or would be for use

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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 capability of the commodity are in ‘‘develop- (5) Was or is being developed as a ment’’ until and unless they enter into general purpose commodity or soft- ‘‘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 purpose of this definition, ‘‘production’’ means on the basis of paragraph (b)(4) or (5) of this all production stages, such as product engi- section, documents contemporaneous with neering, manufacture, integration, assembly its development, in their totality, must es- (mounting), inspection, testing, and quality tablish the elements of paragraph (b)(4) or assurance. This includes ‘‘serial production’’ (5). Such documents may include concept de- where commodities have passed production sign information, marketing plans, declara- readiness testing (i.e., an approved, standard- tions in patent applications, or contracts. ized design ready for large scale production) Absent such documents, the commodity may and have been or are being produced on an not be excluded from being specially de- assembly line for multiple commodities signed by either paragraph (b)(4) or (5). using the approved, standardized design. NOTE 2 TO PARAGRAPHS (b)(4) AND (5): For NOTE 2 TO PARAGRAPH (b)(3): For the pur- the purpose of this definition, ‘‘knowledge’’ pose of this definition, ‘‘development’’ is re- includes not only the positive knowledge a lated to all stages prior to serial production, circumstance exists or is substantially cer- such as: design, design research, design anal- tain to occur, but also an awareness of a high yses, design concepts, assembly and testing probability of its existence or future occur- of prototypes, pilot production schemes, de- rence. Such awareness is inferred from evi- sign data, process of transforming design dence of the conscious disregard of facts data into a product, configuration design, in- known to a person and is also inferred from tegration design, layouts. a person’s willful avoidance of facts. NOTE 3 TO PARAGRAPH (b)(3): Commodities [78 FR 22754, Apr. 16, 2013; 78 FR 61754, Oct. 3, in ‘‘production’’ that are subsequently sub- 2013, as amended at 79 FR 61227, Oct. 10, 2014] ject to ‘‘development’’ activities, such as those that would result in enhancements or § 120.42 Subject to the Export Adminis- improvements only in the reliability or tration Regulations (EAR). maintainability of the commodity (e.g., an increased mean time between failure Items ‘‘subject to the EAR’’ are those (MTBF)), including those pertaining to qual- items listed on the Commerce Control ity improvements, cost reductions, or fea- List in part 774 of the EAR and all

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other items that meet the definition of (e) Firmware and any related unique that term in accordance with § 734.3 of support tools (such as computers, link- the EAR. The EAR is found at 15 CFR ers, editors, test case generators, diag- parts 730 through 774. nostic checkers, library of functions, [78 FR 22755, Apr. 16, 2013] and system test diagnostics) directly related to equipment or systems cov- § 120.43 [Reserved] ered under any category of the U.S. Munitions List are considered as part § 120.44 Foreign defense article or de- of the end-item or component. fense service. Firmware includes but is not limited to Foreign defense article or defense serv- circuits into which software has been ice means any article or service de- programmed. scribed on the U.S. Munitions List of (f) Software includes but is not lim- non-U.S. origin. Unless otherwise pro- ited to the system functional design, vided in this subchapter, the terms de- logic flow, algorithms, application pro- fense article and defense service refer to grams, operating systems, and support both U.S. and foreign origin defense ar- software for design, implementation, ticles and defense services described on test, operation, diagnosis and repair. A the U.S. Munitions List. A defense arti- person who intends to export only soft- cle or defense service is determined ex- ware should, unless it is specifically clusively in accordance with the Arms enumerated in § 121.1 of this subchapter Export Control Act and this sub- (e.g., USML Category XIII(b)), apply chapter, regardless of any designation for a technical data license pursuant to (either affirming or contrary) that may part 125 of this subchapter. be attributed to the same article or (g) A system is a combination of service by any foreign government or parts, components, accessories, attach- international organization. ments, firmware, software, equipment, [78 FR 52686, Aug. 26, 2013] or end-items that operate together to perform a function. § 120.45 End-items, components, acces- Note to paragraph (g): The industrial sories, attachments, parts, firmware, software, systems, and standards established by INCOSE and equipment. NASA provide examples for when commodities and software operate together (a) An end-item is a system, equip- to perform a function as a system. Ref- ment, or an assembled article ready for erences to these standards are included its intended use. Only ammunition or in this note to provide examples for fuel or other energy source is required when commodities or software operate to place it in an operating state. together to perform a function as a (b) A component is an item that is system. See the INCOSE standards for useful only when used in conjunction with an end-item. A major component what constitutes a system at: http:// includes any assembled element that g2sebok.incose.org/app/mss/asset.cfm?ID= forms a portion of an end-item without INCOSE%20G2SEBOK%202.00&ST=F, which the end-item is inoperable. A and in INCOSE SE Handbook v3.1 2007; minor component includes any assem- ISO/IEC 15288:2008. See the NASA bled element of a major component. standards for examples of what con- (c) Accessories and attachments are as- stitutes a system in NASA SE Hand- sociated articles for any component, book SP–2007–6105 Rev 1. equipment, system, or end-item, and (h) Equipment is a combination of which are not necessary for its oper- parts, components, accessories, attach- ation, but which enhance its usefulness ments, firmware, or software that oper- or effectiveness. ate together to perform a function of, (d) A part is any single unassembled as, or for an end-item or system. element of a major or a minor compo- Equipment may be a subset of an end- nent, accessory, or attachment which item based on the characteristics of is not normally subject to disassembly the equipment. Equipment that meets without the destruction or the impair- the definition of an end-item is an end- ment of designed use. item. Equipment that does not meet

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the definition of an end-item is a com- ignations followed by major systems ponent, accessory, attachment, and equipment, and parts, components, firmware, or software. accessories, and attachments. Most [79 FR 61228, Oct. 10, 2014] U.S. Munitions List categories contain an entry on technical data (see § 120.10 of this subchapter) and defense services PART 121—THE UNITED STATES (see § 120.9 of this subchapter) related MUNITIONS LIST to the defense articles described in that U.S. Munitions List category. ENUMERATION OF ARTICLES (3) Significant military equipment. An Sec. asterisk may precede an entry in a U.S. 121.1 The United States Munitions List. Munitions List category. The asterisk 121.2–121.15 [Reserved] 121.16 Missile Technology Control Regime means the enumerated defense article Annex. is deemed to be ‘‘Significant Military Equipment’’ to the extent specified in AUTHORITY: Secs. 2, 38, and 71, Pub. L. 90– § 120.7 of this subchapter. Note that 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2651a; Pub. L. 105–261, 112 Stat. 1920; technical data directly related to the Section 1261, Pub. L. 112–239; E.O. 13637, 78 FR manufacture or production of any de- 16129. fense articles enumerated in any cat- SOURCE: 58 FR 39287, July 22, 1993, unless egory designated as Significant Mili- otherwise noted. tary Equipment (SME) is also designated as SME. ENUMERATION OF ARTICLES (c) Missile Technology Control Regime (MTCR) Annex. Inclusion in § 121.16 of § 121.1 The United States Munitions this subchapter, or annotation with the List. parenthetical ‘‘(MT)’’ at the end of a (a) The following articles, services, U.S. Munitions List paragraph, indi- and related technical data are des- cates those defense articles and defense ignated as defense articles and defense services that are on the MTCR Annex. services pursuant to sections 38 and See § 120.29 of this subchapter. 47(7) of the Arms Export Control Act. (d) Specially designed. When applying Changes in designations will be pub- the definition of specially designed (see lished in the FEDERAL REGISTER. Infor- § 120.41 of this subchapter), follow the mation and clarifications on whether sequential analysis set forth as follows: specific items are defense articles and services under this subchapter may ap- (1) if your commodity or software is pear periodically through the Internet controlled for reasons other than hav- Web site of the Directorate of Defense ing a specially designed control param- Trade Controls. eter on the U.S. Munitions List, no fur- (b)(1) Order of review. In order to clas- ther review of the definition of spe- sify your article on the U.S. Munitions cially designed is required. List, you should begin with a review of (2) if your commodity or software is the general characteristics of your not enumerated on the U.S. Munitions item. This will usually guide you to List, it may be controlled because of a the appropriate category on the U.S. specially designed control parameter. Munitions List. Once the appropriate If so, begin any analysis with § 120.41(a) category is identified, you should and proceed through each subsequent match the particular characteristics paragraph. If a commodity or software and functions of your article to a spe- would not be controlled as a result of cific entry within the appropriate cat- the application of the standards in egory. § 120.41(a), then it is not necessary to (2) Composition of an entry. Within work through § 120.41(b). each U.S. Munitions List category, de- (3) if a commodity or software is con- fense articles are described by an alpha trolled as a result of § 120.41(a), then it paragraph designation. These designa- is necessary to continue the analysis tions may include subparagraph(s) to and to work through each of the ele- further define the described defense ar- ments of § 120.41(b). ticle. Each U.S. Munitions List cat- (4) commodities or software described egory starts with end-platform des- in any § 120.41(b) subparagraph are not

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specially designed commodities or soft- (3) A carbine is a lightweight shoulder fire- ware controlled on the U.S. Munitions arm with a barrel under 16 inches in length. List, but may be subject to the juris- (4) A pistol is a hand-operated firearm hav- diction of another U.S. Government ing a chamber integral with or permanently aligned with the bore. regulatory agency (see § 120.5 of this (5) A revolver is a hand-operated firearm subchapter). with a revolving cylinder containing cham- (e) Classified. For the purpose of this bers for individual cartridges. subchapter, ‘‘classified’’ means classi- (6) A submachine gun, ‘‘machine pistol’’ or fied pursuant to Executive Order 13526, ‘‘machine gun’’ is a firearm originally de- or predecessor order, and a security signed to fire, or capable of being fired, fully classification guide developed pursuant automatically by a single pull of the trigger. thereto or equivalent, or to the cor- NOTE: This coverage by the U.S. Munitions responding classification rules of an- List in paragraphs (a) through (i) of this cat- other government or international or- egory excludes any non-combat shotgun with a barrel length of 18 inches or longer, BB, ganization. pellet, and muzzle loading (black powder) firearms. This category does not cover CATEGORY I—FIREARMS, CLOSE ASSAULT riflescopes and sighting devices that are not WEAPONS AND COMBAT SHOTGUNS manufactured to military specifications. It * (a) Nonautomatic and semi-automatic also excludes accessories and attachments firearms to caliber .50 inclusive (12.7 mm). (e.g., belts, slings, after market rubber grips, * (b) Fully automatic firearms to .50 cal- cleaning kits) for firearms that do not en- iber inclusive (12.7 mm). hance the usefulness, effectiveness, or capa- * (c) Firearms or other weapons (e.g. insur- bilities of the firearm, components and gency-counterinsurgency, close assault parts. The Department of Commerce regu- weapons systems) having a special military lates the export of such items. See the Ex- application regardless of caliber. port Administration Regulations (15 CFR * (d) Combat shotguns. This includes any parts 730–799). In addition, license exemp- shotgun with a barrel length less than 18 tions for the items in this category are avail- inches. able in various parts of this subchapter (e.g., * (e) Silencers, mufflers, sound and flash §§ 123.17, 123.18 and 125.4). suppressors for the articles in (a) through (d) CATEGORY II—GUNS AND ARMAMENT of this category and their specifically designed, modified or adapted components and * (a) Guns over caliber .50 (i.e., 12.7 mm), parts. whether towed, airborne, self-propelled, or (f) Riflescopes manufactured to military fixed, including but not limited to, howit- specifications (See category XII(c) for con- zers, mortars, cannons, recoilless rifles, and trols on night sighting devices.) grenade launchers. * (g) Barrels, cylinders, receivers (frames) (b) Flame throwers specifically designed or or complete breech mechanisms for the arti- modified for military application. cles in paragraphs (a) through (d) of this cat- (c) Apparatus and devices for launching or egory. delivering ordnance, other than those arti- (h) Components, parts, accessories and at- cles controlled in Category IV. tachments for the articles in paragraphs (a) * (d) Kinetic energy weapon systems spe- through (g) of this category. cifically designed or modified for destruction (i) Technical data (as defined in § 120.10 of or rendering mission-abort of a target. this subchapter) and defense services (as de- (e) Signature control materials (e.g., para- fined in § 120.9 of this subchapter) directly re- sitic, structural, coatings, screening) tech- lated to the defense articles described in niques, and equipment specifically designed, paragraphs (a) through (h) of this category. developed, configured, adapted or modified Technical data directly related to the manu- to alter or reduce the signature (e.g., muzzle facture or production of any defense articles flash suppression, radar, infrared, visual, described elsewhere in this category that are laser/electro-optical, acoustic) of defense ar- designated as Significant Military Equip- ticles controlled by this category. ment (SME) shall itself be designated SME. * (f) Engines specifically designed or modi- (j) The following interpretations explain fied for the self-propelled guns and howitzers and amplify the terms used in this category in paragraph (a) of this category. and throughout this subchapter: (g) Tooling and equipment specifically de- (1) A firearm is a weapon not over .50 cal- signed or modified for the production of de- iber (12.7 mm) which is designed to expel a fense articles controlled by this category. projectile by the action of an explosive or (h) Test and evaluation equipment and test which may be readily converted to do so. models specifically designed or modified for (2) A rifle is a shoulder firearm which can the articles controlled by this category. This discharge a bullet through a rifled barrel 16 includes but is not limited to diagnostic in- inches or longer. strumentation and physical test models.

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(i) Autoloading systems for electronic pro- (d) Components, parts, accessories, attach- gramming of projectile function for the de- ments and associated equipment specifically fense articles controlled in this Category. designed or modified for the articles in this (j) All other components, parts, acces- category: sories, attachments and associated equip- * (1) Guidance and control components for ment specifically designed or modified for the articles in paragraph (a) of this category; the articles in paragraphs (a) through (i) of * (2) Safing, arming and fuzing components this category. This includes but is not lim- (including target detection and localization ited to mounts and carriages for the articles devices) for the articles in paragraph (a) of controlled in this category. this category; and (k) Technical data (as defined in § 120.10 of (3) All other components, parts, acces- this subchapter) and defense services (as de- sories, attachments and associated equip- fined in § 120.9 of this subchapter) directly re- ment for the articles in paragraphs (a) lated to the defense articles described in through (c) of this category. paragraphs (a) through (j) of this category. (e) Technical data (as defined in § 120.10 of Technical data directly related to the manu- this subchapter) and defense services (as de- facture or production of any defense articles fined in § 120.9 of this subchapter) directly re- described elsewhere in this category that are lated to the defense articles described in designated as Significant Military Equip- paragraphs (a) through (d) of this category. ment (SME) shall itself be designated SME. Technical data directly related to the manu- (l) The following interpretations explain facture or production of any defense articles and amplify the terms used in this category described elsewhere in this category that are and elsewhere in this subchapter: designated as Significant Military Equip- (1) The kinetic energy weapons systems in ment (SME) shall itself be designated SME. paragraph (d) of this category include but (f) The following explains and amplifies the are not limited to: terms used in this category and elsewhere in (i) Launch systems and subsystems capable this subchapter: of accelerating masses larger than 0.1g to ve- (1) The components, parts, accessories and locities in excess of 1.6km/s, in single or attachments controlled in this category in- rapid fire modes, using methods such as: clude, but are not limited to cartridge cases, electromagnetic, electrothermal, plasma, powder bags (or other propellant charges), light gas, or chemical; bullets, jackets, cores, shells (excluding (ii) Prime power generation, electric shotgun shells), projectiles (including can- armor, energy storage, thermal manage- ister rounds and submunitions therefor), ment; conditioning, switching or fuel-han- boosters, firing components therefor, prim- dling equipment; and the electrical inter- ers, and other detonating devices for the de- faces between power supply gun and other fense articles controlled in this category. turret electric drive function; (iii) Target acquisition, tracking fire con- (2) This category does not control car- trol or damage assessment systems; and tridge and shell casings that, prior to export, (iv) Homing seeker, guidance or divert pro- have been rendered useless beyond the possi- pulsion (lateral acceleration) systems for bility of restoration for use as a cartridge or projectiles. shell casing by means of heating, flame (2) The articles in this category include treatment, mangling, crushing, cutting or any end item, component, accessory, attach- popping. ment part, firmware, software or system (3) Equipment and tooling in paragraph (c) that has been designed or manufactured of this category does not include equipment using technical data and defense services for hand-loading ammunition. controlled by this category. (4) The articles in this category include (3) The articles specifically designed or any end item, component, accessory, attach- modified for military application controlled ment, part, firmware, software, or system in this category include any article specifi- that has been designed or manufactured cally developed, configured, or adapted for using technical data and defense services military application. controlled by this category. (5) The articles specifically designed or CATEGORY III—AMMUNITION/ORDNANCE modified for military application controlled * (a) Ammunition/ordnance for the articles in this category include any article specifi- in Categories I and II of this section. cally developed, configured, or adapted for (b) Ammunition/ordnance handling equip- military application ment specifically designed or modified for CATEGORY IV—LAUNCH VEHICLES, GUIDED the articles controlled in this category, such MISSILES, BALLISTIC MISSILES, ROCKETS, as, belting, linking, and de-linking equip- TORPEDOES, BOMBS, AND MINES ment. (c) Equipment and tooling specifically de- * (a) Rockets, space launch vehicles signed or modified for the production of de- (SLVs), missiles, bombs, torpedoes, depth fense articles controlled by this category. charges, mines, and grenades, as follows:

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(1) Rockets, SLVs, and missiles capable of paragraphs (a)(3) through (a)(5) of this cat- delivering at least a 500-kg payload to a egory (e.g., launch tables, TOW missile, range of at least 300 km (MT); MANPADS). (2) Rockets, SLVs, and missiles capable of NOTE 1 TO PARAGRAPH (b): For controls on delivering less than a 500-kg payload to a non-SLV launcher mechanisms for use on range of at least 300 km (MT); aircraft, see USML Category VIII(h). (3) Man-portable air defense systems NOTE 2 TO PARAGRAPH (b): For controls on (MANPADS); launcher mechanisms that are integrated (4) Anti-tank missiles and rockets; onto a vessel or ground vehicle, see USML (5) Rockets, SLVs, and missiles not meet- Categories VI and VII, respectively. ing the criteria of paragraphs (a)(1) through NOTE 3 TO PARAGRAPH (b): This paragraph (a)(4) of this category; does not control parts and accessories (e.g., (6) Bombs; igniters, launch stands) specially designed (7) Torpedoes; for consumer use with model and high power (8) Depth charges; rockets (as defined in National Fire Protec- (9) Anti-personnel, anti-vehicle, or anti- tion Association Code 1122) and kits thereof armor land mines (e.g., area denial devices); made of paper, wood, fiberglass, or plastic (10) Anti-helicopter mines; containing no substantial metal parts and (11) Naval mines; or designed to be flown with hobby rocket mo- (12) Fragmentation and high explosive tors that are certified for consumer use. hand grenades. (c) Apparatus and devices specially de- NOTE 1 TO PARAGRAPH (a): ‘‘Range’’ is the signed for the handling, control, activation, maximum distance that the specified rocket monitoring, detection, protection, discharge, system is capable of traveling in the mode of or detonation of the articles enumerated in stable flight as measured by the projection paragraphs (a) and (b) of this category (MT of its trajectory over the surface of the for those systems enumerated in paragraphs Earth. The maximum capability based on the (a)(1), (a)(2), and (b)(1) of this category). design characteristics of the system, when fully loaded with fuel or propellant, will be NOTE 1 TO PARAGRAPH (c): This paragraph taken into consideration in determining includes specialized handling equipment range. The range for rocket systems will be (transporters, cranes, and lifts) specially de- determined independently of any external signed to handle articles enumerated in factors such as operational restrictions, lim- paragraphs (a) and (b) of this category for itations imposed by telemetry, data links, or preparation and launch from fixed and mo- other external constraints. For rocket sys- bile sites. The equipment in this paragraph tems, the range will be determined using the also includes specially designed robots, robot trajectory that maximizes range, assuming controllers, and robot end-effectors, and liq- International Civil Aviation Organization uid propellant tanks specially designed for (ICAO) standard atmosphere with zero wind. the storage or handling of the propellants NOTE 2 TO PARAGRAPH (a): ‘‘Payload’’ is the controlled in USML Category V, CCL ECCNs total mass that can be carried or delivered 1C011, 1C111, and 1C608, or other liquid pro- by the specified rocket, SLV, or missile that pellants used in the systems enumerated in is not used to maintain flight. paragraphs (a)(1), (a)(2), or (a)(5) of this cat- NOTE 3 TO PARAGRAPH (a): This paragraph egory. does not control model and high power rock- NOTE 2 TO PARAGRAPH (c): Aircraft Missile ets (as defined in National Fire Protection Protection Systems (AMPS) are controlled Association Code 1122) and kits thereof made in USML Category XI. of paper, wood, fiberglass, or plastic con- * (d) Rocket, SLV, and missile power taining no substantial metal parts and de- plants, as follows: signed to be flown with hobby rocket motors (1) Except as enumerated in paragraph that are certified for consumer use. Such (d)(2) or (d)(3) of this category, individual rockets must not contain active controls rocket stages for the articles enumerated in (e.g., RF, GPS). paragraph (a)(1), (a)(2), or (a)(5) of this cat- NOTE 4 TO PARAGRAPH (a): ’’Mine’’ means a egory (MT for those stages usable in systems munition placed under, on, or near the enumerated in paragraphs (a)(1) and (a)(2) of ground or other surface area and designed to this category); be exploded by the presence, proximity, or (2) Solid propellant rocket motors, hybrid contact of a person or vehicle. or gel rocket motors, or liquid propellant * (b) Launchers for rockets, SLVs, and mis- rocket engines having a total impulse capac- siles, as follows: ity equal to or greater than 1.1 × 106 N·s (1) Fixed launch sites and mobile launcher (MT); mechanisms for any system enumerated in (3) Solid propellant rocket motors, hybrid paragraphs (a)(1) and (a)(2) of this category or gel rocket motors, or liquid propellant (MT); or rocket engines having a total impulse capac- (2) Fixed launch sites and mobile launcher ity equal to or greater than 8.41 × 105 N·s, but mechanisms for any system enumerated in less than 1.1 × 106 N·s (MT);

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(4) Combined cycle, pulsejet, ramjet, or (9) Missile and rocket safing, arming, scramjet engines (MT); fuzing, and firing (SAFF) components (to in- (5) Air-breathing engines that operate clude target detection and proximity sensing above Mach 4 not enumerated in paragraph devices), and specially designed parts there- (d)(4) of this category; for (MT for those SAFF components usable (6) Pressure gain combustion-based propul- in systems enumerated in paragraph (a)(1) of sion systems not enumerated in paragraphs this category); (d)(4) and (d)(5) of this category; or (10) Self-destruct systems specially de- (7) Rocket, SLV, and missile engines and signed for articles enumerated in paragraph motors, not otherwise enumerated in para- (a) of this category (MT for those articles graphs (d)(1) through (d)(6) of this category enumerated in paragraphs (a)(1) and (a)(2) of or USML Category XIX. this category); NOTE TO PARAGRAPH (d): This paragraph (11) Separation mechanisms, staging mech- does not control model and high power rock- anisms, and interstages useable for articles et motors, containing no more than 5 pounds enumerated in paragraph (a) of this cat- of propellant, that are certified for U.S. con- egory, and specially designed parts and com- sumer use as described in National Fire Pro- ponents therefor (MT for those separation tection Association Code 1125. mechanisms, staging mechanisms, and inter- (e)–(f) [Reserved] stages usable in systems enumerated in para- * (g) Non-nuclear warheads for rockets, graph (a)(1) of this category); bombs, and missiles (e.g., explosive, kinetic, (12) Post-boost vehicles (PBV) (MT); EMP, thermobaric, shape charge, and fuel air (13) Engine or motor mounts specially de- explosive (FAE)). signed for articles enumerated in paragraphs (h) Systems, subsystems, parts, compo- (a) and (b) of this category (MT for those ar- nents, accessories, attachments, or associ- ticles enumerated in paragraphs (a)(1), (a)(2), ated equipment, as follows: and (b)(1) of this category); (1) Flight control and guidance systems (14) Combustion chambers specially de- (including guidance sets) specially designed signed for articles enumerated in paragraphs for articles enumerated in paragraph (a) of (a) and (d) of this category and specially de- this category (MT for those articles enumer- signed parts and components therefor (MT ated in paragraphs (a)(1) and (a)(2) of this for those articles enumerated in paragraphs category); (a)(1), (a)(2), (b)(1), and (d)(1) through (d)(5) of NOTE TO PARAGRAPH (h)(1): A guidance set this category); integrates the process of measuring and com- (15) Injectors specially designed for articles puting a vehicle’s position and velocity (i.e., controlled in this category (MT for those navigation) with that of computing and injectors specially designed which are usable sending commands to the vehicle’s flight in systems enumerated in paragraph (a)(1) of control systems to correct the trajectory. this category); (16) Solid rocket motor or liquid engine ig- (2) Seeker systems specially designed for niters; articles enumerated in paragraph (a) of this (17) Re-entry vehicles and specially de- category (e.g., radiofrequency, infrared) (MT signed parts and components therefor not for articles enumerated in paragraphs (a)(1) elsewhere specified in this category (MT); and (a)(2) of this category); (3) Kinetic kill vehicles and specially de- NOTE TO PARAGRAPH (h)(17): This paragraph signed parts and components therefor; does not control spacecraft. For controls on (4) Missile or rocket thrust vector control spacecraft, see USML Category XV and, if systems (MT for those thrust vector control not described therein, then CCL ECCN 9A515. systems usable in articles enumerated in (18) Specially designed parts and compo- paragraph (a)(1) of this category); nents for articles controlled in paragraph (g) (5) MANPADS grip stocks and specially de- not elsewhere specified in this category; signed parts and components therefor; (19) Penetration aids and specially de- (6) Rocket or missile nozzles and nozzle signed parts and components therefor (e.g., throats, and specially designed parts and physical or electronic countermeasure components therefor (MT for those nozzles suites, re-entry vehicle replicas or decoys, or and nozzle throats usable in systems enu- submunitions); merated in paragraphs (a)(1) and (a)(2) of this (20) Rocket motor cases and specially de- category); signed parts and components therefor (e.g., (7) Rocket or missile nose tips, nose fair- flanges, flange seals, end domes) (MT for ings, or aerospikes, and specially designed those rocket motor cases usable in systems parts and components therefor (MT for those enumerated in paragraphs (a)(1) and (a)(2) of articles enumerated in paragraphs (a)(1) and this category and for specially designed (a)(2) of this category); parts and components for hybrid rocket mo- (8) Re-entry vehicle or warhead heat tors enumerated in paragraphs (d)(2) and shields (MT for those re-entry vehicles and (d)(3) of this category); heat shields usable in systems enumerated in (21) Solid rocket motor liners and rocket paragraph (a)(1) of this category); motor insulation (MT for those solid rocket

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motor liners usable in systems enumerated NOTE TO PARAGRAPH (h)(30): ‘‘Classified’’ in paragraph (a)(1) of this category or spe- means classified pursuant to Executive Order cially designed for systems enumerated in 13526, or predecessor order, and a security paragraph (a)(2) of this category; and rocket classification guide developed pursuant motor insulation usable in systems enumer- thereto or equivalent, or to the cor- ated in paragraphs (a)(1) and (a)(2) of this responding classification rules of another category); government or international organization. (22) Radomes, sensor windows, and antenna (i) Technical data (see § 120.10 of this sub- windows specially designed for articles enu- chapter) and defense services (see § 120.9 of merated in paragraph (a) of this category this subchapter) directly related to the de- (MT for those radomes usable in systems fense articles described in paragraphs (a) enumerated in paragraph (a)(1) of this cat- through (h) of this category and classified egory and for any radomes, sensor windows, technical data directly related to items con- or antenna windows manufactured as composite structures or laminates specially de- trolled in ECCNs 0A604, 0B604, 0D604, 9A604, signed for use in the systems and compo- 9B604, or 9D604 and defense services using the nents enumerated in paragraph (a)(1), (a)(2), classified technical data. Defense services in- (d)(1), (h)(8), (h)(9), (h)(17), or (h)(25) of this clude the furnishing of assistance (including category); training) to a foreign person in the integra- (23) Rocket or missile payload fairings; tion of a satellite or spacecraft to a launch (24) Rocket or missile launch canisters (MT vehicle, including both planning and onsite for those rocket or missile launch canisters support, regardless of the jurisdiction, own- designed or modified for systems enumerated ership, or origin of the satellite or space- in paragraphs (a)(1) and (a)(2) of this cat- craft, or whether technical data is used. It egory); also includes the furnishing of assistance (in- (25) Fuzes specially designed for articles cluding training) to a foreign person in the enumerated in paragraph (a) of this category launch failure analysis of a launch vehicle, (e.g., proximity, contact, electronic, dis- regardless of the jurisdiction, ownership, or penser proximity, airburst, variable time origin of the launch vehicle, or whether tech- delay, or multi-option) (MT for those fuzes nical data is used. (See § 125.4 of this sub- usable in systems enumerated in paragraph chapter for exemptions, and § 124.15 of this (a)(1) of this category); subchapter for special export controls for (26) Rocket or missile liquid propellant spacecraft and spacecraft launches.) (MT for tanks (MT for those rocket or missile liquid technical data and defense services related propellant tanks usable in systems enumer- to articles designated as such.) ated in paragraph (a)(1) of this category); (j)–(w) [Reserved] (27) Rocket or missile altimeters specially (x) Commodities, software, and technical designed for use in articles enumerated in data subject to the EAR (see § 120.42 of this paragraph (a)(1) of this category (MT); subchapter) used in or with defense articles (28) Pneumatic, hydraulic, mechanical, controlled in this category. electro-optical, or electromechanical flight NOTE TO PARAGRAPH (x): Use of this para- control systems (including fly-by-wire sys- graph is limited to license applications for tems) and attitude control equipment spe- defense articles controlled in this category cially designed for use in the rockets or mis- where the purchase documentation includes siles enumerated in paragraph (a)(1) of this commodities, software, or technical data category (MT for these systems which have subject to the EAR (see § 123.1(b) of this sub- been designed or modified for those enumer- chapter). ated in paragraph (a)(1) of this category); (29) Umbilical and interstage electrical NOTE TO CATEGORY IV: If a Missile Tech- connectors specially designed for use in the nology Control Regime Category I item is in- rockets or missiles enumerated in paragraph cluded in a system, that system will also be (a)(1) or (a)(2) of this category (MT); or considered as a Category I item, except when the incorporated item cannot be separated, NOTE TO PARAGRAPH (h)(29): This paragraph removed, or duplicated. also includes electrical connectors installed between the systems specified in paragraph CATEGORY V—EXPLOSIVES AND ENERGETIC (a)(1) or (a)(2) of this category and their pay- MATERIALS, PROPELLANTS, INCENDIARY load. AGENTS, AND THEIR CONSTITUENTS * (30) Any part, component, accessory, attachment, equipment, or system that (MT * (a) Explosives, and mixtures thereof, as for those articles designated as such): follows: (i) Is classified; (1) ADNBF (aminodinitrobenzofuroxan or (ii) Contains classified software directly 7-Amino 4,6-dinitrobenzofurazane-1-oxide) related to defense articles in this subchapter (CAS 97096–78–1); or 600 series items subject to the EAR; or (2) BNCP (cis-bis(5-nitrotetrazolato) tetra (iii) Is being developed using classified in- amine-cobalt (III) perchlorate) (CAS 117412– formation. 28–9);

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(3) CL–14 (diaminodinitrobenzofuroxan or (19) NTNMH (1-(2-nitrotriazolo)-2- 5,7-diamino-4,6-dinitrobenzofurazane-1-oxide) dinitromethylene hydrazine); (CAS 117907–74–1); (20) NTO (ONTA or 3-nitro-1,2,4-triazol-5- (4) CL–20 (HNIW or one) (CAS 932–64–9); Hexanitrohexaazaisowurtzitane) (CAS 135285– (21) Polynitrocubanes with more than four 90–4); clathrates of CL–20 (MT for CL–20); nitro groups; (5) CP (2-(5-cyanotetrazolato) penta (22) PYX (2,6-Bis(picrylamino)-3,5- aminecobalt (III) perchlorate) (CAS 70247–32– dinitropyridine) (CAS 38082–89–2); 4); (23) RDX and derivatives, as follows: (6) DADE (1,1-diamino-2,2-dinitroethylene, (i) RDX (cyclotrimethylenetrinitramine), FOX–7) (CAS 145250–81–3); cyclonite, T4, hexahydro-1,3,5-trinitro-1,3,5- (7) DATB (Diaminotrinitrobenzene) (CAS triazine, 1,3,5-trinitro-1,3,5-triaza- 1630–08–6); cyclohexane, hexogen, or hexogene) (CAS (8) DDFP (1,4-dinitrodifurazanopiperazine); 121–82–4) (MT); (9) DDPO (2,6-diamino-3,5-dinitropyrazine- (ii) Keto-RDX (K–6 or 2,4,6-trinitro-2,4,6- 1-oxide, PZO) (CAS 194486–77–6); triazacyclohexanone) (CAS 115029–35–1); or (10) DIPAM (3,3′-Diamino-2,2′,4,4′,6,6′- (iii) Difluoraminated derivative of RDX; hexanitrobiphenyl or dipicramide) (CAS 1,3-Dinitro-5,5-bis(difluoramino)1,3- 17215–44–0); diazahexane (CAS No. 193021–34–0); (11) DNAN (2,4-Dinitroanisole) (CAS 119–27– (24) TAGN (Triaminoguanidinenitrate) 7); (CAS 4000–16–2); (12) DNGU (DINGU or dinitroglycoluril) (25) TATB (Triaminotrinitrobenzene) (CAS (CAS 55510–04–8); 3058–38–6); (13) Furazans, as follows: (26) TEDDZ (3,3,7,7-tetrakis(difluoroamine) (i) DAAOF (DAAF, DAAFox, or octahydro-1,5-dinitro-1,5-diazocine; diaminoazoxyfurazan); (27) Tetrazines, as follows: (ii) DAAzF (diaminoazofurazan) (CAS (i) BTAT (Bis(2,2,2-trinitroethyl)-3,6- 78644–90–3); diaminotetrazine); or (iii) ANF (Furazanamine, 4-nitro- or 3- (ii) LAX–112 (3,6-diamino-1,2,4,5-tetrazine- Amino-4-nitrofurazan; or 4-Nitro-1,2,5- 1,4-dioxide); oxadiazol-3-amine; or 4-Nitro-3- (28) Tetrazoles, as follows: furazanamine; CAS 66328–69–6); or (i) NTAT (nitrotriazolaminotetrazole); or (iv) ANAzF (Aminonitroazofurazan or 1,2,5- (ii) NTNT (1-N-(2-nitrotriazolo)-4- Oxadiazol-3-amine, 4-[2-(4-nitro-1,2,5- nitrotetrazole); oxadiazol-3-yl) diazenyl]; or 1,2,5-Oxadiazol-3- (29) Tetryl amine, 4-[(4-nitro-1,2,5-oxadiazol-3-yl)azo]- (trinitrophenylmethylnitramine) (CAS 479– (9CI); or Furazanamine, 4- 45–8); [(nitrofurananyl)azo]-; or 4-[(4-Nitro-1,2,5- (30) TEX (4,10-Dinitro-2,6,8,12-tetraoxa-4,10- oxadiazol-3-yl)azo]-1,2,5-oxadiazol-3-amine) diazaisowurtzitane); (CAS 155438–11–2); (31) TNAD (1,4,5,8-tetranitro-1,4,5,8- (14) GUDN (Guanylurea dinitramide) FOX– tetraazadecalin) (CAS 135877–16–6); 12 (CAS 217464–38–5); (32) TNAZ (1,3,3-trinitroazetidine) (CAS (15) HMX and derivatives, as follows: 97645–24–4); (i) HMX (33) TNGU (SORGUYL or (Cyclotetramethylenetetranitramine; tetranitroglycoluril) (CAS 55510–03–7); octahydro-1,3,5,7-tetranitro-1,3,5,7-tetrazine; (34) TNP (1,4,5,8-tetranitro-pyridazino [4,5- 1,3,5,7-tetranitro-1,3,5,7-tetraza-cyclooctane; d] pyridazine) (CAS 229176–04–9); octogen, octogene) (CAS 2691–41–0) (MT); (35) Triazines, as follows: (ii) Difluoroaminated analogs of HMX; or (i) DNAM (2-oxy-4,6-dinitroamino-s-tri- (iii) K–55 (2,4,6,8-tetranitro-2,4,6,8- azine) (CAS 19899–80–0); or tetraazabicyclo [3,3,0]-octanone-3, (ii) NNHT (2-nitroimino-5-nitro-hexahydro- tetranitrosemiglycouril, or keto-bicyclic 1,3,5 triazine) (CAS 130400–13–4); HMX) (CAS 130256–72–3); (36) Triazoles, as follows: (16) HNAD (hexanitroadamantane) (CAS (i) 5-azido-2-nitrotriazole; 143850–71–9); (ii) ADHTDN (4-amino-3,5-dihydrazino- (17) HNS (hexanitrostilbene) (CAS 20062–22– 1,2,4-triazole dinitramide) (CAS 1614–08–0); 0); (iii) ADNT (1-amino-3,5-dinitro-1,2,4-tri- (18) Imidazoles, as follows: azole); (i) BNNII (Octohydro-2,5-bis(nitroimino) (iv) BDNTA (Bis(dinitrotriazole)amine); imidazo [4,5-d]imidazole); (v) DBT (3,3′-dinitro-5,5-bi-1,2,4-triazole) (ii) DNI (2,4-dinitroimidazole) (CAS 5213– (CAS 30003–46–4); 49–0); (vi) DNBT (dinitrobistriazole) (CAS 70890– (iii) FDIA (1-fluoro-2,4-dinitroimidazole); 46–9); (iv) NTDNIA (N-(2-nitrotriazolo)-2,4- (vii) NTDNT (1–N-(2-nitrotriazolo) 3,5- dinitro-imidazole); or dinitro-triazole); (v) PTIA (1-picryl-2,4,5-trinitroimidazole); (viii) PDNT (1-picryl-3,5-dinitrotriazole); or

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(ix) TACOT (A) Beryllium (CAS 7440–41–7) in particle (tetranitrobenzotriazolobenzotriazole) (CAS sizes of less than 60 micrometers (MT); or 25243–36–1); (B) Iron powder (CAS 7439–89–6) with par- (37) Energetic ionic materials melting be- ticle size of 3 micrometers or less produced tween 343 K (70 °C) and 373 K (100 °C) and with by reduction of iron oxide with hydrogen; detonation velocity exceeding 6800 m/s or (ii) Fuel mixtures or pyrotechnic mixtures, detonation pressure exceeding 18 GPa (180 which contain any of the following: kbar); or (A) Boron (CAS 7440–42–8) or boron carbide (38) Explosives, not otherwise enumerated (CAS 12069–32–8) fuels of 85% purity or higher in this paragraph or on the CCL in ECCN and particle sizes of less than 60 microm- 1C608, with a detonation velocity exceeding eters; or 8700 m/s at maximum density or a detonation (B) Zirconium (CAS 7440–67–7), magnesium pressure exceeding 34 Gpa (340 kbar). (CAS 7439–95–4), or alloys of these in particle * (b) Propellants, as follows (MT for com- sizes of less than 60 micrometers; posite and composite modified double-base (iii) Explosives and fuels containing the propellants): metals or alloys listed in paragraphs (c)(4)(i) (1) Any solid propellant with a theoretical and (c)(4)(ii) of this category whether or not specific impulse (see paragraph (k)(4) of this the metals or alloys are encapsulated in alu- category) greater than: minum, magnesium, zirconium, or beryl- (i) 240 seconds for non-metallized, non-hal- lium; ogenated propellant; (5) Fuel, pyrotechnic, or energetic mixtures having any nanosized aluminum, beryl- (ii) 250 seconds for non-metallized, halo- lium, boron, zirconium, magnesium, or tita- genated propellant; or nium, as follows: (iii) 260 seconds for metallized propellant; (i) Having particle size less than 200 nm in (2) Propellants having a force constant of any direction; and more than 1,200 kJ/Kg; (ii) Having 60% or higher purity; (3) Propellants that can sustain a steady- (6) Pyrotechnic and pyrophoric materials, state burning rate more than 38 mm/s under as follows: standard conditions (as measured in the form (i) Pyrotechnic or pyrophoric materials of an inhibited single strand) of 6.89 Mpa (68.9 specifically formulated to enhance or control bar) pressure and 294K (21 °C); the production of radiated energy in any (4) Elastomer-modified cast double-based part of the IR spectrum; or propellants with extensibility at maximum (ii) Mixtures of magnesium, polytetra- stress greater than 5% at 233 K (¥40 °C); or fluoroethylene and the copolymer vinylidene (5) Other composite and composite modi- difluoride and hexafluoropropylene (MT); fied double-base propellants. (7) Titanium subhydride (TiHn) of stoichi- (c) Pyrotechnics, fuels and related sub- ometry equivalent to n = 0.65–1.68; or stances, and mixtures thereof, as follows: (8) Hydrocarbon fuels specially formulated (1) Alane (aluminum hydride) (CAS 7784–21– for use in flame throwers or incendiary mu- 6); nitions containing metal stearates (e.g., (2) Carboranes; decaborane (CAS 17702–41– octal) or palmitates, and M1, M2, and M3 9); pentaborane and derivatives thereof (MT); thickeners. (3) Liquid high energy density fuels, as fol- (d) Oxidizers, as follows: lows (MT): (1) ADN (ammonium dinitramide or SR–12) (i) Mixed fuels that incorporate both solid (CAS 140456–78–6) (MT); and liquid fuels, such as boron slurry, having (2) AP (ammonium perchlorate) (CAS 7790– a mass-based energy density of 40 MJ/kg or 98–9) (MT); greater; or (3) BDNPN (bis(2,2-dinitropropyl)nitrate) (ii) Other high energy density fuels and (CAS 28464–24–6); fuel additives (e.g., cubane, ionic solutions, (4) DNAD (1,3-dinitro-1,3-diazetidine) (CAS JP–7, JP–10) having a volume-based energy 78246–06–7); density of 37.5 GJ per cubic meter or greater, (5) HAN (Hydroxylammonium nitrate) measured at 20 °C and one atmosphere (CAS 13465–08–2); (101.325 kPa) pressure; (6) HAP (hydroxylammonium perchlorate) (CAS 15588–62–2); NOTE TO PARAGRAPH (c)(3)(ii): JP–4, JP–8, (7) HNF (Hydrazinium nitroformate) (CAS fossil refined fuels or biofuels, or fuels for 20773–28–8) (MT); engines certified for use in civil aviation are (8) Hydrazine nitrate (CAS 37836–27–4) not included. (MT); (4) Metal fuels, and fuel or pyrotechnic (9) Hydrazine perchlorate (CAS 27978–54–7) mixtures in particle form whether spherical, (MT); atomized, spheroidal, flaked, or ground, (10) Inhibited red fuming nitric acid manufactured from material consisting of (IRFNA) (CAS 8007–58–7) and liquid oxidizers 99% or more of any of the following: comprised of or containing IRFNA or oxygen (i) Metals, and mixtures thereof, as fol- difluoride (MT for liquid oxidizers comprised lows: of IRFNA); or

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(11) Perchlorates, chlorates, and chromates (1) Basic copper salicylate (CAS 62320–94–9); composited with powdered metal or other (2) BHEGA (Bis-(2-hydroxy- high energy fuel components controlled ethyl)glycolamide) (CAS 17409–41–5); under this category (MT). (3) BNO (Butadienenitrile oxide); * (e) Binders, and mixtures thereof, as fol- (4) Ferrocene derivatives, as follows (MT): lows: (i) Butacene (CAS 125856–62–4); (1) AMMO (azidomethylmethyloxetane and (ii) Catocene (2,2-Bis- its polymers) (CAS 90683–29–7); ethylferrocenylpropane) (CAS 37206–42–1); (2) BAMO-3-3 (bis(azidomethyl)oxetane and (iii) Ferrocene carboxylic acids and fer- its polymers) (CAS 17607–20–4); rocene carboxylic acid esters; (3) BTTN (butanetriol trinitrate) (CAS (iv) n-butylferrocene (CAS 31904–29–7); 6659–60–5) (MT); (v) Ethylferrocene (CAS 1273–89–8); (4) FAMAO (3-difluoroaminomethyl-3- (vi) Propylferrocene; azidomethyloxetane) and its polymers; (vii) Pentylferrocene (CAS 1274–00–6); (5) FEFO (bis(2-fluoro-2,2- (viii) Dicyclopentylferrocene; dinitroethyl)formal) (CAS 17003–79–1); (ix) Dicyclohexylferrocene; (6) GAP (glycidyl azide polymer) (CAS (x) Diethylferrocene (CAS 173–97–8); 143178–24–9) and its derivatives (MT for GAP); (xi) Dipropylferrocene; (7) HTPB (hydroxyl-terminated (xii) Dibutylferrocene (CAS 1274–08–4); polybutadiene) with a hydroxyl functionality (xiii) Dihexylferrocene (CAS 93894–59–8); equal to or greater than 2.2 and less than or (xiv) Acetylferrocene (CAS 1271–55–2)/1,1′- equal to 2.4, a hydroxyl value of less than diacetyl ferrocene (CAS 1273–94–5); or 0.77 meq/g, and a viscosity at 30 °C of less (xv) Other ferrocene derivatives that do than 47 poise (CAS 69102–90–5) (MT); not contain a six carbon aromatic functional (8) 4,5 diazidomethyl-2-methyl-1,2,3-triazole group attached to the ferrocene molecule (iso-DAMTR) (MT); (MT if usable as rocket propellant burning (9) NENAS (nitratoethylnitramine com- rate modifier); pounds), as follows: (5) Lead beta-resorcylate (CAS 20936–32–7); (i) N-Methyl 2-nitratoethylnitramine (6) Lead citrate (CAS 14450–60–3); (Methyl-NENA) (CAS 17096–47–8) (MT); (7) Lead-copper chelates of beta- (ii) N-Ethyl 2-nitratoethylnitramine resorcylate or salicylates (CAS 68411–07–4); (Ethyl-NENA) (CAS 85068–73–1) (MT); (8) Lead maleate (CAS 19136–34–6); (iii) N-Propyl 2-nitratoethylnitramine (9) Lead salicylate (CAS 15748–73–9); (CAS 82486–83–7); (10) Lead stannate (CAS 12036–31–6); (iv) N-Butyl-2-nitratoethylnitramine (11) MAPO (tris-1-(2-methyl) (BuNENA) (CAS 82486–82–6); or aziridinylphosphine oxide) (CAS 57–39–6); (v) N-Pentyl 2-nitratoethylnitramine (CAS BOBBA–8 (bis(2-methyl aziridinyl)-2-(2- 85954–06–9); hydroxypropanoxy) propylamino phosphine (10) Poly-NIMMO (poly oxide); and other MAPO derivatives (MT for nitratomethylmethyoxetane, poly-NMMO, MAPO); (poly[3-nitratomethyl-3-methyl oxetane]) (12) Methyl BAPO (Bis(2-methyl (CAS 84051–81–0); aziridinyl)methylaminophosphine oxide) (11) PNO (Poly(3-nitratooxetane)); (CAS 85068–72–0); (12) TVOPA 1,2,3-Tris [1,2- (13) 3-Nitraza-1,5-pentane diisocyanate bis(difluoroamino)ethoxy]propane; tris (CAS 7406–61–9); vinoxy propane adduct (CAS 53159–39–0); (14) Organo-metallic coupling agents, as (13) Polynitrorthocarbonates; follows: (14) FPF–1 (poly-2,2,3,3,4,4-hexafluoro pen- (i) Neopentyl[diallyl]oxy, tri [dioctyl] tane-1,5-diolformal) (CAS 376–90–9); phosphatotitanate (CAS 103850–22–2); also (15) FPF–3 (poly-2,4,4,5,5,6,6-heptafluoro-2- known as titanium IV, 2,2[bis 2-propenolato- trifluoromethyl-3-oxaheptane-1,7- methyl, butanolato, tris (dioctyl) phosphato] diolformal); (CAS 110438–25–0), or LICA 12 (CAS 103850–22– (16) PGN (Polyglycidyl nitrate or 2); poly(nitratomethyloxirane); poly-GLYN); (ii) Titanium IV, [(2-propenolato-1) methyl, (CAS 27814–48–8); n-propanolatomethyl] butanolato-1, (17) N-methyl-p-nitroaniline (MT); tris(dioctyl)pyrophosphate, or KR3538; or (18) Low (less than 10,000) molecular (iii) Titanium IV, [(2-propenolato- weight, alcohol-functionalized, 1)methyl, propanolatomethyl] butanolato-1, poly(epichlorohydrin); tris(dioctyl) phosphate; poly(epichlorohydrindiol); and triol; or (15) PCDE (19) Dinitropropyl based plasticizers, as fol- (Polycyanodifluoroaminoethylene oxide); lows (MT): (16) Certain bonding agents, as follows (i) BDNPA (bis (2,2-dinitropropyl) acetal) (MT): (CAS 5108–69–0); or (i) 1,1R,1S-trimesoyl-tris(2-ethylaziridine) (ii) BDNPF (bis (2,2-dinitropropyl) formal) (HX–868, BITA) (CAS 7722–73–8); or (CAS 5917–61–3). (ii) Polyfunctional aziridine amides with (f) Additives, as follows: isophthalic, trimesic, isocyanuric, or

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trimethyladipic backbone also having a 2- via a commodity jurisdiction determination methyl or 2-ethyl aziridine group; (see § 120.4 of this subchapter), or (c) identi- NOTE TO PARAGRAPH (f)(16)(ii): Included are fied in the relevant Department of De- (1) 1,1H-Isophthaloyl-bis(2-methylaziridine) fense contract or other funding author- (HX–752) (CAS 7652–64–4); (2) 2,4,6-tris(2-ethyl- ization as being developed for both civil 1-aziridinyl)-1,3,5-triazine (HX–874) (CAS and military applications. 18924–91–9); and (3) 1,1′-trimethyladipoylbis(2- NOTE 2 TO PARAGRAPH (i): Note 1 does not ethylaziridine) (HX–877) (CAS 71463–62–2). apply to defense articles enumerated on the U.S. Munitions List, whether in production (17) Superfine iron oxide (Fe2O3, hematite) with a specific surface area more than 250 or development. m2/g and an average particle size of 0.003 mi- NOTE 3 TO PARAGRAPH (i): This paragraph is crometers or less (CAS 1309–37–1); applicable only to those contracts and fund- (18) TEPAN (HX–879) ing authorizations that are dated January 5, (tetraethylenepentaamineacrylonitrile) 2015, or later. (CAS 68412–45–3); cyanoethylated polyamines (j) Technical data (as defined in § 120.10 of and their salts (MT for TEPAN (HX–879)); this subchapter) and defense services (as de- (19) TEPANOL (HX–878) (tetraethy- fined in § 120.9 of this subchapter) directly re- lenepentaamineacrylonitrileglycidol) (CAS lated to the defense articles described in 68412–46–4); cyanoethylated polyamines paragraphs (a) through (i) of this category adducted with glycidol and their salts (MT (see also § 123.20 of this subchapter) (MT for for TEPANOL (HX–878)); articles designated as such). (20) TPB (triphenyl bismuth) (CAS 603–33–8) (k) The following interpretations explain (MT); or and amplify the terms used in this category (21) Tris (ethoxyphenyl) bismuth (TEPB) and elsewhere in this subchapter: (CAS 90591–48–3). (1) USML Category V contains explosives, (g) Precursors, as follows: energetic materials, propellants, and pyro- (1) BCMO (3,3-bis(chloromethyl)oxetane) technics and specially formulated fuels for (CAS 78–71–7); aircraft, missile, and naval applications. Ex- (2) DADN (1,5-diacetyl-3,7-dinitro-1, 3, 5, 7- plosives are solid, liquid, or gaseous sub- tetraazacyclooctane); stances or mixtures of substances, which, in (3) Dinitroazetidine-t-butyl salt (CAS their primary, booster, or main charges in 125735–38–8); warheads, demolition, or other military ap- (4) CL–20 precursors (any molecule con- plications, are required to detonate. taining hexaazaisowurtzitane) (e.g., HBIW (2) The resulting product of the combina- (hexabenzylhexaazaisowurtzitane), TAIW tion or conversion of any substance con- (tetraacetyldibenzylhexa-azaisowurtzitane)); trolled by this category into an item not (5) TAT (1, 3, 5, 7-tetraacetyl-1, 3, 5, 7- controlled will no longer be controlled by tetraazacyclooctane) (CAS 41378–98–7); this category provided the controlled item (6) Tetraazadecalin (CAS 5409–42–7); cannot easily be recovered through dissolu- (7) 1,3,5-trichlorobenzene (CAS 108–70–3); or tion, melting, sieving, etc. As an example, (8) 1,2,4-trihydroxybutane (1,2,4- beryllium converted to a near net shape butanetriol) (CAS 3068–00–6). * (h) Any explosive, propellant, pyro- using hot isostatic processes will result in an technic, fuel, oxidizer, binder, additive, or uncontrolled part. A cured thermoset con- precursor that (MT for articles designated as taining beryllium powder is not controlled such): unless meeting an explosive or propellant (1) Is classified; or control. The mixture of beryllium powder in (2) Is being developed using classified infor- a cured thermoset shape is not controlled by mation (see § 120.10(a)(2) of this subchapter). this category. The mixture of controlled beryllium powder mixed with a typical propel- NOTE TO PARAGRAPH (h): ‘‘Classified’’ lant binder will remain controlled by this means classified pursuant to Executive Order category. The addition of dry silica powder 13526, or predecessor order, and a security to dry beryllium powder will remain con- classification guide developed pursuant trolled. thereto or equivalent, or to the cor- (3) Paragraph (c)(4)(ii)(A) of this category responding classification rules of another does not apply to boron and boron carbide government or international organization. enriched with boron-10 (20% or more of total (i) Developmental explosives, propellants, boron-10 content). pyrotechnics, fuels, oxidizers, binders, addi- (4) Theoretical specific impulse (Isp) is cal- tives, or precursors therefor funded by the culated using standard conditions (1000 psi Department of Defense via contract or other chamber pressure expanded to 14.7 psi) and funding authorization. measured in units of pound-force-seconds per NOTE 1 TO PARAGRAPH (i): This paragraph pound-mass (lbf-s/lbm) or simplified to sec- does not control explosives, propellants, py- onds (s). Calculations will be based on shift- rotechnics, fuels, oxidizers, binders, addi- ing equilibrium. tives, or precursors therefor (a) in produc- (5) Particle size is the mean particle dition, (b) determined to be subject to the EAR ameter on a weight basis. Best industrial

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practices will be used in determining par- nication, electronic warfare, target designa- ticle size and the controls may not be under- tion, surveillance, target detection, or sensor mined by addition of larger or smaller sized capabilities. material to shift the mean diameter. NOTE TO PARAGRAPHS (a) AND (b): Vessels (l)–(w) [Reserved] specially designed for military use that are (x) Commodities, software, and technical not identified in paragraph (a) or (b) of this data subject to the EAR (see § 120.42 of this category are subject to the EAR under ECCN subchapter) used in or with defense articles 8A609, including any demilitarized vessels, controlled in this category. regardless of origin or designation, manufac- NOTE TO PARAGRAPH (x): Use of this para- tured prior to 1950 and unmodified since 1949. graph is limited to license applications for Vessels with modifications made to incor- defense articles controlled in this category porate safety features required by law, are where the purchase documentation includes cosmetic (e.g., different paint), or that add commodities, software, or technical data parts or components otherwise available subject to the EAR (see § 123.1(b) of this sub- prior to 1950 are considered ‘‘unmodified’’ for chapter). the purposes of this paragraph. NOTE 1 TO USML CATEGORY V: To assist the (c) Developmental vessels, and specially exporter, an item has been categorized by designed parts, components, accessories, and the most common use. Also, where appro- attachments therefor, funded by the Depart- priate, references have been provided to the ment of Defense via contract or other fund- related controlled precursors. ing authorization. NOTE 2 TO USML CATEGORY V: Chemical NOTE 1 TO PARAGRAPH (c): This paragraph Abstract Service (CAS) registry numbers do does not control vessels, and specially de- not cover all the substances and mixtures signed parts, components, accessories, and controlled by this category. The numbers are attachments therefor, (a) in production, (b) provided as examples to assist government determined to be subject to the EAR via a agencies in the license review process and commodity jurisdiction determination (see exporters when completing their license ap- § 120.4 of this subchapter), or (c) identified in plication and export documentation. the relevant Department of Defense contract or other funding authorization as being de- CATEGORY VI—SURFACE VESSELS OF WAR AND veloped for both civil and military applica- SPECIAL NAVAL EQUIPMENT tions. * (a) Warships and other combatant vessels NOTE 2 TO PARAGRAPH (c): Note 1 does not (i.e., battleships, aircraft carriers, destroy- apply to defense articles enumerated on the ers, frigates, cruisers, corvettes, littoral U.S. Munitions List, whether in production combat ships, mine sweepers, mine hunters, or development. mine countermeasure ships, dock landing NOTE 3 TO PARAGRAPH (c): This provision is ships, amphibious assault ships), Coast applicable to those contracts and funding au- Guard Cutters (with or equivalent to those thorizations that are dated July 8, 2014, or with U.S. designations WHEC, WMEC, later. WMSL, or WPB for the purpose of this sub- (d) [Reserved] chapter), or foreign-origin vessels specially * (e) Naval nuclear propulsion plants and designed to provide functions equivalent to prototypes, and special facilities for con- those of the vessels listed above; struction, support, and maintenance therefor (b) Other vessels not controlled in para- (see § 123.20 of this subchapter). graph (a) of this category, as follows: (1) High-speed air cushion vessels for trans- (f) Vessel and naval equipment, parts, com- porting cargo and personnel, ship-to-shore ponents, accessories, attachments, associ- and across a beach, with a payload over 25 ated equipment, and systems, as follows: tons; (1) Hulls or superstructures, including sup- (2) Surface vessels integrated with nuclear port structures therefor, that: propulsion plants or specially designed to (i) Are specially designed for any vessels support naval nuclear propulsion plants; controlled in paragraph (a) of this category; (3) Vessels armed or specially designed to (ii) Have armor, active protection systems, be used as a platform to deliver munitions or or developmental armor systems; or otherwise destroy or incapacitate targets (iii) Are specially designed to survive 12.5% (e.g., firing lasers, launching torpedoes, or greater damage across the length as meas- rockets, or missiles, or firing munitions ured between perpendiculars; greater than .50 caliber); or (2) Systems that manage, store, create, dis- (4) Vessels incorporating any mission sys- tribute, conserve, and transfer energy, and tems controlled under this subchapter. specially designed parts and components NOTE TO PARAGRAPH (b)(4): ‘‘Mission sys- therefor, that have: tems’’ are defined as ‘‘systems’’ (see (i) Storage exceeding 30MJ; § 120.45(g) of this subchapter) that are defense (ii) A discharge rate less than 3 seconds; articles that perform specific military func- and tions such as by providing military commu- (iii) A cycle time under 45 seconds;

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(3) Shipborne auxiliary systems for chem- suant to Executive Order 13526, or prede- ical, biological, radiological, and nuclear cessor order, and a security classification (CBRN) compartmentalization, over-pressur- guide developed pursuant thereto or equiva- ization and filtration systems, and specially lent, or to the corresponding classification designed parts and components therefor; rules of another government or international * (4) Control and monitoring systems for organization. autonomous unmanned vessels capable of on- NOTE 1 TO PARAGRAPH (f): Parts, compo- board, autonomous perception and decision- nents, accessories, attachments, associated making necessary for the vessel to navigate equipment, and systems specially designed while avoiding fixed and moving hazards, and for vessels enumerated in this category but obeying rules-of-the road without human not listed in paragraph (f) are subject to the intervention; EAR under ECCN 8A609. * (5) Any machinery, device, component, or NOTE 2 TO PARAGRAPH (f): For controls re- equipment, including production, testing and lated to ship signature management, see inspection equipment, and tooling, specially USML Category XIII. designed for plants or facilities controlled in (g) Technical data (see § 120.10 of this subparagraph (e) of this section (see § 123.20 of chapter) and defense services (see § 120.9 of this subchapter); this subchapter) directly related to the de- (6) Parts, components, accessories, attach- fense articles enumerated in paragraphs (a) ments, and equipment specially designed for through (f) of this category and classified integration of articles controlled by USML technical data directly related to items con- Categories II, IV, or XVIII or catapults for trolled in ECCNs 8A609, 8B609, 8C609, and launching aircraft or arresting gear for re- 8D609 and defense services using the classi- covering aircraft (MT for launcher mecha- fied technical data. (MT for technical data nisms specially designed for rockets, space and defense services related to articles des- launch vehicles, or missiles capable of ignated as such.) achieving a range greater than or equal to (See § 125.4 of this subchapter for exemp- 300 km); tions.) NOTE TO PARAGRAPH (f)(6): ‘‘Range’’ is the (h)–(w) [Reserved] maximum distance that the specified rocket (x) Commodities, software, and technical system is capable of traveling in the mode of data subject to the EAR (see § 120.42 of this stable flight as measured by the projection subchapter) used in or with defense articles of its trajectory over the surface of the controlled in this category. Earth. The maximum capability based on the NOTE TO PARAGRAPH (x): Use of this para- design characteristics of the system, when graph is limited to license applications for fully loaded with fuel or propellant, will be defense articles controlled in this category taken into consideration in determining where the purchase documentation includes range. The range for rocket systems will be commodities, software, or technical data determined independently of any external subject to the EAR (see § 123.1(b) of this sub- factors such as operational restrictions, lim- chapter). itations imposed by telemetry, data links, or other external constraints. For rocket sys- CATEGORY VII—GROUND VEHICLES tems, the range will be determined using the * (a) Armored combat ground vehicles as trajectory that maximizes range, assuming follows: International Civil Aviation Organization (1) Tanks; or (ICAO) standard atmosphere with zero wind. (2) Infantry fighting vehicles. (7) Shipborne active protection systems * (b) Ground vehicles (not enumerated in (i.e., defensive systems that actively detect paragraph (a) of this category) and trailers and track incoming threats and launch a bal- that are armed or are specially designed to listic, explosive, energy, or electromagnetic be used as a firing or launch platform to de- countermeasure(s) to neutralize the threat liver munitions or otherwise destroy or inca- prior to contact with a vessel) and specially pacitate targets (e.g., firing lasers, launching designed parts and components therefor; rockets, firing missiles, firing mortars, fir- (8) Minesweeping and mine hunting equip- ing artillery rounds, or firing other ammuni- ment (including mine countermeasures tion greater than .50 caliber) (MT if specially equipment deployed by aircraft), and spe- designed for rockets, space launch vehicles, cially designed parts and components there- missiles, drones, or unmanned aerial vehicles for; or capable of delivering a payload of at least 500 * (9) Any part, component, accessory, at- kg to a range of at least 300 km). tachment, equipment, or system that: (c) Ground vehicles and trailers equipped (i) Is classified; with any mission systems controlled under (ii) Contains classified software directly this subchapter (MT if specially designed for related to defense articles in this subchapter rockets, space launch vehicles, missiles, or 600 series items subject to the EAR; or drones, or unmanned aerial vehicles capable (iii) Is being developed using classified in- of delivering a payload of at least 500 kg to formation. ‘‘Classified’’ means classified pur- a range of at least 300 km).

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NOTE TO PARAGRAPH (c): ‘‘Mission systems’’ cially designed parts and components there- are defined as ‘‘systems’’ (see § 120.45(g) of for; this subchapter) that are defense articles (9) Self-launching bridge components rated that perform specific military functions, class 60 or above for deployment by vehicles such as by providing military communica- in this category; tion, target designation, surveillance, target (10) Suspension components as follows: detection, or sensor capabilities. (i) Rotary shock absorbers specially de- NOTE TO PARAGRAPHS (b) AND (c): ‘‘Pay- signed for the vehicles weighing more than load’’ is the total mass that can be carried or 30 tons in this category; or delivered by the specified rocket, space (ii) Torsion bars specially designed for the launch vehicle, missile, drone, or unmanned vehicles weighing more than 50 tons in this aerial vehicle that is not used to maintain category; flight. For definition of ‘‘range’’ as it per- (11) Kits specially designed to convert a ve- tains to aircraft systems, see note to para- hicle in this category into either an un- graph (a) USML Category VIII. For defini- manned or a driver-optional vehicle. For a tion of ‘‘range’’ as it pertains to rocket sys- kit to be controlled by this paragraph, it tems, see note to paragraph (f)(6) of USML must, at a minimum, include equipment for: Category VI. (i) Remote or autonomous steering; (d) [Reserved] (ii) Acceleration and braking; and * (e) Armored support vehicles capable of (iii) A control system; off-road or amphibious use specially designed (12) Fire control computers, mission com- to transport or deploy personnel or materiel, puters, vehicle management computers, inte- or to move with other vehicles over land in grated core processers, stores management close support of combat vehicles or troops systems, armaments control processors, ve- (e.g., personnel carriers, resupply vehicles, hicle-weapon interface units and computers; combat engineer vehicles, recovery vehicles, (13) Test or calibration equipment for the reconnaissance vehicles, bridge launching mission systems of the vehicles in this cat- vehicles, ambulances, and command and con- egory, except those enumerated elsewhere; trol vehicles). or (f) [Reserved] * (14) Any part, component, accessory, at- (g) Ground vehicle parts, components, ac- tachment, equipment, or system that (MT cessories, attachments, associated equip- for those articles designated as such): ment, and systems as follows: (i) Is classified; (1) Armored hulls, armored turrets, and turret rings; (ii) Contains classified software directly (2) Active protection systems (i.e., defen- related to defense articles in this subchapter sive systems that actively detect and track or 600 series items subject to the EAR; or incoming threats and launch a ballistic, ex- (iii) Is being developed using classified in- plosive, energy, or electromagnetic counter- formation. measure(s) to neutralize the threat prior to ‘‘Classified’’ means classified pursuant to contact with a vehicle) and specially de- Executive Order 13526, or predecessor order, signed parts and components therefor; and a security classification guide developed (3) Composite armor parts and components pursuant thereto or equivalent, or to the specially designed for the vehicles in this corresponding classification rules of another category; government or international organization. (4) Spaced armor components and parts, in- NOTE TO PARAGRAPH (g): Parts, compo- cluding slat armor parts and components nents, accessories, attachments, associated specially designed for the vehicles in this equipment, and systems specially designed category; for vehicles in this category but not listed in (5) Reactive armor parts and components; paragraph (g) are subject to the EAR under (6) Electromagnetic armor parts and com- ECCN 0A606. ponents, including pulsed power specially de- (h) Technical data (see § 120.10 of this sub- signed parts and components therefor; chapter) and defense services (see § 120.9 of NOTE TO PARAGRAPHS (g)(3)–(6): See USML this subchapter) directly related to the de- Category XIII(m)(1)–(4) for interpretations fense articles enumerated in paragraphs (a) which explain and amplify terms used in through (g) of this category and classified these paragraphs. technical data directly related to items con- (7) Built in test equipment (BITE) to evalu- trolled in ECCNs 0A606, 0B606, 0C606, and ate the condition of weapons or other mis- 0D606 and defense services using the classi- sion systems for vehicles identified in this fied technical data. (See § 125.4 of this sub- category, excluding equipment that provides chapter or exemptions.) (MT for technical diagnostics solely for a subsystem or compo- data and defense services related to articles nent involved in the basic operation of the designated as such.) vehicle; (i)–(w) [Reserved] (8) Gun mount, stabilization, turret drive, (x) Commodities, software, and technical and automatic elevating systems, and spe- data subject to the EAR (see § 120.42 of this

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subchapter) used in or with defense articles * (8) Electronic warfare, airborne warning controlled in this category. and control aircraft; NOTE TO PARAGRAPH (x): Use of this para- (9) Air refueling aircraft; graph is limited to license applications for (10) Target drones (MT if the drone has a defense articles controlled in this category range equal to or greater than 300km); where the purchase documentation includes (11) Aircraft incorporating any mission commodities, software, or technical data system controlled under this subchapter; NOTE 1 TO PARAGRAPH (a)(11): ‘‘Mission sys- subject to the EAR (see § 123.1(b) of this sub- tems’’ are defined as ‘‘systems’’ (see chapter). § 120.45(g) of this subchapter) that are defense NOTE 1 TO CATEGORY VII: Ground vehicles articles that perform specific military func- specially designed for military applications tions such as by providing military commu- that are not identified in this category are nication, electronic warfare, target designa- subject to the EAR under ECCN 0A606, in- tion, surveillance, target detection, or sensor cluding any unarmed ground vehicles, re- capabilities. gardless of origin or designation, manufac- NOTE 2 TO PARAGRAPH (a)(11): This does not tured prior to 1956 and unmodified since 1955. include tethered aerostats. Mission systems Ground vehicles with modifications made to incorporated on otherwise EAR-controlled incorporate safety features required by law, aerostats are controlled as the mission sys- are cosmetic (e.g., different paint, repo- tems themselves just as if they were mount- sitioning of bolt holes), or that add parts or ed, for example, on a tower or a pole. components otherwise available prior to 1956 (12) Aircraft capable of being refueled in are considered ‘‘unmodified’’ for the purposes flight including hover-in-flight refueling of this paragraph. ECCN 0A606 also includes (HIFR); unarmed vehicles derived from otherwise * (13) Optionally Piloted Vehicles (OPV) EAR99 civilian vehicles that have been modi- (i.e., aircraft specially designed to operate fied or otherwise fitted with materials to with and without a pilot physically located provide ballistic protection, including pro- in the aircraft) (MT if the OPV has a range tection to level III (National Institute of equal to or greater than 300km); Justice Standard 0108.01, September 1985) or (14) Aircraft with a roll-on/roll-off ramp, better and that do not have reactive or elec- capable of airlifting payloads over 35,000 lbs. tromagnetic armor. to ranges over 2,000 nm without being refu- NOTE 2 TO CATEGORY VII: Armored ground eled in-flight, and landing onto short or un- vehicles are (i) ground vehicles that have in- improved airfields; tegrated, fully armored hulls or cabs, or (ii) * (15) Aircraft not enumerated in para- ground vehicles on which add-on armor has graphs (a)(1) through (a)(14) as follows: been installed to provide ballistic protection (i) U.S.-origin aircraft that bear an origi- to level III (National Institute of Justice nal military designation of A, B, E, F, K, M, Standard 0108.01, September 1985) or better. P, R, or S; or Armored support vehicles do not include (ii) Foreign-origin aircraft specially de- those that are merely capable of being signed to provide functions equivalent to equipped with add-on armor. those of the aircraft listed in paragraph NOTE 3 TO CATEGORY VII: Ground vehicles (a)(15)(i) of this category; or include any vehicle meeting the definitions (16) are armed or are specially designed to or control parameters regardless of the sur- be used as a platform to deliver munitions or face (e.g., highway, off-road, rail) upon which otherwise destroy targets (e.g., firing lasers, the vehicle is designed to operate. launching rockets, firing missiles, dropping bombs, or strafing); CATEGORY VIII—AIRCRAFT AND RELATED NOTE 1 TO PARAGRAPH (a): Aircraft spe- ARTICLES cially designed for military applications that are not identified in paragraph (a) of this (a) Aircraft, as follows: section are subject to the EAR and classified * (1) Bombers; as ECCN 9A610, including any unarmed mili- * (2) Fighters, fighter bombers, and fixed- tary aircraft, regardless of origin or designa- wing attack aircraft; tion, manufactured prior to 1956 and unmodi- * (3) Turbofan- or turbojet-powered trainers fied since manufacture. Aircraft with modi- used to train pilots for fighter, attack, or fications made to incorporate safety of flight bomber aircraft; features or other FAA or NTSB modifica- * (4) Attack helicopters; tions such as transponders and air data re- * (5) Unarmed military unmanned aerial corders are considered ‘‘unmodified’’ for the vehicles (UAVs) (MT if the UAV has a range purposes of this paragraph. equal to or greater than 300km); NOTE 2 TO PARAGRAPH (a): ‘‘Range’’ is the * (6) Armed unmanned aerial vehicles maximum distance that the specified air- (UAVs) (MT if the UAV has a range equal to craft system is capable of traveling in the or greater than 300km); mode of stable flight as measured by the pro- * (7) Military intelligence, surveillance, jection of its trajectory over the surface of and reconnaissance aircraft; the Earth. The maximum capability based on

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the design characteristics of the system, (h) Aircraft parts, components, accessories, when fully loaded with fuel or propellant, attachments, associated equipment and sys- will be taken into consideration in deter- tems, as follows: mining range. The range for aircraft systems (1) Parts, components, accessories, attach- will be determined independently of any ex- ments, and equipment specially designed for ternal factors such as operational restric- the following U.S.-origin aircraft: the B–1B, tions, limitations imposed by telemetry, B–2, F–15SE, F/A–18 E/F/G, F–22, F–35 and fu- data links, or other external constraints. For ture variants thereof; or the F–117 or U.S. aircraft systems, the range will be deter- Government technology demonstrators. mined for a one-way distance using the most Parts, components, accessories, attach- fuel-efficient flight profile (e.g., cruise speed ments, and equipment of the F–15SE and F/ and altitude), assuming International Civil A–18 E/F/G that are common to earlier mod- Aviation Organization (ICAO) standard at- els of these aircraft, unless listed in para- mosphere with zero wind. graph (h) of this category, are subject to the (b)–(c) [Reserved] EAR; (d) Ship-based launching and recovery NOTE TO PARAGRAPH (h)(1): Specially de- equipment specially designed for defense ar- signed (see § 120.4(b)(3)(ii) of this subchapter) ticles described in paragraph (a) of this cat- does not control parts, components, acces- egory and land-based variants thereof (MT if sories, and attachments that are common to the ship-based launching and recovery equip- aircraft described in paragraph (a) of this ment is for an unmanned aerial vehicle, category but not identified in paragraph drone, or missile that has a range equal to or (h)(1), and those identified in paragraph greater than 300 km). (h)(1). For example, a part common to only NOTE TO PARAGRAPH (d): Fixed land-based the F–14 and F–35 is not specially designed arresting gear is not included in this para- for purposes of the ITAR. A part common to graph. For the definition of ‘‘range,’’ see note only the F–22 and F–35—two aircraft models to paragraph (a) of this category. identified in paragraph (h)(1)—is specially * (e) Inertial navigation systems (INS), designed. aided or hybrid inertial navigation systems, (2) Face gear gearboxes, split-torque gear- Inertial Measurement Units (IMUs), and At- boxes, variable speed gearboxes, synchroni- titude and Heading Reference Systems zation shafts, interconnecting drive shafts, (AHRS) specially designed for aircraft con- or rotorcraft gearboxes with internal pitch trolled in this category or controlled in line velocities exceeding 20,000 feet per ECCN 9A610 and all specially designed com- minute and able to operate 30 minutes with ponents, parts, and accessories therefor (MT loss of lubrication, and specially designed if the INS, IMU, or AHRS is for an unmanned parts and components therefor; aerial vehicle, drone, or missile that has a (3) Tail boom folding systems, stabilator ‘‘range’’ equal to or greater than 300 km). folding systems or automatic rotor blade For other inertial reference systems and re- folding systems, and specially designed parts lated components refer to USML Category and components therefor; XII(d). (4) Wing folding systems, and specially de- (f) Developmental aircraft funded by the signed parts and components therefor, for: Department of Defense via contract or other (i) Aircraft powered by power plants con- funding authorization, and specially de- trolled under USML Category IV(d); or, signed parts, components, accessories, and (ii) Aircraft powered by gas turbine en- attachments therefor. gines with any of the following characteris- NOTE 1 TO PARAGRAPH (f): Paragraph (f) tics: does not control aircraft and specially de- (A) The portion of the wing outboard of the signed parts, components, accessories, and wing fold is required for sustained flight; attachments therefor (a) in production; (b) (B) Fuel can be stored outboard of the wing determined to be subject to the EAR via a fold; commodity jurisdiction determination (see (C) Control surfaces are outboard of the § 120.4 of this subchapter), or (c) identified in wing fold; the relevant Department of Defense contract (D) Hard points are outboard of the wing or other funding authorization as being de- fold; veloped for both civil and military applica- (E) Hard points inboard of the wing fold tions. are capable of in-flight ejection; or NOTE 2 TO PARAGRAPH (f): Note 1 does not (F) The aircraft is designed to withstand apply to defense articles enumerated on the maximum vertical maneuvering accelera- U.S. Munitions List, whether in production tions greater than + 3.5g/¥1.5g. or development. (5) Tail hooks and arresting gear, and spe- NOTE 3 TO PARAGRAPH (f): This provision is cially designed parts and components there- applicable to those contracts or other fund- for; ing authorizations that are dated April 16, (6) Bomb racks, missile launchers, missile 2014, or later. rails, weapon pylons, pylon-to-launcher (g) [Reserved] adapters, unmanned aerial vehicle (UAV)

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airborne launching systems, external stores (19) Thrust reversers specially designed to support systems for ordnance or weapons, be deployed in flight for aircraft controlled and specially designed parts and components in this category or controlled in ECCN 9A610; therefor (MT if the bomb rack, missile * (20) Any part, component, accessory, at- launcher, missile rail, weapon pylon, pylon- tachment, equipment, or system that: to-launcher adapter, UAV airborne launch- (i) is classified; ing system, or external stores support sys- (ii) contains classified software directly re- tem is for a UAV, drone, or missile that has lated to defense articles in this subchapter a ‘‘range’’ equal to or greater than 300 km); or 600 series items subject to the EAR; or (7) Damage or failure-adaptive flight con- (iii) is being developed using classified in- trol systems specially designed for aircraft formation (see § 120.10(a)(2) of this sub- controlled in this category or controlled in chapter). ECCN 9A610; ‘‘Classified’’ means classified pursuant to (8) Threat-adaptive autonomous flight con- Executive Order 13526, or predecessor order, trol systems; and a security classification guide developed (9) Non-surface-based flight control sys- pursuant thereto or equivalent, or to the tems and effectors (e.g., thrust vectoring corresponding classification rules of another from gas ports other than main engine government or international organization; thrust vector); (21)–(22) [Reserved] (10) Radar altimeters with output power (23) Electricity-generating fuel cells spe- management or signal modulation (i.e., fre- cially designed for aircraft controlled in this quency hopping, chirping, direct sequence- category or controlled in ECCN 9A610; spectrum spreading) LPI (low probability of (24) Thermal engines specially designed for intercept) capabilities (MT if for an un- aircraft controlled in this category or con- manned aerial vehicle, drone, or missile that trolled in ECCN 9A610; has a ‘‘range’’ equal to or greater than 300 (25) Thermal batteries specially designed km); for aircraft controlled in this category or (11) Air-to-air refueling systems and hover- controlled in ECCN 9A610 (MT if the thermal in-flight refueling (HIFR) systems, and spe- battery is for an unmanned aerial vehicle, cially designed parts and components there- drone, or missile that has a ‘‘range’’ equal to for; or greater than 300 km); or (12) Unmanned aerial vehicle (UAV) flight (26) Thermionic generators specially de- control systems and vehicle management signed for aircraft controlled in this cat- systems with swarming capability (i.e., egory or controlled in ECCN 9A610. UAVs interact with each other to avoid colli- (i) Technical data (see § 120.10 of this sub- sions and stay together, or, if weaponized, chapter) and defense services (see § 120.9 of coordinate targeting) (MT if for a UAV, this subchapter) directly related to the de- drone or missile that has a ‘‘range’’ equal to fense articles described in paragraphs (a) or greater than 300 km); through (h) of this category and classified (13) Aircraft Lithium-ion batteries that technical data directly related to items con- provide greater than 38VDC nominal; trolled in ECCNs 9A610, 9B610, 9C610, and (14) Lift fans, clutches, and roll posts for 9D610 and defense services using classified short take-off, vertical landing (STOVL) air- technical data. (See § 125.4 of this subchapter craft and specially designed parts and com- for exemptions.) (MT for technical data and ponents for such lift fans and roll posts; defense services related to articles des- (15) Integrated helmets incorporating opti- ignated as such.) cal sights or slewing devices, which include (j)–(w) [Reserved] the ability to aim, launch, track, or manage (x) Commodities, software, and technical munitions (e.g., Helmet Mounted Cueing data subject to the EAR (see § 120.42 of this Systems, Joint Helmet Mounted Cueing Sys- subchapter) used in or with defense articles tems (JHMCS), Helmet Mounted Displays, controlled in this category. Display and Sight Helmets (DASH)), and spe- NOTE TO PARAGRAPH (x): Use of this para- cially designed parts, components, acces- graph is limited to license applications for sories, and attachments therefor; defense articles controlled in this category (16) Fire control computers, stores man- where the purchase documentation includes agement systems, armaments control proc- commodities, software, or technical data essors, aircraft-weapon interface units and subject to the EAR (see § 123.1(b) of this sub- computers (e.g., AGM–88 HARM Aircraft chapter). Launcher Interface Computer (ALIC)); NOTE: Inertial navigation systems, aided or (17) Mission computers, vehicle manage- hybrid inertial navigation systems, Inertial ment computers, and integrated core Measurement Units, and Attitude and Head- processers specially designed for aircraft ing Reference Systems in paragraph (e) and controlled in this category or controlled in parts, components, accessories, and attach- ECCN 9A610; ments in paragraphs (h)(2)–(5), (7), (13), (14), (18) Drive systems and flight control sys- (17)–(19), and (21)–(26) are licensed by the De- tems specially designed to function after im- partment of Commerce when incorporated in pact of a 7.62mm or larger projectile; a military aircraft subject to the EAR and

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classified under ECCN 9A610. Replacement (1) System specific simulators that rep- systems, parts, components, accessories and licate the operation of an individual crew attachments are subject to the controls of station, a mission system, or a weapon of an the ITAR. end-item that is controlled in this subchapter; CATEGORY IX—MILITARY TRAINING (2)–(3) [Reserved] EQUIPMENT AND TRAINING (4) Software and associated databases not (a) Training equipment, as follows: elsewhere enumerated in this subchapter (1) Ground, surface, submersible, space, or that can be used to model or simulate the towed airborne targets that: following: (i) Have an infrared, radar, acoustic, mag- (i) Trainers enumerated in paragraph (a) of netic, or thermal signature that mimic a this category; specific defense article, specific other item, (ii) Battle management; or specific person; or (iii) Military test scenarios/models; or (ii) Are instrumented to provide hit/miss (iv) Effects of weapons enumerated in this performance information for defense articles subchapter; or controlled in this subchapter; * (5) Simulators that: (i) Are classified; NOTE TO PARAGRAPH (a)(1): Target drones are controlled in USML Category VIII(a). (ii) Contain classified software directly related to defense articles in this subchapter (2) Devices that are mockups of articles or 600 series items subject to the EAR; or enumerated in this subchapter used for (iii) Are being developed using classified maintenance training or disposal training information. for ordnance enumerated in this subchapter, that reveal technical data or contain parts, NOTE TO PARAGRAPH (b)(5): ‘‘Classified’’ components, accessories, or attachments means classified pursuant to Executive Order controlled in this subchapter; 13526, or predecessor order, and a security (3) Air combat maneuvering instrumenta- classification guide developed pursuant tion and ground stations therefor; thereto or equivalent, or to the cor- (4) Physiological flight trainers for fighter responding classification rules of another aircraft or attack helicopters; government or international organization. (5) Radar trainers specially designed for (c)–(d) [Reserved] training on radar controlled by USML Cat- (e) Technical data (see § 120.10 of this sub- egory XI; chapter) and defense services (see § 120.9 of (6) Training devices specially designed to this subchapter): be attached to a crew station, mission sys- (1) Directly related to the defense articles tem, or weapon of an article controlled in enumerated in paragraphs (a) and (b) of this this subchapter; category; NOTE TO PARAGRAPH (a)(6): This paragraph (2) Directly related to the software and as- includes stimulators that are built-in or add- sociated databases enumerated in paragraph on devices that cause the actual equipment (b)(4) of this category even if no defense arti- to act as a trainer. cles are used or transferred; or (3) Military training (see, § 120.9(a)(3) of this (7) Anti-submarine warfare trainers; subchapter) not directly related to defense (8) Missile launch trainers; articles or technical data enumerated in this (9) Radar target generators; subchapter. (10) Infrared scene generators; or (f)–(w) [Reserved] * (11) Any training device that: (x) Commodities, software, and technical (i) Is classified; data subject to the EAR (see § 120.42 of this (ii) Contains classified software directly subchapter) used in or with defense articles related to defense articles in this subchapter controlled in this category. or 600 series items subject to the EAR; or NOTE TO PARAGRAPH (x): Use of this para- (iii) Is being developed using classified in- graph is limited to license applications for formation. defense articles controlled in this category NOTE TO PARAGRAPH (a)(11): ‘‘Classified’’ where the purchase documentation includes means classified pursuant to Executive Order commodities, software, or technical data 13526, or predecessor order, and a security subject to the EAR (see § 123.1(b) of this sub- classification guide developed pursuant chapter). thereto or equivalent, or to the cor- NOTE TO USML CATEGORY IX: Parts, com- responding classification rules of another ponents, accessories, or attachments of a government or international organization.’’ simulator in this category that are common NOTE TO PARAGRAPH (a): Training equip- to the simulated system or simulated end- ment does not include combat games with- item are controlled under the same USML out item signatures or tactics, techniques, category or CCL ECCN as the parts, compo- and procedures covered by this subchapter. nents, accessories, and attachments of the (b) Simulators, as follows: simulated system or simulated end-item.

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CATEGORY X—PERSONAL PROTECTIVE ing authorization as being developed for both EQUIPMENT civil and military applications. NOTE 2 TO PARAGRAPH (a)(8): Note 1 does (a) Personal protective equipment, as fol- not apply to defense articles enumerated on lows: the USML, whether in production or develop- (1) Body armor providing a protection level equal to or greater than NIJ Type IV; ment. NOTE 3 TO PARAGRAPH (a)(8): This para- NOTE 1 TO PARAGRAPH (a)(1): For body graph is applicable only to those contracts armor providing a level of protection of Type and funding authorizations that are dated I, Type II, Type IIA, Type IIIA, or Type III, January 5, 2015, or later. see ECCNs 1A005 and 1A613. (b)–(c) [Reserved] NOTE 2 TO PARAGRAPH (a)(1): See USML Cat- egory XIII(e) for controls on related mate- (d) Parts, components, assemblies, acces- rials. sories, attachments, and associated equipment for the personal protective equipment (2) Personal protective clothing, equip- controlled in this category, as follows: ment, or face paints specially designed to (1) Ceramic or composite plates that pro- protect against or reduce detection by radar, vide protection equal to or greater than NIJ IR, or other sensors at wavelengths greater Type IV; than 900 nanometers; (2) Lenses, substrates, or filters ‘‘specially NOTE TO PARAGRAPH (a)(2): See USML Cat- designed’’ for the articles covered in para- egory XIII(j) for controls on related mate- graph (a)(7) of this category; rials. (3) Materials and coatings specially de- (3)–(4) [Reserved] signed for the articles covered in paragraph (5) Integrated helmets, not specified in (a)(7) of this category with optical density USML Category VIII(h)(15) or USML Cat- greater than 3, as follows: egory XII, incorporating optical sights or (i) Narrowband absorbing dyes; slewing devices, which include the ability to (ii) Broadband optical switches or limiters aim, launch, track, or manage munitions; (i.e., nonlinear material, tunable or switch- (6) Helmets and helmet shells providing a able agile filters, optical power limiters, protection level equal to or greater than NIJ near infrared interference based filters); or Type IV; (iii) Narrowband interference based notch (7) Goggles, spectacles, visors, vision filters (i.e., multi-layer dielectric coatings, blocks, canopies, or filters for optical sights rugate, holograms or hybrid (i.e., inter- or viewers, employing other than common ference with dye)) protecting against mul- broadband absorptive dyes or UV inhibitors tiple laser wavelength and having high visi- as a means of protection (e.g., narrow band ble band transparency; or filters/dyes or broadband limiters/coatings * (4) Any component, part, accessory, at- with high visible transparency), having an tachment, equipment, or system that: optical density greater than 3, and that pro- (i) Is classified; tect against: (ii) Contains classified software directly (i) Multiple visible (in-band) laser wave- related to defense articles in this subchapter lengths; or 600 series items subject to the EAR; or (ii) Thermal flashes associated with nu- (iii) Is being developed using classified in- clear detonations; or formation. (iii) Near infrared or ultraviolet (out-of- NOTE TO PARAGRAPH (d)(4): ‘‘Classified’’ band) laser wavelengths; or means classified pursuant to Executive Order NOTE 1 TO PARAGRAPH (a)(7): See paragraphs 13526, or predecessor order, and a security (d)(2) and (3) of this category for controls on classification guide developed pursuant related parts, components, and materials. thereto or equivalent, or to the cor- NOTE 2 TO PARAGRAPH (a)(7): See USML Cat- responding classification rules of another egory XII for sensor protection equipment. government or international government. (8) Developmental personal protective NOTE TO PARAGRAPHS (a) AND (d): See Na- equipment and specially designed parts, tional Institute of Justice Classification, NIJ components, accessories, and attachments Standard-0101.06, or national equivalents, for therefor, developed for the U.S. Department a description of level of protection for of Defense via contract or other funding au- armor. thorization. (e) Technical data (see § 120.10 of this sub- NOTE 1 TO PARAGRAPH (a)(8): This para- chapter) and defense services (see § 120.9 of graph does not control personal protective this subchapter) directly related to the de- equipment and specially designed parts, fense articles described in paragraphs (a) components, accessories, and attachments through (d) of this category. (a) in production, (b) determined to be sub- (f)–(w) [Reserved] ject to the EAR via a commodity jurisdic- (x) Commodities, software, and technical tion determination (see § 120.4 of this sub- data subject to the EAR (see § 120.42 of this chapter), or (c) identified in the relevant De- subchapter) used in or with defense articles partment of Defense contract or other fund- controlled in this category.

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NOTE TO PARAGRAPH (x): Use of this para- (ii) Synthetic Aperture Radar (SAR) incor- graph is limited to license applications for porating image resolution less than (better defense articles controlled in this category than) 0.3 m, or incorporating Coherent where the purchase documentation includes Change Detection (CCD) with geo-registra- commodities, software, or technical data tion accuracy less than (better than) 0.3 m, subject to the EAR (see § 123.1(b) of this sub- not including concealed object detection chapter). equipment operating in the frequency range from 30 GHz to 3,000 GHz and having a spatial CATEGORY XI—MILITARY ELECTRONICS resolution of 0.5 milliradians up to and in- (a) Electronic equipment and systems not cluding 1 milliradians at a standoff distance included in Category XII of the U.S. Muni- of 100 m; tions List, as follows: (iii) Inverse Synthetic Aperture Radar *(1) Underwater hardware, equipment, or (ISAR); systems, as follows: (iv) Radar that geodetically-locates (i.e., (i) Active or passive acoustic array sensing geodetic latitude, geodetic longitude, and systems or acoustic array equipment capable geodetic height) with a target location error of real-time processing that survey or detect, 50 (TLE50) less than or equal to 10 m at and also track, localize (i.e., determine range ranges greater than 1 km; and bearing), classify, or identify, surface (v) Any Ocean Surveillance Radar with an vessels, submarines, other undersea vehicles, average-power-aperture product of greater torpedoes, or mines, having any of the fol- than 50 Wm2; lowing: (vi) Any ocean surveillance radar that (A) Multi-static capability; transmits a waveform with an instantaneous (B) Operating frequency less than 20 kHz; bandwidth greater than 100 MHz and has an or antenna rotation rate greater than 60 revolu- (C) Operating bandwidth greater than 10 tions per minute (RPM); kHz; (vii) Air surveillance radar with free space (ii) Underwater single acoustic sensor sys- detection of 1 square meter RCS target at 85 tem that distinguishes non-biologic tonals nmi or greater range, scaled to RCS values and locates the origin of the sound; as RCS to the 1⁄4 power; Note to paragraph(a)(1)(ii): The term tonals (viii) Air surveillance radar with free space implies discrete frequencies in the broadband detection of 1 square meter RCS target at an and narrowband spectra, emanating from altitude of 65,000 feet and an elevation angle man-made objects. greater than 20 degrees (i.e., counter-bat- (iii) Non-acoustic systems that survey or tery); detect, and also track, localize (i.e., deter- (ix) Air surveillance radar with multiple mine range and bearing), classify, or iden- elevation beams, phase or amplitude tify, surface vessels, submarines, other un- monopulse estimation, or 3D height-finding; dersea vehicles, torpedoes, or mines; (x) Air surveillance radar with a beam (iv) Acoustic modems, networks, and com- solid angle less than or equal to 16 degrees2 munications equipment with real-time that performs free space tracking of 1 square adaptive compensation or employing Low meter RCS target at a range greater or equal Probability of Intercept (LPI); to 25 nmi with revisit rate greater or equal Note to paragraph (a)(1)(iv): Adaptive com- to 1⁄3 Hz; pensation is the capability of an underwater (xi) Instrumentation radar for anechoic modem to assess the water conditions to se- test facility or outdoor range that maintains lect the best algorithm to receive and trans- positional state of an object of interest in a mit data. received radar signal through time or pro- (v) Low Frequency/Very Low Frequency vides measurement of RCS of a static target (LF/VLF) electronic modems, routers, inter- less than or equal to minus 10dBsm, or RCS faces, and communications equipment, spe- of a dynamic target; cially designed for submarine communica- (xii) Radar incorporating pulsed operation tions; or with electronics steering of transmit beam (vi) Autonomous systems and equipment in elevation and azimuth; that enable cooperative sensing and engagement by fixed (bottom mounted/seabed) or NOTE TO PARAGRAPH (a)(3)(xii): This para- mobile Autonomous Underwater Vehicles graph does not control radars not otherwise (AUVs); controlled in this subchapter, operating with *(2) Underwater acoustic countermeasures a peak transmit power less than or equal to or counter-countermeasures systems or 250 watts, and employing a design deter- equipment; mined to be subject to the EAR via a com- *(3) Radar systems and equipment, as fol- modity jurisdiction determination (see § 120.4 lows: of this subchapter). (i) Airborne radar that maintains posi- (xiii) Radar with mode(s) for ballistic tional state of an object or objects of inter- tracking or ballistic extrapolation to source est, other than weather phenomena, in a re- of launch or impact point of articles con- ceived radar signal through time; trolled in USML Categories III, IV, or XV;

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(xiv) Active protection radar and missile (xxix) Radar and laser radar systems spe- warning radar with mode(s) implemented for cially designed for defense articles in para- detection of incoming munitions; graph (a)(1) of USML Category IV or para- (xv) Over the horizon high frequency sky- graphs (a)(5), (a)(6), or (a)(13) of USML Cat- wave (ionosphere) radar; egory VIII (MT if specially designed for rock- (xvi) Radar that detects a moving object ets, space launch vehicles, missiles, drones, through a physical obstruction at distance or unmanned aerial vehicles capable of deliv- greater than 0.2 m from the obstruction; ering a payload of at least 500 kg to a range (xvii) Radar having moving target indi- of at least 300 km); cator (MTI) or pulse-Doppler processing where any single Doppler filter provides a NOTE 1 TO PARAGRAPH (a)(3)(xxix): Laser normalized clutter attenuation of greater radar systems embody specialized trans- than 60dB; mission, scanning, receiving, and signal Note to paragraph (a)(3)(xvii): Normalized processing techniques for utilization of la- clutter attenuation is defined as the reduc- sers for echo ranging, direction finding, and tion in the power level of received distrib- discrimination of targets by location, radial uted clutter when normalized to the thermal speed, and body reflection characteristics. noise level. NOTE 2 TO PARAGRAPH (a)(3)(xxix): For defi- (xviii) Radar having electronic protection nition of ‘‘range’’ as it pertains to rocket or electronic counter-countermeasures systems, see note 1 to paragraph (a) of USML (ECCM) other than manual gain control, Category IV. ‘‘Payload’’ is the total mass automatic gain control, radio frequency se- that can be carried or delivered by the speci- lection, constant false alarm rate, and pulse fied rocket, SLV, or missile that is not used repetition interval jitter; to maintain flight. (xix) Radar employing electronic attack NOTE TO PARAGRAPH (a)(3): This paragraph (EA) mode(s) using the radar transmitter does not control: (a) Systems or equipment and antenna; that require aircraft transponders in order to (xx) Radar employing electronic support meet control parameters; (b) precision ap- (ES) mode(s) (i.e., the ability to use a radar proach radar (PAR) equipment conforming system for ES purposes in one or more of the to ICAO standards and employing electroni- following: as a high-gain receiver, as a wide- cally steerable linear (1- dimensional) arrays bandwidth receiver, as a multi-beam re- or mechanically positioned passive antennas; ceiver, or as part of a multi-point system); (xxi) Radar employing non-cooperative tar- and (c) radio altimeter equipment con- get recognition (NCTR) (i.e., the ability to forming to FAA TSO C87. recognize a specific platform type without *(4) Electronic Combat (i.e., Electronic cooperative action of the target platform); Warfare) systems and equipment, as follows: NOTE TO PARAGRAPH (a)(3)(xxi): The defini- (i) ES systems and equipment that search tion of ‘‘type’’ in this paragraph is that pro- for, intercept and identify, or locate sources vided in 14 CFR § 1.1. of intentional or unintentional electro- (xxii) Radar employing automatic target magnetic energy specially designed to pro- recognition (ATR) (i.e., recognition of target vide immediate threat detection, recogni- using structural features (e.g., tank versus tion, targeting, planning, or conduct of fu- car) of the target with system resolution ture operations; better than (less than) 0.3 m); NOTE TO PARAGRAPH (a)(4)(i): ES provides (xxiii) Radar that sends interceptor guid- tactical situational awareness, automatic ance commands or provides illumination cueing, targeting, electronic order of battle keyed to an interceptor seeker; planning, electronic intelligence (ELINT), (xxiv) Radar employing waveform genera- communication intelligence (COMINT), or tion for LPI other than frequency modulated signals intelligence (SIGINT). continuous wave (FMCW) with linear ramp modulation; (ii) Systems and equipment that detect and (xxv) Radar that sends and receives com- automatically discriminate acoustic energy munications; emanating from weapons fire (e.g., gunfire, (xxvi) Radar that tracks or discriminates artillery, rocket propelled grenades, or other ballistic missile warhead from debris or projectiles), determining location or direc- countermeasures; tion of weapons fire in less than two seconds (xxvii) Bi-static/multi-static radar that ex- from receipt of event signal, and able to op- ploits greater than 125 kHz bandwidth and is erate on-the-move (e.g., operating on per- lower than 2 GHz center frequency to pas- sonnel, land vehicles, sea vessels, or aircraft sively detect or track using radio frequency while in motion); or (RF) transmissions (e.g., commercial radio, (iii) Systems and equipment specially de- television stations); signed to introduce extraneous or erroneous (xxviii) Radar target generators, projec- signals into radar, infrared based seekers, tors, or simulators, specially designed for ra- electro-optic based seekers, radio commu- dars controlled by this category; or nication receivers, navigation receivers, or

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that otherwise hinder the reception, oper- (9) Electronic sensor systems or equipment ation, or effectiveness of adversary elec- for non-acoustic antisubmarine warfare tronics (e.g., active or passive electronic at- (ASW) or mine warfare (e.g., magnetic anom- tack, electronic countermeasure, electronic aly detectors (MAD), electric-field, electro- counter-countermeasure equipment, jam- magnetic induction); ming, and counter jamming equipment); (10) Electronic sensor systems or equip- *(5) Command, control, and communica- ment for detection of concealed weapons, tions (C3); command, control, communica- having a standoff detection range of greater tions, and computers (C4); command, con- than 45 m for personnel or detection of vehi- trol, communications, computers, intel- cle-carried weapons, not including concealed ligence, surveillance, and reconnaissance object detection equipment operating in the (C4ISR); and identification systems or equip- frequency range from 30 GHz to 3,000 GHz and ment, that: having a spatial resolution of 0.5 (i) Are specially designed to integrate, in- milliradians up to and including 1 corporate, network, or employ defense arti- milliradians at a standoff distance of 100 m; cles that are controlled in paragraphs or sub- (11) Test sets specially designed for testing paragraphs of the categories of § 121.1 of this defense articles controlled in paragraphs part that do not use the term specially de- (a)(3), (a)(4), (a)(5), or (b); or signed; (12) Direction finding equipment for deter- (ii) Incorporate U.S. government identi- mining bearings to specific electromagnetic fication friend or foe (IFF) Modes 4 or 5; sources or terrain characteristics specially (iii) Implement active or passive ECCM designed for defense articles in paragraph used to counter acts of communication dis- (a)(1) of USML Category IV or paragraphs ruption (e.g., radios that incorporate HAVE (a)(5), (a)(6), or (a)(13) of USML Category QUICK I/II, SINCGARS, SATURN); VIII (MT if specially designed for rockets, (iv) Specially designed, rated, certified, or SLVs, missiles, drones, or UAVs capable of otherwise specified or described to be in delivering a payload of at least 500 kg to a compliance with U.S. government range of at least 300 km. See note 2 to para- NSTISSAM TEMPEST 1–92 standards or graph (a)(3)(xxix) of this category). CNSSAM TEMPEST 01–02, to implement techniques to suppress compromising ema- NOTE 1 TO PARAGRAPH (a): The term Low nations of information bearing signals; or Probability of Intercept used in this para- (v) Transmit voice or data signals specially graph and elsewhere in this category is de- designed to elude electromagnetic detection; fined as a class of measures that disguise, (6) [Reserved] delay, or prevent the interception of acoustic (7) Developmental electronic equipment or or electromagnetic signals. LPI techniques systems funded by the Department of De- can involve permutations of power manage- fense via contract or other funding author- ment, energy management, frequency varia- ization; bility, out-of-receiver-frequency band, low- NOTE 1 TO PARAGRAPH (a)(7): This para- side lobe antenna, complex waveforms, and graph does not control electronic systems or complex scanning. LPI is also referred to as equipment (a) in production, (b) determined Low Probability of Intercept, Low Prob- to be subject to the EAR via a commodity ability of Detection, and Low Probability of jurisdiction determination (see § 120.4 of this Identification. subchapter), or (c) identified in the relevant NOTE 2 TO PARAGRAPH (a): Paragraphs Department of Defense contract or other (a)(3)(xxix) and (a)(12) include terrain con- funding authorization as being developed for tour mapping equipment, scene mapping and both civil and military applications. correlation (both digital and analogue) NOTE 2 TO PARAGRAPH (a)(7): Note 1 does equipment, Doppler navigation radar equip- not apply to defense articles enumerated on ment, passive interferometer equipment, and the USML, whether in production or develop- imaging sensor equipment (both active and ment. passive). NOTE 3 TO PARAGRAPH (a)(7): This para- *(b) Electronic systems, equipment or soft- graph is applicable only to those contracts ware, not elsewhere enumerated in this sub- and funding authorizations that are dated chapter, specially designed for intelligence July 1, 2015, or later. purposes that collect, survey, monitor, or ex- (8) Unattended ground sensor (UGS) sys- ploit, or analyze and produce information tems or equipment having all of the fol- from, the electromagnetic spectrum (regard- lowing: less of transmission medium), or for counter- (i) Automatic target detection; acting such activities. (ii) Automatic target tracking, classifica- (c) Parts, components, accessories, attach- tion, recognition, or identification; ments, and associated equipment, as follows: (iii) Self-forming or self-healing networks; (1) Application Specific Integrated Circuits and (ASICs) and Programmable Logic Devices (iv) Self-localization for geo-locating tar- (PLD) programmed for defense articles in gets; this subchapter;

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NOTE 1 TO PARAGRAPH (c)(1):\ An ASIC is an (ii) Cross-field amplifiers with a gain of 15 integrated circuit developed and produced dB to 17 dB or a duty factor greater than 5%; for a specific application or function regard- (10) Antenna, and specially designed parts less of number of customers. and components therefor, that: NOTE 2 TO PARAGRAPH (c)(1): ASICs and (i) Employ four or more elements, elec- PLDs programmed for 600 series items are tronically steer angular beams, independ- controlled in ECCN 3A611.f. ently steer angular nulls, create angular NOTE 3 TO PARAGRAPH (c)(1): nulls with a null depth greater than 20 dB, Unprogrammed PLDs are not controlled by and achieve a beam switching speed faster this paragraph. than 50 milliseconds; (2) Printed Circuit Boards (PCBs) and pop- (ii) Form adaptive null attenuation greater ulated circuit card assemblies for which the than 35 dB with convergence time less than layout is specially designed for defense arti- one second; cles in this subchapter; (iii) Detect signals across multiple RF NOTE TO PARAGRAPH (c)(2): PCBs and popu- bands with matched left hand and right hand lated circuit card assemblies for which the spiral antenna elements for determination of layout is specially designed for 600 series signal polarization; or items are controlled in ECCN 3A611.g. (iv) Determine signal angle of arrival less than two degrees (e.g., interferometer an- (3) Multichip modules for which the pat- tenna); tern or layout is specially designed for defense articles in this subchapter; NOTE TO PARAGRAPH (c)(10): This category does not control Traffic Collision Avoidance NOTE TO PARAGRAPH (c)(3): Multichip mod- Systems (TCAS) equipment conforming to ules for which the pattern or layout is spe- FAA TSO C–119c. cially designed for 600 series items are controlled in ECCN 3A611.h. (11) Radomes or electromagnetic antenna (4) Transmit/receive modules or transmit windows that: modules that have any two perpendicular (i) Incorporate radio frequency selective sides, with either length d (in cm) equal to or surfaces; less than 15 divided by the lowest operating (ii) Operate in multiple non-adjacent fre- frequency in GHz [d≤15cm*GHz/fGHz], with quency bands for radar applications; an electronically variable phase shifter or (iii) Incorporate a structure that is spe- phasers that are a Monolithic Microwave In- cially designed to provide ballistic protec- tegrated Circuit (MMIC), or incorporate a tion from bullets, shrapnel, or blast; MMIC or discrete RF power transistor; (iv) Have a melting point greater than 1,300 (5) High-energy storage capacitors with a °C and maintain a dielectric constant less repetition rate of 6 discharges or more per than 6 at temperatures greater than 500 °C; minute and full energy life greater than or (v) Are manufactured from ceramic mate- equal to 10,000 discharges, at greater than 0.2 rials with a dielectric constant less than 6 at Amps per Joule peak current, that have any any frequency from 100 MHz to 100 GHz (MT of the following: if usable in rockets, SLVs, or missiles capa- (i) Volumetric energy density greater than ble of achieving a range greater than or or equal to 1.5 J/cc; or equal to 300 km; or if usable in drones or (ii) Mass energy density greater than or UAVs capable of delivering a payload of at equal to 1.3 kJ/kg; least 500 kg to a range of at least 300 km. See (6) Radio frequency circulators of any di- note 2 to paragraph (a)(3)(xxix) of this cat- mension equal to or less than one quarter egory); (1⁄4) wavelength of the highest operating fre- (vi) Maintain structural integrity at stag- quency and isolation greater than 30 dB; nation pressures greater than 6,000 pounds (7) Polarimeter that detects and measures per square foot; or polarization of radio frequency signals with- (vii) Withstand combined thermal shock in a single pulse; greater than 4.184 × 106 J/m2 accompanied by (8) Digital radio frequency memory a peak overpressure of greater than 50 kPa (DRFM) with RF instantaneous input band- (MT if usable in rockets, SLVs, missiles, width greater than 400 MHz, and 4 bit or drones, or UAVs capable of delivering a pay- higher resolution whose output signal is a load of at least 500 kg to a range of at least translation of the input signal (e.g., changes 300 km and usable in protecting against nu- in magnitude, time, frequency) and specially clear effects (e.g., Electromagnetic Pulse designed parts and components therefor; (EMP), X-rays, combined blast and thermal (9) Vacuum electronic devices, as follows: effects). See note 2 to paragraph (a)(3)(xxix) (i) Multiple electron beam or sheet elec- of this category); tron beam devices rated for operation at fre- (12) Underwater sensors (acoustic vector quencies of 16 GHz or above, and with a satu- sensors, hydrophones, or transducers) or pro- rated power output greater than 10,000 W (70 jectors, specially designed for systems con- dBm) or a maximum average power output trolled by paragraphs (a)(1) and (a)(2) of this greater than 3,000 W (65 dBm); or category, having any of the following:

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(i) A transmitting frequency below 10 kHz (i) Is classified; for sonar systems; (ii) Contains classified software directly (ii) Sound pressure level exceeding 224 dB related to defense articles in this subchapter (reference 1 mPa at 1 m) for equipment with or 600 series items subject to the EAR; or an operating frequency in the band from 10 (iii) Is being developed using classified in- kHz to 24 kHz inclusive; formation (see § 120.10(a)(2) of this sub- (iii) Sound pressure level exceeding 235 dB chapter). (reference 1 mPa at 1 m) for equipment with NOTE TO PARAGRAPH (c)(19): ‘‘Classified’’ an operating frequency in the band between means classified pursuant to Executive Order 24 kHz and 30 kHz; 13526, or predecessor order, and a security (iv) Forming beams of less than 1° on any classification guide developed pursuant axis and having an operating frequency of thereto or equivalent, or to the cor- less than 100 kHz; responding classification rules of another (v) Designed to operate with an unambig- government or international organization. uous display range exceeding 5,120 m; or NOTE TO PARAGRAPH (c)(19)(ii): Parts and (vi) Designed to withstand pressure during components controlled by this paragraph are normal operation at depths exceeding 1,000 m limited to those that store, process, or trans- and having transducers with any of the fol- mit classified software (see § 121.8(f) of this lowing: subchapter). (A) Dynamic compensation for pressure; or (d) Technical data (see § 120.10 of this sub- (B) Incorporating other than lead zirconate chapter) and defense services (see § 120.9 of titanate as the transduction element; this subchapter) directly related to the de- (13) Parts or components containing piezo- fense articles described in paragraphs (a) electric materials which are specially de- through (c) of this category and classified signed for underwater hardware, equipment, technical data directly related to items con- or systems controlled by paragraph (c)(12) of trolled in CCL ECCNs 3A611, 3B611, 3C611, and this category; 3D611 and defense services using the classi- (14) Tuners specially designed for systems fied technical data. ( § 125.4 of this sub- and equipment in paragraphs (a)(4) and (b) of See chapter for exemptions.) (MT for technical this category; (15) Electronic assemblies and components, data and defense services related to articles capable of operation at temperatures in ex- designated as such.) (e)–(w) [Reserved]; cess of 125 °C and specially designed for (x) Commodities, software, and technology UAVs or drones controlled by USML Cat- subject to the EAR (see § 120.42 of this sub- egory VIII, rockets, space launch vehicles chapter) used in or with defense articles con- (SLV), or missiles controlled by USML Cat- trolled in this category. egory IV capable of achieving a range greater than or equal to 300 km (MT) (see Note 2 NOTE TO PARAGRAPH (x): Use of this para- to paragraph (a)(3)(xxix) of this category); graph is limited to license applications for (16) Hybrid (combined analogue/digital) defense articles controlled in this category computers specially designed for modeling, where the purchase documentation includes simulation, or design integration of systems commodities, software, or technology sub- enumerated in paragraphs (a)(1), (d)(1), (d)(2), ject to the EAR (see § 123.1(b) of this sub- (h)(1), (h)(2), (h)(4), (h)(8), and (h)(9) of USML chapter). Category IV or paragraphs (a)(5), (a)(6), or CATEGORY XII—FIRE CONTROL, RANGE FIND- (a)(13) of USML Category VIII (MT if for ER, OPTICAL AND GUIDANCE AND CONTROL rockets, SLVs, missiles, drones, or UAVs ca- EQUIPMENT pable of delivering a payload of at least 500 kg to a range of at least 300 km or their sub- * (a) Fire control systems; gun and missile systems. See note 2 to paragraph (a)(3)(xxix) tracking and guidance systems; gun range, of this category); position, height finders, spotting instru- (17) Chaff and flare rounds specially de- ments and laying equipment; aiming devices signed for the systems and equipment de- (electronic, optic, and acoustic); bomb scribed in paragraph (a)(4)(iii) of this cat- sights, bombing computers, military tele- egory, and parts and components therefor vision sighting and viewing units, and peri- containing materials controlled in USML scopes for the articles of this section. Category V; * (b) Lasers specifically designed, modified (18) Parts, components, or accessories spe- or configured for military application in- cially designed for an information assurance/ cluding those used in military communica- information security system or radio con- tion devices, target designators and range trolled in this subchapter that modify its finders, target detection systems, and di- published properties (e.g., frequency range, rected energy weapons. algorithms, waveforms, CODECs, or modula- * (c) Infrared focal plane array detectors tion/demodulation schemes); or specifically designed, modified, or configured * (19) Any part, component, accessory, at- for military use; image intensification and tachment, equipment, or system that (MT other night sighting equipment or systems for those articles designated as such): specifically designed, modified or configured

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for military use; second generation and for military purposes, and components spe- above military image intensification tubes cifically designed or modified therefor. (defined below) specifically designed, devel- (b) Information security or information as- oped, modified, or configured for military surance systems and equipment, cryp- use, and infrared, visible and ultraviolet de- tographic devices, software, and components, vices specifically designed, developed, modi- as follows: fied, or configured for military application. (1) Military or intelligence cryptographic Military second and third generation image (including key management) systems, equip- intensification tubes and military infrared ment, assemblies, modules, integrated cir- focal plane arrays identified in this subpara- cuits, components, and software (including graph are licensed by the Department of their cryptographic interfaces) capable of Commerce (ECCN 6A002A and 6A003A)) when maintaining secrecy or confidentiality of in- part of a commercial system (i.e., those sys- formation or information systems, including tems originally designed for commercial equipment or software for tracking, telem- use). This does not include any military sys- etry, and control (TT&C) encryption and tem comprised of non-military specification decryption; components. Replacement tubes or focal (2) Military or intelligence cryptographic plane arrays identified in this paragraph (including key management) systems, equip- being exported for commercial systems are ment, assemblies, modules, integrated cir- subject to the controls of the ITAR. cuits, components, and software (including NOTE: Special definition. For purposes of their cryptographic interfaces) capable of this subparagraph, second and third genera- generating spreading or hopping codes for tion image intensification tubes are defined as spread spectrum systems or equipment; having: A peak response within the 0.4 to 1.05 (3) Military or intelligence cryptanalytic micron wavelength range and incorporating systems, equipment, assemblies, modules, in- a microchannel plate for electron image am- tegrated circuits, components and software; plification having a hole pitch (center-to- (4) Military or intelligence systems, equipment, assemblies, modules, integrated cir- center spacing) of less than 25 microns and cuits, components, or software (including all having either: previous or derived versions) authorized to (a) An S–20, S–25 or multialkali control access to or transfer data between photocathode; or different security domains as listed on the (b) A GaAs, GaInAs, or other compound Unified Cross Domain Management Office semiconductor photocathode. (UCDMO) Control List (UCL); or * (d) Inertial platforms and sensors for (5) Ancillary equipment specially designed weapons or weapon systems; guidance, con- for the articles in paragraphs (b)(1)–(b)(4) of trol and stabilization systems except for this category. those systems covered in Category VIII; (c) [Reserved] astro-compasses and star trackers and mili- (d) Materials, as follows: tary accelerometers and gyros. For aircraft * (1) Ablative materials fabricated or semi- inertial reference systems and related com- fabricated from advanced composites (e.g., ponents refer to Category VIII. silica, graphite, carbon, carbon/carbon, and (e) Components, parts, accessories, attach- boron filaments) specially designed for the ments and associated equipment specifically articles in USML Category IV or XV (MT if designed or modified for the articles in para- usable for nozzles, re-entry vehicles, nose graphs (a) through (d) of this category, ex- tips, or nozzle flaps usable in rockets, space cept for such items as are in normal com- launch vehicles (SLVs), or missiles capable mercial use. of achieving a range greater than or equal to (f) Technical data (as defined in § 120.10) 300 km); or and defense services (as defined in § 120.9) di- (2) Carbon/carbon billets and preforms that rectly related to the defense articles de- are reinforced with continuous scribed in paragraphs (a) through (e) of this unidirectional fibers, tows, tapes, or woven category. (See § 125.4 for exemptions.) Tech- cloths in three or more dimensional planes nical data directly related to manufacture (MT if designed for rocket, SLV, or missile and production of any defense articles de- systems and usable in rockets, SLVs, or mis- scribed elsewhere in this category that are siles capable of achieving a range greater designated as Significant Military Equip- than or equal to 300 km). ment (SME) shall itself be designated as NOTE TO PARAGRAPH (d): ‘‘Range’’ is the SME. maximum distance that the specified rocket system is capable of traveling in the mode of CATEGORY XIII— MATERIALS AND stable flight as measured by the projection MISCELLANEOUS ARTICLES of its trajectory over the surface of the (a) Cameras and specialized processing Earth. The maximum capability based on the equipment therefor, photointerpretation, design characteristics of the system, when stereoscopic plotting, and photogrammetry fully loaded with fuel or propellant, will be equipment which are specifically designed, taken into consideration in determining developed, modified, adapted, or configured range. The range for rocket systems will be

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determined independently of any external ‘‘Classified’’ means classified pursuant to factors such as operational restrictions, lim- Executive Order 13526, or predecessor order, itations imposed by telemetry, data links, or and a security classification guide developed other external constraints. For rocket sys- pursuant thereto or equivalent, or to the tems, the range will be determined using the corresponding classification rules of another trajectory that maximizes range, assuming government or international organization. International Civil Aviation Organization * (g) Concealment and deception equip- (ICAO) standard atmosphere with zero wind. ment, as follows (MT for applications usable NOTE TO PARAGRAPH (d)(2): This paragraph for rockets, SLVs, missiles, drones, or un- does not control carbon/carbon billets and manned aerial vehicles (UAVs) capable of preforms where reinforcement in the third achieving a range greater than or equal to dimension is limited to interlocking of adja- 300 km and their subsystems. See note to cent layers only. paragraph (d) of this category): (e) Armor (e.g., organic, ceramic, metallic) (1) Polymers loaded with carbonyl iron and armor materials, as follows: powder, ferrites, iron whiskers, fibers, flakes, or other magnetic additives having a surface (1) Spaced armor with Em greater than 1.4 and meeting NIJ Level III or better; resistivity of less than 5000 ohms/square and greater than 10 ohms/square with electrical (2) Transparent armor having Em greater isotropy of less than 5%; than or equal to 1.3 or having Em less than 1.3 and meeting and exceeding NIJ Level III (2) Multi-layer camouflage systems spe- standards with areal density less than or cially designed to reduce detection of plat- equal to 40 pounds per square foot; forms or equipment in the infrared or ultra- (3) Transparent ceramic plate greater than violet frequency spectrums; 1 ° ⁄4 inch-thick and larger than 8 inches × 8 (3) High temperature (greater than 300 F inches, excluding glass, for transparent operation) ceramic or magnetic radar ab- armor; sorbing material (RAM) specially designed (4) Non-transparent ceramic plate or for use on defense articles or military items blanks, greater than 1⁄4 inches thick and subject to the EAR; or larger than 8 inches × 8 inches for trans- (4) Broadband (greater than 30% band- parent armor. This includes spinel and alu- width) lightweight (less than 2 lbs/sq ft) mag- minum oxynitride (ALON); netic radar absorbing material (RAM) spe- (5) Composite armor with Em greater than cially designed for use on defense articles or 1.4 and meeting or exceeding NIJ Level III; military items subject to the EAR. (6) Metal laminate armor with Em greater (h) Energy conversion devices not other- than 1.4 and meeting or exceeding NIJ Level wise enumerated in this subchapter, as fol- III; or lows: (7) Developmental armor funded by the De- (1) Fuel cells specially designed for plat- partment of Defense via contract or other forms or soldier systems specified in this funding authorization. subchapter; NOTE 1 TO PARAGRAPH (e)(7): This para- (2) Thermal engines specially designed for graph does not control armor (a) in produc- platforms or soldier systems specified in this tion, (b) determined to be subject to the EAR subchapter; via a commodity jurisdiction determination (3) Thermal batteries (MT if designed or (see § 120.4 of this subchapter), or (c) identi- modified for rockets, SLVs, missiles, drones, fied in the relevant Department of De- or UAVs capable of achieving a range equal fense contract or other funding author- to or greater than 300 km. See note to para- ization as being developed for both civil graph (d) of this category); or and military applications. NOTE TO PARAGRAPH (h)(3): Thermal bat- NOTE 2 TO PARAGRAPH (e)(7): Note 1 does teries are single use batteries that contain a not apply to defense articles enumerated on solid non-conducting inorganic salt as the the USML, whether in production or develop- electrolyte. These batteries incorporate a ment. pyrolitic material that, when ignited, melts NOTE 3 TO PARAGRAPH (e)(7): This provision the electrolyte and activates the battery. is applicable to those contracts and funding (4) Thermionic generators specially de- authorizations that are dated July 8, 2014, or signed for platforms or soldier systems enu- later. merated in this subchapter. * (f) Any article enumerated in this cat- * (i) Signature reduction software, and egory that (MT for those articles designated technical data as follows (MT for software as such): specially designed for reduced observables, (i) Is classified; for applications usable for rockets, SLVs, (ii) Contains classified software directly missiles, drones, or UAVs capable of achiev- related to defense articles in this subchapter ing a range (see note to paragraph (d) of this or 600 series items subject to the EAR; or category) greater than or equal to 300 km, (iii) Is being developed using classified in- and their subsystems, including software formation. specially designed for analysis of signature

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reduction; MT for technical data for the de- detectability or observability (MT for appli- velopment, production, or use of equipment, cations usable for rockets, SLVs, missiles, materials, or software designated as such, in- drones, or UAVs capable of achieving a range cluding databases specially designed for greater than or equal to 300 km, and their analysis of signature reduction): subsystems. See note to paragraph (d) of this (1) Software associated with the measure- category). ment or modification of system signatures * (k) Tooling and equipment, as follows: for defense articles to reduce detectability or (1) Tooling and equipment specially de- observability; signed for production of low observable (LO) (2) Software for design of low-observable components; or platforms; (2) Portable platform signature field repair (3) Software for design, analysis, pre- validation equipment (e.g., portable optical diction, or optimization of signature man- interrogator that validates integrity of a re- agement solutions for defense articles; pair to a signature reduction structure). (4) Infrared signature measurement or pre- (l) Technical data (see § 120.10 of this sub- diction software for defense articles or radar chapter) directly related to the defense arti- cross section measurement or prediction cles described in paragraphs (a) through (h), software; (j), and (k) of this category and defense serv- (5) Signature management technical data, ices (see § 120.9 of this subchapter) directly including codes and algorithms for defense related to the defense articles described in articles to reduce detectability or observ- this category. (See also § 123.20 of this sub- ability; chapter.) (MT for technical data and defense (6) Signature control design methodology services related to articles designated as (see § 125.4(c)(4) of this subchapter) for de- such.) fense articles to reduce detectability or ob- (m) The following interpretations explain servability; (7) Technical data for use of micro-encap- and amplify terms used in this category and sulation or micro-spheres to reduce infrared, elsewhere in this subchapter: radar, or visual detection of platforms or (1) Composite armor is defined as having equipment; more than one layer of different materials or (8) Multi-layer camouflage system tech- a matrix. nical data for reducing detection of plat- (2) Spaced armors are metallic or non-me- forms or equipment; tallic armors that incorporate an air space (9) Multi-spectral surface treatment tech- or obliquity or discontinuous material path nical data for modifying infrared, visual or effects as part of the defeat mechanism. radio frequency signatures of platforms or (3) Reactive armor employs explosives, equipment; propellants, or other materials between (10) Technical data for modifying visual, plates for the purpose of enhancing plate mo- electro-optical, radiofrequency, electric, tion during a ballistic event or otherwise de- magnetic, electromagnetic, or wake signa- feating the penetrator. tures (e.g., low probability of intercept (LPI) (4) Electromagnetic armor (EMA) employs techniques, methods or applications) of de- electricity to defeat threats such as shaped fense platforms or equipment through shap- charges. ing, active, or passive techniques; or (5) Materials used in composite armor (11) Technical data for modifying acoustic could include layers of metals, plastics, signatures of defense platforms or equipment elastomers, fibers, glass, ceramics, ceramic- through shaping, active, or passive tech- glass reinforced plastic laminates, encap- niques. sulated ceramics in a metallic or non-metal- (j) Equipment, materials, coatings, and lic matrix, functionally gradient ceramic- treatments not elsewhere specified, as fol- metal materials, or ceramic balls in a cast lows: metal matrix. (1) Specially treated or formulated dyes, (6) For this category, a material is consid- coatings, and fabrics used in the design, ered transparent if it allows 75% or greater manufacture, or production of personnel pro- transmission of light, corrected for index of tective clothing, equipment, or face paints refraction, in the visible spectrum through a designed to protect against or reduce detec- 1 mm thick nominal sample. tion by radar, infrared, or other sensors at (7) The material controlled in paragraph wavelengths greater than 900 nanometers (e)(4) of this category has not been treated to (see USML Category X(a)(2)); or reach the 75% transmission level referenced * (2) Equipment, materials, coatings, and in (m)(6) of this category. treatments that are specially designed to (8) Metal laminate armors are two or more modify the electro-optical, radiofrequency, layers of metallic materials which are me- infrared, electric, laser, magnetic, electro- chanically or adhesively bonded together to magnetic, acoustic, electro-static, or wake form an armor system. signatures of defense articles or 600 series (9) Em is the line-of-sight target mass effec- items subject to the EAR through control of tiveness ratio and provides a measure of the absorption, reflection, or emission to reduce tested armor’s performance to that of rolled

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homogenous armor, where Em is defined as follows:

Where: alkyl (Methyl, Ethyl, n-Propyl or Iso- 3 propyl)phosphonothiolates and cor- rRHA = density of RHA, (7.85 g/cm ) Po = Baseline Penetration of RHA, (mm) responding alkylated and protonated salts, Pr = Residual Line of Sight Penetration, ei- such as: VX: O-Ethyl S-2- ther positive or negative (mm RHA diisopropylaminoethyl methyl equivalent) phosphonothiolate (CAS 50782–69–9) (CWC Schedule 1A); ADTARGET = Line-of-Sight Areal Density of Target (kg/m2) (2) Amiton: O,O-Diethyl S- [2(diethylamino)ethyl] phosphorothiolate If witness plate is penetrated, P is the dis- r and corresponding alkylated or protonated tance from the projectile to the front edge of salts (CAS 78–53–5) (CWC Schedule 2A); the witness plate. If not penetrated, P is r (3) Vesicant agents: negative and is the distance from the back (i) Sulfur mustards, such as: 2- edge of the target to the projectile. Chloroethylchloromethylsulfide (CAS 2625– (10) NIJ is the National Institute of Justice 76–5) (CWC Schedule 1A); Bis(2- and Level III refers to the requirements spec- chloroethyl)sulfide (CAS 505–60–2) (CWC ified in NIJ standard 0108.01 Ballistic Resist- Schedule 1A); Bis(2-chloroethylthio)methane ant Protective Materials. (CAS 63839–13–6) (CWC Schedule 1A); 1,2-bis (n)–(w) [Reserved] (2-chloroethylthio)ethane (CAS 3563–36–8) (x) Commodities, software, and technical (CWC Schedule 1A); 1,3-bis (2- data subject to the EAR ( § 120.42 of this see chloroethylthio)-n-propane (CAS 63905–10–2) subchapter) used in or with defense articles (CWC Schedule 1A); 1,4-bis (2- controlled in this category. chloroethylthio)-n-butane (CWC Schedule NOTE TO PARAGRAPH (x): Use of this para- 1A); 1,5-bis (2-chloroethylthio)-n-pentane graph is limited to license applications for (CWC Schedule 1A); Bis (2- defense articles controlled in this category chloroethylthiomethyl)ether (CWC Schedule where the purchase documentation includes 1A); Bis (2-chloroethylthioethyl)ether (CAS commodities, software, or technical data 63918–89–8) (CWC Schedule 1A); subject to the EAR (see § 123.1(b) of this sub- (ii) Lewisites, such as: 2- chapter). chlorovinyldichloroarsine (CAS 541–25–3) (CWC Schedule 1A); Tris (2-chlorovinyl) ar- CATEGORY XIV—TOXICOLOGICAL AGENTS, IN- sine (CAS 40334–70–1) (CWC Schedule 1A); Bis CLUDING CHEMICAL AGENTS, BIOLOGICAL (2-chlorovinyl) chloroarsine (CAS 40334–69–8) AGENTS, AND ASSOCIATED EQUIPMENT (CWC Schedule 1A); * (a) Chemical agents, to include: (iii) Nitrogen mustards, such as: HN1: bis (1) Nerve agents: (2-chloroethyl) ethylamine (CAS 538–07–8) (i) O-Alkyl (equal to or less than C10, in- (CWC Schedule 1A); HN2: bis (2-chloroethyl) cluding cycloalkyl) alkyl (Methyl, Ethyl, n- methylamine (CAS 51–75–2) (CWC Schedule Propyl or Isopropyl)phosphonofluoridates, 1A); HN3: tris (2-chloroethyl)amine (CAS 555– such as: Sarin (GB): O-Isopropyl 77–1) (CWC Schedule 1A); methylphosphonofluoridate (CAS 107–44–8) (iv) Ethyldichloroarsine (ED); (CWC Schedule 1A); and Soman (GD): O- (v) Methyldichloroarsine (MD); Pinacolyl methylphosphonofluoridate (CAS (4) Incapacitating agents, such as: 96–64–0) (CWC Schedule 1A); (i) 3-Quinuclindinyl benzilate (BZ) (CAS (ii) O-Alkyl (equal to or less than C10, in- 6581–06–2) (CWC Schedule 2A); cluding cycloalkyl) N,N-dialkyl (Methyl, (ii) Diphenylchloroarsine (DA) (CAS 712–48– Ethyl, n-Propyl or Iso- 1); propyl)phosphoramidocyanidates, such as: (iii) Diphenylcyanoarsine (DC); Tabun (GA): O-Ethyl N, N- * (b) Biological agents and biologically de- dimethylphosphoramidocyanidate (CAS 77– rived substances specifically developed, con- 81–6) (CWC Schedule 1A); figured, adapted, or modified for the purpose (iii) O-Alkyl (H or equal to or less than C10, of increasing their capability to produce cas- including cycloalkyl) S–2-dialkyl (Methyl, ualties in humans or livestock, degrade Ethyl, n-Propyl or Isopropyl)aminoethyl equipment or damage crops.

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* (c) Chemical agent binary precursors and (3) Sample collection and processing of the key precursors, as follows: chemical agents and biological agents listed (1) Alkyl (Methyl, Ethyl, n-Propyl or Iso- in paragraph (a) and (b) of this category; propyl) phosphonyl difluorides, such as: DF: (4) Individual protection against the chem- Methyl Phosphonyldifluoride (CAS 676–99–3) ical and biological agents listed in para- (CWC Schedule 1B); graphs (a) and (b) of this category. Methylphosphinyldifluoride; (5) Collective protection against the chem- (2) O-Alkyl (H or equal to or less than C10, ical agents and biological agents listed in including cycloalkyl) O–2-dialkyl (methyl, paragraph (a) and (b) of this category. ethyl, n-Propyl or isopropyl)aminoethyl (6) Decontamination or remediation of the alkyl (methyl, ethyl, N-propyl or iso- chemical agents and biological agents listed propyl)phosphonite and corresponding in paragraph (a) and (b) of this category. alkylated and protonated salts, such as: QL: (g) Antibodies, polynucleoides, biopoly- O-Ethyl-2-di-isopropylaminoethyl mers or biocatalysts specifically designed or methylphosphonite (CAS 57856–11–8) (CWC modified for use with articles controlled in Schedule 1B); paragraph (f) of this category. (3) Chlorosarin: O-Isopropyl (h) Medical countermeasures, to include methylphosphonochloridate (CAS 1445–76–7) pre- and post-treatments, vaccines, antidotes (CWC Schedule 1B); and medical diagnostics, specifically de- (4) Chlorosoman: O-Pinakolyl signed or modified for use with the chemical methylphosphonochloridate (CAS 7040–57–5) agents listed in paragraph (a) of this cat- (CWC Schedule 1B); egory and vaccines with the sole purpose of (5) DC: Methlyphosphonyl dichloride (CAS protecting against biological agents identi- 676–97–1) (CWC Schedule 2B); fied in paragraph (b) of this category. Exam- Methylphosphinyldichloride; ples include: barrier creams specifically de- (d) Tear gases and riot control agents in- signed to be applied to skin and personal cluding: equipment to protect against vesicant agents (1) Adamsite (Diphenylamine chloroarsine controlled in paragraph (a) of this category; or DM) (CAS 578–94–9); atropine auto injectors specifically designed (2) CA (Bromobenzyl cyanide) (CAS 5798–79– to counter nerve agent poisoning. 8); (i) Modeling or simulation tools specifi- (3) CN (Phenylacyl chloride or w- cally designed or modified for chemical or bi- Chloroacetophenone) (CAS 532–27-4); ological weapons design, development or em- (4) CR (Dibenz-(b,f)-1,4-oxazephine) (CAS ployment. The concept of modeling and sim- 257–07–8); ulation includes software covered by para- (5) CS (o-Chlorobenzylidenemalononitrile graph (m) of this category specifically de- or o-Chlorobenzalmalononitrile) (CAS 2698– signed to reveal susceptibility or vulner- 41–1); ability to biological agents or materials list- (6) Dibromodimethyl ether (CAS 4497–29–4); ed in paragraph (b) of this category. (7) Dichlorodimethyl ether (ClCi) (CAS 542– 88–1); (j) Test facilities specifically designed or (8) Ethyldibromoarsine (CAS 683–43–2); modified for the certification and qualifica- (9) Bromo acetone; tion of articles controlled in paragraph (f) of (10) Bromo methylethylketone; this category. (11) Iodo acetone; (k) Equipment, components, parts, acces- (12) Phenylcarbylamine chloride; sories, and attachments, exclusive of incin- (13) Ethyl iodoacetate; erators (including those which have specially (e) Defoliants, as follows: designed waste supply systems and special (1) Agent Orange (2,4,5– handling facilities), specifically designed or Trichlorophenoxyacetic acid mixed with 2,4- modified for destruction of the chemical dichlorophenoxyacetic acid); agents in paragraph (a) or the biological (2) LNF (Butyl 2-chloro-4- agents in paragraph (b) of this category. This fluorophenoxyacetate) destruction equipment includes facilities * (f) Equipment and its components, parts, specifically designed or modified for destruc- accessories, and attachments specifically de- tion operations. signed or modified for military operations (l) Tooling and equipment specifically de- and compatibility with military equipment signed or modified for the production of arti- as follows: cles controlled by paragraph (f) of this cat- (1) The dissemination, dispersion or testing egory. of the chemical agents, biological agents, (m) Technical data (as defined in § 120.10 of tear gases and riot control agents, and defo- this subchapter) and defense services (as de- liants listed in paragraphs (a), (b), (d), and fined in § 120.9 of this subchapter) related to (e), respectively, of this category; the defense articles described in paragraphs (2) The detection, identification, warning (a) through (l) of this category. (See § 125.4 of or monitoring of the chemical agents and bi- this subchapter for exemptions.) Technical ological agents listed in paragraph (a) and data directly related to the manufacture or (b) of this category; production of any defense articles described

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elsewhere in this Category that are des- individually packaged tear gases or riot con- ignated as Significant Military Equipment trol agents for personal self-defense pur- (SME) shall itself be designated as SME. poses. (n) The following interpretations explain NOTE 2: Categories XIV(a) and (d) do not and amplify the terms used in this category include the following: and elsewhere in this subchapter. (1) Cyanogen chloride; (1) A chemical agent in category XIV(a) is (2) Hydrocyanic acid; a substance having military application, (3) Chlorine; which by its ordinary and direct chemical (4) Carbonyl chloride (Phosgene); action, produces a powerful physiological ef- (5) Ethyl bromoacetate; fect. (6) Xylyl bromide; (2) The biological agents or biologically de- (7) Benzyl bromide; rived substances in paragraph (b) of this cat- (8) Benzyl iodide; egory are those agents and substances capa- (9) Chloro acetone; ble of producing casualties in humans or (10) Chloropicrin (trichloronitromethane); livestock, degrading equipment or damaging (11) Fluorine; crops and which have been modified for the (12) Liquid pepper. specific purpose of increasing such effects. NOTE 3: Chemical Abstract Service (CAS) Examples of such modifications include in- registry numbers do not cover all the sub- creasing resistance to UV radiation or im- stances and mixtures controlled by this cat- proving dissemination characteristics. This egory. The numbers are provided as examples does not include modifications made only for to assist the government agencies in the li- civil applications (e.g., medical or environ- cense review process and the exporter when mental use). completing their license application and ex- (3) The destruction equipment controlled port documentation. by this category related to biological agents NOTE 4: With respect to U.S. obligations in paragraph (b) is that equipment specifi- under the Chemical Weapons Convention cally designed to destroy only the agents (CWC), refer to Chemical Weapons Conven- identified in paragraph (b) of this category. tion Regulations (CWCR) (15 CFR parts 710 (4)(i) The individual protection against the through 722). As appropriate, the CWC sched- chemical and biological agents controlled by ule is provided to assist the exporter. this category includes military protective NOTE 5: Pharmacological formulations con- clothing and masks, but not those items de- taining nitrogen mustards and certain ref- signed for domestic preparedness (e.g., civil erence standards for these drugs are not con- defense). Domestic preparedness devices for sidered to be chemical agents and are li- individual protection that integrate compo- censed by the Department of Commerce nents and parts identified in this subpara- when: graph are licensed by the Department of (1) The drug is in the form of a final med- Commerce when such components are: ical product; or (A) Integral to the device; (2) The reference standard contains salts of (B) inseparable from the device; and, HN2 [bis(2-chloroethyl) methylamine], the (C) incapable of replacement without com- quantity to be shipped is 150 milligrams or promising the effectiveness of the device. less, and individual shipments do not exceed (ii) Components and parts identified in this twelve per calendar year per end user. subparagraph exported for integration into Technical data for the production of HN1 domestic preparedness devices for individual [bis(2-chloroethyl)ethylamine]; HN2 [bis(2- protection are subject to the controls of the chloroethyl)methylamine], HN3 [tris(2- ITAR; chloroethyl)amine]; or salts of these, such as (5) Technical data and defense services in tris (2-chloroethyl)amine hydrochloride, re- paragraph (l) include libraries, databases and mains controlled under this Category. algorithms specifically designed or modified for use with articles controlled in paragraph CATEGORY XV— SPACECRAFT AND RELATED (f) of this category. ARTICLES (6) The tooling and equipment covered by (a) Spacecraft, including satellites and paragraph (l) of this category includes molds space vehicles, whether designated develop- used to produce protective masks, over- mental, experimental, research, or scientific, boots, and gloves controlled by paragraph (f) or having a commercial, civil, or military and leak detection equipment specifically end-use, that: designed to test filters controlled by para- * (1) Are specially designed to mitigate ef- graph (f) of this category. fects (e.g., scintillation) of or for detection (7) The resulting product of the combina- of a nuclear detonation; tion of any controlled or non-controlled sub- * (2) Autonomously track ground, airborne, stance compounded or mixed with any item missile, or space objects in real-time using controlled by this subchapter is also subject imaging, infrared, radar, or laser systems; to the controls of this category. * (3) Conduct signals intelligence (SIGINT) NOTE 1: This Category does not control for- or measurement and signatures intelligence mulations containing 1% or less CN or CS or (MASINT);

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* (4) Are specially designed to be used in a NOTE TO PARAGRAPH (a)(9): This paragraph constellation or formation that when oper- does not control a satellite or spacecraft ated together, in essence or effect, form a that provides only a differential correction virtual satellite (e.g., functioning as if one broadcast for the purposes of positioning, satellite) with the characteristics or func- navigation, or timing. tions of other items in paragraph (a); (10) Provide space-based logistics, surveil- * (5) Are anti-satellite or anti-spacecraft lance, assembly, repair, or servicing of any (e.g., kinetic, RF, laser, charged particle); spacecraft (e.g., refueling) and have inte- * (6) Have space-to-ground weapons systems grated propulsion other than that required (e.g., kinetic or directed energy); for attitude control; * (7) Have any of the following electro-opti- (11) Provide for sub-orbital or in-space cal remote sensing capabilities or character- human habitation and have integrated pro- istics: pulsion other than that required for attitude (i) Electro-optical visible and near infrared control; (VNIR) (i.e., 400nm to 1,000nm) or infrared (12) That are not commercial communica- (i.e., greater than 1,000nm to 30,000nm) with tions satellites and that have integrated pro- less than 40 spectral bands and having a pulsion other than for attitude control or clear aperture greater than 0.35 meters; achieving initial orbit; (ii) Electro-optical hyperspectral with 40 * (13) Are classified, contain classified soft- spectral bands or more in the VNIR, short- ware or hardware, are manufactured using wavelength infrared (SWIR) (i.e., greater classified production data, or are being de- than 1,000nm to 2,500nm) or any combination veloped using classified information (e.g., of the aforementioned and having a Ground having classified requirements, specifica- Sample Distance (GSD) less than 30 meters; tions, functions, or operational characteris- (iii) Electro-optical hyperspectral with 40 tics or include classified cryptographic items spectral bands or more in the mid-wave- controlled under USML Category XIII of this length infrared (MWIR) (i.e., greater than subchapter). ‘‘Classified’’ means classified 2,500nm to 5,500nm) having a narrow spectral pursuant to Executive Order 13526, or prede- bandwidth of Dλ less than or equal to 20nm cessor order, and a security classification full width at half maximum (FWHM) or hav- guide developed pursuant thereto or equiva- ing a wide spectral bandwidth with Dλ great- lent, or to the corresponding classification er than 20nm FWHM and a GSD less than 200 rules of another government or international meters; or organization. (iv) Electro-optical hyperspectral with 40 spectral bands or more in the long-wave- NOTE 1 TO PARAGRAPH (a): Spacecraft not length infrared (LWIR) (i.e., greater than identified in this paragraph are subject to 5,500nm to 30,000nm) having a narrow spec- the EAR (see ECCNs 9A004 and 9A515). Space- tral bandwidth of Dλ less than or equal to craft described in ECCNs 9A004 and 9A515 re- 50nm FWHM or having a wide spectral band- main subject to the EAR even if defense arti- width with Dλ greater than 50nm FWHM and cles described on the USML are incorporated a GSD less than 500 meters; therein, except when such incorporation results in a spacecraft described in this para- NOTE 1 TO PARAGRAPH (a)(7): Ground Sam- ple Distance (GSD) is measured from a graph. spacecraft’s nadir (i.e., local vertical) posi- NOTE 2 TO PARAGRAPH (a): This paragraph tion. does not control (a) the International Space Station (ISS) and its specially designed (as NOTE 2 TO PARAGRAPH (a)(7): Optical remote sensing spacecraft or satellite spectral band- defined in the EAR) parts and components, width is the smallest difference in wave- which are subject to the EAR, or (b) those articles for the ISS that are determined to length (i.e., Dλ) that can be distinguished at full width at half maximum (FWHM) of be subject to the EAR via a commodity juris- wavelength λ. diction determination (see § 120.4 of this sub- NOTE 3 TO PARAGRAPH (a)(7): An optical sat- chapter). Use of a defense article on the ISS ellite or spacecraft is not Significant Mili- that was not specially designed (as defined in tary Equipment (see § 120.7 of this sub- the EAR) for the ISS does not cause the item chapter) if non-earth pointing. to become subject to the EAR. NOTE 3 TO PARAGRAPH (a): Attitude control * (8) Have radar remote sensing capabilities is the exercise of control over spacecraft ori- or characteristics (e.g., active electronically entation (e.g., pointing) within an orbital scanned array (AESA), synthetic aperture plane, which may include orbit maintenance radar (SAR), inverse synthetic aperture using the attitude control thrusters. radar (ISAR), ultra-wideband SAR), except those having a center frequency equal to or (b) Ground control systems or training greater than 1 GHz but less than or equal to simulators, specially designed for telemetry, 10 GHz and having a bandwidth less than 300 tracking, and control (TT&C) of spacecraft MHz; in paragraph (a) of this category. (9) Provide Positioning, Navigation, and NOTE TO PARAGRAPH (b): Parts, compo- Timing (PNT) signals; nents, accessories, attachments, equipment,

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or systems that are common to ground con- properties (e.g., adaptive, deformable) with a trol systems or training simulators con- largest lateral clear aperture dimension trolled in this paragraph and those that are greater than 0.35 meters; used for spacecraft not controlled in para- (3) Space-qualified focal plane arrays graph (a) of this category are subject to the (FPA) having a peak response in the wave- EAR. length range exceeding 900nm and readout (c) Global Positioning System (GPS) re- integrated circuit (ROIC), whether separate ceiving equipment specially designed for or integrated, specially designed therefor; military application, or GPS receiving (4) Space-qualified mechanical (i.e., active) equipment with any of the following charac- cryocooler or active cold finger, and associ- teristics, and specially designed parts and ated control electronics specially designed components therefor: therefor; (1) Specially designed for encryption or (5) Space-qualified active vibration sup- decryption (e.g., Y-Code) of GPS precise posi- pression, including active isolation and ac- tioning service (PPS) signals (MT if designed tive dampening, and associated control elec- or modified for airborne applications); tronics therefor; (2) [Reserved] (6) Optical bench assemblies specially de- (3) Specially designed for use with a null signed to enable spacecraft to meet or exceed steering antenna, an electronically steerable the parameters described in paragraph (a) of antenna, or including a null steering an- this category; tenna designed to reduce or avoid jamming (7) Space-qualified kinetic or directed-en- signals (MT if designed or modified for air- ergy systems (e.g., RF, laser, charged par- borne applications); ticle) specially designed for spacecraft in NOTE TO PARAGRAPH (c)(3): The articles de- paragraph (a)(5) or (a)(6) of this category, scribed in this paragraph are subject to the and specially designed parts and components EAR when, prior to export, reexport, re- therefor (e.g., power conditioning and beam- transfer, or temporary import, they are inte- handling/switching, propagation, tracking, grated into and included as an integral part and pointing equipment); of an item subject to the EAR. Articles do (8) [Reserved] not become subject to the EAR until inte- (9) Space-qualified cesium, rubidium, hy- grated into the item subject to the EAR. Ex- drogen maser, or quantum (e.g., based upon port, reexport, retransfer, or temporary im- Al, Hg, Yb, Sr, Be Ions) atomic clocks, and port of, and technical data and defense serv- specially designed parts and components ices directly related to, defense articles in- therefor; tended to be integrated remain subject to (10) Attitude determination and control the ITAR. systems, and specially designed parts and (4) Specially designed for use with rockets, components therefor, that provide a space- missiles, SLVs, drones, or unmanned air ve- craft’s geolocation accuracy, without using hicle systems capable of delivering at least a Ground Location Points, better than or 500 kg payload to a range of at least 300 km equal to: (MT if designed or modified for rockets, mis- (i) 5 meters (CE90) from low earth orbit siles, SLVs, drones, or unmanned air vehicle (LEO); systems controlled in this subchapter). (ii) 30 meters (CE90) from medium earth NOTE TO PARAGRAPH (c)(4): ‘‘Payload’’ is orbit (MEO); the total mass that can be carried or deliv- (iii) 150 meters (CE90) from geosynchronous ered by the specified rocket, missile, SLV, orbit (GEO); or drone or unmanned aerial vehicle that is not (iv) 225 meters (CE90) from high earth orbit used to maintain flight. For definition of (HEO); ‘‘range’’ as it pertains to rocket systems, see (11) Space-based systems, and specially de- note 1 to paragraph (a) of USML Category IV signed parts and components therefor, as fol- For definition of ‘‘range’’ as it pertains to lows: aircraft systems, see note to paragraph (a) of (i) Nuclear reactors and associated power USML Category VIII. conversion systems (e.g., liquid metal or gas- (d) [Reserved] cooled fast reactors); (e) Spacecraft parts, components, acces- (ii) Radioisotope-based power systems sories, attachments, equipment, or systems, (e.g., radioisotope thermoelectric genera- as follows: tors); (1) Antenna systems specially designed for (iii) Nuclear thermal propulsion systems spacecraft that: (e.g., solid core, liquid core, gas core fission); (i) Have a dimension greater than 25 me- or ters in diameter or length of the major axis; (iv) Plasma based propulsion systems; (ii) Employ active electronic scanning; (12) Thrusters (e.g., rocket engines) that (iii) Are adaptive beam forming; or provide greater than 150 lbf (i.e., 667.23 N) (iv) Are for interferometric radar; vacuum thrust (MT for rocket motors or en- (2) Space-qualified optics (i.e., lens or mir- gines having a total impulse capacity equal ror), including optical coating, having active to or greater than 8.41x10∧5 newton seconds);

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(13) Control moment gyroscope (CMG) spe- NOTE 2 TO PARAGRAPH (e)(17): An ECCN cially designed for spacecraft; 9A004 or ECCN 9A515.a spacecraft remains a (14) Space-qualified monolithic microwave spacecraft subject to the EAR even when in- integrated circuits (MMIC) that combine corporating a hosted payload performing a transmit and receive (T/R) functions on a function described in paragraph (a) of this single die as follows: category. All spacecraft that incorporate pri- (i) Having a power amplifier with max- mary or secondary payloads that perform a imum saturated peak output power (in function described in paragraph (a) of this watts), Psat, greater than 200 divided by the category are controlled by that paragraph. maximum operating frequency (in GHz) * (18) Secondary or hosted payload, and spe- squared [Psat >200 W*GHz2/fGHz2]; or cially designed parts and components there- (ii) Having a common path (e.g., phase for, developed with Department of Defense- shifter-digital attenuator) circuit with funding; greater than 3 bits phase shifting at operating frequencies 10 GHz or below, or greater NOTE 1 TO PARAGRAPH (e)(18): This para- than 4 bits phase shifting at operating fre- graph does not control payloads that are (a) quencies above 10 GHz; determined to be subject to the EAR via a (15) Space-qualified oscillator for radar in commodity jurisdiction determination (see paragraph (a) of this category with phase § 120.4 of this subchapter), or (b) identified in noise less than ¥120 dBc/Hz + (20 log10(RF) the relevant Department of Defense contract (in GHz)) measured at 2 KHz*RF (in GHz) or other funding authorization or agreement from carrier; as being developed for both military and ei- (16) Space-qualified star tracker or star ther civil or commercial applications. sensor with angular accuracy less than or NOTE 2 TO PARAGRAPH (e)(18): This para- equal to 1 arcsec (1-Sigma) per star coordi- graph is applicable only to those contracts nate, and a tracking rate equal to or greater or funding authorizations or agreements than 3.0 deg/sec, and specially designed parts that are dated May 13, 2015, or later. and components therefor (MT); (19) Spacecraft heat shields or heat sinks * (17) Primary, secondary, or hosted pay- specially designed for atmospheric entry or load that performs any of the functions de- re-entry, and specially designed parts and scribed in paragraph (a) of this category; components therefor (MT if usable in rock- NOTE 1 TO PARAGRAPH (e)(17): Primary pay- ets, SLVs, missiles, drones, or UAVs capable load is that complement of equipment de- of delivering a payload of at least 500 kg to signed from the outset to accomplish the a range of at least 300 km); prime mission function of the spacecraft NOTE TO PARAGRAPH (e)(19): ‘‘Payload’’ is payload mission set. The primary payload the total mass that can be carried or deliv- may operate independently from the sec- ered by the specified rocket, SLV, missile, ondary payload(s). Secondary payload is that drone, or UAV that is not used to maintain complement of equipment designed from the flight. For definition of ‘‘range’’ as it per- outset to be fully integrated into the space- tains to aircraft systems, see note to para- craft payload mission set. The secondary graph (a) of USML Category VIII. For defini- payload may operate separately from the tion of ‘‘range’’ as it pertains to rocket sys- primary payload. Hosted payload is a com- tems, see note 1 to paragraph (a) of USML plement of equipment or sensors that uses Category IV. the available or excess capacity (mass, volume, power, etc.) of a spacecraft to accom- (20) Equipment modules, stages, or com- modate an additional, independent mission. partments that contain propulsion other The hosted payload may share the spacecraft than that required for attitude control and bus support infrastructure. The hosted pay- can be separated or jettisoned from another load performs an additional, independent spacecraft (see note 3 to paragraph (a) of this mission which does not dictate control or op- category); or eration of the spacecraft. A hosted payload is * (21) Any part, component, accessory, at- not capable of operating as an independent tachment, equipment, or system that: spacecraft. Spacecraft bus (distinct from the (i) Is classified; spacecraft payload), provides the support in- (ii) Contains classified software; or frastructure of the spacecraft (e.g., command (iii) Is being developed using classified in- and data handling, communications and an- formation. tenna(s), electrical power, propulsion, ther- NOTE TO PARAGRAPH (e)(21): ‘‘Classified’’ mal control, attitude and orbit control, guid- means classified pursuant to Executive Order ance, navigation and control, structure and 13526, or predecessor order, and a security truss, life support (for crewed mission)) and classification guide developed pursuant location (e.g., attachment, interface) for the thereto or equivalent, or to the cor- spacecraft payload. Spacecraft payload is that responding classification rules of another complement of equipment attached to the government or international organization. spacecraft bus that performs a particular NOTE 1 TO PARAGRAPH (e): Parts, compo- mission in space (e.g., communications, ob- nents, accessories, attachments, equipment, servation, science). or systems specially designed for spacecraft

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or other articles enumerated in this category technical data and defense services related but not listed in paragraph (e) are subject to to articles designated as such.) the EAR. NOTE 1 TO PARAGRAPH (f): The technical NOTE 2 TO PARAGRAPH (e): The articles de- data control of this paragraph does not apply scribed in this paragraph are subject to the to certain technical data directly related to EAR when, prior to export, reexport, re- articles described in paragraphs (c) or (e) of transfer, or temporary import, they are inte- this category when such articles are integrated into and included as an integral part grated into and included as an integral part of an item subject to the EAR (see note 2 to of a satellite subject to the EAR. For con- paragraph (e)(17) of this category). Articles trols in these circumstances, see ECCN 9E515. do not become subject to the EAR until inte- This only applies to that level of technical grated into the item subject to the EAR. Ex- data (including marketing data) necessary port, reexport, retransfer, or temporary im- and reasonable for a purchaser to have assur- port of, and technical data and defense serv- ance that a U.S. built item intended to oper- ices directly related to defense articles in- ate in space has been designed, manufac- tended to be integrated remain subject to tured, and tested in conformance with speci- the ITAR. fied contract requirements (e.g., operational NOTE 3 TO PARAGRAPH (e): For the purposes performance, reliability, lifetime, product of this paragraph, an article is space-qualified if it is designed, manufactured, or quali- quality, or delivery expectations) as well as fied through successful testing, for operation data necessary for normal orbit satellite op- at altitudes greater than 100 km above the erations, to evaluate in-orbit anomalies, and surface of the Earth. The use of an altitude to operate and maintain associated ground of 100 km above the surface of the Earth in station equipment (except encryption hard- this paragraph does not represent a legal de- ware). marcation between national air space and NOTE 2 TO PARAGRAPH (f): Activities and outer space under United States or inter- technology/technical data directly related to national law. or required for the spaceflight (e.g., sub-or- NOTE 4 TO PARAGRAPH (e): (1) A determina- bital, orbital, lunar, interplanetary, or oth- tion that a specific article (or commodity) erwise beyond Earth orbit) passenger or par- (e.g., by product serial number) is space- ticipant experience, regardless of whether qualified by virtue of testing alone does not the passenger or participant experience is for mean that other articles in the same produc- space tourism, scientific or commercial re- tion run or model series are space-qualified search, commercial manufacturing/produc- if not individually tested. (2) ‘‘Article’’ is tion activities, educational, media, or com- synonymous with ‘‘commodity,’’ as defined mercial transportation purposes, are not in EAR § 772.1. (3) A specific article not de- subject to the ITAR or the EAR. Such activi- signed or manufactured for use at altitudes ties and technology/technical data include greater than 100 km above the surface of the those directly related to or required for: (a) Earth is not space-qualified before it is suc- Spacecraft access, ingress, and egress, in- cessfully tested. (4) The terms ‘‘designed’’ cluding the operation of all spacecraft doors, and ‘‘manufactured’’ in this definition are hatches, and airlocks; (b) physiological synonymous with ‘‘specially designed.’’ training (e.g., human-rated centrifuge train- (f) Technical data (see § 120.10 of this sub- ing or parabolic flights, pressure suit or chapter) and defense services (see § 120.9 of spacesuit training/operation); (c) medical this subchapter) directly related to the de- evaluation or assessment of the spaceflight fense articles described in paragraphs (a) passenger or participant; (d) training for and through (e) of this category and classified operation by the passenger or participant of technical data directly related to items con- health and safety related hardware (e.g., trolled in ECCNs 9A515, 9B515, or 9D515 and seating, environmental control and life sup- defense services using the classified tech- port, hygiene facilities, food preparation, ex- nical data. Defense services include the fur- ercise equipment, fire suppression, commu- nishing of assistance (including training) in nications equipment, safety-related clothing the integration of a satellite or spacecraft to or headgear) or emergency procedures; (e) a launch vehicle, including both planning viewing of the interior and exterior of the and onsite support, regardless of the jurisdic- spacecraft or terrestrial mock-ups; (f) ob- tion, ownership, or origin of the satellite or serving spacecraft operations (e.g., pre-flight spacecraft, or whether technical data is used. checks, landing, in-flight status); (g) train- It also includes the furnishing of assistance ing in spacecraft or terrestrial mock-ups for (including training) in the launch failure connecting to or operating passenger or par- analysis of a satellite or spacecraft, regard- ticipant equipment used for purposes other less of the jurisdiction, ownership, or origin than operating the spacecraft; or (h) don- of the satellite of spacecraft, or whether ning, wearing, or utilizing the passenger’s or technical data is used. (See § 125.4 of this sub- participant’s flight suit, pressure suit, or chapter for exemptions, and § 124.15 of this spacesuit, and personal equipment. subchapter for special export controls for NOTE 3 TO PARAGRAPH (f): Neither para- satellites and satellite launches.) (MT for graph (f) nor ECCN 9E515 controls the data

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transmitted to or from a satellite or space- fense articles described in paragraph (b) of craft, whether real or simulated, when lim- this category. (See § 123.20 of this subchapter ited to information about the health, oper- for nuclear related controls.) ational status, or function of, or measure- (f)–(w) [Reserved] ments or raw sensor output from, the space- (x) Commodities, software, and technical craft, spacecraft payload(s), or their associ- data subject to the EAR (see § 120.42 of this ated subsystems or components. Such data subchapter) used in or with defense articles or technology is subject to the EAR and is controlled in this category. designated EAR99. Examples of such data NOTE TO PARAGRAPH (x): Use of this para- and technology, which are commonly re- graph is limited to license applications for ferred to as ‘‘housekeeping data,’’ include (a) defense articles controlled in this category system, hardware, component configuration, where the purchase documentation includes and operation status information pertaining commodities, software, or technical data to temperatures, pressures, power, currents, subject to the EAR (see § 123.1(b) of this sub- voltages, and battery charges; (b) spacecraft chapter). or payload orientation or position information, such as state vector or ephemeris infor- CATEGORY XVII—CLASSIFIED ARTICLES, TECH- mation; (c) payload raw mission or science NICAL DATA, AND DEFENSE SERVICES NOT output, such as images, spectra, particle OTHERWISE ENUMERATED measurements, or field measurements; (d) * (a) All articles, and technical data (see command responses; (e) accurate timing in- § 120.10 of this subchapter) and defense serv- formation; and (f) link budget data. The act ices (see § 120.9 of this subchapter) relating of processing such telemetry data—i.e., con- thereto, that are classified in the interests of verting raw data into engineering units or national security and that are not otherwise readable products—or encrypting it does not, enumerated on the U.S. Munitions List. in and of itself, cause the telemetry data to become subject to the ITAR or to ECCN CATEGORY XVIII—DIRECTED ENERGY 9E515. All classified technical data directly WEAPONS related to items controlled in USML Cat- egory XV or ECCNs 9A515, and defense serv- * (a) Directed energy weapon systems spe- ices using the classified technical data, re- cifically designed or modified for military main subject to the ITAR. This note does not applications (e.g., destruction, degradation affect controls in paragraph (f), ECCN 9D515, or rendering mission-abort of a target). or ECCN 9E515 on software source code or These include, but are not limited to: commands that control a spacecraft, pay- (1) Laser systems, including continuous load, or associated subsystem. wave or pulsed laser systems, specifically designed or modified to cause blindness; (g)–(w) [Reserved] (2) Lasers of sufficient continuous wave or (x) Commodities, software, and technology pulsed power to effect destruction similar to subject to the EAR (see § 120.42 of this sub- the manner of conventional ammunition; chapter) used in or with defense articles con- (3) Particle beam systems; trolled in this category. (4) Particle accelerators that project a NOTE TO PARAGRAPH (x): Use of this para- charged or neutral particle beam with de- graph is limited to license applications for structive power; defense articles controlled in this category (5) High power radio-frequency (RF) sys- where the purchase documentation also in- tems; cludes commodities, software, or technology (6) High pulsed power or high average subject to the EAR (see § 123.21(b) of this sub- power radio frequency beam transmitters chapter). that produce fields sufficiently intense to disable electronic circuitry at distant tar- CATEGORY XVI—NUCLEAR WEAPONS RELATED gets; ARTICLES (7) Prime power generation, energy stor- (a) [Reserved] age, switching, power conditioning, thermal * (b) Modeling or simulation tools that management or fuel-handling equipment; model or simulate the environments gen- (8) Target acquisition or tracking systems; erated by nuclear detonations or the effects (9) Systems capable or assessing target of these environments on systems, sub- damage, destruction or mission-abort; systems, components, structures, or humans. (10) Beam-handling, propagation or point- (c) [Reserved] ing equipment; (d) Parts, components, accessories, attach- (11) Equipment with rapid beam slew capa- ments, associated equipment, and produc- bility for rapid multiple target operations; tion, testing, and inspection equipment and (12) Negative ion beam funneling equip- tooling, specially designed for the articles in ment; and, paragraph (b) of this category. (13) Equipment for controlling and slewing (e) Technical data (see § 120.10 of this sub- a high-energy ion beam. chapter) and defense services (see § 120.9 of * (b) Equipment specifically designed or this subchapter) directly related to the de- modified for the detection or identification

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of, or defense against, articles controlled in (1) with or specially designed for thrust paragraph (a) of this category. augmentation (afterburner); (c) Tooling and equipment specifically de- (2) thrust or exhaust nozzle vectoring; signed or modified for the production of de- (3) parts or components controlled in para- fense articles controlled by this category. graph (f)(6) of this category; (d) Test and evaluation equipment and test (4) specially designed for sustained 30 sec- models specifically designed or modified for ond inverted flight or negative g maneuver; the defense articles controlled by this cat- or egory. This includes, but is not limited to, (5) specially designed for high power ex- diagnostic instrumentation and physical test traction (greater than 50 percent of engine models. thrust at altitude) at altitudes greater than (e) Components, parts, accessories, attach- 50,000 feet. ments and associated equipment specifically * (b) Turboshaft and Turboprop engines (in- designed or modified for the articles in para- cluding technology demonstrators) capable graphs (a) through (d) of this category. of 1500 mechanical shp (1119 kW) or greater (f) Technical data (as defined in § 120.10 of and are specially designed with oil sump this subchapter) and defense services (as de- sealing when the engine is in the vertical po- fined in § 120.9 of this subchapter) directly re- sition. lated to the defense articles described in * (c) Engines (including technology dem- paragraphs (a) through (e) of this category. onstrators) specially designed for armed or Technical data directly related to the manu- military unmanned aerial vehicle systems, facture or production of any defense articles cruise missiles, or target drones (MT if for described in this category that are des- an engine used in an unmanned aerial vehi- ignated as Significant Military Equipment cle, drone, or missile that has a ‘‘range’’ (SME) shall itself be designated SME. equal to or greater than 300 km). (g) The following interpretations explain * (d) GE38, AGT1500, CTS800, TF40B, T55, and amplify terms used in this category and TF60, and T700 engines. elsewhere in this subchapter: * (e) Digital engine control systems (e.g., (1) The components, parts, accessories, at- Full Authority Digital Engine Controls tachments and associated equipment in- (FADEC) and Digital Electronic Engine Con- clude, but are not limited to adaptive optics trols (DEEC)) specially designed for gas tur- and phase conjugators components, space- bine engines controlled in this category (MT qualified accelerator components, targets if the digital engine control system is for an and specifically designed target diagnostics, unmanned aerial vehicle, drone, or missile current injectors for negative hydrogen ion that has a range equal to or greater than 300 beams, and space-qualified foils for neutral- km). izing negative hydrogen isotope beams. (2) The particle beam systems in paragraph NOTE TO PARAGRAPH (e): Digital electronic (a)(3) of this category include devices em- control systems autonomously control the bodying particle beam and electromagnetic engine throughout its whole operating range pulse technology and associated components from demanded engine start until demanded and subassemblies (e.g., ion beam current engine shut-down, in both normal and fault injectors, particle accelerators for neutral or conditions. For the definition of ‘‘range,’’ see charged particles, beam handling and projec- note to paragraph (a) of USML Category tion equipment, beam steering, fire control, VIII. and pointing equipment, test and diagnostic (f) Parts, components, accessories, attach- instruments, and targets) which are specifi- ments, associated equipment, and systems as cally designed or modified for directed en- follows: ergy weapon applications. (1) Parts, components, accessories, attach- (3) The articles controlled in this category ments, and equipment specially designed for include any end item, component, accessory, the following U.S.-origin engines (and mili- attachment, part, firmware, software or sys- tary variants thereof): AE1107C, F101, F107, tem that has been designed or manufactured F112, F118, F119, F120, F135, F136, F414, F415, using technical data and defense services J402, GE38, TF40B, and TF60; controlled by this category. NOTE TO PARAGRAPH (f)(1): Specially de- (4) The articles specifically designed or signed (see § 120.41(b)(3)(ii) of this subchapter) modified for military application controlled does not control parts, components, acces- in this category include any articles specifi- sories, and attachments that are common to cally developed, configured, or adapted for engines enumerated in paragraph (a) through military application. (d) of this category but not identified in paragraph (f)(1), and those identified in para- CATEGORY XIX—GAS TURBINE ENGINES AND graph (f)(1). For example, a part common to ASSOCIATED EQUIPMENT only the F110 and F136 is not specially de- * (a) Turbofan and Turbojet engines (in- signed for purposes of the ITAR. A part com- cluding technology demonstrators) capable mon to only the F119 and F135—two engine of 15,000 lbf (66.7 kN) of thrust or greater that models identified in paragraph (f)(1)—is spe- have any of the following: cially designed.

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* (2) Hot section components (i.e., combus- (3) Anti-submarine warfare vehicles; tion chambers and liners; high pressure tur- (4) Armed or are specially designed to be bine blades, vanes, disks and related cooled used as a platform to deliver munitions or structure; cooled low pressure turbine otherwise destroy or incapacitate targets blades, vanes, disks and related cooled struc- (e.g., firing torpedoes, launching rockets, fir- ture; cooled augmenters; and cooled nozzles) ing missiles, deploying mines, deploying specially designed for gas turbine engines countermeasures) or deploy military pay- controlled in this category; loads; (3) Uncooled turbine blades, vanes, disks, (5) Swimmer delivery vehicles specially de- and tip shrouds specially designed for gas signed for the deployment, recovery, or sup- turbine engines controlled in this category; port of swimmers or divers from submarines; (4) Combustor cowls, diffusers, domes, and (6) Integrated with nuclear propulsion sys- shells specially designed for gas turbine en- tems; gines controlled in this category; (7) Equipped with any mission systems (5) Engine monitoring systems (i.e., controlled under this subchapter; or prognostics, diagnostics, and health) spe- NOTE TO PARAGRAPH (a)(7): ‘‘Mission sys- cially designed for gas turbine engines and tem’’ is defined as a ‘‘system’’ (see § 120.45(g) components controlled in this category; of this subchapter) that are defense articles * (6) Any part, component, accessory, at- that perform specific military functions such tachment, equipment, or system that: as by providing military communication, (i) is classified; electronic warfare, target designation, sur- (ii) contains classified software directly re- veillance, target detection, or sensor capa- lated to defense articles in this subchapter bilities. or 600 series items subject to the EAR; or (iii) is being developed using classified in- (8) Developmental vessels funded by the formation (see § 120.10(a)(2) of this sub- Department of Defense via contract or other chapter). funding authorization. ‘‘Classified’’ means classified pursuant to NOTE 1 TO PARAGRAPH (a)(8): This para- Executive Order 13526, or predecessor order, graph does not control vessels, and specially and a security classification guide developed designed parts, components, accessories, at- pursuant thereto or equivalent, or to the tachments, and associated equipment there- corresponding classification rules of another for, (a) in production, (b) determined to be government or international organization; or subject to the EAR via a commodity juris- (7) [Reserved] diction determination (see § 120.4 of this sub- (g) Technical data (see § 120.10 of this subchapter) or (c) identified in the relevant De- chapter) and defense services (see § 120.9 of partment of Defense contract or other fund- this subchapter) directly related to the de- ing authorization as being developed for both fense articles described in paragraphs (a) civil and military applications. through (f) of this category and classified NOTE 2 TO PARAGRAPH (a)(8): Note 1 does technical data directly related to items con- not apply to defense articles enumerated on trolled in ECCNs 9A619, 9B619, 9C619, and the U.S. Munitions List, whether in produc- 9D619 and defense services using the classi- tion or development. fied technical data. (See § 125.4 of this sub- NOTE 3 TO PARAGRAPH (a)(8): This provision chapter for exemptions.) (MT for technical is applicable to those contracts and funding data and defense services related to articles authorizations that are dated July 8, 2014, or designated as such.) later. (h)–(w) [Reserved] * (b) Engines, electric motors, and propul- (x) Commodities, software, and technical sion plants as follows: data subject to the EAR (see § 120.42 of this (1) Naval nuclear propulsion plants and subchapter) used in or with defense articles prototypes, and special facilities for con- controlled in this category. struction, support, and maintenance therefor NOTE TO PARAGRAPH (x): Use of this para- (see § 123.20 of this subchapter); graph is limited to license applications for (2) Electric motors specially designed for defense articles controlled in this category submarines that have the following: where the purchase documentation includes (i) Power output of more than 0.75 MW commodities, software, or technical data (1,000 hp); subject to the EAR (see § 123.1(b) of this sub- (ii) Quick reversing; chapter). (iii) Liquid cooled; and (iv) Totally enclosed. CATEGORY XX—SUBMERSIBLE VESSELS AND (c) Parts, components, accessories, attach- RELATED ARTICLES ments, and associated equipment, including (a) Submersible and semi-submersible ves- production, testing, and inspection equip- sels that are: ment and tooling, specially designed for any * (1) Submarines specially designed for of the articles in paragraphs (a) and (b) of military use; this category (MT for launcher mechanisms (2) Mine countermeasure vehicles; specially designed for rockets, space launch

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vehicles, or missiles capable of achieving a Finding Aids section of the printed volume range greater than or equal to 300 km). and at www.fdsys.gov. NOTE TO PARAGRAPH (c): ‘‘Range’’ is the 2 At 79 FR 61228, Oct. 10, 2014, § 121.1 was maximum distance that the specified rocket amended by removing the word ‘‘enumer- system is capable of traveling in the mode of ated’’ and adding in its place the word ‘‘de- stable flight as measured by the projection scribed’’ in one place in Note 1 to paragraph of its trajectory over the surface of the (i) of Category VI; however, the amendment Earth. The maximum capability based on the could not be incorporated because of the in- design characteristics of the system, when accurate amendatory instruction. fully loaded with fuel or propellant, will be taken into consideration in determining EFFECTIVE DATE NOTE: At 80 FR 78131, Dec. range. The range for rocket systems will be 16, 2015, § 121.1 was amended under Category determined independently of any external XI by revising paragraph (b), effective Aug. factors such as operational restrictions, lim- 30, 2017. For the convenience of the user, the itations imposed by telemetry, data links, or revised text is set forth as follows: other external constraints. For rocket sys- § 121.1 The United States Munitions List. tems, the range will be determined using the trajectory that maximizes range, assuming International Civil Aviation Organization * * * * * (ICAO) standard atmosphere with zero wind. CATEGORY XI—MILITARY ELECTRONICS (d) Technical data (see § 120.10 of this subchapter) and defense services (see § 120.9 of this subchapter) directly related to the de- * * * * * fense articles described in paragraphs (a) through (c) of this category. (MT for tech- *(b) Electronic systems or equipment, not nical data and defense services related to ar- elsewhere enumerated in this sub-chapter, ticles designated as such.) (See § 125.4 of this specially designed for intelligence purposes subchapter for exemptions.) that collect, survey, monitor, or exploit the (e)–(w) [Reserved] electromagnetic spectrum (regardless of transmission medium), or for counteracting (x) Commodities, software, and technical such activities. data subject to the EAR (see § 120.42 of this subchapter) used in or with defense articles controlled in this category. * * * * * NOTE TO PARAGRAPH (x): Use of this paragraph is limited to license applications for §§ 121.2–121.15 [Reserved] defense articles controlled in this category where the purchase documentation includes § 121.16 Missile Technology Control commodities, software, or technical data Regime Annex. subject to the EAR (see § 123.1(b) of this sub- Some of the items on the Missile chapter). Technology Control Regime Annex are CATEGORY XXI—ARTICLES, TECHNICAL DATA, controlled by both the Department of AND DEFENSE SERVICES NOT OTHERWISE Commerce on the Commodity Control ENUMERATED List and by the Department of State on * (a) Any article not enumerated on the the United States Munitions List. To U.S. Munitions List may be included in this the extent an article is on the United category until such time as the appropriate States Munitions List, a reference ap- U.S. Munitions List category is amended. pears in parentheses listing the U.S. The decision on whether any article may be Munitions List category in which it ap- included in this category, and the designa- pears. The following items constitute tion of the defense article as not Significant all items on the Missile Technology Military Equipment (see § 120.7 of this subchapter), shall be made by the Director, Of- Control Regime Annex which are cov- fice of Defense Trade Controls Policy. ered by the U.S. Munitions List: (b) Technical data (see § 120.10 of this sub- ITEM 1—CATEGORY I chapter) and defense services (see § 120.9 of this subchapter) directly related to the de- Complete rocket systems (including bal- fense articles covered in paragraph (a) of this listic missile systems, space launch vehicles, category. and sounding rockets (see § 121.1, Cat. IV(a) and (b))) and unmanned air vehicle systems [58 FR 39287, July 22, 1993, as amended at 80 (including cruise missile systems, see § 121.1, FR 78131, Dec. 16, 2015] Cat. VIII (a), target drones and reconnais- EDITORIAL NOTES: 1. For FEDERAL REGISTER sance drones (see § 121.1, Cat. VIII (a))) capa- citations affecting § 121.1, see the List of CFR ble of delivering at least a 500 kg payload to Sections Affected, which appears in the a range of at least 300 km.

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ITEM 2—CATEGORY I ITEM 3—CATEGORY II Complete subsystems usable in the sys- Propulsion components and equipment us- tems in Item 1 as follows: able in the systems in Item 1, as follows: (a) Individual rocket stages (see § 121.1, (a) Lightweight turbojet and turbofan en- Cat. IV(h)); gines (including) turbocompound engines) (b) Reentry vehicles (see § 121.1, Cat. IV(g)), that are small and fuel efficient (see § 121.1, and equipment designed or modified there- both Cat. IV(h) and VIII(b)); for, as follows, except as provided in Note (1) (b) Ramjet/Scramjet/pulse jet/combined below for those designed for non-weapon pay- cycle engines, including devices to regulate loads; combustion, and specially designed compo- (1) Heat shields and components thereof nents therefor (see § 121.1, both Cat. IV(h) and fabricated of ceramic or ablative materials Cat. VIII(b)); (see § 121.1, Cat. IV(f)); (c) Rocket motor cases, ‘‘interior lining’’, (2) Heat sinks and components thereof fab- ‘‘insulation’’ and nozzles therefor (see § 121.1, ricated of light-weight, high heat capacity Cat. IV(h) and Cat. V(c)); materials; (d) Staging mechanisms, separation mech- (3) Electronic equipment specially designed anisms, and interstages therefor (see § 121.1, for reentry vehicles (see § 121.1, Cat. XI(a)(7)); Cat. IV(c) and (h)); (c) Solid or liquid propellant rocket en- (e) Liquid and slurry propellant (including gines, having a total impulse capacity of 1.1 oxidizers) control systems, and specially de- × 10 N-sec (2.5 × 10 lb-sec) or greater (see signed components therefor, designed or § 121.1, Cat. IV, (h)). modified to operate in vibration environ- (d) ‘‘Guidance sets’’ capable of achieving ments of more than 100 g RMS between 20 Hz system accuracy of 3.33 percent or less of the and,000 Hz (see § 121.1, Cat. IV(c) and (h)); range (e.g., a CEP of 1 j,. or less at a range (f) Hybrid rocket motors and specially de- of 300 km), except as provided in Note (1) signed components therefor (see § 121.1, Cat. below for those designed for missiles with a IV(h)). range under 300 km or manned aircraft (see NOTES TO ITEM 3 § 121.1, Cat. XII(d)); (e) Thrust vector control sub-systems, ex- (1) Item 3(a) engines may be exported as cept as provided in Note (1) below for those part of a manned aircraft or in quantities ap- designed for rocket systems that do not ex- propriate for replacement parts for manned ceed the range/payload capability of Item 1 aircraft. (see § 121.1, Cat. IV); (2) In Item 3(C), ‘‘interior lining’’ suited for (f) Warhead safing, arming, fuzing, and fir- the bond interface between the solid propel- ing mechanisms, except as provided in Note lant and the case or insulating liner is usu- (1) below for those designed for systems ally a liquid polymer based dispersion of re- other than those in Item 1 (see § 121.1, Cat. fractory or insulating materials, e.g., carbon IV(h)). filled HTPB or other polymer with added curing agents to be sprayed or screeded over NOTES TO ITEM 2 a case interior (see § 121.1, Cat. V(c)). (1) The exceptions in (b), (d), (e), and (f) (3) In Item 3(c), ‘‘insulation’’ intended to above may be treated as Category II if the be applied to the components of a rocket subsystem is exported subject to end use motor, i.e., the case, nozzle inlets, case clo- statements and quantity limits appropriate sures, includes cured or semi-cured com- for the excepted end use stated above. pounded rubber sheet stock containing an in- (2) CEP (circle of equal probability) is a sulating or refractory material. It may also measure of accuracy, and defined as the ra- be incorporated as stress relief boots or dius of the circle centered at the target, at a flaps. specific range, in which 50 percent of the (4) The only servo valves and pumps cov- payloads impact. ered in (e) above, are the following: (3) A ‘‘guidance set’’ integrates the process (i) Servo valves designed for flow rates of of measuring and computing a vehicle’s posi- 24 liters per minute or greater, at an abso- tion and velocity (i.e., navigation) with that lute pressure of 7,000 kPa (1,000 psi) or great- of computing and sending commands to the er, that have an actuator response time of vehicle’s flight control systems to correct less than 100 msec; the trajectory. (ii) Pumps, for liquid propellants, with (4) Examples of methods of achieving shaft speeds equal to or greater than 8,000 thrust vector control which are covered by RPM or with discharge pressures equal to or (e) include: greater than 7,000 kPa (1,000 psi). (i) Flexible nozzle; (5) Item 3(e) systems and components may (ii) Fluid or secondary gas injection; be exports as part of a satellite. (iii) Movable engine or nozzle; Deflection ITEM 4—CATEGORY II of exhaust gas stream (jet vanes or probes); or Propellants and constituent chemicals for (v) Use of thrust tabs. propellants as follows:

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(a) Propulsive substances: ITEM 8—CATEGORY II (1) Hydrazine with a concentration of more Structural materials usable in the systems than 70 percent and its derivatives including in Item 1, as follows: monomethylhydrazine (MMH); (a) Composite structures, laminates, and (2) Unsymmetric dimethylhydrazine manufactures thereof, including resin im- (UDHM); pregnated fibre prepregs and metal coated (3) Ammonium perchlorate; fibre preforms therefor, specially designed (4) Sphercical aluminum powder with par- for use in the systems in Item 1 and the sub- ticle of uniform diameter of less than 500 × ¥ systems in Item 2 made either with organix 10 6M (500 microns) and an aluminum con- matrix or metal matrix utilizing fibrous or tent of 97 percent or greater; filamentary reinforcements having a specific (5) Metal fuels in particle sizes less than tensile strength greater than 7.62 × 104 m (3 × ¥6 500 10 M (500 microns), whether spherical, × 106 inches) and a specific modules greater atomized, spheriodal, flaked or ground, con- than 3.18 × 106 m (1.25 × 108 inches), (see sisting of 97 percent or more of any of the § 121.1, Category IV (f), and Category XIII following: zirconium, beryllium, boron, mag- (d)); nesium, zinc, and alloys of these; (b) Resaturated pyrolized (i.e., carbon-car- (6) Nitroamines bon) materials designed for rocket systems, (cyclotetramethylenetetranitramene (HMX), (see § 121.1 Category IV (f)); cyclotrimethylenetrinitramine (RDX); (c) Fine grain recrystallized bulk graphites (7) Percholrates, chlorates or chromates (with a bulk density of at least 1.72 g/cc mixed with powdered metals or other high measured at 15 degrees C), pyrolytic, or fi- energy fuel components; brous reinforced graphites useable for rocket (8) Carboranes, decaboranes, pentaboranes nozzles and reentry vehicle nose tips (see and derivatives thereof; § 121.1, Category IV (f) and Category XIII; (9) Liquid oxidizers, as follows: (d) Ceramic composites materials (dielec- (i) Nitrogen dioxide/dinitrogen tetroxide; tric constant less than 6 at frequencies from (ii) Inhibited Red Fuming Nitric Acid 100 Hz to 10,000 MHz) for use in missile (IRFNA); radomes, and bulk machinable silicon-car- (iii) Compounds composed of fluorine and bide reinforced unfired ceramic useable for one or more of other halogens, oxygen or ni- nose tips (see § 121.1, Category IV (f)); trogen. (b) Polymeric substances: ITEM 9—CATEGORY II (1) Hydroxyterminated polybutadiene Instrumentation, navigation and direction (HTPB); finding equipment and systems, and associ- (2) Glycidylazide polymer (GAP). ated production and test equipment as fol- (c) Other high energy density propellants lows; and specially designed components and such a Boron Slurry having an energy den- software therefor: sity of 40 × 10 joules/kg or greater. (a) Integrated flight instrument systems, (d) Other propellants additives and agents: which include gyrostabilizers or automatic (1) Bonding agents as follows: pilots and integration software therefor; de- (i) Tris (1(2methyl)aziridinyl phosphine signed or modified for use in the systems in oxide (MAPO); Item 1 (See § 121.1, Category XII(d)); (ii) Trimesol 1(2)ethyl)aziridine (HX868, (b) Gyro-astro compasses and other devices BITA); which derive position or orientation by (iii) ‘‘Tepanol’’ (HX878), reaction product of means of automatically tracking celestial tetraethylenepentamine, acrylonitrile and bodies or satellites (see § 121.1, Category glycidol; XV(d)); (iv) ‘‘Tepan’’ (HX879), reaction product of (c) Accelerometers with a threshold of 0.05 tet enepentamine and acrylonitrile; g or less, or a linearity error within 0.25 per- (v) Polyfunctional aziridene amides with cent of full scale output, or both, which are isophthalic, trimesic, isocyanuric, or designed for use in inertial navigation sys- trimethyladipic backbone also having a tems or in guidance systems of all types (see 2methyl or 2ethyl aziridine group (HX752, § 121.1, Category VIII(e) and Category XII HX872 and HX877). (d)); (2) Curing agents and catalysts as follows: (d) All types of gyros usable in the systems (i) Triphenyl bismuth (TPB); in Item 1, with a rated drift rate stability of (ii) Burning rate modifiers as follows: less than 0.5 degree (1 sigma or rms) per hour (iii) Catocene; in a 1 q environment (see § 121.1, Category (iv) Nbutylferrocene; VIII(e) and Category XII(d)); (v) Other ferrocene derivatives. (e) Continuous output accelerometers or (3) Nitrate esters and nitrato plasticizers gyros of any type, specified to function at as follows: acceleration levels greater than 100 g (see (i) 1,2,4butanetriol trinitrate (BTTN). § 121.1, Category XII(d)); (4) Stabilizers as follows: (f) Inertial or other equipment using (i) Nmethylpnitroaniline. accelerometers described by subitems (c) and

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(e) above, and systems incorporating such (1) Capable of providing navigation infor- equipment, and specially designed integra- mation under the following operational con- tion software therefor (see § 121.1, Category ditions: VIII (e) and Category XII(d)); (i) At speeds in excess of 515 m/sec (1,000 nautical miles/hours); and NOTES TO ITEM 9 (ii) At altitudes in excess of 18 km (60,000 (1) Items (a) through (f) may be exported as feet), (see § 121.1, Category XV(d)(2); or part of a manned aircraft or satellite or in (2) Designed or modified for use with un- quantities appropriate for replacement parts manned air vehicles covered by Item 1 (see for manned aircraft. § 121.1, Category XV(d)(4)). (2) In subitem (d): (d) Electronic assemblies and components (i) Drift rate is defined as the time rate of specifically designed for military use and op- output deviation from the desired output. It eration at temperatures in excess of 125 de- consists of random and systematic compo- grees C, (see § 121.1, Category XI(a)(7)). nents and is expressed as an equivalent angu- (e) Design technology for protection of avi- lar displacement per unit time with respect onics and electrical subsystems against elec- to inertial space. tromagnetic pulse (EMP) and electro- (ii) Stability is defined as standard devi- magnetic interference (EMI) hazards from ation (1 sigma) of the variation of a par- external sources, as follows, (see § 121.1, Cat- ticular parameter from its calibrated value egory XI (b)). (1) Design technology for shielding sys- measured under stable temperature condi- tems; tions. This can be expressed as a function of (2) Design technology for the configuration time. of hardened electrical circuits and sub- ITEM 10—CATEGORY II systems; (3) Determination of hardening criteria for Flight control systems and ‘‘technology’’ the above. as follows; designed or modified for the systems in Item 1. NOTES TO ITEM 11 (a) Hydraulic, mechanical, electro-optical, (1) Item 11 equipment may be exported as or electro-mechanical flight control systems part of a manned aircraft or satellite or in (including fly-by-wire systems), (see § 121.1, quantities appropriate for replacement parts Category IV (h)); for manned aircraft. (b) Attitude control equipment, (see § 121.1, (2) Examples of equipment included in this Category IV, (c) and (h)); Item: (c) Design technology for integration of air (i) Terrain contour mapping equipment; vehicle fuselage, propulsion system and lift- (ii) Scene mapping and correlation (both ing control surfaces to optimize aero- digital and analog) equipment; dynamic performance throughout the flight (iii) Doppler navigation radar equipment; regime of an unmanned air vehicle, (see (iv) Passive interferometer equipment; § 121.1, Category VIII (k)); (v) Imaging sensor equipment (both active (d) Design technology for integration of and passive); the flight control, guidance, and propulsion (3) In subitem (a), laser radar systems em- data into a flight management system for body specialized transmission, scanning, re- optimization of rocket system trajectory, ceiving and signal processing techniques for (see § 121.1, Category IV (i)). utilization of lasers for echo ranging, direction finding and discrimination of targets by NOTE TO ITEM 10 location, radial speed and body reflection Items (a) and (b) may be exported as part characteristics. of a manned aircraft or satellite or in quantities appropriate for replacement parts for ITEM 12—CATEGORY II manned aircraft. Launch support equipment, facilities and software for the systems in Item 1, as fol- ITEM 11—CATEGORY II lows: Avionics equipment, ‘‘technology’’ and (a) Apparatus and devices designed or components as follows; designed or modified modified for the handling, control, activa- for use in the systems in Item 1, and spe- tion and launching of the systems in Item 1, cially designed software therefor: (see § 121.1, Category IV(c)); (a) Radar and laser radar systems, includ- (b) Vehicles designed or modified for the ing altimeters (see § 121.1, Category XI(a)(3)); transport, handling, control, activation and (b) Passive sensors for determining bear- launching of the systems in Item 1, (see ings to specific electromagnetic sources (di- § 121.1, Category VII(d)); rection finding equipment) or terrain charac- (c) Telemetering and telecontrol equip- teristics (see § 121.1, Category XI(b) and (d)); ment usable for unmanned air vehicles or (c) Global Positioning System (GPS) or rocket systems, (see § 121.1, Category XI(a)); similar satellite receivers; (d) Precision tracking systems:

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(1) Tracking systems which use a translb (iii) Incorporated ‘‘microcircuits’’ listed in nv installed on the rocket system or un- (1), above. manned air vehicle in conjunction with either surface or airborne references or naviga- ITEM 16—CATEGORY II tion satellite systems to provide real-time Specially designed software, or specially measurements of in-flight position and ve- designed software with related specially de- locity, (see § 121.1, Category XI(a)); signed hybrid (combined analog/digital) com- (2) Range instrumentation radars including puters, for modeling, simulation, or design associated optical/infrared trackers and the integration of the systems in Item 1 and specially designed software therefor with all Item 2 (see § 121.1, Category IV(i) and Cat- of the following capabilities (see § 121.1, Cat- egory XI(a)(6)). egory XI(a)(3)): (i) angular resolution better than 3 milli- NOTE TO ITEM 16 radians (0.5 mils); The modelling includes in particular the (ii) range of 30 km or greater with a range aerodynamic and thermodynamic analysis of resolution better than 10 meters RMS; the system. (iii) velocity resolution better than 3 meters per second. ITEM 17—CATEGORY II (3) Software which processes post-flight, recorded data, enabling determination of ve- Materials, devices, and specially designed hicle position throughout its flight path (see software for reduced observables such as § 121.1, Category IV(i)). radar reflectivity, ultraviolet/infrared signatures on acoustic signatures (i.e., stealth ITEM 13—CATEGORY II technology), for applications usable for the systems in Item 1 or Item 2 (see § 121.1, Cat- Analog computers, digital computers, or egory XIII (e) and (k)), for example: digital differential analyzers designed or (a) Structural material and coatings spe- modified for use in the systems in Item 1 (see cially designed for reduced radar reflec- § 121.1, Category XI (a)(6), having either of tivity; the following characteristics: (b) Coatings, including paints, specially de- (a) Rated for continuous operation at tem- signed for reduced or tailored reflectivity or perature from below minus 45 degrees C to emissivity in the microwave, infrared or ul- above plus 55 degrees C; or traviolet spectra, except when specially used (b) Designed as ruggedized or ‘‘radiation for thermal control of satellites. hardened’’. (c) Specially designed software or databases for analysis of signature reduction. NOTE TO ITEM 13 (d) Specially designed radar cross section Item 13 equipment may be exported as part measurement systems (see § 121.1, Category of a manned aircraft or satellite or in quan- XI(a)(3)). tities appropriate for replacement parts for manned aircraft. ITEM 18—CATEGORY II Devices for use in protecting rocket sys- ITEM 14—CATEGORY II tems and unmanned air vehicles against nu- Analog-to-digital converters, usable in the clear effects (e.g. Electromagnetic Pulse system in Item 1, having either of the fol- (EMP), X-rays, combined blast and thermal lowing characteristics: effects), and usable for the systems in Item 1, (a) Designed to meet military specifica- as follows (see § 121.1, Category IV (c) and tions for ruggedized equipment (see § 121.1, (h)): Category XI(d)); or, (a) ‘‘Radiation Hardened’’ ‘‘microcircuits’’ (b) Designed or modified for military use and detectors (see § 121.1, Category XI(c)(3) (see § 121.1, Category XI(d)); and being one of Note: This commodity has been formally the following types: proposed for movement to category XV(e)(2) (1) Analog-to-digital converter ‘‘microcir- in the near future). cuits,’’ which are ‘‘radiation hardened’’ or (b) Radomes designed to withstand a com- have all of the following characteristics: bined thermal shock greater than 1000 cal/sq (i) Having a resolution of 8 bits or more; cm accompanied by a peak over pressure of (ii) Rated for operation in the temperature greater than 50 kPa (7 pounds per square range from below minus 54 degrees C to inch) (see § 121.1, Category IV(h)). above plus 125 degrees C; and NOTE TO ITEM 18(a) (iii) Hermetically sealed. (2) Electrical input type analog-to-digital A detector is defined as a mechanical, elec- converter printed circuit boards or modules, trical, optical or chemical device that auto- with all of the following characteristics: matically identifies and records, or registers (i) Having a resolution of 8 bits or more; a stimulus such as an environmental change (ii) Rated for operation in the temperature in pressure or temperature, an electrical or range from below minus 45 degrees C to electromagnetic signal or radiation from a above plus 55 degrees C; and radioactive material. The following pages

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were removed from the final ITAR for re- mental or scientific purposes, includ- placement by DDTC’s updated version § 6(l) ing research and development. of the Export Administration Act of 1979 (50 U.S.C. App. 2405(l)), as amended. In accord- NOTE TO PARAGRAPH (b): Persons who qual- ance with this provision, the list of MTCR ify for the exemptions in paragraphs (b)(2) or Annex items shall constitute all items on (b)(4) of this section remain subject to the the U.S. Munitions List in § 121.16. requirements for licenses or other approvals for exports of defense articles and defense [58 FR 39287, July 22, 1993, as amended at 71 services and may not receive an export li- FR 20539, Apr. 21, 2006; 80 FR 37975, July 2, cense or approval unless registered under 2015; 80 FR 78131, Dec. 16, 2015] § 122.2. PART 122—REGISTRATION OF (c) Purpose. Registration is primarily a means to provide the U.S. Govern- MANUFACTURERS AND EXPORTERS ment with necessary information on who is involved in certain manufac- Sec. turing and exporting activities. Reg- 122.1 Registration requirements. 122.2 Submission of registration statement. istration does not confer any export 122.3 Registration fees. rights or privileges. It is generally a 122.4 Notification of changes in information precondition to the issuance of any li- furnished by registrants. cense or other approval under this sub- 122.5 Maintenance of records by registrants. chapter, unless an exception is granted AUTHORITY: Sections 2 and 38, Pub. L. 90– by the Directorate of Defense Trade 629, 90 Stat. 744 (22 U.S.C. 2752, 2778); 22 U.S.C. Controls. 2651a; E.O. 13637, 78 FR 16129. [78 FR 52686, Aug. 26, 2013] SOURCE: 58 FR 39298, July 22, 1993, unless otherwise noted. § 122.2 Submission of registration statement. § 122.1 Registration requirements. (a) General. An intended registrant (a) Any person who engages in the must submit a Statement of Registra- United States in the business of manu- tion (Department of State form DS– facturing or exporting or temporarily 2032) to the Office of Defense Trade importing defense articles, or fur- Controls Compliance by following the nishing defense services, is required to submission guidelines available on the register with the Directorate of De- Directorate of Defense Trade Controls fense Trade Controls under § 122.2. For Web site at www.pmddtc.state.gov. The the purpose of this subchapter, engag- Statement of Registration must be ing in such a business requires only one signed by a U.S. person senior officer occasion of manufacturing or exporting (e.g., chief executive officer, president, or temporarily importing a defense ar- secretary, partner, member, treasurer, ticle or furnishing a defense service. A general counsel) who has been empow- manufacturer who does not engage in ered by the intended registrant to sign exporting must nevertheless register. such documents. The Statement of (See part 129 of this subchapter for re- Registration may include subsidiaries quirements for registration of persons and affiliates when more than 50 per- who engage in brokering activities.) cent of the voting securities are owned (b) Exemptions. The registration re- by the registrant or the subsidiaries quirements of paragraph (a) of this sec- and affiliates are otherwise controlled tion do not apply to: by the registrant (see § 120.40 of this (1) Officers and employees of the U.S. subchapter). The intended registrant Government acting in an official ca- also shall submit documentation that pacity; demonstrates that it is incorporated or (2) Persons whose pertinent business otherwise authorized to do business in activity is confined to the production the U.S. The Directorate of Defense of unclassified technical data only; Trade Controls will notify the reg- (3) Persons all of whose manufac- istrant if the Statement of Registra- turing and export activities are li- tion is incomplete either by notifying censed under the Atomic Energy Act of the registrant of what information is 1954, as amended; or required or through the return of the (4) Persons who engage in the fab- entire registration package. Reg- rication of articles solely for experi- istrants may not establish new entities

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for the purpose of reducing registration § 122.3 Registration fees. fees. (a) Frequency of registration and fee. A (b) Statement of Registration Certifi- person who is required to register must cation. The Statement of Registration do so on an annual basis by submitting of the intended registrant shall include a completed Statement of Registration a certification by an authorized senior (form DS–2032) and payment of a fee officer of the following: following the payment guidelines (1) Whether the intended registrant available on the Directorate of Defense or its parent, subsidiary, or other affil- Trade Controls Web site at iate listed in the Statement of Reg- www.pmddtc.state.gov. For those renew- istration, or any of its chief executive ing a registration, notice of the fee due officers, presidents, vice presidents, for the next year’s registration will be secretaries, partners, members, other sent to the registrant of record at least senior officers or officials (e.g., comp- 60 days prior to its expiration date. troller, treasurer, general counsel), or (b) Expiration of registration. A registrant must submit its request for reg- any member of the board of directors of istration renewal at least 30 days but the intended registrant, or of any par- no earlier than 60 days prior to the ex- ent, subsidiary, or other affiliate listed piration date. in the Statement of Registration: (c) Lapse in registration. A registrant (i) Has ever been indicted or other- who fails to renew a registration and, wise charged (e.g., charged by criminal after an intervening period, seeks to information in lieu of indictment) for register again must pay registration or has been convicted of violating any fees for any part of such intervening U.S. criminal statutes enumerated in period during which the registrant en- § 120.27 of this subchapter or violating a gaged in the business of manufacturing foreign criminal law on exportation of or exporting defense articles or defense defense articles where conviction of services. such law carries a minimum term of [58 FR 39298, July 22, 1993, as amended at 62 imprisonment of greater than 1 year; FR 27497, May 20, 1997; 69 FR 70889, Dec. 8, or 2004; 70 FR 50959, Aug. 29, 2005; 73 FR 41259, (ii) Is ineligible to contract with, or July 18, 2008; 73 FR 55440, Sept. 25, 2008; 76 FR 45197, July 28, 2011; 78 FR 52687, Aug. 26, 2013] to receive a license or other approval to import defense articles or defense § 122.4 Notification of changes in infor- services from, or to receive an export mation furnished by registrants. license or other approval from, any (a) A registrant must, within five agency of the U.S. Government; and days of the event, provide to the Direc- (2) Whether the intended registrant is torate of Defense Trade Controls a foreign owned or foreign controlled (see written notification, signed by a senior § 120.37 of this subchapter). If the in- officer (e.g., chief executive officer, tended registrant is foreign owned or president, secretary, partner, member, foreign controlled, the certification treasurer, general counsel), if: shall include an explanation of such (1) Any of the persons referred to in ownership or control, including the § 122.2(b) is indicted or otherwise identities of the foreign person or per- charged (e.g., by criminal information sons who ultimately own or control the in lieu of indictment) for or convicted registrant. This requirement applies to of violating any of the U.S. criminal a registrant who is a U.S. person and is statutes enumerated in § 120.27 of this owned or controlled by a foreign per- subchapter or violating a foreign son. It also applies to a registrant who criminal law on exportation of defense is a foreign person and is owned or con- articles where conviction of such law carries a minimum term of imprison- trolled by a foreign person from the ment of greater than 1 year, or be- same country or a foreign person from comes ineligible to contract with, or to another country. receive a license or other approval to [76 FR 45197, July 28, 2011, as amended at 76 export or temporarily import defense FR 76036, Dec. 6, 2011; 78 FR 52686, Aug. 26, articles or defense services from any 2013] agency of the U.S. Government; or

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(2) There is a change in the following pany or acquires, or is acquired by, an- information contained in the State- other company or a subsidiary or divi- ment of Registration: sion of another company shall advise (i) Registrant’s name; the Directorate of Defense Trade Con- (ii) Registrant’s address; trols of the following: (iii) Registrant’s legal organization (1) The new firm name and all pre- structure; vious firm names being disclosed; (iv) Ownership or control; (2) The registration number that will (v) The establishment, acquisition, or survive and those that are to be discon- divestment of a U.S. or foreign sub- tinued (if any); sidiary or other affiliate who is en- (3) The license numbers of all approv- gaged in manufacturing defense arti- als on which unshipped balances will be cles, exporting defense articles or de- shipped under the surviving registra- fense services; or tion number, since any license not the (vi) Board of directors, senior offi- subject of notification will be consid- cers, partners, or owners. ered invalid; and NOTE 1 TO PARAGRAPH (a): All other (4) Amendments to agreements ap- changes in the Statement of Registration proved by the Directorate of Defense must be provided as part of annual registra- Trade Controls to change the name of a tion renewal. party to those agreements. The reg- NOTE 2 TO PARAGRAPH (a): For one year istrant must, within 60 days of this no- from the effective date of the rule, ‘‘Amend- tification, provide to the Directorate of ment to the International Traffic in Arms Defense Trade Controls a signed copy Regulations: Registration and Licensing of Brokers, Brokering Activities, and Related of an amendment to each agreement Provisions,’’ RIN 1400–AC37, the following signed by the new U.S. entity, the changes must be provided as part of the an- former U.S. licensor and the foreign li- nual registration renewal: Pursuant to censee. Any agreements not so amend- § 129.3(d) of this subchapter, changes to com- ed will be considered invalid. bine an existing broker registration with an (d) Prior approval by the Directorate existing manufacturer/exporter registration; of Defense Trade Controls is required and pursuant to § 122.2(a) of this subchapter, changes to an existing registration to re- for any amendment making a sub- move partially owned and not otherwise con- stantive change. trolled subsidiaries or affiliates, which are [58 FR 39298, July 22, 1993, as amended at 71 not the subject of an internal reorganization, FR 20540, Apr. 21, 2006; 78 FR 52687, Aug. 26, merger, acquisition, or divestiture. 2013] (b) A registrant must notify the Di- rectorate of Defense Trade Controls by § 122.5 Maintenance of records by reg- registered mail at least 60 days in ad- istrants. vance of any intended sale or transfer (a) A person who is required to reg- to a foreign person of ownership or con- ister must maintain records concerning trol of the registrant or any entity the manufacture, acquisition and dis- thereof. Such notice does not relieve position (to include copies of all docu- the registrant from obtaining the ap- mentation on exports using exemptions proval required under this subchapter and applications and licenses and their for the export of defense articles or de- related documentation), of defense ar- fense services to a foreign person, in- ticles; of technical data; the provision cluding the approval required prior to of defense services; brokering activi- disclosing technical data. Such notice ties; and information on political con- provides the Directorate of Defense tributions, fees, or commissions fur- Trade Controls with the information nished or obtained, as required by part necessary to determine whether the au- 130 of this subchapter. Records in an thority of § 38(g)(6) of the Arms Export electronic format must be maintained Control Act regarding licenses or other using a process or system capable of re- approvals for certain sales or transfers producing all records on paper. Such of defense articles or data on the U.S. records when displayed on a viewer, Munitions List should be invoked (see monitor, or reproduced on paper, must §§ 120.10 and 126.1(e) of this subchapter). exhibit a high degree of legibility and (c) The new entity formed when a readability. (For the purpose of this registrant merges with another com- section, ‘‘legible’’ and ‘‘legibility’’

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mean the quality of a letter or numeral 123.3 Temporary import licenses. that enables the observer to identify it 123.4 Temporary import license exemptions. positively and quickly to the exclusion 123.5 Temporary export licenses. of all other letters or numerals. 123.6 Foreign trade zones and U.S. Customs ‘‘Readable’’ and ‘‘readability’’ means and Border Protection bonded warehouses. the quality of a group of letters or nu- 123.7 Exports to warehouses or distribution merals being recognized as complete points outside the United States. words or numbers.) This information 123.8 Special controls on vessels, aircraft must be stored in such a manner that and satellites covered by the U.S. Muni- none of it may be altered once it is ini- tions List. tially recorded without recording all 123.9 Country of ultimate destination and changes, who made them, and when approval of reexports or retransfers. they were made. For processes or sys- 123.10 Non-transfer and use assurances. tems based on the storage of digital 123.11 Movements of vessels and aircraft images, the process or system must af- covered by the U.S. Munitions List outside the United States. ford accessibility to all digital images 123.12 Shipments between U.S. possessions. in the records being maintained. All 123.13 Domestic aircraft shipments via a records subject to this section must be foreign country. maintained for a period of five years 123.14 Import certificate/delivery from the expiration of the license or verification procedure. other approval, to include exports 123.15 Congressional certification pursuant using an exemption (see § 123.26 of this to Section 36(c) of the Arms Export Con- subchapter); or, from the date of the trol Act. transaction (e.g., expired licenses or 123.16 Exemptions of general applicability. other approvals relevant to the export 123.17 Exports of firearms, ammunition, and personal protective gear. transaction using an exemption). The 123.18 Firearms for personal use of members Deputy Assistant Secretary of State of the U.S. Armed Forces and civilian for Defense Trade Controls and the Di- employees of the U.S. Government. rector of the Office of Defense Trade 123.19 Canadian and Mexican border ship- Controls Licensing may prescribe a ments. longer or shorter period in individual 123.20 Nuclear related controls. cases. 123.21 Duration, renewal, and disposition of (b) Records maintained under this licenses. section shall be available at all times 123.22 Filing, retention, and return of export licenses and filing of export infor- for inspection and copying by the Di- mation. rectorate of Defense Trade Controls or 123.23 Monetary value of shipments. a person designated by the Directorate 123.24 Shipments by U.S. Postal Service. of Defense Trade Controls (e.g., the 123.25 Amendments to licenses. Diplomatic Security Service) or U.S. 123.26 Recordkeeping for exemptions. Immigration and Customs Enforce- 123.27 Special licensing regime for export to ment, or U.S. Customs and Border Pro- U.S. allies of commercial communica- tection. Upon such request, the person tions satellite components, systems, parts, accessories, attachments and asso- maintaining the records must furnish ciated technical data. the records, the equipment, and if necessary, knowledgeable personnel for lo- AUTHORITY: Secs. 2, 38, and 71, Pub. L. 90– cating, reading, and reproducing any 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 record that is required to be main- U.S.C. 2753; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. L. 105–261, 112 Stat. 1920; Sec. 1205(a), tained in accordance with this section. Pub. L. 107–228; Sec. 520, Pub. L. 112–55; Sec- [70 FR 50959, Aug. 29, 2005, as amended at 79 tion 1261, Pub. L. 112–239; E.O. 13637, 78 FR FR 8084, Feb. 11, 2014] 16129. SOURCE: 58 FR 39299, July 22, 1993, unless PART 123—LICENSES FOR THE EX- otherwise noted. PORT AND TEMPORARY IMPORT § 123.1 Requirement for export or tem- OF DEFENSE ARTICLES porary import licenses.

Sec. (a) Any person who intends to export 123.1 Requirement for export or temporary or to import temporarily a defense ar- import licenses. ticle must obtain the approval of the 123.2 Import jurisdiction. Directorate of Defense Trade Controls

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prior to the export or temporary im- (1) Form DSP–5, DSP–61, DSP–73, and port, unless the export or temporary DSP–85 applications must have an import qualifies for an exemption entry in each block where space is pro- under the provisions of this sub- vided for an entry. All requested infor- chapter. The applicant must be reg- mation must be provided. Stating ‘‘Not istered with the Directorate of Defense Applicable’’ or ‘‘See Attached’’ is not Trade Controls pursuant to part 122 of acceptable. See the Directorate of De- this subchapter prior to submitting an fense Trade Controls Internet Web site application. Applications for unclassi- for additional guidance on the comple- fied exports and temporary imports tion of a license application form; must be submitted electronically. Ap- (2) Attachments and supporting tech- plications for classified exports and nical data or brochures should be sub- classified temporary imports must be mitted with the license application. All submitted via paper. Further guidance freight forwarders and U.S. consignors is provided on the Internet Web site of must be listed in the license applica- the Directorate of Defense Trade Con- tion. See the Directorate of Defense trols. The application forms for export Trade Controls Internet Web site for or temporary import are as follows: instructions and limitations on attach- (1) Unclassified permanent exports ing documentation; must be made on Form DSP–5; (3) Certification by an empowered of- (2) Unclassified temporary exports ficial must accompany all application must be made on Form DSP–73; submissions (see § 126.13 of this subchapter); (3) Unclassified temporary imports (4) An application for a license for must be made on Form DSP–61; or the permanent export of defense arti- (4) Classified exports or temporary cles sold commercially must be accom- imports must be made on Form DSP– panied by purchase documentation 85. (e.g., purchase order, contract, letter of (b) Applications for Department of intent, or other appropriate docu- State export or temporary import li- mentation). In cases involving the For- censes for proposed exports or tem- eign Military Sales program, a copy of porary imports of defense articles, in- the relevant Letter of Offer and Ac- cluding technical data, may include ceptance is required, unless the proce- commodities, software, and technical dures of § 126.4(c) or § 126.6 of this sub- data subject to the EAR (see § 120.42 of chapter are followed; this subchapter) if: (5) Form DSP–83, duly executed, (1) The purchase documentation (e.g., must accompany all license applica- purchase order, contract, letter of in- tions for the permanent export of sig- tent, or other appropriate documenta- nificant military equipment, including tion) includes both defense articles de- classified defense articles or classified scribed on the U.S. Munitions List and technical data (see §§ 123.10 and 125.3 of items on the Commerce Control List; this subchapter); and (2) The commodities, software, and (6) A statement concerning the pay- technical data subject to the EAR are ment of political contributions, fees, for end-use in or with the U.S. Muni- and commissions must accompany a tions List defense article(s) proposed permanent export application if the ex- for export; and port involves defense articles or de- (3) The license application separately fense services valued in an amount of enumerates the commodities, software, $500,000 or more and is being sold com- and technical data subject to the EAR mercially to or for the use of the armed in a U.S. Munitions List ‘‘(x)’’ para- forces of a foreign country or inter- graph entry. national organization (see part 130 of (c) As a condition to the issuance of this subchapter). a license or other approval, the Direc- (d) Provisions for furnishing the type torate of Defense Trade Controls may of defense services described in require all pertinent documentation re- § 120.9(a) of this subchapter are con- garding the proposed transaction and tained in part 124 of this subchapter. proper completion of the application Provisions for the export or temporary form as follows: import of technical data and classified

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defense articles are contained in part not be approved to support permanent 125 of this subchapter. import requirements. (e) A request for a license for the ex- [58 FR 39299, July 22, 1993, as amended at 71 port of unclassified technical data FR 20540, Apr. 21, 2006; 77 FR 22670, Apr. 17, (DSP–5) related to a classified defense 2012] article should specify any classified technical data or material that subse- § 123.4 Temporary import license ex- quently will be required for export in emptions. the event of a sale. (a) Port Directors of U.S. Customs [58 FR 39299, July 22, 1993, as amended at 70 and Border Protection shall permit the FR 50960, Aug. 29, 2005; 71 FR 20540, Apr. 21, temporary import (and subsequent ex- 2006; 77 FR 22670, Apr. 17, 2012; 78 FR 22758, port) without a license, for a period of Apr. 16, 2013; 79 FR 61230, Oct. 10, 2014] up to 4 years, of unclassified U.S.-origin defense items (including any items § 123.2 Import jurisdiction. manufactured abroad pursuant to U.S. The Department of State regulates Government approval) if the item tem- the temporary import of defense arti- porarily imported: cles. Permanent imports of defense ar- (1) Is serviced (e.g., inspection, test- ticles into the United States are regu- ing, calibration or repair, including overhaul, reconditioning and one-to- lated by the Department of the Jus- one replacement of any defective tice’s Bureau of Alcohol, Tobacco, items, parts or components, but ex- Firearms and Explosives under the di- cluding any modifications, enhance- rection of the Attorney General (see 27 ment, upgrade or other form of alter- CFR parts 447, 478, 479, and 555). ation or improvement that changes the [71 FR 20540, Apr. 21, 2006] basic performance of the item), and is subsequently returned to the country § 123.3 Temporary import licenses. from which it was imported. Shipment (a) A license (DSP–61) issued by the may be made by the U.S. importer or a Directorate of Defense Trade Controls foreign government representative of is required for the temporary import the country from which the goods were imported; or and subsequent export of unclassified defense articles, unless exempted from (2) Is to be enhanced, upgraded or incorporated into another item which this requirement pursuant to § 123.4. has already been authorized by the Di- This requirement applies to: rectorate of Defense Trade Controls for (1) Temporary imports of unclassified permanent export; or defense articles that are to be returned (3) Is imported for the purpose of ex- directly to the country from which hibition, demonstration or marketing they were shipped to the United States; in the United States and is subse- (2) Temporary imports of unclassified quently returned to the country from defense articles in transit to a third which it was imported; or country; (4) Has been rejected for permanent (b) A bond may be required as appro- import by the Department of the priate (see part 125 of this subchapter Treasury and is being returned to the for license requirements for technical country from which it was shipped; or data and classified defense articles.) (5) Is approved for such import under (c) A DSP–61 license may be obtained the U.S. Foreign Military Sales (FMS) by a U.S. importer in satisfaction of program pursuant to an executed U.S. § 123.4(c)(4) of this subchapter. If a for- Department of Defense Letter of Offer eign exporter requires documentation and Acceptance (LOA). for a permanent import, the U.S. im- NOTE: These Exceptions do not apply to porter must contact the Department of shipments that transit the U.S. to or from Justice’s Bureau of Alcohol, Tobacco, Canada (see § 123.19 and § 126.5 of this sub- Firearms and Explosives for the appro- chapter for exceptions). priate documentation. A DSP–61 will (b) Port Directors of U.S. Customs and Border Protection shall permit the

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temporary import (but not the subse- with and under the authority of 22 CFR quent export) without a license of un- 123.4(a) (identify subsection),’’ and classified defense articles that are to (ii) Include, on the invoice or other be incorporated into another article, or appropriate documentation, a complete modified, enhanced, upgraded, altered, list and description of the defense arti- improved or serviced in any other man- cle(s) being imported, including quan- ner that changes the basic performance tity and U.S. dollar value; and or productivity of the article prior to (2) At the time of export, in accord- being returned to the country from ance with the U.S. Customs and Border which they were shipped or prior to Protection procedures, the Directorate being shipped to a third country. A of Defense Trade Controls (DDTC) reg- DSP–5 is required for the reexport of istered and eligible exporter, or an such unclassified defense articles after agent acting on the filer’s behalf, must incorporation into another article, electronically file the export informa- modification, enhancement, upgrading, tion using the Automated Export Sys- alteration or improvement. tem (AES), and identify 22 CFR 123.4 as (c) Requirements. To use an exemption the authority for the export and pro- under § 123.4 (a) or (b), the following vide, as requested by U.S. Customs and criteria must be met: Border Protection, the entry document number or a copy of the U.S. Customs (1) The importer must meet the eligi- and Border Protection document under bility requirements set forth in which the article was imported. § 120.1(c) of this subchapter; (2) At the time of export, the ulti- [58 FR 39299, July 22, 1993, as amended at 64 mate consignee named on the Elec- FR 17533, Apr. 12, 1999; 68 FR 61101, Oct. 27, tronic Export Information (EEI) must 2003; 70 FR 50960, Aug. 29, 2005; 77 FR 16597, Mar. 21, 2012; 77 FR 22670, Apr. 17, 2012; ] be the same as the foreign consignee or end-user of record named at the time of § 123.5 Temporary export licenses. import; (a) The Directorate of Defense Trade (3) A stated in § 126.1 of this sub- Controls may issue a license for the chapter, the temporary import must temporary export of unclassified de- not be from or on behalf of a proscribed fense articles (DSP–73). Such licenses country, area, or person listed in that are valid only if the article will be ex- section unless an exception has been ported for a period of less than 4 years granted in accordance with § 126.3 of and will be returned to the United this subchapter; and States and transfer of title will not (4) The foreign exporter must not re- occur during the period of temporary quire documentation of U.S. Govern- export. Accordingly, articles exported ment approval of the temporary im- pursuant to a temporary export license port. If the foreign exporter requires may not be sold or otherwise perma- documentation for a temporary import nently transferred to a foreign person that qualifies for an exemption under while they are overseas under a tem- this subchapter, the U.S. importer will porary export license. A renewal of the not be able to claim the exemption and license or other written approval must is required to obtain a DSP–61 Applica- be obtained from the Directorate of De- tion/License for Temporary Import of fense Trade Controls if the article is to Unclassified Defense Articles. remain outside the United States be- (d) Procedures. To the satisfaction of yond the period for which the license is the Port Directors of U.S. Customs and valid. Border Protection, the importer and (b) Requirements. Defense articles au- exporter must comply with the fol- thorized for temporary export under lowing procedures: this section may be shipped only from (1) At the time of temporary im- a port in the United States where a port— Port Director of U.S. Customs and Bor- (i) File and annotate the applicable der Protection is available, or from a U.S. Customs and Border Protection U.S. Post Office (see 39 CFR part 20), as document (e.g., Form CF 3461, 7512, appropriate. The license for temporary 7501, 7523 or 3311) to read: ‘‘This ship- export must be presented to the Port ment is being imported in accordance Director of U.S. Customs and Border

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Protection who, upon verification, will the United States for subsequent resale endorse the exit column on the reverse and will normally be granted only if an side of the license. In some instances of agreement has been approved pursuant the temporary export of technical data to § 124.14 of this subchapter. (e.g., postal shipments), self-endorsement will be necessary (see § 123.22(b)). § 123.8 Special controls on vessels, air- The endorsed license for temporary ex- craft and satellites covered by the port is to be retained by the licensee. U.S. Munitions List. In the case of a military aircraft or (a) Transferring registration or con- vessel exported under its own power, trol to a foreign person of any aircraft, the endorsed license must be carried on vessel, or satellite on the U.S. Muni- board such vessel or aircraft as evi- tions List is an export for purposes of dence that it has been duly authorized this subchapter and requires a license by the Department of State to leave or written approval from the Direc- the United States temporarily. (c) Any temporary export license for torate of Defense Trade Controls. This hardware that is used, regardless of requirement applies whether the air- whether the hardware was exported di- craft, vessel, or satellite is physically rectly to the foreign destination or re- located in the United States or abroad. turned directly from the foreign des- (b) The registration in a foreign tination, must be endorsed by the U.S. country of any aircraft, vessel or sat- Customs and Border Protection in ac- ellite covered by the U.S. Munitions cordance with the procedures in § 123.22 List which is not registered in the of this subchapter. United States but which is located in [70 FR 50960, Aug. 29, 2005] the United States constitutes an export. A license or written approval § 123.6 Foreign trade zones and U.S. from the Directorate of Defense Trade Customs and Border Protection Controls is therefore required. Such bonded warehouses. transactions may also require the prior Foreign trade zones in the United approval of the U.S. Department of States and U.S. Customs and Border Transportation’s Maritime Administra- Protection bonded warehouses are con- tion, the Federal Aviation Administra- sidered integral parts of the United tion or other agencies of the U.S. Gov- States for the purpose of this sub- ernment. chapter. An export license is therefore not required for shipment between the [71 FR 20540, Apr. 21, 2006] United States and a foreign trade zone § 123.9 Country of ultimate destination or a U.S. Customs and Border Protec- and approval of reexports or re- tion bonded warehouse. In the case of transfers. classified defense articles, the provisions of the Department of Defense Na- (a) The country designated as the tional Industrial Security Program Op- country of ultimate destination on an erating Manual will apply. An export application for an export license, or in license is required for all shipments of an Electronic Export Information fil- articles on the U.S. Munitions List ing where an exemption is claimed from foreign trade zones and U.S. Cus- under this subchapter, must be the toms and Border Protection bonded country of ultimate end-use. The writ- warehouses to foreign countries, re- ten approval of the Directorate of De- gardless of how the articles reached the fense Trade Controls must be obtained zone or warehouse. before reselling, transferring, reex- [71 FR 20540, Apr. 21, 2006] porting, retransferring, transshipping, or disposing of a defense article to any § 123.7 Exports to warehouses or dis- end-user, end-use, or destination other tribution points outside the United than as stated on the export license, or States. in the Electronic Export Information Unless the exemption under filing in cases where an exemption is § 123.16(b)(1) is used, a license is re- claimed under this subchapter, except quired to export defense articles to a in accordance with the provisions of an warehouse or distribution point outside exemption under this subchapter that

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explicitly authorizes the resell, trans- appropriate ECCN or EAR99 designa- fer, reexport, retransfer, trans- tion. shipment, or disposition of a defense (c) Any U.S. person or foreign person article without such approval. Export- requesting written approval from the ers must determine the specific end- Directorate of Defense Trade Controls user, end-use, and destination prior to for the reexport, retransfer, other dis- submitting an application to the Direc- position, or change in end-use, end- torate of Defense Trade Controls or user, or destination of a defense article claiming an exemption under this sub- initially exported or transferred pursu- chapter. ant to a license or other written ap- NOTE TO PARAGRAPH (a): In making the proval, or an exemption under this sub- aforementioned determination, a person is chapter, must submit all the docu- expected to review all readily available in- mentation required for a permanent ex- formation, including information readily port license (see § 123.1 of this sub- available to the public generally as well as chapter) and shall also submit the fol- information readily available from other lowing: parties to the transaction. (1) The license number, written au- (b) The exporter, U.S. or foreign, thorization, or exemption under which must inform the end-user and all con- the defense article or defense service signees that the defense articles being was previously authorized for export exported are subject to U.S. export from the United States (NOTE: For ex- laws and regulations as follows: ports under exemptions at § 126.16 or (1) The exporter, U.S. or foreign, § 126.17 of this subchapter, the original must incorporate the following state- end-use, program, project, or operation ment as an integral part of the bill of under which the item was exported lading, air waybill, or other shipping must be identified.); document, and the purchase docu- (2) A precise description, quantity, mentation or invoice whenever defense and value of the defense article or de- articles are to be exported, retrans- fense service; ferred, or reexported pursuant to a li- (3) A description and identification of cense or other approval under this sub- the new end-user, end-use, and destina- chapter: ‘‘These commodities are au- tion; and thorized by the U.S. Government for (4) With regard to any request for export only to [country of ultimate such approval relating to a defense ar- destination] for use by [end-user] under ticle or defense service initially ex- [license or other approval number or ported pursuant to an exemption con- exemption citation]. They may not be tained in § 126.16 or § 126.17 of this sub- resold, diverted, transferred, or other- chapter, written request for the prior wise be disposed of, to any other coun- approval of the transaction from the try or to any person other than the au- Directorate of Defense Trade Controls thorized end-user or consignee(s), ei- must be submitted: By the original ther in their original form or after U.S. exporter, provided a written re- being incorporated into other end- quest is received from a member of the items, without first obtaining approval Australian Community, as identified in from the U.S. Department of State or § 126.16 of this subchapter, or the use of an applicable exemption.’’; and United Kingdom Community, as identi- (2) When exporting items subject to fied in § 126.17 of this subchapter (where the EAR (see §§ 120.42 and 123.1(b) of this such a written request includes a writ- subchapter) on a Department of State ten certification from the member of license or other approval, the U.S. ex- the Australian Community or the porter must provide to the end-user United Kingdom Community providing and consignees in the purchase docu- the information set forth in § 126.17 of mentation or other support docu- this subchapter); or by a member of the mentation submitted with the Depart- Australian Community or the United ment of State license or other approval Kingdom Community, where such re- request the appropriate EAR classifica- quest provides the information set tion information for each item ex- forth in this section. All persons must ported pursuant to a U.S. Munitions continue to comply with statutory and List ‘‘(x)’’ paragraph. This includes the regulatory requirements outside of this

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subchapter concerning the import of transfer or reexport restrictions pro- defense articles and defense services or hibiting use of this exemption. the possession or transfer of defense ar- [58 FR 39299, July 22, 1993, as amended at 71 ticles, including, but not limited to, FR 20541, Apr. 21, 2006; 73 FR 15885, Mar. 26, regulations issued by the Bureau of Al- 2008; 73 FR 38343, Aug. 3, 2009; 77 FR 16597, cohol, Tobacco, Firearms and Explo- Mar. 21, 2012; 78 FR 22759, Apr. 16, 2013; 78 FR sives found at 27 CFR parts 447, 478, and 61755, Oct. 3, 2013] 479, which are unaffected by the De- § 123.10 Non-transfer and use assur- fense Trade Cooperation Treaty be- ances. tween the United States and the (a) A nontransfer and use certificate United Kingdom and continue to apply (Form DSP–83) is required for the ex- fully to defense articles and defense port of significant military equipment services subject to either of the afore- and classified articles, including classi- mentioned treaties and the exemptions fied technical data. A license will not contained in § 126.17 of this subchapter. be issued until a completed Form DSP– (d) [Reserved] 83 has been received by the Directorate (e) Reexports or retransfers of U.S.- of Defense Trade Controls. This form is origin components incorporated into a to be executed by the foreign con- foreign defense article to NATO, NATO signee, foreign end-user, and the appli- agencies, a government of a NATO cant. The certificate stipulates that, country, or the governments of Aus- except as specifically authorized by tralia, Israel, Japan, New Zealand, or prior written approval of the Depart- the Republic of Korea are authorized ment of State, the foreign consignee without the prior written approval of and foreign end-user will not reexport, the Directorate of Defense Trade Con- resell or otherwise dispose of the sig- trols, provided: nificant military equipment enumerated in the application outside the (1) The U.S.-origin components were country named as the location of the previously authorized for export from foreign end-use or to any other person. the United States, either by a license, (b) The Directorate of Defense Trade written authorization, or an exemption Controls may also require a DSP–83 for other than those described in either the export of any other defense arti- § 126.16 or § 126.17 of this subchapter; cles, including technical data, or de- (2) The U.S.-origin components are fense services. not significant military equipment, the (c) When a DSP–83 is required for an items are not major defense equipment export of any defense article or defense sold under contract in the amount of service to a non-governmental foreign $25,000,000 ($25 million) or more; the ar- end-user, the Directorate of Defense ticles are not defense articles or de- Trade Controls may require as a condi- fense services sold under a contract in tion of issuing the license that the ap- the amount of $100,000,000 ($100 million) propriate authority of the government or more; and are not identified in part of the country of ultimate destination 121 of this subchapter as Missile Tech- also execute the certificate. nology Control Regime (MTCR) items; [71 FR 20541, Apr. 21, 2006] and (3) The person reexporting the de- § 123.11 Movements of vessels and air- fense article provides written notifica- craft covered by the U.S. Munitions List outside the United States. tion to the Directorate of Defense Trade Controls of the retransfer not (a) A license issued by the Direc- later than 30 days following the reex- torate of Defense Trade Controls is report. The notification must state the quired whenever a privately-owned air- articles being reexported and the re- craft or vessel on the U.S. Munitions List makes a voyage outside the cipient government. United States. (4) The original license or other ap- (b) Exemption. An export license is proval of the Directorate of Defense not required when a vessel or aircraft Trade Controls did not include re- referred to in paragraph (a) of this section departs from the United States

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and does not enter the territorial Value llllllllllllllllllll waters or airspace of a foreign country Signed llllllllllllllllllll if no defense articles are carried as Endorsement: U.S. Customs and Border cargo. Such a vessel or aircraft may Protection Inspector. not enter the territorial waters or air- Port of Exit lllllllllllllllll space of a foreign country before re- Date lllllllllllllllllllll turning to the United States, or carry Signed llllllllllllllllllll as cargo any defense article, without a temporary export license (Form DSP– Endorsement: U.S. Customs and Border Protection Inspector. 73) from the Department of State. (See § 123.5.) Port of Entry llllllllllllllll Date lllllllllllllllllllll [58 FR 39299, July 22, 1993, as amended at 71 FR 20541, Apr. 21, 2006] [70 FR 50961, Aug. 29, 2005]

§ 123.12 Shipments between U.S. pos- § 123.14 Import certificate/delivery sessions. verification procedure. An export license is not required for (a) The Import Certificate/Delivery the shipment of defense articles be- Verification Procedure is designed to tween the United States, the Common- assure that a commodity imported into wealth of Puerto Rico, and U.S. posses- the territory of those countries partici- sions. A license is required, however, pating in IC/DV procedures will not be for the export of defense articles from diverted, transshipped, or reexported to these areas to foreign countries. another destination except in accordance with export control regulations of § 123.13 Domestic aircraft shipments the importing country. via a foreign country. (b) Exports. The Directorate of De- A license is not required for the ship- fense Trade Controls may require the ment by air of a defense article from IC/DV procedure on proposed exports of one location in the United States to defense articles to non-government en- another location in the United States tities in those countries participating via a foreign country. The pilot of the in IC/DV procedures. In such cases, aircraft must, however, file a written U.S. exporters must submit both an ex- statement with the Port Director of port license application (the completed U.S. Customs and Border Protection at Form DSP–5) and the original Import the port of exit in the United States. Certificate, which must be provided The original statement must be filed at and authenticated by the government the time of exit with the Port Director of the importing country. This docu- of U.S. Customs and Border Protection. ment verifies that the foreign importer A duplicate must be filed at the port of complied with the import regulations reentry with the Port Director of U.S. of the government of the importing Customs and Border Protection, who country and that the importer declared will duly endorse it and transmit it to the intention not to divert, transship the Port Director of U.S. Customs and or reexport the material described Border Protection at the port of exit. therein without the prior approval of The statement will be as follows: that government. After delivery of the commodities to the foreign consignee, DOMESTIC SHIPMENT VIA A FOREIGN COUNTRY the Directorate of Defense Trade Con- OF ARTICLES ON THE U.S. MUNITIONS LIST trols may also require U.S. exporters Under penalty according to Federal law, to furnish Delivery Verification docu- the undersigned certifies and warrants that mentation from the government of the all the information in this document is true importing country. This documenta- and correct, and that the equipment listed below is being shipped from (U.S. port of tion verifies that the delivery was in exit) via (foreign country) to (U.S. port of accordance with the terms of the ap- entry), which is the final destination in the proved export license. Both the Import United States. Certificate and the Delivery Verification must be furnished to the Description of Equipment U.S. exporter by the foreign importer. Quantity llllllllllllllllll (c) Triangular transactions. When a Equipment lllllllllllllllll transaction involves three or more

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countries that have adopted the IC/DV for defense articles and defense serv- procedure, the governments of these ices sold under a contract in the countries may stamp a triangular sym- amount of $100,000,000 or more, and pro- bol on the Import Certificate. This vided the transfer does not include any symbol is usually placed on the Import other countries; or Certificate when the applicant for the (3) A license for export of a firearm Import Certificate (the importer) controlled under Category I of the states either (1) that there is uncer- United States Munitions List, of this tainty whether the items covered by subchapter, in an amount of $1,000,000 the Import Certificate will be imported or more. into the country issuing the Import (b) Unless an emergency exists which Certificate; (2) that he or she knows that the items will not be imported requires the final export in the na- into the country issuing the Import tional security interests of the United Certificate; or (3) that, if the items are States, approval may not be granted to be imported into the country issuing for any transaction until at least 15 the Import Certificate, they will subse- calendar days have elapsed after re- quently be reexported to another des- ceipt by the Congress of the certifi- tination. All parties, including the ul- cation required by 22 U.S.C. 2776(c)(1) timate consignee in the country of ul- involving NATO, or Australia, Israel, timate destination, must be shown on Japan, New Zealand, or the Republic of the completed Import Certificate. Korea or at least 30 calendar days have elapsed for any other country; in the [58 FR 39299, July 22, 1993, as amended at 71 case of a license for an export of a com- FR 20541, Apr. 21, 2006] mercial communications satellite for § 123.15 Congressional certification launch from, and by nationals of, the pursuant to Section 36(c) of the Russian Federation, Ukraine, or Arms Export Control Act. Kazakhstan, until at least 15 calendar (a) The Arms Export Control Act re- days after the Congress receives such quires that a certification be provided certification. to the Congress prior to the granting of (c) Persons who intend to export de- any license or other approval for trans- fense articles and defense services pur- actions, in the amounts described suant to any exemption in this sub- below, involving exports of any defense chapter under the circumstances de- articles and defense services and for ex- scribed in this section must provide ports of major defense equipment, as written notification to the Directorate defined in § 120.8 of this subchapter. Ap- of Defense Trade Controls and include provals may not be granted when the a signed contract and a DSP–83 signed Congress has enacted a joint resolution by the applicant, the foreign consignee prohibiting the export. Certification is and the end-user. required for any transaction involving: (1) A license for the export of major [70 FR 34654, June 15, 2005, as amended at 73 defense equipment sold under a con- FR 38343, Aug. 3, 2009; 77 FR 16598, Mar. 21, tract in the amount of $14,000,000 or 2012] more, or for defense articles and de- § 123.16 Exemptions of general appli- fense services sold under a contract in cability. the amount of $50,000,000 or more, to any country that is not a member of (a) The following exemptions apply the North Atlantic Treaty Organiza- to exports of unclassified defense arti- tion (NATO), or Australia, Israel, cles for which no approval is needed Japan, New Zealand, or the Republic of from the Directorate of Defense Trade Korea that does not authorize a new Controls. These exemptions do not sales territory; or apply to: Proscribed destinations under (2) A license for export to a country § 126.1 of this subchapter; exports for that is a member country of NATO, or which Congressional notification is re- Australia, Israel, Japan, New Zealand, quired (see § 123.15 of this subchapter); or the Republic of Korea, of major de- MTCR articles; Significant Military fense equipment sold under a contract Equipment (SME); and may not be used in the amount of $25,000,000 or more, or by persons who are generally ineligible

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as described in § 120.1(c) of this sub- (iii) The spare parts or components chapter. All shipments of defense arti- are not to be used to enhance the capa- cles, including but not limited to those bility of the defense article; to Australia, Canada, and the United (iv) Exporters shall not split orders Kingdom, require an Electronic Export so as not to exceed the dollar value of Information (EEI) filing or notification this exemption; letter. If the export of a defense article (v) The exporter may not make more is exempt from licensing, the EEI filing than 24 shipments per calendar year to must cite the exemption. Refer to the previously authorized end user; § 123.22 of this subchapter for EEI filing (vi) The exporter must certify on the and letter notification requirements. invoice, the bill of lading, air waybill, (b) The following exports are exempt or shipping documents that the export from the licensing requirements of this is exempt from the licensing require- subchapter. ments of this subchapter. This is done (1) Port Directors of U.S. Customs by writing ‘‘22 CFR 123.16(b)(2) applica- and Border Protection shall permit the ble.’’ export without a license of defense (3) Port Directors of U.S. Customs hardware being exported in furtherance and Border Protection shall permit the of a manufacturing license agreement, export without a license, of packing technical assistance agreement, dis- cases specially designed to carry de- tribution agreement or an arrangement fense articles. for distribution of items identified in (4) Port Directors of U.S. Customs Category XIII(b)(1), approved in ac- and Border Protection shall permit the cordance with part 124, provided that: export without a license, of unclassi- (i) The defense hardware to be ex- fied models or mock-ups of defense ar- ported supports the activity and is ticles, provided that such models or identified by item, quantity and value mock-ups are inoperable and do not re- in the agreement or arrangement; and veal any technical data in excess of that which is exempted from the li- (ii) Any provisos or limitations censing requirements of § 125.4(b) of placed on the authorized agreement or this subchapter and do not contain arrangement are adhered to; and components (see § 120.45(b) of this sub- (iii) The exporter identifies in the chapter) covered by the U.S. Munitions EEI filing by selecting the appropriate List (see § 121.1 of this subchapter). code that the export is exempt from Some models or mockups built to scale the licensing requirements of this sub- or constructed of original materials chapter; and can reveal technical data. U.S. persons (iv) The total value of all shipments who avail themselves of this exemption does not exceed the value authorized in must provide a written certification to the agreement or arrangement. the Port Director of U.S. Customs and (v) In the case of a distribution Border Protection that these condi- agreement, export must be made ditions are met. This exemption does not rectly to the approved foreign dis- imply that the Directorate of Defense tributor. Trade Controls will approve the export (2) Port Directors of U.S. Customs of any defense articles for which mod- and Border Protection shall permit the els or mocks-ups have been exported export of components or spare parts pursuant to this exemption. (for exemptions for firearms and am- (5) Port Directors of U.S. Customs munition see § 123.17) without a license and Border Protection shall permit the when the total value does not exceed temporary export without a license of $500 in a single transaction and: unclassified defense articles to any (i) The components or spare parts are public exhibition, trade show, air show being exported to support a defense ar- or related event if that article has pre- ticle previously authorized for export; viously been licensed for a public exhi- and bition, trade show, air show or related (ii) The spare parts or components event and the license is still valid. U.S. are not going to a distributor, but to a persons who avail themselves of this previously approved end-user of the de- exemption must provide a written cer- fense articles; and tification to the Port Director of U.S.

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Customs and Border Protection that nisms, or fully automatic firearms and these conditions are met. parts and components for such fire- (6) For exemptions for firearms and arms, when: ammunition refer to § 123.17 of this sub- (i) The total value does not exceed chapter. $500 wholesale in any transaction; (7) For exemptions for firearms for (ii) The export is to Canada for end- personal use of members of the U.S. use in Canada or return to the United Armed Forces and civilian employees States, or temporary import into the see § 123.18. United States of Canadian-origin items (8) For exports to Canada refer to and return to Canada for a Canadian § 126.5 of this subchapter. citizen; and (9) Port Directors of U.S. Customs (iii) The exporter makes a declara- and Border Protection shall permit the tion via the Automated Export Sys- temporary export without a license by a U.S. person of any unclassified com- tem, pursuant to § 123.22(a) of this sub- ponent, part, tool or test equipment to chapter, and the exporter is eligible to a subsidiary, affiliate or facility owned export under this exemption, pursuant or controlled by the U.S. person (see to § 120.1(c) of this subchapter; or § 120.37 of this subchapter for definition (3) Parts, components, accessories, or of foreign ownership and foreign con- attachments for USML Category I fire- trol) if the component, part, tool or arms, including fully automatic fire- test equipment is to be used for manu- arms and parts and components for facture, assembly, testing, production, such firearms, when: or modification provided: (i) The total value does not exceed (i) The U.S. person is registered with $500 wholesale in any transaction; the Directorate of Defense Trade Con- (ii) The export is to Canada for end- trols and complies with all require- use by the Canadian Federal Govern- ments set forth in part 122 of this sub- ment, a Canadian Provincial Govern- chapter; ment, or a Canadian Municipal Govern- (ii) No defense article exported under ment; and this exemption may be sold or trans- (iii) The exporter makes a declara- ferred without the appropriate license tion via the Automated Export Sys- or other approval from the Directorate tem, pursuant to § 123.22(a) of this sub- of Defense Trade Controls. chapter, and the exporter is eligible to (10) [Reserved] export under this exemption, pursuant [58 FR 39299, July 22, 1993, as amended at 59 to § 120.1(c) of this subchapter. FR 29951, June 10, 1994; 59 FR 45622, Sept. 2, (b) Port Directors of U.S. Customs 1994; 67 FR 15100, Mar. 29, 2002; 70 FR 50961, and Border Protection shall permit the Aug. 29, 2005; 71 FR 20541, Apr. 21, 2006; 76 FR export without a license of nonauto- 45197, July 28, 2011; 77 FR 16598, Mar. 21, 2012; matic firearms covered by Category 78 FR 40631, July 8, 2013; 79 FR 61230, Oct. 10, I(a) of § 121.1 of this subchapter if they 2014; 79 FR 66609, Nov. 10, 2014] were manufactured in or before 1898, or § 123.17 Exports of firearms, ammuni- are replicas of such firearms. tion, and personal protective gear. (c) Port Directors of U.S. Customs (a) Port Directors of U.S. Customs and Border Protection (CBP) shall per- and Border Protection shall permit the mit U.S. persons to export temporarily export without a license of: from the United States without a li- (1) Parts and components for USML cense not more than three nonauto- Category I(a) firearms, except barrels, matic firearms in Category I(a) of cylinders, receivers (frames), or com- § 121.1 of this subchapter and not more plete breech mechanisms, when the than 1,000 cartridges therefor, provided total value does not exceed $100 whole- that: sale in any transaction, except to any (1) The person declares the articles to of the countries or entities as provided a CBP officer upon each departure from in § 126.1 of this subchapter; the United States, presents the Inter- (2) Parts, components, accessories, or nal Transaction Number from submis- attachments for USML Category I fire- sion of the Electronic Export Informa- arms, except barrels, cylinders, receiv- tion in the Automated Export System ers (frames), complete breech mecha- per § 123.22 of this subchapter, and the

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articles are presented to the CBP offi- sion of the Electronic Export Informa- cer for inspection; tion in the Automated Export System (2) The firearms and accompanying (AES) per § 123.22 of this subchapter, ammunition to be exported is with the and the articles are presented to the individual’s baggage or effects, wheth- CBP officer for inspection; er accompanied or unaccompanied (but (2) The body armor, which may in- not mailed); and clude a helmet, or chemical agent pro- (3) The firearms and accompanying tective gear, which may include one ammunition must be for that person’s additional filter canister, to be ex- exclusive use and not for reexport or ported is with the individual’s baggage other transfer of ownership. The person or effects, whether accompanied or un- must declare that it is his intention to accompanied (but not mailed); and return the article(s) on each return to (3) The body armor, which may in- the United States. The foregoing ex- clude a helmet, or chemical agent pro- emption is not applicable to the per- tective gear, which may include one sonnel referred to in § 123.18 of this sub- additional filter canister, to be ex- chapter. ported is for that person’s exclusive use (d) Port Directors of U.S. Customs and not for reexport or other transfer and Border Protection shall permit a of ownership. The person must declare foreign person to export without a li- it is his intention to return the arti- cense such firearms in Category I(a) of cle(s) to the United States at the end of § 121.1 of this subchapter and ammuni- tour, contract, or assignment for which tion therefor as the foreign person the articles were temporarily exported. brought into the United States under (g) The license exemption set forth in the provisions of 27 CFR 478.115(d). (The paragraph (f) of this section is avail- latter provision specifically excludes able for the temporary export of body from the definition of importation the armor or chemical agent protective bringing into the United States of fire- gear for personal use to countries list- arms and ammunition by certain for- ed in § 126.1 of this subchapter provided: eign persons for specified purposes.) (e) Port Directors of U.S. Customs (1) The conditions in paragraph (f) of and Border Protection shall permit this section are met; and U.S. persons to export without a li- (2) The person is affiliated with the cense ammunition for nonautomatic U.S. Government traveling on official firearms referred to in paragraph (a) of business or is traveling in support of a this section if the quantity does not ex- U.S. Government contract. The person ceed 1,000 cartridges (or rounds) in any shall present documentation to this ef- shipment. The ammunition must also fect, along with the Internal Trans- be for personal use and not for resale or action Number for the AES submission, other transfer of ownership. The fore- to the CBP officer. going exemption is also not applicable (h) The license exemption set forth in to the personnel referred to in § 123.18. paragraph (f) of this section is avail- (f) Port Directors of U.S. Customs able for the temporary export of body and Border Protection (CBP) shall per- armor, which may include a helmet, or mit U.S. persons to export temporarily chemical agent protective gear, which from the United States without a li- may include one additional filter can- cense one set of body armor covered by ister, for personal use to Iraq, provided U.S. Munitions List Category X(a)(1), the conditions in paragraph (f) are met, which may include one helmet covered and the person is either affiliated with by U.S. Munitions List Category the U.S. Government traveling on offi- X(a)(6), or one set of chemical agent cial business or is traveling in support protective gear covered by U.S. Muni- of a U.S. Government contract, or is tions List Category XIV(f)(4), which traveling to Iraq under a direct author- may include one additional filter can- ization by the Government of Iraq and ister, provided: engaging in activities for, on behalf of, (1) The person declares the articles to or at the request of, the Government of a CBP officer upon each departure from Iraq. The person shall present docu- the United States, presents the Inter- mentation to this effect, along with nal Transaction Number from submis- the Internal Transaction Number for

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the AES submission, to the CBP offi- (1) They are consigned to service- cer. Documentation regarding direct men’s clubs abroad for uniformed mem- authorization from the Government of bers of the U.S. Armed Forces; or, Iraq shall include an English trans- (2) In the case of a uniformed member lation. of the U.S. Armed Forces or a civilian (i) The license exemption set forth in employee of the Department of De- paragraph (f) of this section is avail- fense, they are for personal use and not able for the temporary export of body for resale or other transfer of owner- armor, which may include a helmet, or ship, and if the firearms are accom- chemical agent protective gear, which panied by a written authorization from may include one additional filter can- the commanding officer concerned; or ister, for personal use to Afghanistan, (3) In the case of other U.S. Govern- provided the conditions in paragraph ment employees, they are for personal use and not for resale or other transfer (f) are met. of ownership, and the Chief of the U.S. (j) If the articles temporarily ex- Diplomatic Mission or his designee in ported pursuant to paragraphs (c) and the country of destination has ap- (f) through (i) of this section are not proved in writing to Department of returned to the United States, a de- State the import of the specific types tailed report must be submitted to the and quantities of firearms into that Office of Defense Trade Controls Com- country. The exporter shall provide a pliance in accordance with the require- copy of this written statement to the ments of § 127.12(c)(2) of this sub- Port Director of U.S. Customs and Bor- chapter. der Protection. (k) To use the exemptions in this sec- (b) Ammunition. Port Directors of tion, individuals are not required to be U.S. Customs and Border Protection registered with the Department of shall permit not more than 1,000 car- State (the registration requirement is tridges (or rounds) of ammunition for described in part 122 of this sub- the firearms referred to in paragraph chapter). All other entities must be (a) of this section to be exported (but registered and eligible, as provided in not mailed) from the United States §§ 120.1(c) and (d) and part 122 of this without a license when the firearms subchapter. are on the person of the owner or with his baggage or effects, whether accom- [58 FR 39299, July 22, 1993, as amended at 64 FR 17534, Apr. 12, 1999; 70 FR 50962, Aug. 29, panied or unaccompanied (but not 2005; 71 FR 20541, Apr. 21, 2006; 74 FR 39213, mailed). Aug. 6, 2009; 77 FR 25867, May 2, 2012; 78 FR [58 FR 39299, July 22, 1993, as amended at 70 40631, July 8, 2013] FR 50962, Aug. 29, 2005]

§ 123.18 Firearms for personal use of § 123.19 Canadian and Mexican border members of the U.S. Armed Forces shipments. and civilian employees of the U.S. A shipment originating in Canada or Government. Mexico which incidentally transits the The following exemptions apply to United States en route to a delivery members of the U.S. Armed Forces and point in the same country that origi- civilian employees of the U.S. Govern- nated the shipment is exempt from the ment who are U.S. persons (both re- requirement for an in transit license. ferred to herein as personnel). The exemptions apply only to such personnel § 123.20 Nuclear related controls. if they are assigned abroad for ex- (a) The provisions of this subchapter tended duty. These exemptions do not do not apply to articles, technical data, apply to dependents. or services in Category VI, Category (a) Firearms. Port Directors of U.S. XV, Category XVI, or Category XX of Customs and Border Protection shall § 121.1 of this subchapter to the extent permit nonautomatic firearms in Cat- that exports of such articles, technical egory I(a) of § 121.1 of this subchapter data, or services are controlled by the and parts therefor to be exported, ex- Department of Energy or the Nuclear cept by mail, from the United States Regulatory Commission pursuant to without a license if: the Atomic Energy Act of 1954, as

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amended, and the Nuclear Non-Pro- (3) If it is not for use in a naval proliferation Act of 1978, as amended, or is pulsion plant. a government transfer authorized pur- [67 FR 58988, Sept. 19, 2002, as amended at 78 suant to these Acts. For Department of FR 40933, July 8, 2013; 79 FR 47, Jan. 2, 2014; Commerce controls, see 15 CFR 742.3 79 FR 36393, June 27, 2014; 79 FR 66609, Nov. and 744.2, administered pursuant to 10, 2014] Section 309(c) of the Nuclear Non- proliferation Act of 1978, as amended § 123.21 Duration, renewal, and dis- (42 U.S.C. 2139a(c)), and 15 CFR 744.5, position of licenses. which are not subject to this sub- (a) A license is valid for four years. chapter. The license expires when the total (b) The transfer of materials, includ- value or quantity authorized has been ing special nuclear materials, nuclear shipped or when the date of expiration parts of nuclear weapons, or other non- has been reached, whichever occurs nuclear parts of nuclear weapons sys- first. Defense articles to be shipped tems involving Restricted Data or of thereafter require a new application assistance involving any person di- and license. The new application rectly or indirectly engaging in the should refer to the expired license. It production or use thereof is prohibited should not include references to any except as authorized by the Atomic En- defense articles other than those of the ergy Act of 1954, as amended. The unshipped balance of the expired li- transfer of Restricted Data or such as- cense. sistance is prohibited except as author- (b) Unused, expired, suspended, or re- ized by the Atomic Energy Act of 1954, voked licenses must be handled in ac- as amended. The technical data or de- cordance with § 123.22(c) of this sub- fense services relating to nuclear weap- chapter. ons, nuclear weapons systems or related defense purposes (and such data [58 FR 39299, July 22, 1993, as amended at 76 FR 68312, Nov. 4, 2011] or services relating to applications of atomic energy for peaceful purposes, or § 123.22 Filing, retention, and return related research and development) may of export licenses and filing of ex- constitute Restricted Data or such as- port information. sistance, subject to the foregoing pro- (a) Any export, as defined in this sub- hibition. chapter, of a defense article controlled (c) A license for the export of a de- by this subchapter, to include defense fense article, technical data, or the fur- articles transiting the United States, nishing of a defense service relating to requires the electronic reporting of ex- defense articles referred to in Category port information. The reporting of the VI(e) or Category XX(b)(1) of § 121.1 of export information shall be to the U.S. this subchapter will not be granted un- Customs and Border Protection using less the defense article, technical data, the Automated Export System (AES) or defense service comes within the or directly to the Directorate of De- scope of an existing Agreement for Co- fense Trade Controls (DDTC). Any li- operation for Mutual Defense Purposes cense or other approval authorizing the concluded pursuant to the Atomic En- permanent export of hardware must be ergy Act of 1954, as amended, with the filed at a U.S. Port before any export. government of the country to which Licenses or other approvals for the per- the defense article, technical data, or manent export of technical data and defense service is to be exported. Li- defense services shall be retained by censes may be granted in the absence the applicant who will send the export of such an agreement only: information directly to DDTC. Tem- (1) If the proposed export involves an porary export or temporary import li- article which is identical to that in use censes for such items need not be filed in an unclassified civilian nuclear with the U.S. Customs and Border Pro- power plant, tection, but must be presented to the (2) If the proposed export has no rela- U.S. Customs and Border Protection tionship to naval nuclear propulsion, for decrementing of the shipment prior and to departure and at the time of entry.

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The U.S. Customs and Border Protec- decrements both temporary licenses to tion will only decrement a shipment show the exit and entry of the hard- after the export information has been ware. filed correctly using the AES. Before (b) Filing and reporting of export infor- the export of any hardware using an mation—(1) Filing of export information exemption in this subchapter, the with the U.S. Customs and Border Protec- DDTC registered applicant/exporter, or tion. Before exporting any hardware an agent acting on the filer’s behalf, controlled by this subchapter, using a must electronically provide export in- license or exemption, the DDTC reg- formation using the AES (see para- istered applicant/exporter, or an agent graph (b) of this section). In addition to acting on the filer’s behalf, must elec- electronically providing the export in- tronically file the export information formation to the U.S. Customs and with the U.S. Customs and Border Pro- Border Protection before export, all tection using the Automated Export the mandatory documentation must be System (AES) in accordance with the presented to the port authorities (e.g., following timelines: attachments, certifications, proof of (i) Air or truck shipments. The export AES filing; such as the Internal Trans- information must be electronically action Number (ITN)). Export author- filed at least 8 hours prior to depar- izations shall be filed, retained, decre- ture. mented or returned to DDTC as fol- (ii) Sea or rail Shipments. The export lows: information must be electronically (1) Filing of licenses and documentation filed at least 24 hours prior to depar- for the permanent export of hardware. ture. For any permanent export of hardware (2) Emergency shipments of hardware using a license (e.g., DSP–5, DSP–94) or that cannot meet the pre-departure filing an exemption in this subchapter, the requirements. U.S. Customs and Border exporter must, prior to an AES filing, Protection may permit an emergency deposit the license and provide any reexport of hardware by truck (e.g., de- quired documentation for the license or partures to Mexico or Canada) or air, the exemption with the U.S. Customs by a U.S. registered person, when the and Border Protection, unless other- exporter is unable to comply with the wise directed in this subchapter (e.g., Electronic Export Information (EEI) § 125.9). If necessary, an export may be filing timeline in paragraph (b)(1)(i) of made through a port other than the this section. The applicant, or an agent one designated on the license if the ex- acting on the applicant’s behalf, in ad- porter complies with the procedures es- dition to providing the EEI using the tablished by the U.S. Customs and Bor- AES, must provide documentation re- der Protection. quired by U.S. Customs and Border (2) Presentation and retention by the Protection and this subchapter. The applicant of temporary licenses and re- documentation provided to U.S. Cus- lated documentation for the export of un- toms and Border Protection at the port classified defense articles. Licenses for of exit must include the Internal the temporary export or temporary im- Transaction Number (ITN) for the ship- port of unclassified defense articles ment and a copy of a notification to need not be filed with the U.S. Customs the Directorate of Defense Trade Con- and Border Protection, but must be re- trols stating that the shipment is ur- tained by the applicant and presented gent and must be accompanied by an to the U.S. Customs and Border Protec- explanation for the urgency. The origi- tion at the time of temporary import nal of the notification must be imme- and temporary export. When a defense diately provided to the Directorate of article is temporarily exported from Defense Trade Controls. The AES filing the United States and moved from one of the export information must be destination authorized on a license to made at least two hours prior to any another destination authorized on the departure by air from the United same or another temporary license, the States. When shipping via ground, the applicant, or an agent acting on the ap- AES filing must be made at the time plicant’s behalf, must ensure that the when the exporter provides the articles U.S. Customs and Border Protection to the carrier or at least one hour prior

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to departure from the United States, (iii) Technical data and defense service when the permanent export of the exemptions. In any instance when tech- hardware has been authorized for ex- nical data is exported using an exemp- port: tion in this subchapter (e.g., (i) In accordance with § 126.4 of this §§ 125.4(b)(2), 125.4(b)(4), 126.5) from a subchapter, or U.S. port, the exporter is not required (ii) On a valid license (i.e., DSP–5, to report using AES, but must, effec- DSP–94) and the ultimate recipient and tive January 18, 2004, provide the ex- ultimate end user identified on the li- port data electronically to DDTC. A cense is a foreign government. copy of the electronic notification to (3) Reporting of export information on DDTC must accompany the technical technical data and defense service. When data shipment and be made available an export is being made using a DDTC to the U.S. Customs and Border Protec- authorization (e.g., technical data li- tion upon request. cense, agreement or a technical data exemption provided in this sub- NOTE TO PARAGRAPH (b)(3)(iii): Future chapter), the DDTC registered exporter changes to the electronic reporting procedure will be amended by publication of a rule will retain the license or other ap- in the FEDERAL REGISTER. Exporters are re- proval and provide the export informa- minded to continue maintaining records of tion electronically to DDTC as follows: all export transactions, including exemption (i) Technical data license. Prior to the shipments, in accordance with this sub- permanent export of technical data li- chapter. censed using a Form DSP–5, the appli- (c) Return of licenses. Per § 123.21 of cant shall electronically provide export this subchapter, all DSP licenses issued information using the system for direct by the Directorate of Defense Trade electronic reporting to DDTC of export Controls (DDTC) must be disposed of in information and self validate the original of the license. When the initial ex- accordance with the following: port of all the technical data author- (1) A DSP–5 license issued electroni- ized on the license has been made, the cally by DDTC and decremented elec- license must be returned to DDTC. Ex- tronically by the U.S. Customs and ports of copies of the licensed technical Border Protection through the Auto- data should be made in accordance mated Export System (AES) is not re- with existing exemptions in this sub- quired to be returned to DDTC. If a chapter. Should an exemption not DSP–5 license issued electronically is apply, the applicant may request a new decremented physically in one or more license. instance the license must be returned (ii) Manufacturing license and tech- DDTC. A copy of the DSP–5 license nical assistance agreements. Prior to the must be maintained by the applicant in initial export of any technical data and accordance with § 122.5 of this sub- defense services authorized in an agree- chapter. ment the U.S. agreement holder must (2) DSP–5, DSP–61, DSP–73, and DSP– electronically inform DDTC that ex- 85 licenses issued by DDTC but not dec- ports have begun. In accordance with remented electronically by the U.S. this subchapter, all subsequent exports Customs and Border Protection of technical data and services are not through AES (e.g., oral or visual tech- required to be filed electronically with nical data releases or temporary im- DDTC except when the export is done port and export licenses retained in ac- using a U.S. Port. Records of all subse- cordance with paragraph (a)(2) of this quent exports of technical data shall be section), must be returned by the appli- maintained by the exporter in accord- cant, or the government agency with ance with this subchapter and shall be which the license was filed, to DDTC made immediately available to DDTC upon expiration, to include when the upon request. Exports of technical data total authorized value or quantity has in furtherance of an agreement using a been shipped. A copy of the license U.S. Port shall be made in accordance must be maintained by the applicant in with § 125.4 of this subchapter and made accordance with § 122.5 of this sub- in accordance with the procedures in chapter. AES does not decrement the paragraph (b)(3)(iii) of this section. DSP–61, DSP–73, and DSP–85 licenses.

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Submitting the Electronic Export In- Service must be filed with the U.S. formation is not considered to be dec- Customs and Border Protection using remented electronically for these li- the Automated Export System (AES) censes. and the license must be filed with the (3) A DSP–94 authorization filed with U.S. Customs and Border Protection the U.S. Customs and Border Protec- before any hardware is actually sent tion must be returned by the applicant, abroad by mail. The exporter must cer- or the government agency with which tify the defense hardware being ex- the authorization was filed, to DDTC ported in accordance with this sub- upon expiration, to include when the chapter by clearly marking on the total authorized value or quantity has package ‘‘This export is subject to the been shipped, or when all shipments controls of the ITAR, 22 CFR (identify against the Letter of Offer and Accept- section for an exemption) or (state li- ance have been completed. AES does cense number) and the export has been not decrement the DSP–94 authoriza- electronically filed with the U.S. Cus- tion. Submitting the Electronic Export toms and Border Protection using the Information is not considered to be Automated Export System (AES).’’ decremented electronically for the (b) The export of any technical data DSP–94. A copy of the DSP–94 must be using a license in this subchapter by maintained by the applicant in accord- the U.S. Postal Service must be noti- ance with § 122.5 of this subchapter. fied electronically directly to the Di- (4) A license issued by DDTC but not rectorate of Defense Trade Controls used by the applicant does not need to (DDTC). The exporter, using either a li- be returned to DDTC, even when ex- cense or exemption, must certify, by pired. clearly marking on the package, ‘‘This (5) A license revoked by DDTC is con- export is subject to the controls of the sidered expired and must be handled in ITAR, 22 CFR (identify section for an accordance with paragraphs (c)(1) and exemption) or (state license number).’’ (c)(2) of this section. For those exports using a license, the exporter must also state ‘‘The export [68 FR 61101, Oct. 27, 2003, as amended at 70 FR 50962, Aug. 29, 2005; 76 FR 68312, Nov. 4, has been electronically notified di- 2011; 77 FR 16599, Mar. 21, 2012] rectly to DDTC.’’ The license must be returned to DDTC upon completion of § 123.23 Monetary value of shipments. the use of the license (see § 123.22(c)). Port Directors of U.S. Customs and [68 FR 61102, Oct. 27, 2003, as amended at 70 Border Protection shall permit the FR 50963, Aug. 29, 2005] shipment of defense articles identified on any license when the total value of § 123.25 Amendments to licenses. the export does not exceed the aggre- (a) The Directorate of Defense Trade gate monetary value (not quantity) Controls may approve an amendment stated on the license by more than ten to a license for permanent export, tem- percent, provided that the additional porary export and temporary import of monetary value does not make the unclassified defense articles. A sug- total value of the license or other ap- gested format is available from the Di- proval for the export of any major de- rectorate of Defense Trade Controls. fense equipment sold under a contract (b) The following types of amend- reach $14,000,000 or more, and provided ments to a license will be considered: that the additional monetary value Addition of U.S. freight forwarder or does not make defense articles or de- U.S. consignor; change due to an obvi- fense services sold under a contract ous typographical error; change in reach the amount of $50,000,000 or more. source of commodity; and change of [70 FR 50963, Aug. 29, 2005] foreign intermediate consignee if that party is only transporting the equip- § 123.24 Shipments by U.S. Postal Serv- ment and will not process (e.g., inte- ice. grate, modify) the equipment. For (a) The export of any defense hard- changes in U.S. dollar value see § 123.23. ware using a license or exemption in (c) The following types of amend- this subchapter by the U.S. Postal ments to a license will not be approved:

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Additional quantity, changes in com- or modified components, systems, modity, country of ultimate destina- parts, accessories, attachments, associ- tion, end-use or end-user, foreign con- ated equipment and certain associated signee and/or extension of duration. technical data for commercial commu- The foreign intermediate consignee nications satellites, and who are so may only be amended if that party is registered with the Directorate of De- acting as freight forwarder and the ex- fense Trade Controls pursuant to part port does not involve technical data. A 122 of this subchapter, may submit li- new license is required for these cense applications for multiple perma- changes. Any new license submission nent and temporary exports and tem- must reflect only the unshipped bal- porary imports of such articles for ex- ance of quantity and dollar value. peditious consideration without meet- [58 FR 39299, July 22, 1993, as amended at 71 ing the documentary requirements of FR 20542, Apr. 21, 2006; 77 FR 22671, Apr. 17, § 123.1(c)(4) and (5) concerning purchase 2012] orders, letters of intent, contracts and § 123.26 Recordkeeping for exemp- non-transfer and end use certificates, tions. or the documentary requirements of § 123.9, concerning approval of re-ex- Any person engaging in any export, ports or re-transfers, when all of the reexport, transfer, or retransfer of a defense article or defense service pursu- following requirements are met: ant to an exemption must maintain (1) The proposed exports or re-exports records of each such export, reexport, concern exclusively one or more coun- transfer, or retransfer. The records tries of the North Atlantic Treaty Or- shall, to the extent applicable to the ganization (see § 120.31 of this sub- transaction and consistent with the re- chapter) and/or one or more countries quirements of § 123.22 of this sub- which have been designated in accord- chapter, include the following informa- ance with section 517 of the Foreign tion: A description of the defense arti- Assistance Act of 1961 and with section cle, including technical data, or de- 1206 of the Foreign Relations Author- fense service; the name and address of ization Act, Fiscal Year 2003 as a major the end-user and other available con- non-NATO ally (see § 120.32 of this sub- tact information (e.g., telephone num- chapter). ber and electronic mail address); the (2) The proposed exports concern ex- name of the natural person responsible clusively one or more foreign persons for the transaction; the stated end-use (e.g., companies or governments) lo- of the defense article or defense serv- cated within the territories of the ice; the date of the transaction; the countries identified in paragraph (a)(1) Electronic Export Information (EEI) of this section, and one or more com- Internal Transaction Number (ITN); mercial communications satellite pro- and the method of transmission. The grams included within a list of such person using or acting in reliance upon persons and programs approved by the the exemption shall also comply with U.S. Government for purposes of this any additional recordkeeping require- section, as signified in a list of such ments enumerated in the text of the persons and programs that will be pub- regulations concerning such exemption licly available through the Internet (e.g., requirements specific to the De- Web site of the Directorate of Defense fense Trade Cooperation Treaties in § 126.16 and § 126.17 of this subchapter). Trade Controls and by other means. (3) The articles are not major defense [77 FR 16599, Mar. 21, 2012] equipment sold under a contract in the amount of $14,000,000 or more or de- § 123.27 Special licensing regime for export to U.S. allies of commercial fense articles or defense services sold communications satellite compo- under a contract in the amount of nents, systems, parts, accessories, $50,000,000 or more (for which purpose, attachments and associated tech- as is customary, exporters may not nical data. split contracts or purchase orders). (a) U.S. persons engaged in the busi- Items meeting these statutory thresh- ness of exporting specifically designed olds must be submitted on a separate

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license application to permit the re- case, however, can the provisions of quired notification to Congress pursu- this section apply or be relied upon by ant to section 36(c) of the Arms Export U.S. exporters in the case of countries Control Act. who are subject to the mandatory re- (4) The articles are not detailed de- quirements of Section 1514 of the sign, development, manufacturing or Strom Thurmond National Defense Au- production data and do not involve the thorization Act for Fiscal Year 1999 manufacture abroad of significant mili- (Pub. L. 105–261), concerning national tary equipment. security controls on satellite export li- (5) The U.S. exporter provides com- censing. plete shipment information to the Di- (d) Registered U.S. exporters may re- rectorate of Defense Trade Controls quest at the time of a license applica- within 15 days of shipment by submit- tion submitted pursuant to this section ting a report containing a description that additional foreign persons or com- of the item and the quantity, value, munications satellite programs be port of exit, and end-user and country added to the lists referred to in para- of destination of the item, and at that graph (a)(2) of this section, which addi- time meets the documentary require- tions, if approved, will be included ments of § 123.1(c)(4) and (5), the docu- within the publicly available lists of mentary requirements of § 123.9 in the authorized recipients and programs. case of re-exports or re-transfers, and, [65 FR 34091, May 26, 2000, as amended at 67 other documentary requirements that FR 58988, Sept. 19, 2002; 69 FR 40314, July 2, may be imposed as a condition of a li- 2004; 70 FR 50963, Aug. 29, 2005; 71 FR 20542, cense (e.g., parts control plans for Apr. 21, 2006] MTCR-controlled items). The shipment information reported must include a PART 124—AGREEMENTS, OFF- description of the item and quantity, SHORE PROCUREMENT, AND value, port of exit and end user and country of destination of the item. OTHER DEFENSE SERVICES (6) At any time in which an item exported pursuant to this section is pro- Sec. 124.1 Manufacturing license agreements and posed for re-transfer outside of the ap- technical assistance agreements. proved territory, programs or persons 124.2 Exemptions for training and military (e.g., such as in the case of an item in- service. cluded in a satellite for launch beyond 124.3 Exports of technical data in further- the approved territory), the detailed ance of an agreement. requirements of § 123.9 apply with re- 124.4 Deposit of signed agreements with the gard to obtaining the prior written Directorate of Defense Trade Controls. consent of the Directorate of Defense 124.5 Proposed agreements that are not concluded. Trade Controls. 124.6 Termination of manufacturing license (b) The re-export or re-transfer of the agreements and technical assistance articles authorized for export (includ- agreements. ing to specified re-export destinations) 124.7 Information required in all manufac- in accordance with this section do not turing license agreements and technical require the separate prior written ap- assistance agreements. proval of the Directorate of Defense 124.8 Clauses required both in manufac- Trade Controls provided all of the re- turing license agreements and technical assistance agreements. quirements in paragraph (a) of this sec- 124.9 Additional clauses required only in tion are met. manufacturing license agreements. (c) The Directorate of Defense Trade 124.10 Nontransfer and use assurances. Controls will consider, on a case-by- 124.11 Congressional certification pursuant case basis, requests to include addi- to Section 36(d) of the Arms Export Con- tional foreign companies and satellite trol Act. programs within the geographic cov- 124.12 Required information in letters of erage of a license application sub- transmittal. 124.13 Procurement by United States per- mitted pursuant to this section from sons in foreign countries (offshore pro- countries not otherwise covered, who curement). are members of the European Space 124.14 Exports to warehouses or distribution Agency or the European Union. In no points outside the United States.

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124.15 Special Export Controls for Defense vision of defense services described in Articles and Defense Services Controlled § 120.9(a) of this subchapter by granting under Category XV: Space Systems and a license under part 125 of this sub- Space Launches. chapter. 124.16 Special retransfer authorizations for unclassified technical data and defense (b) Classified articles. Copies of ap- services to member states of NATO and proved agreements involving the re- the European Union, Australia, Japan, lease of classified defense articles will New Zealand, and Switzerland. be forwarded by the Directorate of De- AUTHORITY: Secs. 2, 38, and 71, Pub. L. 90– fense Trade Controls to the Defense Se- 629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 curity Service of the Department of U.S.C. 2651a; 22 U.S.C. 2776; Section 1514, Pub. Defense. L. 105–261; Pub. L. 111–266; Section 1261, Pub. (c) Amendments. Changes to the scope L. 112–239; E.O. 13637, 78 FR 16129. of approved agreements, including SOURCE: 58 FR 39305, July 22, 1993, unless modifications, upgrades, or extensions otherwise noted. must be submitted for approval. The amendments may not enter into force § 124.1 Manufacturing license agree- until approved by the Directorate of ments and technical assistance Defense Trade Controls. agreements. (d) Minor amendments. Amendments (a) Approval. The approval of the Di- which only alter delivery or perform- rectorate of Defense Trade Controls ance schedules, or other minor admin- must be obtained before the defense istrative amendments which do not af- services described in § 120.9(a) of this fect in any manner the duration of the subchapter may be furnished. In order agreement or the clauses or informa- to obtain such approval, the U.S. per- tion which must be included in such son must submit a proposed agreement agreements because of the require- to the Directorate of Defense Trade ments of this part, do not have to be Controls. Such agreements are gen- submitted for approval. One copy of all erally characterized as manufacturing such minor amendments must be sub- license agreements, technical assist- mitted to the Directorate of Defense ance agreements, distribution agree- Trade Controls within thirty days after ments, or off-shore procurement agree- they are concluded. ments, and may not enter into force without the prior written approval of [71 FR 20542, Apr. 21, 2006, as amended at 75 the Directorate of Defense Trade Con- FR 52624, Aug. 27, 2010] trols. Once approved, the defense services described in the agreements may § 124.2 Exemptions for training and military service. generally be provided without further licensing in accordance with §§ 124.3 (a) Technical assistance agreements and 125.4(b)(2) of this subchapter. The are not required for the provision of requirements of this section apply training in the basic operation and whether or not technical data is to be maintenance of defense articles law- disclosed or used in the performance of fully exported or authorized for export the defense services described in to the same recipient. This does not in- § 120.9(a) of this subchapter (e.g., all the clude training in intermediate and information relied upon by the U.S. depot level maintenance. person in performing the defense serv- (b) Services performed as a member ice is in the public domain or is other- of the regular military forces of a for- wise exempt from licensing require- eign nation by U.S. persons who have ments of this subchapter pursuant to been drafted into such forces are not § 125.4 of this subchapter). This require- deemed to be defense services for pur- ment also applies to the training of poses of § 120.9 of this subchapter. any foreign military forces, regular (c) NATO countries, Australia, and irregular, in the use of defense ar- Japan, and Sweden, in addition to the ticles. Technical assistance agreements basic maintenance training exemption must be submitted in such cases. In ex- provided in § 124.2(a) and basic mainte- ceptional cases, the Directorate of De- nance information exemption in fense Trade Controls, upon written re- § 125.4(b)(5) of this subchapter, no tech- quest, will consider approving the pro- nical assistance agreement is required

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for maintenance training or the per- tronic, reliability and maintainability) formance of maintenance, including of a defense article. the export of supporting technical (ii) Engineering analysis, such as: Ana- data, when the following criteria can lytical methods and tools used to de- be met: sign or evaluate a defense article’s per- (1) Defense services are for unclassi- formance against the operational re- fied U.S.-origin defense articles law- quirements. Analytical methods and fully exported or authorized for export tools include the development and/or and owned or operated by and in the in- use of mockups, computer models and ventory of NATO or the Federal Gov- simulations, and test facilities. ernments of NATO countries, Aus- (iii) Manufacturing know-how, such tralia, Japan or Sweden. (2) This defense service exemption as: Information that provides detailed does not apply to any transaction in- manufacturing processes and tech- volving defense services for which con- niques needed to translate a detailed gressional notification is required in design into a qualified, finished defense accordance with § 123.15 and § 124.11 of article. this subchapter. (5) This defense service exemption (3) Maintenance training or the per- does not apply to maintenance training formance of maintenance must be lim- or the performance of maintenance and ited to inspection, testing, calibration service or the transfer of supporting or repair, including overhaul, recondi- technical data for the following defense tioning and one-to-one replacement of articles: any defective items, parts or compo- (i) All Missile Technology Control nents; and excluding any modification, Regime Annex Items; enhancement, upgrade or other form of (ii) Firearms listed in Category I; and alteration or improvement that en- ammunition listed in Category III for hances the performance or capability the firearms in Category I; of the defense article. This does not (iii) [Reserved] preclude maintenance training or the (iv) Naval nuclear propulsion equip- performance of maintenance that would result in enhancements or im- ment listed in USML Category VI and provements only in the reliability or USML Category XX; maintainability of the defense article, (v) Gas turbine engine hot sections such as an increased mean time be- covered by Categories VI(f) and VIII(b); tween failure (MTBF). (vi) Category VIII(f); (4) Supporting technical data must be (vii) Category XII(c); unclassified and must not include soft- (viii) Chemical agents listed in Cat- ware documentation on the design or egory XIV (a), biological agents in Cat- details of the computer software, soft- egory XIV (b), and equipment listed in ware source code, design methodology, Category XIV (c) for dissemination of engineering analysis or manufacturing the chemical agents and biological know-how such as that described in agents listed in Categories XIV (a) and paragraphs (c)4)(i) through (c)(4)(iii) as (b); follows: (ix) [Reserved] (i) Design methodology, such as: The (x) Category XV; underlying engineering methods and design philosophy utilized (i.e., the (xi) [Reserved] ‘‘why’’ or information that explains (xii) Submersible and semi-submers- the rationale for particular design de- ible vessels and related articles covered cision, engineering feature, or perform- in USML Category XX; or ance requirement); engineering experi- (xiii) Miscellaneous articles covered ence (e.g., lessons learned); and the ra- by Category XXI. tionale and associated databases (e.g., (6) Eligibility criteria for foreign per- design allowables, factors of safety, sons. Foreign persons eligible to re- component life predictions, failure ceive technical data or maintenance analysis criteria) that establish the operational requirements (e.g., performance, mechanical, electrical, elec-

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training under this exemption are lim- § 124.4 Deposit of signed agreements ited to nationals of the NATO coun- with the Directorate of Defense tries, Australia, Japan, or Sweden. Trade Controls. [58 FR 39305, July 22, 1993, as amended at 65 (a) The United States party to a FR 45283, July 21, 2000; 66 FR 35899, July 10, manufacturing license or a technical 2001; 71 FR 20543, Apr. 21, 2006; 78 FR 40933, assistance agreement must file one July 8, 2013; 79 FR 47, Jan. 2, 2014] copy of the concluded agreement with the Directorate of Defense Trade Con- § 124.3 Exports of technical data in trols not later than 30 days after it en- furtherance of an agreement. ters into force. If the agreement is not (a) Unclassified technical data. The concluded within one year of the date U.S. Customs and Border Protection or of approval, the Directorate of Defense Trade Controls must be notified in U.S. Postal authorities shall permit writing and be kept informed of the the export without a license of unclas- status of the agreement until the re- sified technical data if the export is in quirements of this paragraph or the re- furtherance of a manufacturing license quirements of § 124.5 are satisfied. or technical assistance agreement (b) In the case of concluded agree- which has been approved in writing by ments involving coproduction or li- the Directorate of Defense Trade Con- censed production outside of the trols (DDTC) and the technical data United States of defense articles of does not exceed the scope or limita- United States origin, a written state- tions of the relevant agreement. The ment must accompany filing of the approval of the DDTC must be obtained concluded agreement with the Direc- for the export of any unclassified tech- torate of Defense Trade Controls, nical data that may exceed the terms which shall include: of the agreement. (1) The identity of the foreign coun- (b) Classified technical data. The ex- tries, international organization, or port of classified information in fur- foreign firms involved; therance of an approved manufacturing (2) A description and the estimated license or technical assistance agree- value of the articles authorized to be ment which provides for the trans- produced, and an estimate of the quan- mittal of classified information does tity of the articles authorized to be not require further approval from the produced: Directorate of Defense Trade Controls (3) A description of any restrictions when: on third-party transfers of the foreign- (1) The United States party certifies manufactured articles; and to the Department of Defense trans- (4) If any such agreement does not mittal authority that the classified in- provide for United States access to and formation does not exceed the tech- verification of quantities of articles produced overseas and their disposition nical or product limitations in the in the foreign country, a description of agreement; and alternative measures and controls to (2) The U.S. party complies with the ensure compliance with restrictions in requirements of the Department of De- the agreement on production quan- fense National Industrial Security Pro- tities and third-party transfers. gram Operating Manual concerning the transmission of classified information [62 FR 67276, Dec. 24, 1997, as amended at 71 (unless such requirements are in direct FR 20543, Apr. 21, 2006] conflict with guidance provided by the § 124.5 Proposed agreements that are Directorate of Defense Trade Controls, not concluded. in which case the latter guidance must The United States party to any pro- be followed) and any other require- posed manufacturing license agreements of cognizant U.S. departments ment or technical assistance agree- or agencies. ment must inform the Directorate of [58 FR 39305, July 22, 1993, as amended at 68 Defense Trade Controls if a decision is FR 61102, Oct. 27, 2003; 70 FR 50963, Aug. 29, made not to conclude the agreement. 2005; 71 FR 20543, Apr. 21, 2006] The information must be provided

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within 60 days of the date of the deci- (3) The agreement must specify its sion. These requirements apply only if duration; and the approval of the Directorate of De- (4) The agreement must specifically fense Trade Controls was obtained for identify the countries or areas in which the agreement to be concluded (with or manufacturing, production, processing, without any provisos). sale or other form of transfer is to be [71 FR 20543, Apr. 21, 2006] licensed.

§ 124.6 Termination of manufacturing § 124.8 Clauses required both in manu- license agreements and technical facturing license agreements and assistance agreements. technical assistance agreements. The U.S. party to a manufacturing li- The following statements must be in- cense or a technical assistance agree- cluded both in manufacturing license ment must inform the Directorate of agreements and in technical assistance Defense Trade Controls in writing of agreements: the impending termination of the (1) ‘‘This agreement shall not enter agreement not less than 30 days prior into force, and shall not be amended or to the expiration date of such agree- extended, without the prior written ap- ment. proval of the Department of State of the U.S. Government.’’ [71 FR 20543, Apr. 21, 2006] (2) ‘‘This agreement is subject to all United States laws and regulations re- § 124.7 Information required in all manufacturing license agreements lating to exports and to all administra- and technical assistance agree- tive acts of the U.S. Government pur- ments. suant to such laws and regulations.’’ (3) ‘‘The parties to this agreement The following information must be agree that the obligations contained in included in all proposed manufacturing this agreement shall not affect the per- license agreements and technical as- formance of any obligations created by sistance agreements. The information should be provided in terms which are prior contracts or subcontracts which as precise as possible. If the applicant the parties may have individually or believes that a clause or that required collectively with the U.S. Govern- information is not relevant or nec- ment.’’ essary, the applicant may request the (4) ‘‘No liability will be incurred by omission of the clause or information. or attributed to the U.S. Government The transmittal letter accompanying in connection with any possible in- the agreement must state the reasons fringement of privately owned patent for any proposed variation in the or proprietary rights, either domestic clauses or required information. or foreign, by reason of the U.S. Gov- (1) The agreement must describe the ernment’s approval of this agreement.’’ defense article to be manufactured and (5) The technical data or defense all defense articles to be exported, in- service exported from the United cluding any test and support equip- States in furtherance of this agreement ment or advanced materials. They and any defense article which may be should be described by military nomen- produced or manufactured from such clature, contract number, National technical data or defense service may Stock Number, nameplate data, or not be transferred to a foreign person other specific information. Supporting except pursuant to §§ 124.16 and 126.18, technical data or brochures should be as specifically authorized in this agree- submitted in seven copies. Only defense ment, or where prior written approval articles listed in the agreement will be of the Department of State has been eligible for export under the exemption obtained. in § 123.16(b)(1) of this subchapter. (6) ‘‘All provisions in this agreement (2) The agreement must specifically which refer to the United States Gov- describe the assistance and technical ernment and the Department of State data, including the design and manu- will remain binding on the parties after facturing know-how involved, to be fur- the termination of the agreement.’’ nished and any manufacturing rights [58 FR 39305, July 22, 1993, as amended at 76 to be granted; FR 28177, May 16, 2011]

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§ 124.9 Additional clauses required U.S. Government must be proportion- only in manufacturing license ately reduced to reflect the U.S. Gov- agreements. ernment contributions, and subject to (a) Clauses for all manufacturing li- the provisions of paragraphs (a) (2) and cense agreements. The following clauses (3) of this section, no other royalties, must be included only in manufac- or fees or other charges may be as- turing license agreements: sessed against U.S. Government funded (1) ‘‘No export, sale, transfer, or purchases of such articles. However, other disposition of the licensed article charges may be made for reasonable re- is authorized to any country outside production, handling, mailing, or simi- the territory wherein manufacture or lar administrative costs incident to the sale is herein licensed without the furnishing of such data.’’ prior written approval of the U.S. Gov- (5) ‘‘The parties to this agreement ernment unless otherwise exempted by agree that an annual report of sales or the U.S. Government. Sales or other other transfers pursuant to this agree- transfers of the licensed article shall ment of the licensed articles, by quan- be limited to governments of countries tity, type, U.S. dollar value, and pur- wherein manufacture or sale is hereby chaser or recipient, shall be provided licensed and to private entities seeking by (applicant or licensee) to the De- to procure the licensed article pursu- partment of State.’’ This clause must ant to a contract with any such gov- specify which party is obligated to pro- ernment unless the prior written ap- vide the annual report. Such reports proval of the U.S. Government is ob- may be submitted either directly by tained.’’ the licensee or indirectly through the (2) ‘‘It is agreed that sales by licensee licensor, and may cover calendar or fis- or its sub-licensees under contracts cal years. Reports shall be deemed pro- made through the U.S. Government prietary information by the Depart- will not include either charges for pat- ment of State and will not be disclosed ent rights in which the U.S. Govern- to unauthorized persons. See § 126.10(b) ment holds a royalty-free license, or charges for data which the U.S. Gov- of this subchapter. ernment has a right to use and disclose (6) (Licensee) agrees to incorporate to others, which are in the public do- the following statement as an integral main, or which the U.S. Government provision of a contract, invoice or has acquired or is entitled to acquire other appropriate document whenever without restrictions upon their use and the licensed articles are sold or other- disclosure to others.’’ wise transferred: (3) ‘‘If the U.S. Government is obli- These commodities are authorized for ex- gated or becomes obligated to pay to port by the U.S. Government only to (coun- the licensor royalties, fees, or other try of ultimate destination or approved sales charges for the use of technical data or territory). They may not be resold, diverted, patents which are involved in the man- transferred, transshipped, or otherwise be ufacture, use, or sale of any licensed disposed of in any other country, either in article, any royalties, fees or other their original form or after being incor- charges in connection with purchases porated through an intermediate process into other end-items, without the prior writ- of such licensed article from licensee ten approval of the U.S. Department of or its sub-licensees with funds derived State. through the U.S. Government may not exceed the total amount the U.S. Gov- (b) Special clause for agreements relat- ernment would have been obligated to ing to significant military equipment. pay the licensor directly.’’ With respect to an agreement for the (4) ‘‘If the U.S. Government has made production of significant military financial or other contributions to the equipment, the following additional design and development of any licensed provisions must be included in the article, any charges for technical as- agreement: sistance or know-how relating to the (1) ‘‘A completed nontransfer and use item in connection with purchases of certificate (DSP–83) must be executed such articles from licensee or sub-li- by the foreign end-user and submitted censees with funds derived through the to the Department of State of the

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United States before any transfer may NOTE TO PARAGRAPH (b): In no case may a take place.’’ transfer occur before a required DSP–83 and/ (2) ‘‘The prior written approval of the or diplomatic note has been submitted to the U.S. Government must be obtained be- Directorate of Defense Trade Controls. fore entering into a commitment for [59 FR 29951, June 10, 1994, as amended at 71 the transfer of the licensed article by FR 20543, Apr. 21, 2006] sale or otherwise to any person or government outside of the approved sales § 124.11 Congressional certification territory.’’ pursuant to Section 36(d) of the Arms Export Control Act. § 124.10 Nontransfer and use assur- (a) The Arms Export Control Act re- ances. quires that a certification be provided (a) Types of agreements requiring as- to the Congress prior to the granting of surances. With respect to any manufac- any approval of a manufacturing li- turing license agreement or technical cense agreement or technical assist- assistance agreement which relates to ance agreement as defined in Sections significant military equipment or clas- 120.21 and 120.22 respectively for the sified defense articles, including classi- manufacturing abroad of any item of fied technical data, a Nontransfer and significant military equipment (see Use Certificate (Form DSP–83) (see § 123.10 of this subchapter) signed by § 120.7 of this subchapter) that is en- the applicant and the foreign party tered into with any country regardless must be submitted to the Directorate of dollar value. Additionally, any man- of Defense Trade Controls. With re- ufacturing license agreement or tech- spect to all agreements involving clas- nical assistance agreement providing sified articles, including classified for the export of major defense equip- technical data, an authorized rep- ment, as defined in § 120.8 of this sub- resentative of the foreign government chapter shall also require a certifi- must sign the DSP–83 (or provide the cation when meeting the requirements same assurances in the form of a diplo- of § 123.15 of this subchapter. matic note), unless the Directorate of (b) Unless an emergency exists which Defense Trade Controls has granted an requires the immediate approval of the exception to this requirement. The Di- agreement in the national security in- rectorate of Defense Trade Controls terests of the United States, approval may require that a DSP–83 be provided may not be granted until at least 15 in conjunction with an agreement that calendar days have elapsed after re- does not relate to significant military ceipt by the Congress of the certifi- equipment or classified defense arti- cation required by 22 U.S.C. 2776(d)(1) cles. The Directorate of Defense Trade involving the North Atlantic Treaty Controls may also require with respect Organization, any member country of to any agreement that an appropriate that Organization, or Australia, Israel, authority of the foreign party’s government also sign the DSP–83 (or provide Japan, New Zealand, or the Republic of the same assurances in the form of a Korea or at least 30 calendar days have diplomatic note). elapsed for any other country. Approv- (b) Timing of submission of assurances. als may not be granted when the Con- Submission of a Form DSP–83 and/or gress has enacted a joint resolution diplomatic note must occur as follows: prohibiting the export. (1) Agreements which have been (c) Persons who intend to export designed by all parties before being sub- fense articles and defense services pur- mitted to the Directorate of Defense suant to any exemption in this sub- Trade Controls may only be submitted chapter under the circumstances de- along with any required DSP–83 and/or scribed in this section and section diplomatic note. 123.15 must provide written notifica- (2) If an agreement has not been tion to the Directorate of Defense signed by all parties before being sub- Trade Controls and include a signed mitted, the required DSP–83 and/or dip- contract and a DSP–83 signed by the lomatic note must be submitted along with the signed agreement.

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applicant, the foreign consignee and number of the U.S. Government office the end-user. that classified the information. (9) For agreements that may require [70 FR 34654, June 15, 2005, as amended at 73 FR 38343, Aug. 3, 2009; 77 FR 16599, Mar. 21, the export of classified information, 2012] the Defense Investigative Service cognizant security offices that have re- § 124.12 Required information in let- sponsibility for the facilities of the ters of transmittal. U.S. parties to the agreement shall be (a) An application for the approval of identified. The facility security clear- a manufacturing license or technical ance codes of the U.S. parties shall also assistance agreement with a foreign be provided. person must be accompanied by an ex- (10) A statement specifying whether planatory letter. The original letter the applicant is requesting retransfer and seven copies of the letter and eight of defense articles and defense services copies of the proposed agreement shall pursuant to § 124.16 of this subchapter. be submitted to the Directorate of De- (b) The following statements must be fense Trade Controls. The explanatory made in the letter of transmittal: letter shall contain: (1) ‘‘If the agreement is approved by (1) A statement giving the appli- the Department of State, such approval cant’s Directorate of Defense Trade will not be construed by (the applicant) Controls registration number. as passing on the legality of the agree- (2) A statement identifying the li- ment from the standpoint of antitrust censee and the scope of the agreement. laws or other applicable statutes, nor (3) A statement identifying the U.S. will (the applicant) construe the De- Government contract under which the partment’s approval as constituting ei- equipment or technical data was gen- ther approval or disapproval of any of erated, improved, or developed and sup- the business terms or conditions be- plied to the U.S. Government, and tween the parties to the agreement.’’ whether the equipment or technical (2) ‘‘The (applicant) will not permit data was derived from any bid or other the proposed agreement to enter into proposal to the U.S. Government. force until it has been approved by the (4) A statement giving the military Department of State.’’ security classification of the equip- (3) ‘‘The (applicant) will furnish the ment or technical data. Department of State with one copy of (5) A statement identifying any pat- the signed agreement (or amendment) ent application which discloses any of within 30 days from the date that the the subject matter of the equipment or agreement is concluded and will inform technical data covered by an invention the Department of its termination not secrecy order issued by the U.S. Patent less than 30 days prior to expiration and Trademark Office. and provide information on the con- (6) A statement of the actual or esti- tinuation of any foreign rights or the mated value of the agreement, includ- flow of technical data to the foreign ing the estimated value of all defense party. If a decision is made not to con- articles to be exported in furtherance clude the proposed agreement, the ap- of the agreement or amendments there- plicant will so inform the Department to. If the value is $500,000 or more, an within 60 days.’’ additional statement must be made regarding the payment of political con- (4) ‘‘If this agreement grants any tributions, fees or commissions, pursu- rights to sub-license, it will be amend- ant to part 130 of this subchapter. ed to require that all sub-licensing ar- (7) A statement indicating whether rangements incorporate all the provi- any foreign military sales credits or sions of the basic agreement that refer loan guarantees are or will be involved to the U.S. Government and the De- in financing the agreement. partment of State (i.e., 22 CFR 124.9 and (8) The agreement must describe any 124.10).’’ classified information involved and [58 FR 39305, July 22, 1993, as amended at 71 identify, from Department of Defense FR 20543, Apr. 21, 2006; 72 FR 71786, Dec. 19, form DD254, the address and telephone 2007]

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§ 124.13 Procurement by United States (5) Requires the foreign person, in- persons in foreign countries (off- cluding subcontractors, to destroy or shore procurement). return to the person in the United Notwithstanding the other provisions States all of the technical data ex- in part 124 of this subchapter, the Di- ported pursuant to the contract or pur- rectorate of Defense Trade Controls chase order upon fulfillment of their may authorize by means of a license terms; and (DSP–5) the export of unclassified tech- (6) Requires delivery of the defense nical data to foreign persons for off- articles manufactured abroad only to shore procurement of defense articles, the person in the United States or to provided that: an agency of the U.S. Government; and (a) The contract or purchase order (d) The person in the United States for offshore procurement limits deliv- provides the Directorate of Defense ery of the defense articles to be pro- Trade Controls with a copy of each duced only to the person in the United contract, purchase order or sub- States or to an agency of the U.S. Gov- contract for offshore procurement at ernment; and the time it is accepted. Each such con- (b) The technical data of U.S.-origin tract, purchase order or subcontract to be used in the foreign manufacture must clearly identify the article to be of defense articles does not exceed that produced and must identify the license required for bid purposes on a build-to- number or exemption under which the print basis (build-to-print means pro- technical data was exported; and ducing an end-item (i.e., system, sub- (e) Licenses issued pursuant to this system or component) from technical drawings and specifications (which con- section must be renewed prior to their tain no process or know-how informa- expiration if offshore procurement is to tion) without the need for additional be extended beyond the period of valid- technical assistance). Release of sup- ity of the original approved license. In porting documentation (e.g., accept- all instances a license for offshore pro- ance criteria, object code software for curement must state as the purpose numerically controlled machines) is ‘‘Offshore procurement in accordance permissible. Build-to-print does not in- with the conditions established in the clude the release of any information ITAR, including § 124.13. No other use which discloses design methodology, will be made of the technical data.’’ If engineering analysis, detailed process the technical data involved in an off- information or manufacturing know- shore procurement arrangement is oth- how); and erwise exempt from the licensing re- (c) The contract or purchase order quirements of this subchapter (e.g., between the person in the United § 126.4), the DSP–5 referred to in the States and the foreign person: first sentence of this section is not re- (1) Limits the use of the technical quired. However, the exporter must data to the manufacture of the defense comply with the other requirements of articles required by the contract or this section and provide a written cer- purchase order only; and tification to the Directorate of Defense (2) Prohibits the disclosure of the Trade Controls annually of the offshore data to any other person except sub- procurement activity and cite the ex- contractors within the same country; emption under which the technical and data was exported. The exemptions (3) Prohibits the acquisition of any under § 125.4 of this subchapter may not rights in the data by any foreign per- be used to establish offshore procure- son; and ment arrangements. (4) Provides that any subcontracts between foreign persons in the ap- [58 FR 39305, July 22, 1993, as amended at 64 proved country for manufacture of FR 17534, Apr. 12, 1999; 71 FR 20543, Apr. 21, equipment for delivery pursuant to the 2006] contract or purchase order contain all the limitations of this paragraph (c); and

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§ 124.14 Exports to warehouses or dis- will be required to the same extent re- tribution points outside the United quired in licensing agreements under States. § 124.9(b). (a) Agreements. Agreements (e.g., con- (c) Required statements. The following tracts) between U.S. persons and for- statements must be included in all eign persons for the warehousing and warehousing and distribution agree- distribution of defense articles must be ments: approved by the Directorate of Defense (1) ‘‘This agreement shall not enter Trade Controls before they enter into into force, and may not be amended or force. Such agreements will be limited extended, without the prior written ap- to unclassified defense articles and proval of the Department of State of must contain conditions for special dis- U.S. Government.’’ tribution, end-use and reporting. Li- (2) ‘‘This agreement is subject to all censes for exports pursuant to such United States laws and regulations re- agreements must be obtained prior to lated to exports and to all administra- exports of the defense articles unless tive acts of the United States Govern- an exemption under § 123.16(b)(1) of this ment pursuant to such laws and regula- subchapter is applicable. tions. (b) Required information. Proposed (3) ‘‘The parties to this agreement warehousing and distribution agree- agree that the obligations contained in ments (and amendments thereto) shall this agreement shall not affect the per- be submitted to the Directorate of De- formance of any obligations created by fense Trade Controls for approval. The prior contracts or subcontracts which following information must be included the parties may have individually or in all such agreements: collectively with the U.S. Govern- (1) A description of the defense arti- ment.’’ cles involved including test and sup- (4) ‘‘No liability will be incurred by port equipment covered by the U.S. or attributed to the U.S. Government Munitions List. This shall include in connection with any possible in- when applicable the military nomen- fringement of privately owned patent clature, the Federal stock number, or proprietary rights, either domestic nameplate data, and any control num- or foreign by reason of the U.S. Gov- bers under which the defense articles ernment’s approval of this agreement.’’ were developed or procured by the U.S. (5) ‘‘No export, sale, transfer, or Government. Only those defense arti- other disposition of the defense articles cles specifically listed in the agree- covered by this agreement is author- ment will be eligible for export under ized to any country outside the dis- the exemption in § 123.16(b)(1) of this tribution territory without the prior subchapter. written approval of the Directorate of (2) A detailed statement of the terms Defense Trade Controls of the U.S. De- and conditions under which the defense partment of State.’’ articles will be exported and distrib- (6) ‘‘The parties to this agreement uted; agree that an annual report of sales or (3) The duration of the proposed other transfers pursuant to this agree- agreement; ment of the licensed articles, by quan- (4) Specific identification of the tity, type, U.S. dollar value, and pur- country or countries that comprise the chaser or recipient shall be provided by distribution territory. Distribution (applicant or licensee) to the Depart- must be specifically limited to the gov- ment of State.’’ This clause must speci- ernments of such countries or to pri- fy which party is obligated to provide vate entities seeking to procure de- the annual report. Such reports may be fense articles pursuant to a contract submitted either directly by the li- with a government within the distribu- censee or indirectly through the licen- tion territory or to other eligible enti- sor, and may cover calendar or fiscal ties as specified by the Directorate of years. Reports shall be deemed propri- Defense Trade Controls. Consequently, etary information by the Department any deviation from this condition must of State and will not be disclosed to be fully explained and justified. A non- unauthorized persons. (See § 126.10(b) of transfer and use certificate (DSP–83) this subchapter.)

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(7) (Licensee) agrees to incorporate son or government outside the ap- the following statement as an integral proved distribution territory. provision of a contract, invoice or (e) Transmittal letters. Requests for other appropriate document whenever approval of warehousing and distribu- the articles covered by this agreement tion agreements with foreign persons are sold or otherwise transferred: must be made by letter. The original letter and seven copies of the letter These commodities are authorized for ex- and seven copies of the proposed agree- port by the U.S. Government only to (country of ultimate destination or approved sales ment shall be submitted to the Direc- territory). They may not be resold, diverted, torate of Defense Trade Controls. The transferred, transshipped, or otherwise be letter shall contain: disposed of in any other country, either in (1) A statement giving the appli- their original form or after being incor- cant’s Directorate of Defense Trade porated through an intermediate process Controls registration number. into other end-items, without the prior writ- (2) A statement identifying the for- ten approval of the U.S. Department of eign party to the agreement. State. (3) A statement identifying the de- (8) ‘‘All provisions in this agreement fense articles to be distributed under which refer to the United States Gov- the agreement. ernment and the Department of State (4) A statement identifying any U.S. will remain binding on the parties after Government contract under which the the termination of the agreement.’’ equipment may have been generated, (9) Additional clause. Unless the arti- improved, developed or supplied to the cles covered by the agreement are in U.S. Government, and whether the fact intended to be distributed to pri- equipment was derived from any bid or vate persons or entities (e.g., sporting other proposal to the U.S. Government. firearms for commercial resale, cryp- (5) A statement that no classified de- tographic devices and software for fi- fense articles or classified technical nancial and business applications), the data are involved. following clause must be included in (6) A statement identifying any pat- all warehousing and distribution agree- ent application which discloses any of ments: ‘‘Sales or other transfers of the the subject matter of the equipment or licensed article shall be limited to gov- related technical data covered by an ernments of the countries in the dis- invention secrecy order issued by the tribution territory and to private enti- U.S. Patent and Trademark Office. ties seeking to procure the licensed ar- (f) Required clauses. The following ticle pursuant to a contract with a gov- statements must be made in the letter ernment within the distribution terri- of transmittal: tory, unless the prior written approval (1) ‘‘If the agreement is approved by of the U.S. Department of State is ob- the Department of State, such approval tained.’’ will not be construed by (applicant) as (d) Special clauses for agreements relat- passing on the legality of the agree- ing to significant military equipment. ment from the standpoint of antitrust With respect to agreements for the laws or other applicable statutes, nor warehousing and distribution of signifi- will (the applicant) construe the De- cant military equipment, the following partment’s approval as constituting ei- additional provisions must be included ther approval or disapproval of any of in the agreement: the business terms or conditions be- (1) A completed nontransfer and use tween the parties to the agreement.’’ certificate (DSP–83) must be executed (2) ‘‘The (applicant) will not permit by the foreign end-user and submitted the proposed agreement to enter into to the U.S. Department of State before force until it has been approved by the any transfer may take place. Department of State.’’ (2) The prior written approval of the (3) ‘‘(Applicant) will furnish the De- U.S. Department of State must be ob- partment of State with one copy of the tained before entering into a commit- signed agreement (or amendment ment for the transfer of the licensed thereto) within 30 days from the date article by sale or otherwise to any per- that the agreement is concluded, and

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will inform the Department of its ter- ments have been made with the De- mination not less than 30 days prior to partment of Defense and identify the expiration. If a decision is made not to specific Department of Defense official conclude the proposed agreement, (ap- with whom these arrangements have plicant) will so inform the Department been made. As required by Public Law within 60 days.’’ 105–261, such monitoring will cover, but not be limited to— [58 FR 39305, July 22, 1993, as amended at 71 FR 20544, Apr. 21, 2006] (i) Technical discussions and activities, including the design, develop- § 124.15 Special Export Controls for ment, operation, maintenance, modi- Defense Articles and Defense Serv- fication, and repair of satellites, sat- ices Controlled under Category XV: ellite components, missiles, other Space Systems and Space Launches. equipment, launch facilities, and (a) The export of a satellite or re- launch vehicles; lated item controlled by Category XV (ii) Satellite processing and launch of part 121 of this subchapter or any de- activities, including launch prepara- fense service controlled by this sub- tion, satellite transportation, integra- chapter associated with the launch in, tion of the satellite with the launch ve- or by nationals of, a country that is hicle, testing and checkout prior to not a member of the North Atlantic launch, satellite launch, and return of Treaty Organization (NATO) or a equipment to the United States; major non-NATO ally of the United (iii) Activities relating to launch States always requires special export failure, delay, or cancellation, includ- controls, in addition to other export ing post-launch failure investigations controls required by this subchapter, or analyses with regard to either the as follows: launcher or the satellite; and (1) All licenses and other requests for (iv) All other aspects of the launch. approval require a technology transfer (b) Mandatory licenses for launch control plan (TTCP) approved by the failure (crash) investigations or anal- Department of Defense and an yses of any satellite controlled pursu- encryption technology control plan ap- ant to this subchapter or subject to the proved by the National Security Agen- EAR: In the event of a failure of a cy. Drafts reflecting advance discus- launch from a foreign country (includ- sions with both agencies must accom- ing a post liftoff failure to reach proper pany submission of the license applica- orbit)— tion or proposed technical assistance (1) The activities of U.S. persons or agreement, and the letter of trans- entities in connection with any subse- mittal required in § 124.12 must identify quent investigation or analysis of the the U.S. Government officials familiar failure continue to be subject to the with the preparation of the draft controls established under section 38 of TTCPs. The TTCP must require any the Arms Export Control Act, includ- U.S. person or entity involved in the ing the requirements under this sub- export to notify the Department of De- chapter for express approval prior to fense in advance of all meetings and participation in such investigations or interactions with any foreign person or analyses, regardless of whether a li- entity that is a party to the export and cense was issued under this subchapter require such U.S. person or entity to for the initial export of the satellite or certify that it has complied with this satellite component; notification requirement within 30 (2) Officials of the Department of De- days after launch. fense must monitor all activities asso- (2) The U.S. person must make ar- ciated with the investigation or anal- rangements with the Department of yses to insure against unauthorized Defense for monitoring. The costs of transfer of technical data or services such monitoring services must be fully and U.S. persons must follow the proce- reimbursed to the Department of De- dures set forth in paragraphs (a)(1) and fense by the U.S. person receiving such (a)(2) of this section. services. The letter of transmittal re- (c) Although Public Law 105–261 does quired under § 124.12 must also state not require the application of special that such reimbursement arrange- export controls for the launch of U.S.-

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origin satellites and components from Agreement. The retransfer must take or by nationals of countries that are place completely within the physical members of NATO or major non-NATO territories of these countries or the allies, such export controls may none- United States. Permanent retransfer of theless be applied, in addition to any hardware is not authorized. other export controls required under [76 FR 28177, May 16, 2011] this subchapter, as appropriate in furtherance of the security and foreign policy of the United States. Further, PART 125—LICENSES FOR THE EX- the export of any article or defense PORT OF TECHNICAL DATA AND service controlled under this sub- CLASSIFIED DEFENSE ARTICLES chapter to any destination may also require that the special export controls Sec. identified in paragraphs (a)(1) and (a)(2) 125.1 Exports subject to this part. 125.2 Exports of unclassified technical data. of this section be applied in further- 125.3 Exports of classified technical data ance of the security and foreign policy and classified defense articles. of the United States. 125.4 Exemptions of general applicability. (d) Mandatory licenses for exports to 125.5 Exemptions for plant visits. insurance providers and underwriters: 125.6 Certification requirements for exemp- None of the exemptions or sub-licens- tions. ing provisions available in this sub- 125.7 Procedures for the export of classified technical data and other classified de- chapter may be used for the export of fense articles. technical data in order to obtain or 125.8 [Reserved] satisfy insurance requirements. Such 125.9 Filing of licenses and other authoriza- exports are always subject to the prior tions for exports of classified technical approval and re-transfer requirements data and classified defense articles. of sections 3 and 38 of the Arms Export AUTHORITY: Secs. 2 and 38, Pub. L. 90–629, 90 Control Act, as applied by relevant pro- Stat. 744 (22 U.S.C. 2752, 2778); 22 U.S.C. 2651a; visions of this subchapter. E.O. 13637, 78 FR 16129. [64 FR 13681, Mar. 22, 1999, as amended at 79 SOURCE: 58 FR 39310, July 22, 1993, unless FR 27189, May 13, 2014] otherwise noted.

§ 124.16 Special retransfer authoriza- § 125.1 Exports subject to this part. tions for unclassified technical data (a) The controls of this part apply to and defense services to member the export of technical data and the ex- states of NATO and the European port of classified defense articles. In- Union, Australia, Japan, New Zea- formation which is in the public do- land, and Switzerland. main (see § 120.11 of this subchapter and The provisions of § 124.8(5) of this sub- § 125.4(b)(13)) is not subject to the con- chapter notwithstanding, the Depart- trols of this subchapter. ment may approve access to unclassi- (b) A license for the export of tech- fied defense articles exported in fur- nical data and the exemptions in § 125.4 therance of or produced as a result of a may not be used for foreign production TAA/MLA, and retransfer of technical purposes or for technical assistance un- data and defense services to individuals less the approval of the Directorate of who are dual national or third-country Defense Trade Controls has been ob- national employees of the foreign sig- tained. Such approval is generally pro- natory or its approved sub-licensees, vided only pursuant to the procedures including the transfer to dual nationals specified in part 124 of this subchapter. or third-country nationals who are (c) Technical data authorized for ex- bona fide regular employees, directly port may not be reexported, trans- employed by the foreign signatory or ferred or diverted from the country of approved sub-licensees, provided they ultimate end-use or from the author- are nationals exclusively of countries ized foreign end-user (as designated in that are members of NATO the Euro- the license or approval for export) or pean Union, Australia, Japan, New disclosed to a national of another coun- Zealand, and Switzerland and their em- try without the prior written approval ployer is a signatory to the agreement of the Directorate of Defense Trade or has executed a Non Disclosure Controls.

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(d) The controls of this part apply to manner in which the technical data is the exports referred to in paragraph (a) transmitted (e.g., in person, by tele- of this section regardless of whether phone, correspondence, electronic the person who intends to export the means, etc.). A license is required for technical data produces or manufac- such disclosures by U.S. persons in con- tures defense articles if the technical nection with visits to foreign diplo- data is determined by the Directorate matic missions and consular offices. of Defense Trade Controls to be subject to the controls of this subchapter. [58 FR 39310, July 22, 1993, as amended at 71 (e) For the export of technical data FR 20544, Apr. 21, 2006] related to articles in Category VI(e), § 125.3 Exports of classified technical Category XVI, and Category XX(b)(1) of data and classified defense articles. § 121.1 of this subchapter, please see § 123.20 of this subchapter. (a) A request for authority to export defense articles, including technical [58 FR 39310, July 22, 1993, as amended at 71 data, classified by a foreign govern- FR 20544, Apr. 21, 2006; 78 FR 40933, July 8, 2013; 79 FR 47, Jan. 2, 2014] ment or pursuant to Executive Order 12356, successor orders, or other legal § 125.2 Exports of unclassified tech- authority must be submitted to the Di- nical data. rectorate of Defense Trade Controls for (a) License. A license (DSP–5) is re- approval. The application must contain quired for the export of unclassified full details of the proposed transaction. technical data unless the export is ex- It should also list the facility security empt from the licensing requirements clearance code of all U.S. parties on of this subchapter. In the case of a the license and include the Defense Se- plant visit, details of the proposed dis- curity Service cognizant security office cussions must be transmitted to the of the party responsible for packaging Directorate of Defense Trade Controls the commodity for shipment. A non- for an appraisal of the technical data. transfer and use certificate (Form Seven copies of the technical data or DSP–83) executed by the applicant, for- the details of the discussion must be eign consignee, end-user and an author- provided. ized representative of the foreign gov- (b) Patents. A license issued by the ernment involved will be required. Directorate of Defense Trade Controls (b) Classified technical data which is is required for the export of technical approved by the Directorate of Defense data whenever the data exceeds that Trade Controls either for export or re- which is used to support a domestic fil- export after a temporary import will be ing of a patent application or to sup- transferred or disclosed only in accord- port a foreign filing of a patent appli- ance with the requirements in the De- cation whenever no domestic applica- partment of Defense National Indus- tion has been filed. Requests for the fil- trial Security Program Operating Man- ing of patent applications in a foreign ual (unless such requirements are in di- country, and requests for the filing of rect conflict with guidance provided by amendments, modifications or supple- the Directorate of Defense Trade Con- ments to such patents, should follow trols, in which case the latter guidance the regulations of the U.S. Patent and must be followed). Any other require- Trademark Office in accordance with ments imposed by cognizant U.S. de- 37 CFR part 5. The export of technical partments and agencies must also be data to support the filing and proc- satisfied. essing of patent applications in foreign (c) The approval of the Directorate of countries is subject to regulations Defense Trade Controls must be ob- issued by the U.S. Patent and Trade- tained for the export of technical data mark Office pursuant to 35 U.S.C. 184. by a U.S. person to a foreign person in (c) Disclosures. Unless otherwise ex- the U.S. or in a foreign country unless pressly exempted in this subchapter, a the proposed export is exempt under license is required for the oral, visual the provisions of this subchapter. or documentary disclosure of technical (d) All communications relating to a data by U.S. persons to foreign persons. patent application covered by an inven- A license is required regardless of the tion secrecy order are to be addressed

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to the U.S. Patent and Trademark Of- (4) Copies of technical data, including fice (see 37 CFR 5.11). classified information, previously authorized for export to the same recipi- [58 FR 39310, July 22, 1993, as amended at 71 FR 20544, Apr. 21, 2006] ent. Revised copies of such technical data are also exempt if they pertain to § 125.4 Exemptions of general applica- the identical defense article, and if the bility. revisions are solely editorial and do (a) The following exemptions apply not add to the content of technology to exports of technical data for which previously exported or authorized for approval is not needed from the Direc- export to the same recipient; torate of Defense Trade Controls. The (5) Technical data, including classi- exemptions, except for paragraph fied information, in the form of basic (b)(13) of this section, do not apply to operations, maintenance, and training exports to proscribed destinations information relating to a defense arti- under § 126.1 of this subchapter or for cle lawfully exported or authorized for persons considered generally ineligible export to the same recipient. Inter- under § 120.1(c) of this subchapter. The mediate or depot-level repair and exemptions are also not applicable for maintenance information may be ex- purposes of establishing offshore pro- ported only under a license or agree- curement arrangements or producing ment approved specifically for that defense articles offshore (see § 124.13), purpose; except as authorized under § 125.4(c). (6) Technical data, including classi- Transmission of classified information fied information, related to firearms must comply with the requirements of not in excess of caliber .50 and ammu- the Department of Defense National In- nition for such weapons, except de- dustrial Security Program Operating tailed design, development, production Manual (unless such requirements are or manufacturing information; in direct conflict with guidance pro- (7) Technical data, including classi- vided by the Directorate of Defense fied information, being returned to the Trade controls, in which case the latter original source of import; guidance must be followed) and the ex- (8) Technical data directly related to porter must certify to the transmittal classified information which has been authority that the technical data does previously exported or authorized for not exceed the technical limitation of export in accordance with this part to the authorized export. the same recipient, and which does not (b) The following exports are exempt disclose the details of the design, de- from the licensing requirements of this velopment, production, or manufacture subchapter. of any defense article; (1) Technical data, including classi- (9) Technical data, including classified information, to be disclosed pursu- fied information, and regardless of ant to an official written request or di- media or format, sent or taken by a rective from the U.S. Department of U.S. person who is an employee of a Defense; U.S. corporation or a U.S. Government (2) Technical data, including classi- agency to a U.S. person employed by fied information, in furtherance of a that U.S. corporation or to a U.S. Gov- manufacturing license or technical as- ernment agency outside the United sistance agreement approved by the States. This exemption is subject to Department of State under part 124 of the limitations of § 125.1(b) of this sub- this subchapter and which meet the re- chapter and may be used only if: quirements of § 124.3 of this subchapter; (i) The technical data is to be used (3) Technical data, including classi- outside the United States solely by a fied information, in furtherance of a U.S. person; contract between the exporter and an (ii) The U.S. person outside the agency of the U.S. Government, if the United States is an employee of the contract provides for the export of the U.S. Government or is directly em- data and such data does not disclose ployed by the U.S. corporation and not the details of design, development, pro- by a foreign subsidiary; and duction, or manufacture of any defense (iii) The classified information is article; sent or taken outside the United States

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in accordance with the requirements of information approved by the cognizant the Department of Defense National In- U.S. Government department or agen- dustrial Security Program Operating cy for public release in any form. It Manual (unless such requirements are does not require that the information in direct conflict with guidance pro- be published in order to qualify for the vided by the Directorate of Defense exemption. Trade Controls, in which case the lat- (c) Defense services and related un- ter guidance must be followed). classified technical data are exempt (10) Disclosures of unclassified tech- from the licensing requirements of this nical data in the U.S. by U.S. institu- subchapter, to nationals of NATO tions of higher learning to foreign per- countries, Australia, Japan, and Swe- sons who are their bona fide and full den, for the purposes of responding to a time regular employees. This exemp- written request from the Department tion is available only if: of Defense for a quote or bid proposal. (i) The employee’s permanent abode Such exports must be pursuant to an throughout the period of employment official written request or directive is in the United States; from an authorized official of the U.S. (ii) The employee is not a national of Department of Defense. The defense a country to which exports are prohib- services and technical data are limited ited pursuant to § 126.1 of this sub- to paragraphs (c)(1), (c)(2), and (c)(3) of chapter; and this section and must not include para- (iii) The institution informs the indi- graphs (c)(4), (c)(5), and (c)(6) of this vidual in writing that the technical section which follow: data may not be transferred to other (1) Build-to-Print. ‘‘Build-to-Print’’ foreign persons without the prior written approval of the Directorate of De- means that a foreign consignee can fense Trade Controls; produce a defense article from engi- (11) Technical data, including classi- neering drawings without any tech- fied information, for which the ex- nical assistance from a U.S. exporter. porter, pursuant to an arrangement This transaction is based strictly on a with the Department of Defense, De- ‘‘hands-off’’ approach since the foreign partment of Energy or NASA which re- consignee is understood to have the in- quires such exports, has been granted herent capability to produce the de- an exemption in writing from the li- fense article and only lacks the nec- censing provisions of this part by the essary drawings. Supporting docu- Directorate of Defense Trade Controls. mentation such as acceptance criteria, Such an exemption will normally be and specifications, may be released on granted only if the arrangement dian as-required basis (i.e. ‘‘must have’’) rectly implements an international such that the foreign consignee would agreement to which the United States not be able to produce an acceptable is a party and if multiple exports are defense article without this additional contemplated. The Directorate of De- supporting documentation. Docu- fense Trade Controls, in consultation mentation which is not absolutely nec- with the relevant U.S. Government essary to permit manufacture of an ac- agencies, will determine whether the ceptable defense article (i.e. ‘‘nice to interests of the United States Govern- have’’) is not considered within the ment are best served by expediting ex- boundaries of a ‘‘Build-to-Print’’ data ports under an arrangement through an package; exemption (see also paragraph (b)(3) of (2) Build/Design-to-Specification. this section for a related exemption); ‘‘Build/Design-to-Specification’’ means (12) Technical data which is specifi- that a foreign consignee can design and cally exempt under part 126 of this sub- produce a defense article from require- chapter; or ment specifications without any tech- (13) Technical data approved for pub- nical assistance from the U.S. exporter. lic release (i.e., unlimited distribution) This transaction is based strictly on a by the cognizant U.S. Government de- ‘‘hands-off’’ approach since the foreign partment or agency or Office of Free- consignee is understood to have the in- dom of Information and Security Re- herent capability to both design and view. This exemption is applicable to produce the defense article and only

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lacks the necessary requirement infor- (d) [Reserved] mation; [58 FR 39310, July 22, 1993, as amended at 65 (3) Basic Research. ‘‘Basic Research’’ FR 45284, July 21, 2000; 66 FR 35900, July 10, means a systemic study directed to- 2001; 67 FR 15101, Mar. 29, 2002; 71 FR 20545, ward greater knowledge or under- Apr. 21, 2006; 75 FR 52624, 52626, Aug. 27, 2010; standing of the fundamental aspects of 79 FR 66609, Nov. 10, 2014] phenomena and observable facts without specific applications towards proc- § 125.5 Exemptions for plant visits. esses or products in mind. It does not (a) A license is not required for the include ‘‘Applied Research’’ (i.e. a sys- oral and visual disclosure of unclassi- temic study to gain knowledge or un- fied technical data during the course of derstanding necessary to determine the a classified plant visit by a foreign per- means by which a recognized and spe- son, provided: The classified visit has cific need may be met. It is a system- itself been authorized pursuant to a li- atic application of knowledge toward cense issued by the Directorate of De- the production of useful materials, defense Trade Controls; or the classified vices, and systems or methods, includ- visit was approved in connection with ing design, development, and improve- an actual or potential government-to- ment of prototypes and new processes government program or project by a to meet specific requirements.); U.S. Government agency having classi- (4) Design Methodology, such as: The fication jurisdiction over the classified underlying engineering methods and defense article or classified technical design philosophy utilized (i.e., the data involved under Executive Order ‘‘why’’ or information that explains 12356 or other applicable Executive the rationale for particular design de- Order; and the unclassified information cision, engineering feature, or perform- to be released is directly related to the ance requirement); engineering experi- classified defense article or technical ence (e.g., lessons learned); and the ra- data for which approval was obtained tionale and associated databases (e.g., and does not disclose the details of the design allowables, factors of safety, design, development, production or component life predictions, failure manufacture of any other defense articles. In the case of visits involving analysis criteria) that establish the classified information, the require- operational requirements (e.g., per- ments of the Department of Defense formance, mechanical, electrical, elec- National Industrial Security Program tronic, reliability and maintainability) Operating Manual must be met (unless of a defense article. (Final analytical such requirements are in direct con- results and the initial conditions and flict with guidance provided by the Di- parameters may be provided.) rectorate of Defense Trade Controls, in (5) Engineering Analysis, such as: Ana- which case the latter guidance must be lytical methods and tools used to de- followed). sign or evaluate a defense article’s per- (b) The approval of the Directorate of formance against the operational re- Defense Trade Controls is not required quirements. Analytical methods and for the disclosure of oral and visual tools include the development and/or classified information to a foreign per- use of mockups, computer models and son during the course of a plant visit simulations, and test facilities. (Final approved by the appropriate U.S. Gov- analytical results and the initial condi- ernment agency if: The requirements of tions and parameters may be provided.) the Department of Defense National In- (6) Manufacturing Know-how, such as: dustrial Security Program Operating information that provides detailed Manual have been met (unless such re- manufacturing processes and tech- quirements are in direct conflict with niques needed to translate a detailed guidance provided by the Directorate design into a qualified, finished defense of Defense Trade Controls, in which article. (Information may be provided case the latter guidance must be fol- in a build-to-print package that is nec- lowed); the classified information is di- essary in order to produce an accept- rectly related to that which was ap- able defense article.) proved by the U.S. Government agency;

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it does not exceed that for which ap- a completed Form DSP–83 (see § 123.10 proval was obtained; and it does not of this subchapter). Only one copy of disclose the details of the design, de- the data or descriptive literature must velopment, production or manufacture be provided if a renewal of the license of any defense articles. is requested. All classified materials (c) A license is not required for the accompanying an application must be disclosure to a foreign person of un- transmitted to the Directorate of De- classified technical data during the fense Trade Controls in accordance course of a plant visit (either classified with the procedures contained in the or unclassified) approved by the Direc- Department of Defense National Indus- torate of Defense Trade Controls or a trial Security Program Operating Man- cognizant U.S. Government agency ual (unless such requirements are in di- provided the technical data does not rect conflict with guidance provided by contain information in excess of that the Directorate of Defense Trade Con- approved for disclosure. This exemp- trols, in which case the latter guidance tion does not apply to technical data must be followed). which could be used for design, devel- [71 FR 20546, Apr. 21, 2006] opment, production or manufacture of a defense article. § 125.8 [Reserved] [71 FR 20545, Apr. 21, 2006] § 125.9 Filing of licenses and other au- § 125.6 Certification requirements for thorizations for exports of classified exemptions. technical data and classified defense articles. (a) To claim an exemption for the export of technical data under the provi- Licenses and other authorizations for sions of this subchapter (e.g., §§ 125.4 the export of classified technical data and 125.5), the exporter must certify or classified defense articles will be that the proposed export is covered by forwarded by the Directorate of De- a relevant section of this subchapter, fense Trade Controls to the Defense Se- to include the paragraph and applicable curity Service of the Department of subparagraph. Certifications consist of Defense in accordance with the provi- clearly marking the package or letter sions of the Department of Defense Na- containing the technical data ‘‘22 CFR tional Industrial Security Program Op- [insert ITAR exemption] applicable.’’ erating Manual (unless such require- This certification must be made in ments are in direct conflict with guid- written form and retained in the ex- ance provided by the Directorate of De- porter’s files for a period of 5 years (see fense Trade Controls, in which case the § 123.22 of this subchapter). latter guidance must be followed). The (b) For exports that are oral, visual, Directorate of Defense Trade Controls or electronic the exporter must also will forward a copy of the license to complete a written certification as in- the applicant for the applicant’s infor- dicated in paragraph (a) of this section mation. The Defense Security Service and retain it for a period of 5 years. will return the endorsed license to the Directorate of Defense Trade Controls [68 FR 61102, Oct. 27, 2003] upon completion of the authorized export or expiration of the license, § 125.7 Procedures for the export of whichever occurs first. classified technical data and other classified defense articles. [71 FR 20546, Apr. 21, 2006] (a) All applications for the export or temporary import of classified tech- PART 126—GENERAL POLICIES AND nical data or other classified defense PROVISIONS articles must be submitted to the Di- rectorate of Defense Trade Controls on Sec. Form DSP–85. 126.1 Prohibited exports, imports, and sales (b) An application for the export of to or from certain countries. classified technical data or other clas- 126.2 Temporary suspension or modification sified defense articles must be accom- of this subchapter. panied by seven copies of the data and 126.3 Exceptions.

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126.4 Shipments by or for United States and the security and foreign policy of Government agencies. the United States. Information regard- 126.5 Canadian exemptions. ing certain other embargoes appears 126.6 Foreign-owned military aircraft and naval vessels, and the Foreign Military elsewhere in this section. Comprehen- Sales program. sive arms embargoes are normally the 126.7 Denial, revocation, suspension, or subject of a Department of State notice amendment of licenses and other approv- published in the FEDERAL REGISTER. als. The exemptions provided in this sub- 126.8 [Reserved] chapter, except §§ 123.17, 126.4, and 126.6 126.9 Advisory opinions and related author- of this subchapter or when the recipi- izations. 126.10 Disclosure of information. ent is a U.S. Government department 126.11 Relations to other provisions of law. or agency, do not apply with respect to 126.12 Continuation in force. defense articles or defense services 126.13 Required information. originating in or for export to any pro- 126.14 Special comprehensive export author- scribed countries, areas, or persons izations for NATO, Australia, Japan, and identified in this section or to Sweden. brokering activities involving such 126.15 Expedited processing of license applications for the export of defense articles countries, areas, or persons. (See § 129.7 and defense services to Australia or the of this subchapter, which imposes re- United Kingdom. strictions on brokering activities simi- 126.16 Exemption pursuant to the Defense lar to those in this section.) Trade Cooperation Treaty between the (b) Shipments. A defense article li- United States and Australia. censed or otherwise authorized for ex- 126.17 Exemption pursuant to the Defense Trade Cooperation Treaty between the port, temporary import, reexport, or United States and the United Kingdom. retransfer under this subchapter may 126.18 Exemptions regarding intra-company, not be shipped on a vessel, aircraft, intra-organization, and intra-govern- spacecraft, or other means of convey- mental transfers to employees who are ance that is owned by, operated by, dual nationals or third-country nation- leased to, or leased from any of the als. proscribed countries, areas, or other SUPPLEMENT NO. 1 TO PART 126 persons referred to in this section. AUTHORITY: Secs. 2, 38, 40, 42, and 71, Pub. (c) Exports and sales prohibited by L. 90–629, 90 Stat. 744 (22 U.S.C. 2752, 2778, United Nations Security Council embar- 2780, 2791, and 2797); 22 U.S.C. 2651a; 22 U.S.C. goes. Whenever the United Nations Se- 287c; E.O. 12918, 59 FR 28205; 3 CFR, 1994 curity Council mandates an arms em- Comp., p. 899; Sec. 1225, Pub. L. 108–375; Sec. 7089, Pub. L. 111–117; Pub. L. 111–266; Section bargo, all transactions that are prohib- 7045, Pub. L. 112–74; Section 7046, Pub. L. 112– ited by the embargo and that involve 74; E.O. 13637, 78 FR 16129. U.S. persons (see § 120.15 of this subchapter) anywhere, or any person in SOURCE: 58 FR 39312, July 22, 1993, unless otherwise noted. the United States, and defense articles or services of a type described on the § 126.1 Prohibited exports, imports, United States Munitions List (22 CFR and sales to or from certain coun- part 121), irrespective of origin, are tries. prohibited under the ITAR for the du- (a) General. It is the policy of the ration of the embargo, unless the De- United States to deny licenses and partment of State publishes a notice in other approvals for exports and im- the FEDERAL REGISTER specifying dif- ports of defense articles and defense ferent measures. This would include, services, destined for or originating in but is not limited to, transactions in- certain countries. This policy applies volving trade by U.S. persons who are to Belarus, Cuba, Eritrea, Iran, North located inside or outside of the United Korea, Syria, and Venezuela. This pol- States in defense articles or services of icy also applies to countries with re- U.S. or foreign origin that are located spect to which the United States main- inside or outside of the United States. tains an arms embargo (e.g., Burma, United Nations Security Council arms China, and the Republic of the Sudan) embargoes include, but are not nec- or whenever an export would not other- essarily limited to, the following coun- wise be in furtherance of world peace tries:

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(1) Cote d’Ivoire (see also paragraph Defense Trade Controls. Such notifica- (q) of this section). tions should be submitted to the Office (2) Democratic Republic of Congo of Defense Trade Controls Compliance, (see also paragraph (i) of this section). Directorate of Defense Trade Controls. (3) Eritrea. (4) Iraq (see also paragraph (f) of this NOTE TO PARAGRAPH (e): ‘‘Proposal’’ and ‘‘presentation’’ mean the communication of section). information in sufficient detail that it would (5) Iran. permit an intended purchaser to decide to (6) Lebanon (see also paragraph (t) of acquire the article in question or to enter this section). into an agreement as described in part 124 of (7) Liberia (see also paragraph (o) of this subchapter. For example, commu- this section). nicating information on the equipment’s per- (8) Libya (see also paragraph (k) of formance characteristics, price, and probable this section). availability for delivery would be a proposal (9) North Korea. or presentation requiring a license or other (10) Somalia (see also paragraph (m) approval. of this section). (f) Iraq. It is the policy of the United (11) The Republic of the Sudan (see States to deny licenses or other ap- also paragraph (v) of this section). provals for exports and imports of de- (d) Terrorism. Exports to countries fense articles and defense services, des- which the Secretary of State has deter- tined for or originating in Iraq, except mined to have repeatedly provided sup- that a license or other approval may be port for acts of international terrorism issued, on a case-by-case basis for: are contrary to the foreign policy of (1) Non-lethal military equipment; the United States and are thus subject and to the policy specified in paragraph (a) (2) Lethal military equipment re- of this section and the requirements of quired by the Government of Iraq or section 40 of the Arms Export Control coalition forces. Act (22 U.S.C. 2780) and the Omnibus (g) Afghanistan. It is the policy of the Diplomatic Security and Anti-Ter- United States to deny licenses or other rorism Act of 1986 (22 U.S.C. 4801, note). approvals for exports and imports of The countries in this category are: Cuba, Iran, the Republic of the Sudan, defense articles and defense services, and Syria. destined for or originating in Afghani- (e)(1) Proposed and final sales. No sale, stan, except that a license or other ap- export, transfer, reexport, or retransfer proval may be issued, on a case-by-case of, and no proposal or presentation to basis, for the Government of Afghani- sell, export, transfer, reexport, or re- stan or coalition forces. In addition, transfer, any defense articles or de- the names of individuals, groups, un- fense services subject to this sub- dertakings, and entities subject to chapter may be made to any country arms embargoes, due to their affili- referred to in this section (including ation with the Taliban, Al-Qaida, or the embassies or consulates of such a those associated with them, are pub- country), or to any person acting on its lished in lists maintained by the behalf, whether in the United States or United Nations Security Council’s abroad, without first obtaining a li- Sanctions Committees (established cense or written approval of the Direc- pursuant to United Nations Security torate of Defense Trade Controls. How- Council resolutions (UNSCR) 1267, 1988, ever, in accordance with paragraph (a) and 1989). of this section, it is the policy of the (h) [Reserved] Department of State to deny licenses (i) Democratic Republic of the Congo. It and approvals in such cases. is the policy of the United States to (2) Duty to notify. Any person who deny licenses or other approvals for ex- knows or has reason to know of a pro- ports or imports of defense articles and posed, final, or actual sale, export, defense services destined for or origi- transfer, reexport, or retransfer of arti- nating in the Democratic Republic of cles, services, or data as described in the Congo, except that a license or paragraph (e)(1) of this section must other approval may be issued, on a immediately inform the Directorate of case-by-case basis, for:

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(1) Defense articles and defense serv- cept that a license or other approval ices for the Government of the Demo- may be issued, on a case-by-case basis, cratic Republic of the Congo as noti- for: fied in advance to the Committee of (1) Arms and related materiel in- the Security Council concerning the tended solely for security or disar- Democratic Republic of the Congo; mament assistance to the Libyan gov- (2) Defense articles and defense serv- ernment, notified to the Committee of ices intended solely for the support of the Security Council concerning Libya or use by the United Nations Organiza- in advance and in the absence of a neg- tion Mission in the Democratic Repub- ative decision by the Committee with- lic of the Congo (MONUC); in five working days of such a notifica- (3) Personal protective gear tempo- tion; rarily exported to the Democratic Re- (2) Non-lethal military equipment public of the Congo by United Nations when intended solely for security or personnel, representatives of the disarmament assistance to the Libyan media, and humanitarian and develop- government; ment workers and associated per- (3) The provision of any technical as- sonnel, for their personal use only; and sistance or training when intended (4) Non-lethal military equipment in- solely for security or disarmament as- tended solely for humanitarian or pro- sistance to the Libyan government; tective use, and related technical as- (4) Small arms, light weapons, and sistance and training, as notified in ad- related materiel temporarily exported vance to the Committee of the Secu- to Libya for the sole use of United Na- rity Council concerning the Demo- tions personnel, representatives of the cratic Republic of the Congo. media, and humanitarian and develop- (j) Haiti. (1) It is the policy of the ment workers and associated per- United States to deny licenses or other sonnel, notified to the Committee of approvals for exports or imports of de- the Security Council concerning Libya fense articles and defense services des- in advance and in the absence of a neg- tined for or originating in Haiti, except ative decision by the Committee with- that a license or other approval may be in five working days of such a notifica- issued, on a case-by-case basis, for: tion; (i) Defense articles and defense serv- (5) Non-lethal military equipment in- ices intended solely for the support of tended solely for humanitarian or pro- or use by security units that operate tective use, and related technical as- under the command of the Government sistance or training; or of Haiti, to include the Coast Guard; (6) Other sales or supply of arms and (ii) Defense articles and defense serv- related materiel, or provision of assist- ices intended solely for the support of ance or personnel, as approved in ad- or use by the United Nations or a vance by the Committee of the Secu- United Nations-authorized mission; rity Council concerning Libya. and (l) Vietnam. It is the policy of the (iii) Personal protective gear for use United States to deny licenses or other by personnel from the United Nations approvals for exports or imports of de- and other international organizations, fense articles and defense services des- representatives of the media, and de- tined for or originating in Vietnam, ex- velopment workers and associated per- cept that a license or other approval sonnel. may be issued, on a case-by-case basis, (2) All shipments of arms and related for: materials consistent with the above ex- (1) Lethal defense articles and de- ceptions shall only be made to Haitian fense services to enhance maritime se- security units as designated by the curity capabilities and domain aware- Government of Haiti, in coordination ness; with the U.S. Government. (2) Non-lethal defense articles and de- (k) Libya. It is the policy of the fense services; or, United States to deny licenses or other (3) Non-lethal, safety-of-use defense approvals for exports or imports of de- articles (e.g., cartridge actuated defense articles and defense services des- vices, propellant actuated devices and tined for or originating in Libya, ex- technical manuals for military aircraft

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for purposes of enhancing the safety of (3) Personal protective gear tempo- the aircraft crew) for lethal end-items. rarily exported to Liberia by United NOTE TO PARAGRAPH (l). For non-lethal de- Nations personnel, representatives of fense end-items, no distinction will be made the media and humanitarian and devel- between Vietnam’s existing and new inven- opment workers and associated per- tory. sonnel, for their personal use only; and (m) Somalia. It is the policy of the (4) Non-lethal military equipment in- United States to deny licenses or other tended solely for humanitarian or pro- approvals for exports or imports of de- tective use, and related technical as- fense articles and defense services des- sistance and training, as notified in ad- tined for or originating in Somalia, ex- vance to the Committee of the Secu- cept that a license or other approval rity Council concerning Liberia. may be issued, on a case-by-case basis, for: (p) [Reserved] (1) Defense articles and defense serv- (q) Coˆte d’Ivoire. It is the policy of the ices intended solely for support for the United States to deny licenses or other African Union Mission to Somalia approvals for exports or imports of de- (AMISOM); and fense articles and defense services des- (2) Defense services for the purpose of tined for or originating in Coˆ te helping develop security sector institu- d’Ivoire, except that a license or other tions in Somalia that further the ob- approval may be issued, on a case-by- jectives of peace, stability and rec- case basis, for: onciliation in Somalia, after advance (1) Defense articles and defense serv- notification of the proposed export by ices intended solely for support of or the United States Government to the use by the United Nations Operations UNSC Somalia Sanctions Committee in Coˆ te d’Ivoire (UNOCI) and the and the absence of a negative decision French forces that support them; by that committee. (2) Non-lethal military equipment in- Exemptions from the licensing require- tended solely for humanitarian or pro- ment may not be used with respect to tective use, and related technical as- any export to Somalia unless specifi- sistance and training, as approved in cally authorized in writing by the Di- advance to the Committee of the Secu- rectorate of Defense Trade Controls. rity Council concerning Coˆ te d’Ivoire; (n) Sri Lanka. It is the policy of the (3) Personal protective gear tempo- United States to deny licenses or other rarily exported to Coˆ te d’Ivoire by approvals for exports or imports of de- United Nations personnel, representa- fense articles and defense services des- tives of the media and humanitarian tined for or originating in Sri Lanka, and development workers and associ- except that a license or other approval ated personnel, for their personal use may be issued, on a case-by-case basis, only; for humanitarian demining and aerial (4) Supplies temporarily exported to or maritime surveillance. Coˆ te d’Ivoire to the forces of a State (o) Liberia. It is the policy of the which is taking action, in accordance United States to deny licenses or other with international law, solely and di- approvals for exports or imports of de- rectly to facilitate the evacuation of fense articles and defense services destined for or originating in Liberia, ex- its nationals and those for whom it has ˆ cept that a license or other approval consular responsibility in Cote may be issued, on a case-by-case basis, d’Ivoire, as notified in advance to the for: Committee of the Security Council (1) Defense articles and defense serv- concerning Coˆ te d’Ivoire; and ices for the Government of Liberia as (5) Non-lethal equipment intended notified in advance to the Committee solely to enable the Ivorian security of the Security Council concerning Li- forces to use only appropriate and pro- beria; portionate force while maintaining (2) Defense articles and defense serv- public order, as approved in advance by ices intended solely for support of or the Sanctions Committee. use by the United Nations Mission in (r) Cyprus. It is the policy of the Liberia (UNMIL); United States to deny licenses or other

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approvals, for exports or imports of de- (3) Personal protective gear tempo- fense articles and defense services des- rarily exported to the Central African tined for or originating in Cyprus, ex- Republic by United Nations personnel, cept that a license or other approval representatives of the media, and hu- may be issued, on a case-by-case basis, manitarian and developmental workers for the United Nations Forces in Cy- and associated personnel, for their per- prus (UNFICYP) or for civilian end- sonal use only; users. (4) Small arms and related equipment (s) Zimbabwe. It is the policy of the intended solely for use in international United States to deny licenses or other patrols providing security in the approvals for exports or imports of de- Sangha River Tri-national Protected fense articles and defense services des- Area to defend against poaching, smug- tined for or originating in Zimbabwe, gling of ivory and arms, and other ac- except that a license or other approval tivities contrary to the laws of the may be issued, on a case-by-case basis, Central African Republic or its inter- for the temporary export of firearms national legal obligations; and ammunition for personal use by in- (5) Arms and related lethal military dividuals (not for resale or retransfer, equipment for Central African Repub- including to the Government of lic security forces, intended solely for Zimbabwe). Such exports may meet the support of or use in security sector re- licensing exemptions of § 123.17 of this form, as approved in advance by the subchapter. Committee of the Security Council (t) Lebanon. It is the policy of the concerning the Central African Repub- United States to deny licenses or other lic; or approvals for exports or imports of de- (6) Other sales or supply of arms and fense articles and defense services des- related materiel, or provision of assist- tined for or originating in Lebanon, ex- ance or personnel, as approved in ad- cept that a license or other approval vance by the Committee of the Secu- may be issued, on a case-by-case basis, rity Council concerning the Central Af- for the United Nations Interim Force rican Republic. in Lebanon (UNIFIL) or as authorized (v) Sudan. It is the policy of the by the Government of Lebanon. United States to deny licenses or other (u) Central African Republic. It is the approvals for exports or imports of de- policy of the United States to deny li- fense articles and defense services des- censes or other approvals for exports or tined for or originating in the Republic imports of defense articles and defense of the Sudan, except a license or other services destined for or originating in approval may be issued, on a case-by- the Central African Republic, except case basis, for: that a license or other approval may be (1) Supplies and related technical issued, on a case-by-case basis, for: training and assistance to monitoring, (1) Defense articles intended solely verification, or peace support oper- for the support of or use by the Inter- ations, including those authorized by national Support Mission to the Cen- the United Nations or operating with tral African Republic (MISCA); the UN the consent of the relevant parties; Multidimensional Integrated Stabiliza- (2) Supplies of non-lethal military tion Mission in the Central African Re- equipment intended solely for humani- public (MINUSCA); the African Union tarian, human rights monitoring, or Regional Task Force (AU–RTF); and protective uses and related technical the French forces and European Union training and assistance; operation deployed in the Central Afri- (3) Personal protective gear for the can Republic; personal use of United Nations per- (2) Non-lethal military equipment, sonnel, human rights monitors, rep- and related technical assistance and resentatives of the media, and humani- training, when intended solely for hu- tarian and development workers and manitarian and protective use, as ap- associated personnel; or proved in advance by the Committee of (4) Assistance and supplies provided the Security Council concerning the in support of implementation of the Central African Republic; Comprehensive Peace Agreement.

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NOTE TO § 126.1. On July 9, 2011, the Repub- agent on behalf of a private individual lic of South Sudan declared independence or firm, either as a convenience or in from Sudan and was recognized as a sov- satisfaction of security requirements. ereign state by the United States. This pol- The approval of the Directorate of De- icy does not apply to the Republic of South Sudan. Licenses or other approvals for ex- fense Trade Controls must be obtained ports or imports of defense articles and de- before defense articles previously ex- fense services destined for or originating in ported pursuant to this exemption are the Republic of the South Sudan will be con- permanently transferred (e.g., property sidered on a case-by-case basis. disposal of surplus defense articles [58 FR 39312, July 22, 1993] overseas) unless the transfer is pursuant to a grant, sale, lease, loan or coop- EDITORIAL NOTE: For FEDERAL REGISTER ci- erative project under the Arms Export tations affecting § 126.1, see the List of CFR Sections Affected, which appears in the Control Act or a sale, lease or loan Finding Aids section of the printed volume under the Foreign Assistance Act of and at www.fdsys.gov. 1961, as amended, or the defense articles have been rendered useless for § 126.2 Temporary suspension or modi- military purposes beyond the possi- fication of this subchapter. bility of restoration.

The Deputy Assistant Secretary for NOTE: Special definition. For purposes of Defense Trade Controls may order the this section, defense articles exported abroad temporary suspension or modification for incorporation into a foreign launch vehi- of any or all of the regulations of this cle or for use on a foreign launch vehicle or subchapter in the interest of the secu- satellite that is to be launched from a for- rity and foreign policy of the United eign country shall be considered a perma- States. nent export. [79 FR 8085, Feb. 11, 2014] (b) This section does not authorize any department or agency of the U.S. § 126.3 Exceptions. Government to make any export which is otherwise prohibited by virtue of In a case of exceptional or undue other administrative provisions or by hardship, or when it is otherwise in the any statute. interest of the United States Govern- (c) A license is not required for the ment, the Deputy Assistant Secretary temporary import, or temporary or of State for Defense Trade Controls permanent export, of any classified or may make an exception to the provi- unclassified defense articles, including sions of this subchapter. technical data or the performance of a [79 FR 8085, Feb. 11, 2014] defense service, for end-use by a U.S. Government Agency in a foreign coun- § 126.4 Shipments by or for United try under the following circumstances: States Government agencies. (1) The export or temporary import is (a) A license is not required for the pursuant to a contract with, or written temporary import, or temporary ex- direction by, an agency of the U.S. port, of any defense article, including Government; and technical data or the performance of a (2) The end-user in the foreign coun- defense service, by or for any agency of try is a U.S. Government agency or fa- the U.S. Government for official use by cility, and the defense articles or tech- such an agency, or for carrying out any nical data will not be transferred to foreign assistance, cooperative project any foreign person; and or sales program authorized by law and (3) The urgency of the U.S. Govern- subject to control by the President by ment requirement is such that the ap- other means. This exemption applies propriate export license or U.S. Gov- only when all aspects of a transaction ernment Bill of Lading could not have (export, carriage, and delivery abroad) been obtained in a timely manner. are affected by a United States Govern- (d) An Electronic Export Information ment agency or when the export is cov- (EEI) filing, required under § 123.22 of ered by a United States Government this subchapter, and a written state- Bill of Lading. This exemption, how- ment by the exporter certifying that ever, does not apply when a U.S. Gov- these requirements have been met ernment agency acts as a transmittal must be presented at the time of export

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to the appropriate Port Directors of Production Act, and such other Cana- U.S. Customs and Border Protection or dian Crown Corporations identified by Department of Defense transmittal au- the Department of State in a list of thority. A copy of the EEI filing and such persons publicly available the written certification statement through the Internet Web site of the shall be provided to the Directorate of Directorate of Defense Trade Controls Defense Trade Controls immediately and by other means. following the export. (c) [Reserved] [58 FR 39312, July 22, 1993, as amended at 70 (d) Reexports/retransfer. Reexport/re- FR 50964, Aug. 29, 2005; 77 FR 16600, Mar. 21, transfer in Canada to another end-user 2012] or end-use or from Canada to another destination, except the United States, § 126.5 Canadian exemptions. must in all instances have the prior ap- (a) Temporary import of defense arti- proval of the Directorate of Defense cles. Port Directors of U.S. Customs Trade Controls. Unless otherwise ex- and Border Protection and postmasters empt in this subchapter, the original shall permit the temporary import and exporter is responsible, upon request return to Canada without a license of from a Canadian-registered person, for any unclassified defense articles (see obtaining or providing reexport/re- § 120.6 of this subchapter) that origi- transfer approval. In any instance nate in Canada for temporary use in when the U.S. exporter is no longer the United States and return to Can- available to the Canadian end-user the ada. All other temporary imports shall request for reexport/retransfer may be be in accordance with §§ 123.3 and 123.4 made directly to the Directorate of De- of this subchapter. fense Trade Controls. All requests must (b) Permanent and temporary export of include the information in § 123.9(c) of defense articles. Except as provided in this subchapter. Reexport/retransfer Supplement No. 1 to part 126 of this approval is acquired by: subchapter and for exports that transit (1) If the reexport/retransfer being re- third countries, Port Directors of U.S. quested could be made pursuant to this Customs and Border Protection and section (i.e., a retransfer within Canada postmasters shall permit, when for to another eligible Canadian recipient end-use in Canada by Canadian Federal under this section) if exported directly or Provincial governmental authorities from the U.S., upon receipt by the U.S. acting in an official capacity or by a company of a request by a Canadian Canadian-registered person, or for re- end user, the original U.S. exporter is turn to the United States, the perma- authorized to grant on behalf of the nent and temporary export to Canada U.S. Government by confirming in without a license of unclassified de- writing to the Canadian requester that fense articles and defense services iden- the reexport/retransfer is authorized tified on the U.S. Munitions List (22 subject to the conditions of this sec- CFR 121.1). The exceptions are subject tion; or to meeting the requirements of this (2) If the reexport/retransfer is to an subchapter, to include 22 CFR 120.1(c) end use or end user that, if directly ex- and (d), parts 122 and 123 (except inso- ported from the U.S. requires a license, far as exemption from licensing re- retransfer must be handled in accord- quirements is herein authorized) and ance with § 123.9 of this subchapter.

§ 126.1, and the requirement to obtain NOTES TO § 126.5: 1. In any instance when non-transfer and use assurances for all the exporter has knowledge that the defense significant military equipment. For article exempt from licensing is being ex- purposes of this section, ‘‘Canadian- ported for use other than by a qualified Ca- registered person’’ is any Canadian na- nadian-registered person or for export to an- tional (including Canadian business en- other foreign destination, other than the tities organized under the laws of Can- United States, in its original form or incor- ada), dual citizen of Canada and a third porated into another item, an export license must be obtained prior to the transfer to country other than a country listed in Canada. § 126.1 of this subchapter, and perma- 2. Additional exemptions exist in other sec- nent resident registered in Canada in tions of this subchapter that are applicable accordance with the Canadian Defense to Canada, for example §§ 123.9, 125.4, and

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124.2, that allow for the performance of de- ance (LOA) authorizing such transfer fense services related to training in basic op- which meets the criteria stated below: erations and maintenance, without a license, (1) Transfers of the defense articles, for certain defense articles lawfully exported, including those identified in Supple- technical data or defense services using ment No. 1 to part 126 of this subchapter. this exemption may take place only during the period which the FMS Let- [66 FR 10576, Feb. 16, 2001; 66 FR 36834, July ter of Offer and Acceptance (LOA) and 13, 2001, as amended at 67 FR 78686, Dec. 26, implementing USG FMS contracts and 2002; 70 FR 34654, June 15, 2005; 70 FR 39919, July 12, 2005; 70 FR 50964, Aug. 29, 2005; 71 FR subcontracts are in effect and serve as 20546, Apr. 21, 2006; 77 FR 16600, Mar. 21, 2012] authorization for the transfers hereunder in lieu of a license. After the § 126.6 Foreign-owned military aircraft USG FMS contracts and subcontracts and naval vessels, and the Foreign have expired and the LOA no longer Military Sales program. serves as such authorization, any fur- (a) A license from the Directorate of ther provision of defense articles, tech- Defense Trade Controls is not required nical data or defense services shall not if: be covered by this section and shall in- (1) The article or technical data to be stead be subject to other authorization exported was sold, leased, or loaned by requirements of this subchapter; and the Department of Defense to a foreign (2) The defense article, technical data country or international organization or defense service to be transferred are pursuant to the Arms Export Control specifically identified in an executed Act or the Foreign Assistance Act of LOA, in furtherance of the Foreign 1961, as amended, and Military Sales Program signed by an (2) The article or technical data is de- authorized Department of Defense Rep- livered to representatives of such a resentative and an authorized rep- country or organization in the United resentative of the foreign government, States; and and (3) The article or technical data is to (3) The transfer of the defense article be exported from the United States on and related technical data is effected a military aircraft or naval vessel of during the duration of the relevant that government or organization or via Letter of Offer and Acceptance (LOA), the Defense Transportation Service similarly a defense service is to be pro- (DTS). vided only during the duration of the (b) Foreign military aircraft and naval USG FMS contract or subcontract and vessels. A license is not required for the not to exceed the specified duration of entry into the United States of mili- the LOA, and tary aircraft or naval vessels of any (4) The U.S. person responsible for foreign state if no overhaul, repair, or the transfer maintains records of all modification of the aircraft or naval transfers in accordance with part 122 of vessel is to be performed. However, De- this subchapter, and partment of State approval for over- (5) For transfers of defense articles flight (pursuant to the 49 U.S.C. 40103) and technical data, and naval visits must be obtained from (i) The transfer is made by the rel- the Bureau of Political-Military Af- evant foreign diplomatic mission of the fairs, Office of International Security purchasing country or its authorized Operations. freight forwarder, provided that the (c) Foreign Military Sales Program. A freight forwarder is registered with the license from the Directorate of Defense Directorate of Defense Trade Controls Trade Controls is not required if the pursuant to part 122 of this subchapter, defense article or technical data or a and defense service to be transferred was (ii) At the time of shipment, the Port sold, leased or loaned by the Depart- Director of U.S. Customs and Border ment of Defense to a foreign country or Protection is provided an original and international organization under the properly executed DSP–94 accompanied Foreign Military Sales (FMS) Program by a copy of the LOA and any other of the Arms Export Control Act pursu- documents required by U.S. Customs ant to an Letter of Offer and Accept- and Border Protection in carrying out

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its responsibilities. The Electronic Ex- trial Security Program Operating Man- port Information (EEI) or, if author- ual, and ized, the outbound manifest, must be [65 FR 45287, July 21, 2000, as amended at 70 annotated ‘‘This shipment is being ex- FR 50964, Aug. 29, 2005; 71 FR 20546, Apr. 21, ported under the authority of Depart- 2006; 79 FR 77885, Dec. 29, 2014] ment of State Form DSP–94. It covers FMS Case [insert case identification], § 126.7 Denial, revocation, suspension, expiration [insert date]. 22 CFR 126.6 or amendment of licenses and other applicable. The U.S. Government point approvals. of contact is llll, telephone num- (a) Policy. Licenses or approvals shall ber llll,’’ and be denied or revoked whenever required (iii) If, classified hardware and re- by any statute of the United States lated technical data are involved the (see §§ 127.7 and 127.11 of this sub- transfer must have the requisite USG chapter). Any application for an export security clearance and transportation license or other approval under this plan and be shipped in accordance with subchapter may be disapproved, and the Department of Defense National In- any license or other approval or exemp- dustrial Security Program Operating tion granted under this subchapter Manual, or may be revoked, suspended, or amend- (6) For transfers of defense services: ed without prior notice whenever: (i) A contract or subcontract between (1) The Department of State deems the U.S. person(s) responsible for pro- such action to be in furtherance of viding the defense service and the USG world peace, the national security or exists that: the foreign policy of the United States, (A) Specifically defines the scope of or is otherwise advisable; or the defense service to be transferred; (2) The Department of State believes (B) Identifies the FMS case identi- that 22 U.S.C. 2778, any regulation con- fier, tained in this subchapter, or the terms (C) Identifies the foreign recipients of of any U.S. Government export author- the defense service ization (including the terms of a manu- (D) Identifies any other U.S. or for- facturing license or technical assist- eign parties that may be involved and ance agreement, or export authoriza- their roles/responsibilities, to the ex- tion granted pursuant to the Export tent known when the contract is exe- Administration Act, as amended) has cuted, been violated by any party to the ex- (E) Provides a specified period of du- port or other person having significant ration in which the defense service interest in the transaction; or may be performed, and (3) An applicant is the subject of a (ii) The U.S. person(s) identified in criminal complaint, other criminal the contract maintain a registration charge (e.g., an information), or indict- with the Directorate of Defense Trade ment for a violation of any of the U.S. Controls for the entire time that the criminal statutes enumerated in § 120.27 defense service is being provided. In of this subchapter; or any instance when the U.S. registered (4) An applicant or any party to the person(s) identified in the contract em- export or the agreement has been con- ploys a subcontractor, the subcon- victed of violating any of the U.S. tractor may only use this exemption criminal statutes enumerated in § 120.27 when registered with DDTC, and when of this subchapter; or such subcontract meets the above stat- (5) An applicant is ineligible to con- ed requirements, and tract with, or to receive a license or (iii) In instances when the defense other authorization to import defense service involves the transfer of classi- articles or defense services from, any fied technical data, the U.S. person agency of the U.S. Government; or transferring the defense service must (6) An applicant, any party to the ex- have the appropriate USG security port or agreement, any source or man- clearance and a transportation plan, if ufacturer of the defense article or de- appropriate, in compliance with the fense service or any person who has a Department of Defense National Indus- significant interest in the transaction

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has been debarred, suspended, or other- be accompanied by a letter explaining wise is ineligible to receive an export the steps that have been taken to cor- license or other authorization from any rect the failure and to ensure compli- agency of the U.S. government (e.g., ance with the requirements of this sub- pursuant to debarment by the Depart- chapter. ment of Commerce under 15 CFR part (e) Special definition. For purposes of 760 or by the Department of State this subchapter, the term ‘‘party to the under part 127 or 128 of this sub- export’’ means: chapter); or (1) The chief executive officer, presi- (7) An applicant has failed to include dent, vice-presidents, other senior offi- any of the information or documenta- cers and officials (e.g., comptroller, tion expressly required to support a li- treasurer, general counsel) and any cense application, exemption, or other member of the board of directors of the request for approval under this sub- applicant; chapter, or as required in the instruc- (2) The freight forwarders or des- tions in the applicable Department of ignated exporting agent of the appli- State form or has failed to provide no- cant; and tice or information as required under (3) Any consignee or end-user of any this subchapter; or item to be exported. (8) An applicant is subject to sanctions under other relevant U.S. laws [58 FR 39312, July 22, 1993, as amended at 71 (e.g., the Missile Technology Controls FR 20546, Apr. 21, 2006; 77 FR 16600, Mar. 21, title of the National Defense Author- 2012] ization Act for FY 1991 (Pub. L. 101– 510); the Chemical and Biological § 126.8 [Reserved] Weapons Control and Warfare Elimi- nation Act of 1991 (Pub. L. 102–182); or § 126.9 Advisory opinions and related authorizations. the Iran-Iraq Arms Non-Proliferation Act of 1992 (Pub. L. 102–484)). (a) Advisory opinion. Any person de- (b) Notification. The Directorate of siring information as to whether the Defense Trade Controls will notify ap- Directorate of Defense Trade Controls plicants or licensees or other appro- would be likely to grant a license or priate United States persons of actions other approval for the export or ap- taken pursuant to paragraph (a) of this proval of a particular defense article or section. The reasons for the action will defense service to a particular country be stated as specifically as security and may request an advisory opinion from foreign policy considerations permit. the Directorate of Defense Trade Con- (c) Reconsideration. If a written re- trols. Advisory opinions are issued on a quest for reconsideration of an adverse case-by-case basis and apply only to decision is made within 30 days after a the particular matters presented to the person has been informed of the deci- Directorate of Defense Trade Controls. sion, the U.S. person will be accorded These opinions are not binding on the an opportunity to present additional Department of State, and may not be information. The case will then be re- used in future matters before the De- viewed by the Directorate of Defense partment. A request for an advisory Trade Controls. opinion must be made in writing and (d) Reconsideration of certain applica- must outline in detail the equipment, tions. Applications for licenses or other its usage, the security classification (if requests for approval denied for re- any) of the articles or related technical peated failure to provide information data, and the country or countries in- or documentation expressly required volved. An original and seven copies of will normally not be reconsidered dur- the letter must be provided along with ing the thirty day period following de- seven copies of suitable descriptive in- nial. They will be reconsidered after formation concerning the defense arti- this period only after a final decision is cle or defense service. made on whether the applicant will be (b) Related authorizations. The Direc- subject to an administrative penalty torate of Defense Trade Controls may, imposed pursuant to this subchapter. as appropriate, in accordance with the Any request for reconsideration shall procedures set forth in paragraph (a) of

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this section, provide export authoriza- Section 38(e) shall be made by the As- tion, subject to all other relevant re- sistant Secretary for Political-Military quirements of this subchapter, both for Affairs. transactions that have been the subject (c) Information required under part 130. of advisory opinions requested by pro- Part 130 of this subchapter contains spective U.S. exporters, or for the Di- specific provisions on the disclosure of rectorate’s own initiatives. Such ini- information described in that part. tiatives may cover pilot programs, or (d) National Interest Determinations. In specifically anticipated circumstances accordance with section 38(e) of the for which the Directorate considers Arms Export Control Act (22 U.S.C. special authorizations appropriate. 2778(e)), the Secretary of State has de- [71 FR 20547, Apr. 21, 2006] termined that the following disclosures are in the national interest of the § 126.10 Disclosure of information. United States: (a) Freedom of information. Sub- (1) Furnishing information to foreign chapter R of this title contains regula- governments for law enforcement or tions on the availability to the public regulatory purposes; and of information and records of the De- (2) Furnishing information to foreign partment of State. The provisions of governments and other agencies of the subchapter R apply to such disclosures U.S. Government in the context of by the Directorate of Defense Trade multilateral or bilateral export re- Controls. gimes (e.g., the Missile Technology (b) Determinations required by law. Control Regime, the Australia Group, Section 38(e) of the Arms Export Con- and Wassenaar Arrangement). trol Act (22 U.S.C. 2778) provides by ref- [58 FR 39312, July 22, 1993, as amended at 62 erence to certain procedures of the Ex- FR 67276, Dec. 24, 1997; 70 FR 50965, Aug. 29, port Administration Act that certain 2005; 71 FR 20547, Apr. 21, 2006] information required by the Depart- ment of State in connection with the § 126.11 Relations to other provisions licensing process may generally not be of law. disclosed to the public unless certain The provisions in this subchapter are determinations relating to the national in addition to, and are not in lieu of, interest are made in accordance with any other provisions of law or regula- the procedures specified in that provi- tions. The sale of firearms in the sion, except that the names of the United States, for example, remains countries and types and quantities of subject to the provisions of the Gun defense articles for which licenses are Control Act of 1968 and regulations ad- issued under this section shall not be ministered by the Department of Jus- withheld from public disclosure unless tice. The performance of defense serv- the President determines that release ices on behalf of foreign governments of such information would be contrary by retired military personnel continues to the national interest. Registration to require consent pursuant to part 3a with the Directorate of Defense Trade of this title. Persons who intend to ex- Controls is required of certain persons, port defense articles or furnish defense in accordance with Section 38 of the services should not assume that satis- Arms Export Control Act. The require- fying the requirements of this sub- ments and guidance are provided in the chapter relieves one of other require- ITAR pursuant to parts 122 and 129. ments of law. Registration is generally a precondition to the issuance of any license [71 FR 20547, Apr. 21, 2006] or other approvals under this subchapter, to include the use of any ex- § 126.12 Continuation in force. emption. Therefore, information pro- All determinations, authorizations, vided to the Department of State to ef- licenses, approvals of contracts and fect registration, as well as that re- agreements and other action issued, garding actions taken by the Depart- authorized, undertaken, or entered into ment of State related to registration, by the Department of State pursuant may not generally be disclosed to the to section 414 of the Mutual Security public. Determinations required by Act of 1954, as amended, or under the

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previous provisions of this subchapter, (and maintains such lawful permanent continue in full force and effect until residence status) under the Immigra- or unless modified, revoked or super- tion and Nationality Act, as amended seded by the Department of State. (8 U.S.C. 1101(a)(20), 66 Stat. 163), or is an official of a foreign government en- § 126.13 Required information. tity in the United States, or is a for- (a) All applications for licenses eign person making a request pursuant (DSP–5, DSP–61, DSP–73, and DSP–85), to § 123.9 of this subchapter. all requests for approval of agreements (b) In addition, all applications for li- and amendments thereto under part 124 censes must include the complete of this subchapter, and all requests for names and addresses of all U.S. con- other written authorizations (including signors and freight forwarders, and all requests for retransfer or reexport pur- foreign consignees and foreign inter- suant to § 123.9 of this subchapter) must mediate consignees involved in the include a letter signed by a responsible transaction. Port Directors of U.S. official empowered by the applicant Customs and Border Protection and and addressed to the Directorate of De- Department of Defense transmittal au- fense Trade Controls, stating whether: thorities will permit only those U.S. (1) The applicant or the chief execu- consignors or freight forwarders listed tive officer, president, vice-presidents, on the license to make shipments secretary, partner, member, other sen- under the license, and only to those ior officers or officials (e.g., comp- foreign consignees and foreign inter- troller, treasurer, general counsel) or mediate consignees listed on the li- any member of the board of directors is cense. Applicants should list all freight the subject of an indictment or has forwarders who may be involved with been otherwise charged (e.g., by crimi- shipments under the license to ensure nal information in lieu of indictment) that the list is complete and to avoid for, or has been convicted of, violating the need for amendments after the li- any of the U.S. criminal statutes enu- cense has been approved. If there are merated in § 120.27 of this subchapter; unusual or extraordinary cir- (2) The applicant or the chief execu- cumstances that preclude the specific tive officer, president, vice-presidents, identification of all the U.S. consignors secretary, partner, member, other sen- and freight forwarders and all foreign ior officers or officials (e.g., comp- consignees and foreign intermediate troller, treasurer, general counsel) or consignees, the applicant must provide any member of the board of directors is a letter of explanation with each appli- ineligible to contract with, or to re- cation. ceive a license or other approval to (c) In cases when natural foreign per- temporarily import or export defense sons are employed at or assigned to se- articles or defense services from any curity-cleared facilities, provision by agency of the U.S. Government; the applicant of a technology control (3) To the best of the applicant’s plan will facilitate processing. knowledge, any party to the export as [58 FR 39312, July 22, 1993, as amended at 70 defined in § 126.7(e) has been convicted FR 50965, Aug. 29, 2005; 71 FR 20547, Apr. 21, of violating any of the U.S. criminal 2006; 75 FR 52624, Aug. 27, 2010; 77 FR 16601, statutes enumerated in § 120.27 of this Mar. 21, 2012; 78 FR 52688, Aug. 26, 2013] subchapter, or is ineligible to contract with, or to receive a license or other § 126.14 Special comprehensive export approval to temporarily import or ex- authorizations for NATO, Australia, port defense articles or defense services Japan, and Sweden. from any agency of the U.S. govern- (a) Comprehensive authorizations. With ment; and respect to NATO members, Australia, (4) The natural person signing the ap- Japan, and Sweden, the Directorate of plication, notification, or other request Defense Trade Controls may provide for approval (including the statement the comprehensive authorizations de- required by this subchapter) is a cit- scribed in paragraphs (a) and (b) of this izen or national of the United States, section for circumstances where the has been lawfully admitted to the full parameters of a commercial export United States for permanent residence endeavor including the needed defense

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exports can be well anticipated and de- requirements set forth in paragraph (b) scribed in advance, thereby making use of this section. of such comprehensive authorizations (3)(i) Global project authorization. appropriate. With respect to NATO members, Aus- (1) Major project authorization. With tralia, Japan, and Sweden, the Direc- respect to NATO members, Australia, torate of Defense Trade Controls may Japan, and Sweden, the Directorate of provide a comprehensive ‘‘Global Defense Trade Controls may provide Project Authorization’’ to registered comprehensive authorizations for well U.S. exporters for exports of defense ar- circumscribed commercially developed ticles, technical data or defense serv- ‘‘major projects’’, where a principal ices in support of government to gov- registered U.S. exporter/prime con- ernment cooperative projects (covering tractor identifies in advance the broad research and development or produc- parameters of a commercial project in- tion) with one of these countries under- cluding defense exports needed, other taken pursuant to an agreement be- participants (e.g., exporters with whom tween the U.S. Government and the they have ‘‘teamed up,’’ or subcontrac- government of such country, or a tors), and foreign government end memorandum of understanding/agreement between the Department of De- users. Projects eligible for such author- fense and the country’s Ministry of De- ization may include a commercial ex- fense. port of a major weapons system for a (ii) A set of standard terms and con- foreign government involving, for ex- ditions derived from and corresponding ample, multiple U.S. suppliers under a to the breadth of the activities and commercial teaming agreement to de- phases covered in such a cooperative sign, develop and manufacture defense MOU will provide the basis for this articles to meet a foreign government’s comprehensive authorization for all requirements. U.S. exporters seeking U.S. exporters (and foreign end users) such authorization must provide de- identified by DoD as participating in tailed information concerning the such cooperative project. Such author- scope of the project, including other izations may cover a broad range of de- exporters, U.S. subcontractors, and fined activities in support of such pro- planned exports (including re-exports) grams including multiple shipments of of defense articles, defense services, defense articles and technical data and and technical data, and meet the other performance of defense services for ex- requirements set forth in paragraph (b) tended periods, and re-exports to ap- of this section. proved end users. (2) Major program authorization. With (iii) Eligible end users will be limited respect to NATO members, Australia, to ministries of defense of MOU signa- Japan, and Sweden, the Directorate of tory countries and foreign companies Defense Trade Controls may provide serving as contractors of such coun- comprehensive authorizations for well tries. circumscribed commercially developed (iv) Any requirement for non-transfer ‘‘major program’’. This variant would and use assurances from a foreign gov- be available where a single registered ernment may be deemed satisfied by U.S. exporter defines in advance the the signature by such government of a parameters of a broad commercial pro- cooperative agreement or by its min- gram for which the registrant will be istry of defense of a cooperative MOU/ providing all phases of the necessary MOA where the agreement or MOU support (including the needed hard- contains assurances that are com- ware, technical data, defense services, parable to that required by a DSP–83 development, manufacturing, and lo- with respect to foreign governments gistic support). U.S. exporters seeking and that clarifies that the government such authorization must provide de- is undertaking responsibility for all its tailed information concerning the participating companies. The author- scope of the program, including ized non-government participants or planned exports (including re-exports) end users (e.g., the participating gov- of defense articles, defense services, ernment’s contractors) will still be re- and technical data, and meet the other quired to execute DSP–83s.

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(4) Technical data supporting an acqui- (ii) Its value; and sition, teaming arrangement, merger, joint (iii) Types of exports needed in sup- venture authorization. With respect to port of the program or project; and NATO member countries, Australia, (iv) Projected duration of same, with- Japan, and Sweden, the Directorate of in permissible limits; and Defense Trade Controls may provide a (v) Description of the exporter’s plan registered U.S. defense company a for record keeping and auditing of all comprehensive authorization to export phases of the program or project; and technical data in support of the U.S. (vi) In the case of authorizations for exporter’s consideration of entering exports in support of government to into a teaming arrangement, joint ven- government cooperative projects, iden- ture, merger, acquisition, or similar ar- tification of the cooperative project. rangement with prospective foreign (2) Amendments to the requested au- partners. Specifically, the authoriza- thorization may be requested in writ- tion is designed to permit the export of ing as appropriate, and should include a broadly defined set of technical data a detailed description of the aspects of to qualifying well established foreign the activities being proposed for defense firms in NATO countries, Aus- amendment. tralia, Japan, or Sweden in order to (3) The comprehensive authorizations better facilitate a sufficiently in depth set forth in paragraph (a) of this sec- assessment of the benefits, opportuni- tion may be made valid for the dura- ties and other relevant considerations tion of the major commercial program presented by such prospective arrange- or project, or cooperative project, not ments. U.S. exporters seeking such au- to exceed 10 years. thorization must provide detailed in- (4) Included among the criteria re- formation concerning the arrangement, quired for such authorizations are joint venture, merger or acquisition, those set out in part 124, e.g., §§ 124.7, including any planned exports of de- 124.8 and 124.9, as well as §§ 125.4 (tech- fense articles, defense services, and nical data exported in furtherance of technical data, and meet the other re- an agreement) and 123.16 (hardware quirements set forth in paragraph (b) being included in an agreement). Provi- of this section. sions required will also take into ac- (b) Provisions and requirements for count the congressional notification comprehensive authorizations. Requests requirements in §§ 123.15 and 124.11 of for the special comprehensive author- the ITAR. Specifically, comprehensive izations set forth in paragraph (a) of congressional notifications cor- this section should be by letter ad- responding to the comprehensive pa- dressed to the Directorate of Defense rameters for the major program or Trade Controls. With regard to a com- project or cooperative project should mercial major program or project au- be possible, with additional notifica- thorization, or technical data sup- tions such as those required by law for porting a teaming arrangement, merg- changes in value or other significant er, joint venture or acquisition, reg- modifications. istered U.S. exporters may consult the (5) All authorizations will be con- Deputy Assistant Secretary of State sistent with all other applicable re- for Defense Trade Controls about eligi- quirements of the ITAR, including re- bility for and obtaining available com- quirements for non-transfer and use as- prehensive authorizations set forth in surances (see §§ 123.10 and 124.10), con- paragraph (a) of this section or pursu- gressional notifications (e.g., §§ 123.15 ant to § 126.9(b) of this subchapter. and 124.11), and other documentation (1) Requests for consideration of all (e.g., §§ 123.9 and 126.13). such authorizations should be formu- (6) Special auditing and reporting related to correspond to one of the au- quirements will also be required for thorizations set out in paragraph (a) of these authorizations. Exporters using this section, and should include: special authorizations are required to (i) A description of the proposed pro- establish an electronic system for gram or project, including where ap- keeping records of all defense articles, propriate a comprehensive description defense services and technical data ex- of all phases or stages; and ported and comply with all applicable

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requirements for submitting shipping person who receives, but does not have or export information within the allot- access to, defense articles, including ted time. technical data, for the sole purpose of effecting onward movement to mem- [65 FR 45285, July 21, 2000, as amended at 66 FR 35900, July 10, 2001; 71 FR 20548, Apr. 21, bers of the Approved Community (see 2006; 79 FR 8085, Feb. 11, 2014] paragraph (k) of this section). (2) Persons or entities exporting or § 126.15 Expedited processing of li- transferring defense articles or defense cense applications for the export of services are exempt from the otherwise defense articles and defense serv- applicable licensing requirements if ices to Australia or the United such persons or entities comply with Kingdom. the regulations set forth in this sec- (a) Any application submitted for au- tion. Except as provided in Supplement thorization of the export of defense ar- No. 1 to part 126 of this subchapter, ticles or services to Australia or the Port Directors of U.S. Customs and United Kingdom will be expeditiously Border Protection and postmasters processed by the Department of State, shall permit the permanent and tem- in consultation with the Department of porary export without a license from Defense. Such license applications will members of the United States Commu- not be referred to any other Federal de- nity to members of the Australian partment or agency, except when the Community (see paragraph (d) of this defense articles or defense services are section regarding the identification of classified or exceptional circumstances members of the Australian Commu- apply. (See section 1225, Pub. L. 108– nity) of defense articles and defense 375). services not listed in Supplement No. 1 (b) To be eligible for the expedited to part 126 of this subchapter, for the processing in paragraph (a) of this sec- end-uses specifically identified pursu- tion, the destination of the prospective ant to paragraphs (e) and (f) of this sec- export must be limited to Australia or tion. The purpose of this section is to the United Kingdom. No other country specify the requirements to export, may be included as intermediary or ul- transfer, reexport, retransfer, or other- timate end-user. wise dispose of a defense article or de- [70 FR 39919, July 12, 2005] fense service pursuant to the Defense Trade Cooperation Treaty between the § 126.16 Exemption pursuant to the United States and Australia. All per- Defense Trade Cooperation Treaty sons must continue to comply with between the United States and Aus- statutory and regulatory requirements tralia. outside of this subchapter concerning (a) Scope of exemption and required the import of defense articles and de- conditions—(1) Definitions. (i) An export fense services or the possession or means, for purposes of this section transfer of defense articles, including, only, the initial movement of defense but not limited to, regulations issued articles or defense services from the by the Bureau of Alcohol, Tobacco, United States Community to the Aus- Firearms and Explosives found at 27 tralian Community. CFR parts 447, 478, and 479, which are (ii) A transfer means, for purposes of unaffected by the Defense Trade Co- this section only, the movement of a operation Treaty between the United previously exported defense article or States and Australia. defense service by a member of the (3) Export. In order for an exporter to Australian Community within the Aus- export a defense article or defense serv- tralian Community, or between a mem- ice pursuant to the Defense Trade Co- ber of the United States Community operation Treaty between the United and a member of the Australian Com- States and Australia, all of the fol- munity. lowing conditions must be met: (iii) Retransfer and reexport have the (i) The exporter must be registered meaning provided in § 120.19 of this sub- with the Directorate of Defense Trade chapter. Controls (DDTC) and must be eligible, (iv) Intermediate consignee means, for according to the requirements and pro- purposes of this section, an entity or hibitions of the Arms Export Control

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Act, this subchapter, and other provi- (vii) The Department of State has sions of United States law, to obtain an provided advance notification to the export license (or other forms of au- Congress, as required, in accordance thorization to export) from any agency with this section (see paragraph (o) of of the U.S. Government without re- this section for specific requirements). striction (see paragraphs (b) and (c) of (4) Transfers. In order for a member of this section for specific requirements); the Approved Community (i.e., the (ii) The recipient of the export must United States Community and Aus- be a member of the Australian Commu- tralian Community) to transfer a de- nity (see paragraph (d) of this section fense article or defense service under regarding the identification of mem- the Defense Trade Cooperation Treaty bers of the Australian Community). within the Approved Community, all of Australian non-governmental entities the following conditions must be met: and facilities that become ineligible for (i) The defense article or defense such membership will be removed from service must have been previously ex- the Australian Community; ported in accordance with paragraph (iii) Intermediate consignees in- (a)(3) of this section or transitioned volved in the export must not be ineli- from a license or other approval in ac- gible, according to the requirements cordance with paragraph (i) of this sec- and prohibitions of the Arms Export tion; Control Act, this subchapter, and other (ii) The transferor and transferee of provisions of United States law, to the defense article or defense service handle or receive a defense article or are members of the Australian Commu- defense service without restriction (see nity (see paragraph (d) of this section paragraph (k) of this section for spe- regarding the identification of mem- cific requirements); bers of the Australian Community) or the United States Community (see (iv) The export must be for an end- paragraph (b) of this section for infor- use specified in the Defense Trade Co- mation on the United States Commu- operation Treaty between the United nity/approved exporters); States and Australia and mutually (iii) The transfer is required for an agreed to by the U.S. Government and end-use specified in the Defense Trade the Government of Australia pursuant Cooperation Treaty between the United to the Defense Trade Cooperation Trea- States and Australia and mutually ty between the United States and Aus- agreed to by the Government of the tralia and the Implementing Arrange- United States and the Government of ment thereto (the Australia Imple- Australia pursuant to the terms of the menting Arrangement) (see paragraphs Defense Trade Cooperation Treaty be- (e) and (f) of this section regarding au- tween the United States and Australia thorized end-uses); and the Australia Implementing Ar- (v) The defense article or defense rangement (see paragraphs (e) and (f) of service is not excluded from the scope this section regarding authorized end- of the Defense Trade Cooperation Trea- uses); ty between the United States and Aus- (iv) The defense article or defense tralia (see paragraph (g) of this section service is not identified in paragraph and Supplement No. 1 to part 126 of (g) of this section and Supplement No. this subchapter for specific informa- 1 to part 126 of this subchapter as ineli- tion on the scope of items excluded gible for export under this exemption, from export under this exemption) and and is marked or otherwise identified, is marked or identified, at a minimum, at a minimum, as ‘‘Restricted USML’’ as ‘‘Restricted USML’’ (see paragraph (see paragraph (j) of this section for (j) of this section for specific require- specific requirements on marking ex- ments on marking exports); ports); (vi) All required documentation of (v) All required documentation of such export is maintained by the ex- such transfer is maintained by the porter and recipient and is available transferor and transferee and is avail- upon the request of the U.S. Govern- able upon the request of the U.S. Gov- ment (see paragraph (l) of this section ernment (see paragraph (l) of this sec- for specific requirements); and tion for specific requirements); and

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(vi) The Department of State has pro- port) from any agency of the U.S. Gov- vided advance notification to the Con- ernment. gress in accordance with this section (d) Australian Community. For pur- (see paragraph (o) of this section for poses of the exemption provided by this specific requirements). section, the Australian Community (5) This section does not apply to the consists of: export of defense articles or defense (1) Government of Australia authori- services from the United States pursu- ties with entities identified as mem- ant to the Foreign Military Sales pro- bers of the Approved Community gram. Once such items are delivered to through the DDTC Web site at the time the Australian Government, they may of a transaction under this section; and be treated as if they were exported pur- (2) The non-governmental Australian suant to the Treaty and then must be entities and facilities identified as marked, identified, transmitted, stored members of the Approved Community and handled in accordance with the through the DDTC Web site at the time Treaty, the Australia Implementing of a transaction under this section; Arrangement, and the provisions of non-governmental Australian entities this section. and facilities that become ineligible for (b) United States Community. The fol- such membership will be removed from lowing persons compose the United the Australian Community. States Community and may export or (e) Authorized End-uses. The following transfer defense articles and defense end-uses, subject to paragraph (f) of services pursuant to the Defense Trade this section, are specified in the De- Cooperation Treaty between the United fense Trade Cooperation Treaty be- States and Australia: tween the United States and Australia: (1) Departments and agencies of the (1) United States and Australian U.S. Government, including their per- combined military or counter-ter- sonnel acting in their official capacity, rorism operations; with, as appropriate, a security clear- (2) United States and Australian co- ance and a need-to-know; and operative security and defense re- (2) Non-governmental U.S. persons search, development, production, and registered with DDTC and eligible, ac- support programs; cording to the requirements and prohi- (3) Mutually determined specific se- bitions of the Arms Export Control curity and defense projects where the Act, this subchapter, and other provi- Government of Australia is the end- sions of United States law, to obtain an user; or export license (or other forms of authorization to export) from any agency (4) U.S. Government end-use. of the U.S. Government without re- (f) Procedures for identifying author- striction, including their employees ized end-uses pursuant to paragraph (e) acting in their official capacity with, of this section: as appropriate, a security clearance (1) Operations, programs, and and a need-to-know. projects that can be publicly identified (c) An exporter that is otherwise an will be posted on the DDTC Web site; authorized exporter pursuant to para- (2) Operations, programs, and graph (b) of this section may not ex- projects that cannot be publicly identi- port or transfer pursuant to the De- fied will be confirmed in written cor- fense Trade Cooperation Treaty be- respondence from DDTC; or tween the United States and Australia (3) U.S. Government end-use will be if the exporter’s president, chief execu- identified specifically in a U.S. Govern- tive officer, any vice-president, any ment contract or solicitation as being other senior officer or official (e.g., eligible under the Treaty. comptroller, treasurer, general coun- (4) No other operations, programs, sel); any member of the board of direc- projects, or end-uses qualify for this tors of the exporter; any party to the exemption. export; or any source or manufacturer (g) Items eligible under this section. is ineligible to receive export licenses With the exception of items listed in (or other forms of authorization to ex- Supplement No. 1 to part 126 of this

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subchapter, defense articles and de- DDTC for their export, transfer, reex- fense services may be exported under port, or retransfer). this section subject to the following: (6) No liability shall be incurred by (1) An exporter authorized pursuant or attributed to the U.S. Government to paragraph (b)(2) of this section may in connection with any possible in- market a defense article to members of fringement of privately owned patent the Australian Community if that ex- or proprietary rights, either domestic porter has been licensed by DDTC to or foreign, by reason of an export con- export (as defined by § 120.17 of this ducted pursuant to this section. subchapter) the identical type of de- (7) Sales by exporters made through fense article to any foreign person and the U.S. Government shall not include end-use of the article is for an end-use either charges for patent rights in identified in paragraph (e) of this sec- which the U.S. Government holds a tion. royalty-free license, or charges for in- (2) The export of any defense article specific to the existence of (e.g., re- formation which the U.S. Government veals the existence of or details of) has a right to use and disclose to oth- anti-tamper measures made at U.S. ers, which is in the public domain, or Government direction always requires which the U.S. Government has ac- prior written approval from DDTC. quired or is entitled to acquire without (3) U.S.-origin classified defense arti- restrictions upon its use and disclosure cles or defense services may be ex- to others. ported only pursuant to a written re- (h) Transfers, retransfers, and reex- quest, directive, or contract from the ports. (1) Any transfer of a defense arti- U.S. Department of Defense that pro- cle or defense service not exempted in vides for the export of the classified de- Supplement No. 1 to part 126 of this fense article(s) or defense service(s). subchapter by a member of the Aus- (4) U.S.-origin defense articles spe- tralian Community (see paragraph (d) cific to developmental systems that of this section for specific information have not obtained written Milestone B on the identification of the Commu- approval from the U.S. Department of nity) to another member of the Aus- Defense milestone approval authority tralian Community or the United are not eligible for export unless such States Community for an end-use that export is pursuant to a written solici- is authorized by this exemption (see tation or contract issued or awarded by paragraphs (e) and (f) of this section re- the U.S. Department of Defense for an garding authorized end-uses) is author- end-use identified pursuant to para- ized under this exemption. graph (e)(1), (2), or (4) of this section. (2) Any transfer or other provision of (5) Defense articles excluded by para- a defense article or defense service for graph (g) of this section or Supplement an end-use that is not authorized by No. 1 to part 126 of this subchapter the exemption provided by this section (e.g., USML Category XI (a)(3) electronically scanned array radar ex- is prohibited without a license or the cluded by Note 2) that are embedded in prior written approval of DDTC (see a larger system that is eligible to ship paragraphs (e) and (f) of this section re- under this section (e.g., a ship, an air- garding authorized end-uses). craft) must separately comply with (3) Any retransfer or reexport, or any restrictions placed on that embed- other provision of a defense article or ded defense article under this sub- defense service by a member of the chapter. The exporter must obtain a li- Australian Community to a foreign cense or other authorization from person that is not a member of the DDTC for the export of such embedded Australian Community, or to a U.S. defense articles (for example, USML person that is not a member of the Category XI (a)(3) electronically United States Community, is prohib- scanned array radar systems that are ited without a license or the prior writ- exempt from this section that are in- ten approval of DDTC (see paragraph corporated in an aircraft that is eligi- (d) of this section for specific informa- ble to ship under this section continue tion on the identification of the Aus- to require separate authorization from tralian Community).

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(4) Any change in the use of a defense section, per Section 9(9) of the Aus- article or defense service previously ex- tralia Implementing Arrangement, ported, transferred, or obtained under ‘‘ADOD Transmission channels’’ in- this exemption by any foreign person, cludes electronic transmission of a de- including a member of the Australian fense article and transmission of a de- Community, to an end-use that is not fense article by an ADOD contracted authorized by this exemption is prohib- carrier or freight forwarder that mere- ited without a license or other written ly transports or arranges transport for approval of DDTC (see paragraphs (e) the defense article in this instance.); and (f) of this section regarding author- (ii) The transfer of defense articles or ized end-uses). defense services is made by a member (5) Any retransfer, reexport, or of the United States Community to an change in end-use requiring such ap- Approved Community member (either proval of the U.S. Government shall be United States or Australian) that is op- made in accordance with § 123.9 of this erating in direct support of ADOD ele- subchapter. ments deployed outside the Territory (6) Defense articles excluded by para- of Australia and engaged in an author- graph (g) of this section or Supplement ized end-use (see paragraphs (e) and (f) No. 1 to part 126 of this subchapter of this section regarding authorized (e.g., USML Category XI (a)(3) elec- end-uses) using ADOD transmission tronically scanned array radar sys- channels or the provisions of this sec- tems) that are embedded in a larger tion; system that is eligible to ship under (iii) The reexport is made by a mem- this section (e.g., a ship, an aircraft) ber of the Australian Community to must separately comply with any re- ADOD elements deployed outside the strictions placed on that embedded de- Territory of Australia engaged in an fense article unless otherwise specified. authorized end-use (see paragraphs (e) A license or other authorization must and (f) of this section regarding author- be obtained from DDTC for the export, ized end-uses) using ADOD trans- transfer, reexport, retransfer, or mission channels or the provisions of change in end-use of any such embed- this section; ded defense article (for example, USML (iv) The reexport is made by a mem- Category XI(a)(3) electronically ber of the Australian Community to an scanned array radar systems that are Approved Community member (either excluded from this section by Supple- United States or Australian) that is opment No. 1 to part 126 of this sub- erating in direct support of ADOD ele- chapter, Note 2 that are incorporated ments deployed outside the Territory in an aircraft that is eligible to ship of Australia engaged in an authorized under this section continue to require end-use (see paragraphs (e) and (f) of separate authorization from DDTC for this section regarding authorized end- their export, transfer, reexport, or re- uses) using ADOD transmission chan- transfer). nels or the provisions of this section; (7) A license or prior approval from or DDTC is not required for a transfer, re- (v) The defense article or defense transfer, or reexport of an exported de- service will be delivered to the ADOD fense article or defense service under for an authorized end-use (see para- this section, if: graphs (e) and (f) of this section regard- (i) The transfer of defense articles or ing authorized end-uses); the ADOD defense services is made by a member may deploy the item as necessary when of the United States Community to conducting official business within or Australian Department of Defence outside the Territory of Australia. The (ADOD) elements deployed outside the item must remain under the effective Territory of Australia and engaged in control of the ADOD while deployed an authorized end-use (see paragraphs and access may not be provided to un- (e) and (f) of this section regarding au- authorized third parties. thorized end-uses) using ADOD trans- (8) U.S. persons registered, or re- mission channels or the provisions of quired to be registered, pursuant to this section (Note: For purposes of part 122 of this subchapter and mem- paragraph (h)(7)(i) through (iv) of this bers of the Australian Community

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must immediately notify DDTC of any ing license or other approval to the actual or proposed sale, retransfer, or processes established under the Treaty, reexport of a defense article or defense the Australian Community member service on the U.S. Munitions List must submit a written request to the originally exported under this exemp- Government of Australia. The Govern- tion to any of the countries listed in ment of Australia will submit the re- § 126.1 of this subchapter or any person quest to DDTC for review and approval. acting on behalf of such countries, The defense article or defense service whether within or outside the United shall remain subject to the conditions States. Any person knowing or having and limitations of the existing license reason to know of such a proposed or or other approval until the Australian actual sale, reexport, or retransfer Community member has received via shall submit such information in writ- the Government of Australia the ap- ing to the Office of Defense Trade Con- proval from DDTC. trols Compliance, Directorate of De- (4) Authorized exporters identified in fense Trade Controls. paragraph (b)(2) of this section who (i) Transitions. (1) Any previous ex- have exported a defense article or de- port of a defense article under a license fense service that has subsequently or other approval of the U.S. Depart- been placed on the list of exempted ment of State remains subject to the items in Supplement No. 1 to part 126 conditions and limitations of the origi- of this subchapter must review and ad- nal license or authorization unless here to the requirements in the rel- DDTC has approved in writing a transi- evant FEDERAL REGISTER notice an- tion to this section. nouncing such removal. Once removed, (2) If a U.S. exporter desires to tran- the defense article or defense service sition from an existing license or other will no longer be subject to this sec- approval to the use of the provisions of tion, and such defense article or de- this section, the following is required: fense service previously exported shall (i) The U.S. exporter must submit a remain on the U.S. Munitions List and written request to DDTC, which identi- be subject to the requirements of this fies the defense articles or defense subchapter unless the applicable FED- services to be transitioned, the existing ERAL REGISTER notice states otherwise. license(s) or other authorizations under Subsequent reexport or retransfer must which the defense articles or defense be made pursuant to § 123.9 of this sub- services were originally exported, and chapter. the Treaty-eligible end-use for which (5) Any defense article or defense the defense articles or defense services service transitioned from a license or will be used. Any license(s) filed with other approval to treatment under this U.S. Customs and Border Protection section must be marked in accordance should remain on file until the ex- with the requirements of paragraph (j) porter has received approval from of this section. DDTC to retire the license(s) and tran- (j) Marking of exports. (1) All defense sition to this section. When this ap- articles and defense services exported proval is conveyed to U.S. Customs and or transitioned pursuant to the Defense Border Protection by DDTC, the li- Trade Cooperation Treaty between the cense(s) will be returned to DDTC by United States and Australia and this U.S. Customs and Border Protection in section shall be marked or identified accord with existing procedures for the prior to movement as follows: return of expired licenses in § 123.22(c) (i) For classified defense articles and of this subchapter. defense services the standard marking (ii) Any license(s) not filed with U.S. or identification shall read‘‘//CLASSI- Customs and Border Protection must FICATION LEVEL USML//REL AUS be returned to DDTC with a letter cit- and USA Treaty Community//.’’ For ex- ing approval by DDTC to transition to ample, for defense articles classified this section as the reason for returning SECRET, the marking or identification the license(s). shall be ‘‘//SECRET USML//REL AUS (3) If a member of the Australian and USA Treaty Community//.’’ Community desires to transition de- (ii) Unclassified defense articles and fense articles received under an exist- defense services exported under or

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transitioned pursuant to this section Defense Trade Cooperation Treaty for shall be handled while in Australia as export only to Australia for use in ap- ‘‘Restricted USML’’ and the standard proved projects, programs or oper- marking or identification shall read‘‘// ations by members of the Australian RESTRICTED USML//REL AUS and Community. They may not be retrans- USA Treaty Community//.’’ ferred or reexported or used outside of (2) Where U.S.-origin defense articles an approved project, program, or oper- are returned to a member of the United ation, either in their original form or States Community identified in para- after being incorporated into other graph (b) of this section, any defense end-items, without the prior written articles marked or identified pursuant approval of the U.S. Department of to paragraph (j)(1)(ii) of this section as State.’’ ‘‘//RESTRICTED USML//REL AUS and (k) Intermediate consignees. (1) Unclas- USA Treaty Community//’’ will be con- sified exports under this section may sidered unclassified and the marking or only be handled by: identification shall be removed; and (i) U.S. intermediate consignees who (3) The standard marking and identi- are: fication requirements are as follows: (A) Exporters registered with DDTC (i) Defense articles (other than tech- and eligible; nical data) shall be individually labeled (B) Licensed customs brokers who with the appropriate identification de- are subject to background investiga- tailed in paragraphs (j)(1) and (j)(2) of tion and have passed a comprehensive this section; or, where such labeling is examination administered by U.S. Cus- impracticable (e.g., propellants, chemi- toms and Border Protection; or cals), shall be accompanied by docu- (C) Commercial air freight and sur- mentation (such as contracts or in- face shipment carriers, freight for- voices) clearly associating the defense warders, or other parties not exempt articles with the appropriate markings from registration under § 129.3(b)(3) of as detailed in paragraphs (j)(1)(i) and this subchapter, that are identified at (j)(1)(ii) of this section; the time of export as being on the U.S. (ii) Technical data (including data Department of Defense Civil Reserve packages, technical papers, manuals, Air Fleet (CRAF) list of approved air presentations, specifications, guides carriers, a link to which is available on and reports), regardless of media or the DDTC Web site; or means of transmission (physical, oral, (ii) Australian intermediate con- or electronic), shall be individually la- signees who are: beled with the appropriate identifica- (A) Members of the Australian Com- tion detailed in paragraphs (j)(1) and munity; or (j)(2) of this section; or, where such la- (B) Freight forwarders, customs bro- beling is impractical shall be accom- kers, commercial air freight and sur- panied by documentation (such as con- face shipment carriers, or other Aus- tracts or invoices) or verbal notifica- tralian parties that are identified at tion clearly associating the technical the time of export as being on the list data with the appropriate markings as of Authorized Australian Intermediate detailed in paragraphs (j)(1)(i) and Consignees, which is available on the (j)(1)(ii) of this section; and DDTC Web site. (4) Defense services shall be accom- (2) Classified exports must comply panied by documentation (contracts, with the security requirements of the invoices, shipping bills, or bills of lad- National Industrial Security Program ing) clearly labeled with the appro- Operating Manual (DoD 5220.22–M and priate identification detailed in para- supplements or successors). graphs (j)(1) and (j)(2) of this section. (l) Records. (1) All exporters author- (5) The exporter shall incorporate the ized pursuant to paragraph (b)(2) of following statement as an integral part this section who export defense articles of the bill of lading and the invoice or defense services pursuant to the De- whenever defense articles are to be ex- fense Trade Cooperation Treaty be- ported: ‘‘These U.S. Munitions List tween the United States and Australia commodities are authorized by the U.S. and this section shall maintain de- Government under the U.S.-Australia tailed records of their exports, imports,

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and transfers. Exporters shall also (xv) The Internal Transaction Num- maintain detailed records of any reex- ber for the Electronic Export Informa- ports and retransfers approved or oth- tion filing in the Automated Export erwise authorized by DDTC of defense System; articles or defense services subject to (xvi) All shipping documentation (in- the Defense Trade Cooperation Treaty cluding, but not limited to the airway between the United States and Aus- bill, bill of lading, packing list, deliv- tralia and this section. These records ery verification, and invoice); and shall be maintained for a minimum of (xvii) Statement of Registration five years from the date of export, im- (Form DS–2032). port, transfer, reexport, or retransfer (2) Filing of export information. All ex- and shall be made available upon re- porters of defense articles under the quest to DDTC or a person designated Defense Trade Cooperation Treaty be- by DDTC (e.g., the Diplomatic Security tween the United States and Australia Service) or U.S. Immigration and Cus- and this section must electronically toms Enforcement, or U.S. Customs file Electronic Export Information and Border Protection. Records in an (EEI) using the Automated Export Sys- electronic format must be maintained tem citing one of the four below refusing a process or system capable of re- erenced codes in the appropriate field producing all records on paper. Such in the EEI for each shipment: records when displayed on a viewer, (i) For exports in support of United monitor, or reproduced on paper, must States and Australian combined mili- exhibit a high degree of legibility and tary or counter-terrorism operations readability. (For the purpose of this identify § 126.16(e)(1) (the name or an section, ‘‘legible’’ and ‘‘legibility’’ appropriate description of the oper- mean the quality of a letter or numeral ation shall be placed in the appropriate that enables the observer to identify it field in the EEI, as well); positively and quickly to the exclusion (ii) For exports in support of United of all other letters or numerals. States and Australian cooperative se- ‘‘Readable’’ and ‘‘readability’’ means curity and defense research, develop- the quality of a group of letters or nu- ment, production, and support pro- merals being recognized as complete grams identify § 126.16(e)(2) (the name words or numbers.). These records shall or an appropriate description of the consist of the following: program shall be placed in the appro- (i) Port of entry/exit; priate field in the EEI, as well); (ii) Date of export/import; (iii) For exports in support of mutu- (iii) Method of export/import; ally determined specific security and (iv) Commodity code and description defense projects where the Government of the commodity, including technical of Australia is the end-user identify data; § 126.16(e)(3) (the name or an appro- (v) Value of export; priate description of the project shall (vi) Reference to this section and jus- be placed in the appropriate field in the tification for export under the Treaty; EEI, as well); or (vii) End-user/end-use; (iv) For exports that will have a U.S. (viii) Identification of all U.S. and Government end-use identify foreign parties to the transaction; § 126.16(e)(4) (the U.S. Government con- (ix) How the export was marked; tract number or solicitation number (x) Security classification of the ex- (e.g., ‘‘U.S. Government contract num- port; ber XXXXX’’) shall be placed in the ap- (xi) All written correspondence with propriate field in the EEI, as well). the U.S. Government on the export; Such exports must meet the required (xii) All information relating to po- export documentation and filing guide- litical contributions, fees, or commis- lines, including for defense services, of sions furnished or obtained, offered, so- § 123.22(a), (b)(1), and (b)(2) of this sub- licited, or agreed upon as outlined in chapter. paragraph (m) of this section; (m) Fees and commissions. All export- (xiii) Purchase order or contract; ers authorized pursuant to paragraph (xiv) Technical data actually ex- (b)(2) of this section shall, with respect ported; to each export, transfer, reexport, or

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retransfer, pursuant to the Defense fied in paragraph (b)(2) of this section Trade Cooperation Treaty between the shall not take place until 30 days after United States and Australia and this DDTC has acknowledged receipt of a section, submit a statement to DDTC written notification from the exporter containing the information identified notifying the Department of State if in § 130.10 of this subchapter relating to the export involves one or more of the fees, commissions, and political con- following: tributions on contracts or other instru- (i) A contract or other instrument for ments valued in an amount of $500,000 the export of major defense equipment or more. in the amount of $25,000,000 or more, or (n) Violations and enforcement. (1) Ex- for defense articles and defense serv- ports, transfers, reexports, and retrans- ices in the amount of $100,000,000 or fers that do not comply with the condi- more; tions prescribed in this section will (ii) A contract for the export of fire- constitute violations of the Arms Ex- arms controlled under Category I of port Control Act and this subchapter, the U.S. Munitions List of the Inter- and are subject to all relevant crimi- national Traffic in Arms Regulations nal, civil, and administrative penalties in an amount of $1,000,000 or more; (see § 127.1 of this subchapter), and may (iii) A contract, regardless of value, also be subject to penalty under other for the manufacturing abroad of any statutes or regulations. item of significant military equipment (2) U.S. Immigration and Customs (see § 120.7 of this subchapter); or Enforcement and U.S. Customs and Border Protection officers may take (iv) An amended contract that meets appropriate action to ensure compli- the requirements of paragraphs (o)(1)(i) ance with this section as to the export through (o)(1)(iii) of this section. or the attempted export of any defense (2) The written notification required article or technical data, including the in paragraph (o)(1) of this section shall inspection of loading or unloading of indicate the item/model number, gen- any vessel, vehicle, or aircraft. eral item description, U.S. Munitions (3) U.S. Immigration and Customs List category, value, and quantity of Enforcement and U.S. Customs and items to be exported pursuant to the Border Protection officers have the au- Defense Trade Cooperation Treaty be- thority to investigate, detain, or seize tween the United States and Australia any export or attempted export of de- and this section, and shall be accom- fense articles or technical data that panied by the following additional in- does not comply with this section or formation: that is otherwise unlawful. (i) The information identified in (4) DDTC or a person designated by § 130.10 and § 130.11 of this subchapter; DDTC (e.g., the Diplomatic Security (ii) A statement regarding whether Service), U.S. Immigration and Cus- any offset agreement is final to be en- toms Enforcement, or U.S. Customs tered into in connection with the ex- and Border Protection may require the port and a description of any such off- production of documents and informa- set agreement; tion relating to any actual or at- (iii) A copy of the signed contract; tempted export, transfer, reexport, or and retransfer pursuant to this section. (iv) If the notification is for para- Any foreign person refusing to provide graph (o)(1)(ii) of this section, a state- such records within a reasonable period ment of what will happen to the weap- of time shall be suspended from the ons in their inventory (for example, Australian Community and ineligible whether the current inventory will be to receive defense articles or defense sold, reassigned to another service services pursuant to the exemption branch, destroyed, etc.). under this section or otherwise. (3) The Department of State will no- (o) Procedures for legislative notifica- tify the Congress of exports that meet tion. (1) Exports pursuant to the De- the requirements of paragraph (o)(1) of fense Trade Cooperation Treaty be- this section. tween the United States and Australia and this section by any person identi- [78 FR 21526, Apr. 11, 2013]

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§ 126.17 Exemption pursuant to the United States and the United Kingdom. Defense Trade Cooperation Treaty All persons must continue to comply between the United States and the with statutory and regulatory require- United Kingdom. ments outside of this subchapter con- (a) Scope of exemption and required cerning the import of defense articles conditions—(1) Definitions. (i) An export and defense services or the possession means, for purposes of this section or transfer of defense articles, includ- only, the initial movement of defense ing, but not limited to, regulations articles or defense services from the issued by the Bureau of Alcohol, To- United States Community to the bacco, Firearms and Explosives found United Kingdom Community. at 27 CFR parts 447, 478, and 479, which (ii) A transfer means, for purposes of are unaffected by the Defense Trade this section only, the movement of a Cooperation Treaty between the United previously exported defense article or States and the United Kingdom and defense service by a member of the continue to apply fully to defense arti- United Kingdom Community within cles and defense services subject to ei- the United Kingdom Community, or be- ther of the aforementioned treaties and tween a member of the United States the exemptions contained in this sec- Community and a member of the tion. United Kingdom Community. (iii) Retransfer and reexport have the (3) Export. In order for an exporter to meaning provided in § 120.19 of this sub- export a defense article or defense serv- chapter. ice pursuant to the Defense Trade Co- (iv) Intermediate consignee means, for operation Treaty between the United purposes of this section, an approved States and the United Kingdom, all of entity or person who receives, but does the following conditions must be met: not have access to, defense articles, in- (i) The exporter must be registered cluding technical data, for the sole pur- with the Directorate of Defense Trade pose of effecting onward movement to Controls (DDTC) and must be eligible, members of the Approved Community according to the requirements and pro- (see paragraph (k) of this section). hibitions of the Arms Export Control (2) Persons or entities exporting or Act, this subchapter, and other provi- transferring defense articles or defense sions of United States law, to obtain an services are exempt from the otherwise export license (or other forms of au- applicable licensing requirements if thorization to export) from any agency such persons or entities comply with of the U.S. Government without re- the regulations set forth in this sec- striction (see paragraphs (b) and (c) of tion. Except as provided in Supplement this section for specific requirements); No. 1 to part 126 of this subchapter, (ii) The recipient of the export must Port Directors of U.S. Customs and be a member of the United Kingdom Border Protection and postmasters Community (see paragraph (d) of this shall permit the permanent and tem- section regarding the identification of porary export without a license from members of the United Kingdom Com- members of the United States Commu- nity to members of the United King- munity). United Kingdom non-govern- dom Community (see paragraph (d) of mental entities and facilities that be- this section regarding the identifica- come ineligible for such membership tion of members of the United Kingdom will be removed from the United King- Community) of defense articles and de- dom Community; fense services not listed in Supplement (iii) Intermediate consignees in- No. 1 to part 126 of this subchapter, for volved in the export must not be ineli- the end-uses specifically identified pur- gible, according to the requirements suant to paragraphs (e) and (f) of this and prohibitions of the Arms Export section. The purpose of this section is Control Act, this subchapter, and other to specify the requirements to export, provisions of United States law, to transfer, reexport, retransfer, or other- handle or receive a defense article or wise dispose of a defense article or de- defense service without restriction (see fense service pursuant to the Defense paragraph (k) of this section for spe- Trade Cooperation Treaty between the cific requirements);

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(iv) The export must be for an end- munity) or the United States Commu- use specified in the Defense Trade Co- nity (see paragraph (b) of this section operation Treaty between the United for information on the United States States and the United Kingdom and Community/approved exporters); mutually agreed to by the U.S. Govern- (iii) The transfer is required for an ment and the Government of the end-use specified in the Defense Trade United Kingdom pursuant to the De- Cooperation Treaty between the United fense Trade Cooperation Treaty be- States and the United Kingdom and tween the United States and the mutually agreed to by the Government United Kingdom and the Implementing of the United States and the Govern- Arrangement thereto (United Kingdom ment of the United Kingdom pursuant Implementing Arrangement) (see para- to the terms of the Defense Trade Co- graphs (e) and (f) of this section regard- operation Treaty between the United ing authorized end-uses); States and the United Kingdom and the (v) The defense article or defense United Kingdom Implementing Ar- service is not excluded from the scope rangement (see paragraphs (e) and (f) of of the Defense Trade Cooperation Trea- this section regarding authorized end- ty between the United States and the uses); United Kingdom (see paragraph (g) of (iv) The defense article or defense this section and Supplement No. 1 to service is not identified in paragraph part 126 of this subchapter for specific (g) of this section and Supplement No. information on the scope of items ex- 1 to part 126 of this subchapter as ineli- cluded from export under this exemp- gible for export under this exemption, tion) and is marked or identified, at a and is marked or otherwise identified, minimum, as ‘‘Restricted USML’’ (see at a minimum, as ‘‘Restricted USML’’ paragraph (j) of this section for specific (see paragraph (j) of this section for requirements on marking exports); specific requirements on marking ex- (vi) All required documentation of ports); such export is maintained by the ex- (v) All required documentation of porter and recipient and is available such transfer is maintained by the upon the request of the U.S. Govern- transferor and transferee and is avail- ment (see paragraph (l) of this section able upon the request of the U.S. Gov- for specific requirements); and ernment (see paragraph (l) of this sec- (vii) The Department of State has tion for specific requirements); and provided advance notification to the (vi) The Department of State has pro- Congress, as required, in accordance vided advance notification to the Con- with this section (see paragraph (o) of gress in accordance with this section this section for specific requirements). (see paragraph (o) of this section for (4) Transfers. In order for a member of specific requirements). the Approved Community (i.e., the (5) This section does not apply to the United States Community and United export of defense articles or defense Kingdom Community) to transfer a de- services from the United States pursu- fense article or defense service under ant to the Foreign Military Sales pro- the Defense Trade Cooperation Treaty gram. Once such items are delivered to within the Approved Community, all of Her Majesty’s Government, they may the following conditions must be met: be treated as if they were exported pur- (i) The defense article or defense suant to the Treaty and then must be service must have been previously ex- marked, identified, transmitted, stored ported in accordance with paragraph and handled in accordance with the (a)(3) of this section or transitioned Treaty, the United Kingdom Imple- from a license or other approval in ac- menting Arrangement, and the provi- cordance with paragraph (i) of this sec- sions of this section. tion; (b) United States Community. The fol- (ii) The transferor and transferee of lowing persons compose the United the defense article or defense service States Community and may export or are members of the United Kingdom transfer defense articles and defense Community (see paragraph (d) of this services pursuant to the Defense Trade section regarding the identification of Cooperation Treaty between the United members of the United Kingdom Com- States and the United Kingdom:

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(1) Departments and agencies of the tween the United States and the U.S. Government, including their per- United Kingdom: sonnel acting in their official capacity, (1) United States and United King- with, as appropriate, a security clear- dom combined military or counter-ter- ance and a need-to-know; and rorism operations; (2) Non-governmental U.S. persons (2) United States and United King- registered with DDTC and eligible, ac- dom cooperative security and defense cording to the requirements and prohi- research, development, production, and bitions of the Arms Export Control support programs; Act, this subchapter, and other provi- (3) Mutually determined specific se- sions of United States law, to obtain an curity and defense projects where the export license (or other form of author- Government of the United Kingdom is ization to export) from any agency of the end-user; or the U.S. Government without restric- (4) U.S. Government end-use. tion, including their employees acting (f) Procedures for identifying author- in their official capacity with, as ap- ized end-uses pursuant to paragraph (e) propriate, a security clearance and a of this section: need-to-know. (1) Operations, programs, and (c) An exporter that is otherwise an projects that can be publicly identified authorized exporter pursuant to para- will be posted on the DDTC Web site; graph (b) of this section may not ex- (2) Operations, programs, and port or transfer pursuant to the De- projects that cannot be publicly identi- fense Trade Cooperation Treaty be- fied will be confirmed in written cor- tween the United States and the respondence from DDTC; or United Kingdom if the exporter’s presi- (3) U.S. Government end-use will be dent, chief executive officer, any vice- identified specifically in a U.S. Govern- president, any other senior officer or ment contract or solicitation as being official (e.g., comptroller, treasurer, eligible under the Treaty. general counsel); any member of the (4) No other operations, programs, board of directors of the exporter; any projects, or end-uses qualify for this party to the export; or any source or exemption. manufacturer is ineligible to receive (g) Items eligible under this section. export licenses (or other forms of au- With the exception of items listed in thorization to export) from any agency Supplement No. 1 to part 126 of this of the U.S. Government. subchapter, defense articles and de- (d) United Kingdom Community. For fense services may be exported under purposes of the exemption provided by this section subject to the following: this section, the United Kingdom Com- (1) An exporter authorized pursuant munity consists of: to paragraph (b)(2) of this section may (1) Her Majesty’s Government enti- market a defense article to members of ties and facilities identified as mem- the United Kingdom Community if bers of the Approved Community that exporter has been licensed by through the DDTC Web site at the time DDTC to export (as defined by § 120.17 of a transaction under this section; and of this subchapter) the identical type (2) The non-governmental United of defense article to any foreign person Kingdom entities and facilities identi- and end-use of the article is for an end- fied as members of the Approved Com- use identified in paragraph (e) of this munity through the DDTC Web site section. (www.pmddtc.state.gov) at the time of a (2) The export of any defense article transaction under this section; non- specific to the existence of (e.g., re- governmental United Kingdom entities veals the existence of or details of) and facilities that become ineligible for anti-tamper measures made at U.S. such membership will be removed from Government direction always requires the United Kingdom Community. prior written approval from DDTC. (e) Authorized End-uses. The following (3) U.S.-origin classified defense arti- end-uses, subject to paragraph (f) of cles or defense services may be ex- this section, are specified in the De- ported only pursuant to a written re- fense Trade Cooperation Treaty be- quest, directive, or contract from the

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U.S. Department of Defense that pro- 428/2009) are not eligible for export vides for the export of the classified de- under the Defense Trade Cooperation fense article(s) or defense service(s). Treaty between the United States and (4) U.S.-origin defense articles spe- the United Kingdom. These articles cific to developmental systems that have been identified and included in have not obtained written Milestone B Supplement No.1 to part 126. approval from the U.S. Department of (h) Transfers, retransfers, and reex- Defense milestone approval authority ports. (1) Any transfer of a defense arti- are not eligible for export unless such cle or defense service not exempted in export is pursuant to a written solici- Supplement No. 1 to part 126 of this tation or contract issued or awarded by subchapter by a member of the United the U.S. Department of Defense for an Kingdom Community (see paragraph (d) end-use identified pursuant to para- of this section for specific information graph (e)(1), (2), or (4) of this section. on the identification of the Commu- (5) Defense articles excluded by para- nity) to another member of the United graph (g) of this section or Supplement Kingdom Community or the United No. 1 to part 126 of this subchapter States Community for an end-use that (e.g., USML Category XI (a)(3) elec- is authorized by this exemption (see tronically scanned array radar ex- paragraphs (e) and (f) of this section re- cluded by Note 2) that are embedded in garding authorized end-uses) is author- a larger system that is eligible to ship ized under this exemption. under this section (e.g., a ship, an air- (2) Any transfer or other provision of craft) must separately comply with a defense article or defense service for any restrictions placed on that embed- an end-use that is not authorized by ded defense article under this sub- the exemption provided by this section chapter. The exporter must obtain a li- is prohibited without a license or the cense or other authorization from prior written approval of DDTC (see DDTC for the export of such embedded paragraphs (e) and (f) of this section re- defense articles (for example, USML garding authorized end-uses). Category XI (a)(3) electronically scanned array radar systems that are (3) Any retransfer or reexport, or exempt from this section that are in- other provision of a defense article or corporated in an aircraft that is eligi- defense service by a member of the ble to ship under this section continue United Kingdom Community to a for- to require separate authorization from eign person that is not a member of the DDTC for their export, transfer, reex- United Kingdom Community, or to a port, or retransfer). U.S. person that is not a member of the (6) No liability shall be incurred by United States Community, is prohib- or attributed to the U.S. Government ited without a license or the prior writ- in connection with any possible in- ten approval of DDTC (see paragraph fringement of privately owned patent (d) of this section for specific informa- or proprietary rights, either domestic tion on the identification of the United or foreign, by reason of an export con- Kingdom Community). ducted pursuant to this section. (4) Any change in the use of a defense (7) Sales by exporters made through article or defense service previously ex- the U.S. Government shall not include ported, transferred, or obtained under either charges for patent rights in this exemption by any foreign person, which the U.S. Government holds a including a member of the United royalty-free license, or charges for in- Kingdom Community, to an end-use formation which the U.S. Government that is not authorized by this exemp- has a right to use and disclose to oth- tion is prohibited without a license or ers, which is in the public domain, or other written approval of DDTC (see which the U.S. Government has ac- paragraphs (e) and (f) of this section required or is entitled to acquire without garding authorized end-uses). restrictions upon its use and disclosure (5) Any retransfer, reexport, or to others. change in end-use requiring such ap- (8) Defense articles on the European proval of the U.S. Government shall be Union Dual Use List (as described in made in accordance with § 123.9 of this Annex 1 to EC Council Regulation No. subchapter.

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(6) Defense articles excluded by para- the Territory of the United Kingdom graph (g) of this section or Supplement engaged in an authorized end-use (see No. 1 to part 126 of this subchapter paragraphs (e) and (f) of this section re- (e.g., USML Category XI (a)(3) elec- garding authorized end-uses) using tronically scanned array radar sys- United Kingdom Armed Forces trans- tems) that are embedded in a larger mission channels or the provisions of system that is eligible to ship under this section; this section (e.g., a ship, an aircraft) (iv) The reexport is made by a mem- must separately comply with any re- ber of the United Kingdom Community strictions placed on that embedded de- to an Approved Community member fense article unless otherwise specified. (either U.S. or UK) that is operating in A license or other authorization must direct support of UK MOD elements de- be obtained from DDTC for the export, ployed outside the Territory of the transfer, reexport, retransfer, or United Kingdom engaged in an author- change in end-use of any such embed- ized end-use (see paragraphs (e) and (f) ded defense article (for example, USML of this section regarding authorized Category XI(a)(3) electronically end-uses) using United Kingdom Armed scanned array radar systems that are Forces transmission channels or the excluded from this section by Supple- provisions of this section; or ment No. 1 to part 126 of this sub- (v) The defense article or defense chapter, Note 2 that are incorporated service will be delivered to the UK in an aircraft that is eligible to ship MOD for an authorized end-use (see under this section continue to require paragraphs (e) and (f) of this section re- separate authorization from DDTC for garding authorized end-uses); the UK their export, transfer, reexport, or re- MOD may deploy the item as necessary transfer). when conducting official business with- (7) A license or prior approval from in or outside the Territory of the DDTC is not required for a transfer, re- United Kingdom. The item must retransfer, or reexport of an exported de- main under the effective control of the fense article or defense service under UK MOD while deployed and access this section, if: may not be provided to unauthorized (i) The transfer of defense articles or defense services is made by a member third parties. of the United States Community to (8) U.S. persons registered, or re- United Kingdom Ministry of Defence quired to be registered, pursuant to (UK MOD) elements deployed outside part 122 of this subchapter and mem- the Territory of the United Kingdom bers of the United Kingdom Commu- and engaged in an authorized end-use nity must immediately notify DDTC of (see paragraphs (e) and (f) of this sec- any actual or proposed sale, retransfer, tion regarding authorized end-uses) or reexport of a defense article or de- using United Kingdom Armed Forces fense service on the U.S. Munitions transmission channels or the provi- List originally exported under this ex- sions of this section; emption to any of the countries listed (ii) The transfer of defense articles or in § 126.1 of this subchapter or any per- defense services is made by a member son acting on behalf of such countries, of the United States Community to an whether within or outside the United Approved Community member (either States. Any person knowing or having United States or UK) that is operating reason to know of such a proposed or in direct support of UK MOD elements actual sale, reexport, or retransfer deployed outside the Territory of the shall submit such information in writ- United Kingdom and engaged in an au- ing to the Office of Defense Trade Con- thorized end-use (see paragraphs (e) and trols Compliance, Directorate of De- (f) of this section regarding authorized fense Trade Controls. end-uses) using United Kingdom Armed (i) Transitions. (1) Any previous ex- Forces transmission channels or the port of a defense article under a license provisions of this section; or other approval of the U.S. Depart- (iii) The reexport is made by a mem- ment of State remains subject to the ber of the United Kingdom Community conditions and limitations of the origi- to UK MOD elements deployed outside nal license or authorization unless

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DDTC has approved in writing a transi- (4) Authorized exporters identified in tion to this section. paragraph (b)(2) of this section who (2) If a U.S. exporter desires to tran- have exported a defense article or de- sition from an existing license or other fense service that has subsequently approval to the use of the provisions of been placed on the list of exempted this section, the following is required: items in Supplement No. 1 to part 126 (i) The U.S. exporter must submit a of this subchapter must review and ad- written request to DDTC, which identi- here to the requirements in the rel- fies the defense articles or defense evant FEDERAL REGISTER notice an- services to be transitioned, the existing nouncing such removal. Once removed, license(s) or other authorizations under the defense article or defense service which the defense articles or defense will no longer be subject to this sec- services were originally exported, and tion, and such defense article or de- the Treaty-eligible end-use for which fense service previously exported shall the defense articles or defense services remain on the U.S. Munitions List and will be used. Any license(s) filed with be subject to the requirements of this U.S. Customs and Border Protection subchapter unless the applicable FED- should remain on file until the ex- ERAL REGISTER notice states otherwise. porter has received approval from Subsequent reexport or retransfer must DDTC to retire the license(s) and tran- be made pursuant to § 123.9 of this sub- sition to this section. When this ap- chapter. (5) Any defense article or defense proval is conveyed to U.S. Customs and service transitioned from a license or Border Protection by DDTC, the li- other approval to treatment under this cense(s) will be returned to DDTC by section must be marked in accordance U.S. Customs and Border Protection in with the requirements of paragraph (j) accord with existing procedures for the of this section. return of expired licenses in § 123.22(c) (j) Marking of exports. (1) All defense of this subchapter. articles and defense services exported (ii) Any license(s) not filed with U.S. or transitioned pursuant to the Defense Customs and Border Protection must Trade Cooperation Treaty between the be returned to DDTC with a letter cit- United States and the United Kingdom ing approval by DDTC to transition to and this section shall be marked or this section as the reason for returning identified prior to movement as fol- the license(s). lows: (3) If a member of the United King- (i) For classified defense articles and dom Community desires to transition defense services the standard marking defense articles received under an ex- or identification shall read ‘‘//CLASSI- isting license or other approval to the FICATION LEVEL USML//REL USA processes established under the Treaty, and GBR Treaty Community//.’’ For ex- the United Kingdom Community mem- ample, for defense articles classified ber must submit a written request to SECRET, the marking or identification DDTC, either directly or through the shall be ‘‘//SECRET USML//REL USA original U.S. exporter, which identifies and GBR Treaty Community//.’’ the defense articles or defense services (ii) Unclassified defense articles and to be transitioned, the existing li- defense services exported under or cense(s) or other authorizations under transitioned pursuant to this section which the defense articles or defense shall be handled while in the UK as services were received, and the Treaty- ‘‘Restricted USML’’ and the standard eligible end-use (see paragraphs (e) and marking or identification shall read ‘‘// (f) of this section regarding authorized RESTRICTED USML//REL USA and end-uses) for which the defense articles GBR Treaty Community//.’’ or defense services will be used. The de- (2) Where U.S.-origin defense articles fense article or defense service shall re- are returned to a member of the United main subject to the conditions and lim- States Community identified in para- itations of the existing license or other graph (b) of this section, any defense approval until the United Kingdom articles marked or identified pursuant Community member has received ap- to paragraph (j)(1)(ii) of this section as proval from DDTC. ‘‘//RESTRICTED USML//REL USA and

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GBR Treaty Community//’’ will be con- (k) Intermediate consignees. (1) Unclas- sidered unclassified and the marking or sified exports under this section may identification shall be removed; and only be handled by: (3) The standard marking and identi- (i) U.S. intermediate consignees who fication requirements are as follows: are: (i) Defense articles (other than tech- (A) Exporters registered with DDTC nical data) shall be individually labeled and eligible; with the appropriate identification de- (B) Licensed customs brokers who tailed in paragraphs (j)(1) and (j)(2) of are subject to background investiga- this section; or, where such labeling is tion and have passed a comprehensive impracticable (e.g., propellants, chemi- examination administered by U.S. Cus- cals), shall be accompanied by docu- toms and Border Protection; or mentation (such as contracts or in- (C) Commercial air freight and sur- voices) clearly associating the defense face shipment carriers, freight for- articles with the appropriate markings warders, or other parties not exempt as detailed in paragraphs (j)(1)(i) and from registration under § 129.3(b)(3) of (j)(1)(ii) of this section; this subchapter, that are identified at (ii) Technical data (including data the time of export as being on the U.S. packages, technical papers, manuals, Department of Defense Civil Reserve presentations, specifications, guides Air Fleet (CRAF) list of approved air carriers, a link to which is available on and reports), regardless of media or the DDTC Web site; or means of transmission (physical, oral, (ii) United Kingdom intermediate or electronic), shall be individually la- consignees who are: beled with the appropriate identifica- (A) Members of the United Kingdom tion detailed in paragraphs (j)(1) and Community; or (j)(2) of this section; or, where such la- (B) Freight forwarders, customs bro- beling is impractical shall be accom- kers, commercial air freight and sur- panied by documentation (such as con- face shipment carriers, or other United tracts or invoices) or verbal notifica- Kingdom parties that are identified at tion clearly associating the technical the time of export as being on the list data with the appropriate markings as of Authorized United Kingdom Inter- detailed in paragraphs (j)(1)(i) and mediate Consignees, which is available (j)(1)(ii) of this section; and on the DDTC Web site. (4) Defense services shall be accom- (2) Classified exports must comply panied by documentation (contracts, with the security requirements of the invoices, shipping bills, or bills of lad- National Industrial Security Program ing) clearly labeled with the appro- Operating Manual (DoD 5220.22–M and priate identification detailed in para- supplements or successors). graphs (j)(1) and (j)(2) of this section. (l) Records. (1) All exporters author- (5) The exporter shall incorporate the ized pursuant to paragraph (b)(2) of following statement as an integral part this section who export defense articles of the bill of lading and the invoice or defense services pursuant to the De- whenever defense articles are to be ex- fense Trade Cooperation Treaty be- ported: ‘‘These U.S. Munitions List tween the United States and the commodities are authorized by the U.S. United Kingdom and this section shall Government under the U.S.-UK Defense maintain detailed records of their ex- Trade Cooperation Treaty for export ports, imports, and transfers. Export- only to United Kingdom for use in ap- ers shall also maintain detailed records proved projects, programs or oper- of any reexports and retransfers ap- ations by members of the United King- proved or otherwise authorized by dom Community. They may not be re- DDTC of defense articles or defense transferred or reexported or used out- services subject to the Defense Trade side of an approved project, program, Cooperation Treaty between the United or operation, either in their original States and the United Kingdom and form or after being incorporated into this section. These records shall be other end-items, without the prior maintained for a minimum of five written approval of the U.S. Depart- years from the date of export, import, ment of State.’’ transfer, reexport, or retransfer and

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shall be made available upon request to (2) Filing of export information. All ex- DDTC or a person designated by DDTC porters of defense articles under the (e.g., U.S. Department of State’s Bu- Defense Trade Cooperation Treaty be- reau of Diplomatic Security) or U.S. tween the United States and the Immigration and Customs Enforce- United Kingdom and this section must ment, or U.S. Customs and Border Pro- electronically file Electronic Export tection. Records in an electronic for- Information (EEI) using the Auto- mat must be maintained using a proc- mated Export System citing one of the ess or system capable of reproducing four below referenced codes in the ap- all records on paper. Such records when propriate field in the EEI for each ship- displayed on a viewer, monitor, or re- ment: produced on paper, must exhibit a high (i) For exports in support of United degree of legibility and readability. States and United Kingdom combined (For the purpose of this section, ‘‘leg- military or counter-terrorism oper- ible’’ and ‘‘legibility’’ mean the quality ations identify § 126.17(e)(1) (the name of a letter or numeral that enables the or an appropriate description of the op- observer to identify it positively and eration shall be placed in the appro- quickly to the exclusion of all other priate field in the EEI, as well); letters or numerals. ‘‘Readable’’ and (ii) For exports in support of United ‘‘readability’’ means the quality of a States and United Kingdom coopera- group of letters or numerals being rective security and defense research, de- ognized as complete words or numbers.) velopment, production, and support These records shall consist of the fol- programs identify § 126.17(e)(2) (the lowing: name or an appropriate description of (i) Port of entry/exit; the program shall be placed in the ap- (ii) Date of export/import; propriate field in the EEI, as well); (iii) Method of export/import; (iii) For exports in support of mutu- (iv) Commodity code and description ally determined specific security and of the commodity, including technical defense projects where the Government data; (v) Value of export; of the United Kingdom is the end-user (vi) Reference to this section and jus- identify § 126.17(e)(3) (the name or an tification for export under the Treaty; appropriate description of the project (vii) End-user/end-use; shall be placed in the appropriate field (viii) Identification of all U.S. and in the EEI, as well); or foreign parties to the transaction; (iv) For exports that will have a U.S. (ix) How the export was marked; Government end-use identify (x) Security classification of the ex- § 126.17(e)(4) (the U.S. Government con- port; tract number or solicitation number (xi) All written correspondence with (e.g., ‘‘U.S. Government contract num- the U.S. Government on the export; ber XXXXX’’) shall be placed in the ap- (xii) All information relating to po- propriate field in the EEI, as well). litical contributions, fees, or commis- Such exports must meet the required sions furnished or obtained, offered, so- export documentation and filing guide- licited, or agreed upon as outlined in lines, including for defense services, of paragraph (m) of this section; § 123.22(a), (b)(1), and (b)(2) of this sub- (xiii) Purchase order or contract; chapter. (xiv) Technical data actually ex- (m) Fees and commissions. All export- ported; ers authorized pursuant to paragraph (xv) The Internal Transaction Num- (b)(2) of this section shall, with respect ber for the Electronic Export Informa- to each export, transfer, reexport, or tion filing in the Automated Export retransfer, pursuant to the Defense System; Trade Cooperation Treaty between the (xvi) All shipping documentation (in- United States and the United Kingdom cluding, but not limited to the airway and this section, submit a statement to bill, bill of lading, packing list, deliv- DDTC containing the information iden- ery verification, and invoice); and tified in § 130.10 of this subchapter re- (xvii) Statement of Registration lating to fees, commissions, and polit- (Form DS–2032). ical contributions on contracts or

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other instruments valued in an amount (i) A contract or other instrument for of $500,000 or more. the export of major defense equipment (n) Violations and enforcement. (1) Ex- in the amount of $25,000,000 or more, or ports, transfers, reexports, and retrans- for defense articles and defense serv- fers that do not comply with the condi- ices in the amount of $100,000,000 or tions prescribed in this section will more; constitute violations of the Arms Ex- (ii) A contract for the export of fire- port Control Act and this subchapter, arms controlled under Category I of and are subject to all relevant crimi- the U.S. Munitions List of the Inter- nal, civil, and administrative penalties national Traffic in Arms Regulations (see § 127.1 of this subchapter), and may in an amount of $1,000,000 or more; also be subject to penalty under other statutes or regulations. (iii) A contract, regardless of value, (2) U.S. Immigration and Customs for the manufacturing abroad of any Enforcement and U.S. Customs and item of significant military equipment Border Protection officers may take (see § 120.7 of this subchapter); or appropriate action to ensure compli- (iv) An amended contract that meets ance with this section as to the export the requirements of paragraphs (o)(1)(i) or the attempted export of any defense through (o)(1)(iii) of this section. article or technical data, including the (2) The written notification required inspection of loading or unloading of in paragraph (o)(1) of this section shall any vessel, vehicle, or aircraft. indicate the item/model number, gen- (3) U.S. Immigration and Customs eral item description, U.S. Munitions Enforcement and U.S. Customs and List category, value, and quantity of Border Protection officers have the au- items to be exported pursuant to the thority to investigate, detain, or seize Defense Trade Cooperation Treaty be- any export or attempted export of de- tween the United States and the fense articles or technical data that United Kingdom and this section, and does not comply with this section or shall be accompanied by the following that is otherwise unlawful. additional information: (4) DDTC or a person designated by (i) The information identified in DDTC (e.g., U.S. Department of State’s § 130.10 and § 130.11 of this subchapter; Bureau of Diplomatic Security), U.S. Immigration and Customs Enforce- (ii) A statement regarding whether ment, or U.S. Customs and Border Pro- any offset agreement is final to be en- tection may require the production of tered into in connection with the ex- documents and information relating to port and a description of any such off- any actual or attempted export, trans- set agreement; fer, reexport, or retransfer pursuant to (iii) A copy of the signed contract; this section. Any foreign person refus- and ing to provide such records within a (iv) If the notification is for para- reasonable period of time shall be sus- graph (o)(1)(ii) of this section, a state- pended from the United Kingdom Com- ment of what will happen to the weap- munity and ineligible to receive de- ons in their inventory (for example, fense articles or defense services pursu- whether the current inventory will be ant to the exemption under this sec- sold, reassigned to another service tion or otherwise. branch, destroyed, etc.). (o) Procedures for legislative notifica- (3) The Department of State will no- tion. (1) Exports pursuant to the De- tify the Congress of exports that meet fense Trade Cooperation Treaty be- the requirements of paragraph (o)(1) of tween the United States and the this section. United Kingdom and this section by any person identified in paragraph [77 FR 16601, Mar. 21, 2012, as amended at 79 (b)(2) of this section shall not take FR 8085, Feb. 11, 2014; 79 FR 21616, Apr. 17, place until 30 days after DDTC has ac- 2014] knowledged receipt of a written notification from the exporter notifying the Department of State if the export involves one or more of the following:

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§ 126.18 Exemptions regarding intra- applicable provisions of the Arms Ex- company, intra-organization, and port Control Act and the ITAR. intra-governmental transfers to em- (c) The end-user or consignee may ployees who are dual nationals or satisfy the condition in paragraph (b) third-country nationals. of this section, prior to transferring de- (a) Subject to the requirements of fense articles, by requiring: paragraphs (b) and (c) of this section (1) A security clearance approved by and notwithstanding any other provi- the host nation government for its em- sions of this part, and where the ex- ployees, or emption provided in § 124.16 cannot be (2) The end-user or consignee to have implemented because of applicable do- in place a process to screen its employ- mestic laws, no approval is needed from the Directorate of Defense Trade ees and to have executed a Non-Disclo- Controls (DDTC) for the transfer of un- sure Agreement that provides assur- classified defense articles, which in- ances that the employee will not trans- cludes technical data (see § 120.6), to or fer any defense articles to persons or within a foreign business entity, for- entities unless specifically authorized eign governmental entity, or inter- by the consignee or end-user. The end- national organization that is an au- user or consignee must screen its em- thorized end-user or consignee (includ- ployees for substantive contacts with ing approved sub-licensees) for those restricted or prohibited countries list- defense articles, including the transfer ed in § 126.1. Substantive contacts in- to dual nationals or third-country na- clude regular travel to such countries, tionals who are bona fide regular em- recent or continuing contact with ployees, directly employed by the for- agents, brokers, and nationals of such eign consignee or end-user. The trans- countries, continued demonstrated al- fer of defense articles pursuant to this legiance to such countries, mainte- section must take place completely nance of business relationships with within the physical territory of the persons from such countries, mainte- country where the end-user is located, nance of a residence in such countries, where the governmental entity or receiving salary or other continuing international organization conducts of- monetary compensation from such ficial business, or where the consignee countries, or acts otherwise indicating operates, and be within the scope of an a risk of diversion. Although nation- approved export license, other export ality does not, in and of itself, prohibit authorization, or license exemption. access to defense articles, an employee (b) The provisions of § 127.1(b) are ap- who has substantive contacts with per- plicable to any transfer under this sec- sons from countries listed in § 126.1(a) tion. As a condition of transferring to shall be presumed to raise a risk of di- foreign person employees described in version, unless DDTC determines oth- paragraph (a) of this section any de- erwise. End-users and consignees must fense article under this provision, any maintain a technology security/clear- foreign business entity, foreign govern- ance plan that includes procedures for mental entity, or international organi- screening employees for such sub- zation, as a ‘‘foreign person’’ within stantive contacts and maintain records the meaning of § 120.16, that receives a of such screening for five years. The defense article, must have effective technology security/clearance plan and procedures to prevent diversion to des- screening records shall be made avail- tinations, entities, or for purposes able to DDTC or its agents for civil and other than those authorized by the ap- criminal law enforcement purposes plicable export license or other author- upon request. ization (e.g., written approval or exemption) in order to comply with the [76 FR 28177, May 16, 2011]

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SUPPLEMENT NO. 1 TO PART 126 [Supplement No. 1*—*An ‘‘X’’ in the chart indicates that the item is excluded from use under the exemption referenced in the top of the column. An item excluded in any one row is excluded regardless of whether other rows may contain a description that would include the item.]

(CA) (AS) (UK) USML Category Exclusion § 126.5 § 126.16 § 126.17

I–XXI ...... Classified defense articles and services. See Note 1...... X X X I–XXI ...... Defense articles listed in the Missile Technology Control X X X Regime (MTCR) Annex. I–XXI ...... U.S. origin defense articles and services used for marketing ...... X X purposes and not previously licensed for export in accordance with this subchapter. I–XXI ...... Defense services for or technical data related to defense ar- X ticles identified in this supplement as excluded from the Canadian exemption. I–XXI ...... Any transaction involving the export of defense articles and X services for which congressional notification is required in accordance with § 123.15 and § 124.11 of this subchapter. See Note 17. I–XXI ...... U.S. origin defense articles and services specific to devel- ...... X X opmental systems that have not obtained written Mile- stone B approval from the U.S. Department of Defense milestone approval authority, unless such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of § 126.16 or § 126.17 of this subchapter and is consistent with other exclusions of this supplement. I–XXI ...... Nuclear weapons strategic delivery systems and all compo- X nents, parts, accessories, and attachments specifically designed for such systems and associated equipment. I–XXI ...... Defense articles and services specific to the existence or ...... X X method of compliance with anti-tamper measures, where such measures are readily identifiable, made at originating Government direction. I–XXI ...... Defense articles and services specific to reduced ...... X X observables or counter low observables in any part of the spectrum. See Note 2. I–XXI ...... Defense articles and services specific to sensor fusion be- ...... X X yond that required for display or identification correlation. See Note 3. I–XXI ...... Defense articles and services specific to the automatic tar- ...... X X get acquisition or recognition and cueing of multiple autonomous unmanned systems. I–XXI ...... Nuclear power generating equipment or propulsion equip- ...... X ment (e.g., nuclear reactors), specifically designed for military use and components therefor, specifically designed for military use. See also § 123.20 of this subchapter. I–XXI ...... Libraries (parametric technical databases) specially de- ...... X signed for military use with equipment controlled on the USML. See Note 13. I–XXI ...... Defense services or technical data specific to applied re- X search as defined in § 125.4(c)(3) of this subchapter, design methodology as defined in § 125.4(c)(4) of this subchapter, engineering analysis as defined in § 125.4(c)(5) of this subchapter, or manufacturing know-how as defined in § 125.4(c)(6) of this subchapter. See Note 12. I–XXI ...... Defense services other than those required to prepare a X quote or bid proposal in response to a written request from a department or agency of the United States Federal Government or from a Canadian Federal, Provincial, or Territorial Government; or defense services other than those required to produce, design, assemble, maintain or service a defense article for use by a registered U.S. company, or a U.S. Federal Government Program, or for end-use in a Canadian Federal, Provincial, or Territorial Government Program. See Note 14. I ...... Firearms, close assault weapons, and combat shotguns ...... X II(k) ...... Software source code related to USML Category II(c), II(d), ...... X X or II(i). See Note 4. II(k) ...... Manufacturing know-how related to USML Category II(d). X X X See Note 5.

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[Supplement No. 1*—*An ‘‘X’’ in the chart indicates that the item is excluded from use under the exemption referenced in the top of the column. An item excluded in any one row is excluded regardless of whether other rows may contain a description that would include the item.]

(CA) (AS) (UK) USML Category Exclusion § 126.5 § 126.16 § 126.17

III ...... Ammunition for firearms, close assault weapons, and com- X bat shotguns listed in USML Category I. III ...... Defense articles and services specific to ammunition and ...... X fuse setting devices for guns and armament controlled in USML Category II. III(e) ...... Manufacturing know-how related to USML Category III(d)(1) X X X or III(d)(2) and their specially designed components. See Note 5. III(e) ...... Software source code related to USML Category III(d)(1) or ...... X X III(d)(2). See Note 4. IV ...... Defense articles and services specific to man-portable air X X X defense systems (MANPADS). See Note 6. IV ...... Defense articles and services specific to rockets, designed ...... X or modified for non-military applications that do not have a range of 300 km (i.e., not controlled on the MTCR Annex). IV ...... Defense articles and services specific to torpedoes ...... X X IV ...... Defense articles and services specific to anti-personnel X X X landmines. See Note 15. IV ...... Defense articles and services specific to cluster munitions .. X X X IV(i) ...... Software source code related to USML Category IV(a), ...... X X IV(b), IV(c), or IV(g). See Note 4. IV(i) ...... Manufacturing know-how related to USML Category IV(a), X X X IV(b), IV(d), or IV(g) and their specially designed components. See Note 5. V ...... The following energetic materials and related substances: ...... X a. TATB (triaminotrinitrobenzene) (CAS 3058–38–6);. b. Explosives controlled in USML Category V(a)(38);. c. Iron powder (CAS 7439–89–6) with particle size of 3 micrometers or less produced by reduction of iron oxide with hydrogen;. d. BOBBA–8 (bis(2-methylaziridinyl)2-(2-hydroxypropanoxy) propylamino phosphine oxide), and other MAPO derivatives;. e. N-methyl-p-nitroaniline (CAS 100–15–2); or. f. Trinitrophenylmethylnitramine (tetryl) (CAS 479–45–8). V(a)(13) ...... ANF or ANAzF as described in USML Category V(a)(13)(iii) ...... X and (iv). V(a)(23) ...... Difluoraminated derivative of RDX as described in USML ...... X Category V(a)(23)(iii). V(c)(7) ...... Pyrotechnics and pyrophorics specifically formulated for ...... X military purposes to enhance or control radiated energy in any part of the IR spectrum. V(d)(3) ...... Bis-2, 2-dinitropropylnitrate (BDNPN) ...... X V(i) ...... Developmental explosives, propellants, pyrotechnics, fuels, ...... X X oxidizers, binders, additives, or precursors therefor, funded by the Department of Defense via contract or other funding authorization in accordance with notes 1 to 3 for USML Category V(i). This exclusion does not apply if such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of § 126.16 or § 126.17 of this subchapter and is consistent with other exclusions of this supplement. VI ...... Defense articles and services specific to cryogenic equip- ...... X ment, and specially designed components or accessories therefor, specially designed or configured to be installed in a vehicle for military ground, marine, airborne or space applications, capable of operating while in motion and of producing or maintaining temperatures below 103 K (¥170 °C).

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(CA) (AS) (UK) USML Category Exclusion § 126.5 § 126.16 § 126.17

VI ...... Defense articles and services specific to superconductive ...... X electrical equipment (rotating machinery and transformers) specially designed or configured to be installed in a vehicle for military ground, marine, airborne, or space applications and capable of operating while in motion. This, however, does not include direct current hybrid homopolar generators which have single-pole normal metal armatures that rotate in a magnetic field produced by superconducting windings, provided those windings are the only superconducting component in the generator. VI ...... Defense articles and services specific to naval technology ...... X X and systems relating to acoustic spectrum control and awareness. See Note 10. VI(a) ...... Nuclear powered vessels...... X X X VI(e) ...... Defense articles and services specific to naval nuclear pro- X X X pulsion equipment. See Note 7. VI(g) ...... Software source code related to USML Category VI(a) or ...... X X VI(c). See Note 4. VII ...... Defense articles and services specific to cryogenic equip- ...... X ment, and specially designed components or accessories therefor, specially designed or configured to be installed in a vehicle for military ground, marine, airborne or space applications, capable of operating while in motion and of producing or maintaining temperatures below 103 K (¥170 °C). VII ...... Defense articles and services specific to superconductive ...... X electrical equipment (rotating machinery and transformers) specially designed or configured to be installed in a vehicle for military ground, marine, airborne, or space applications and capable of operating while in motion. This, however, does not include direct current hybrid homopolar generators which have single-pole normal metal armatures that rotate in a magnetic field produced by superconducting windings, provided those windings are the only superconducting component in the generator. VIII ...... Defense articles and services specific to cryogenic equip- ...... X ment, and specially designed components and accessories therefor, specially designed or configured to be installed in a vehicle for military ground, marine, airborne or space applications, capable of operating while in motion and of producing or maintaining temperatures below 103 K (¥170 °C). VIII ...... Defense articles and services specific to superconductive ...... X electrical equipment (rotating machinery and transformers) specially designed or configured to be installed in a vehicle for military ground, marine, airborne, or space applications and capable of operating while in motion. This, however, does not include direct current hybrid homopolar generators which have single-pole normal metal armatures that rotate in a magnetic field produced by superconducting windings, provided those windings are the only superconducting component in the generator. VIII(a) ...... All USML Category VIII(a) items...... X VIII(f) ...... Developmental aircraft parts, components, accessories, and X attachments identified in USML Category VIII(f). VIII(i) ...... Manufacturing know-how related to USML Category VIII(a) X X X or VIII(e), and specially designed parts or components therefor. See Note 5. VIII(i) ...... Software source code related to USML Category VIII(a) or ...... X X VIII(e). See Note 4. IX ...... Training or simulation equipment for Man Portable Air De- ...... X X fense Systems (MANPADS). See Note 6. IX(e) ...... Software source code related to USML Category IX(a) or ...... X X IX(b). See Note 4. IX(e) ...... Software that is both specifically designed or modified for ...... X military use and specifically designed or modified for modeling or simulating military operational scenarios.

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(CA) (AS) (UK) USML Category Exclusion § 126.5 § 126.16 § 126.17

X(e) ...... Manufacturing know-how related to USML Category X(a)(1) X X X or X(a)(2), and specially designed components therefor. See Note 5. XI(a) XI(c), XI(d) ...... Defense articles and services specific to countermeasures ...... X X and counter- countermeasures See Note 9. XI(a) ...... High Frequency and Phased Array Microwave Radar sys- ...... X tems, with capabilities such as search, acquisition, tracking, moving target indication, and imaging radar systems. See Note 16. XI(a), XI(c), XI(d) ...... Defense articles and services specific to naval technology ...... X X and systems relating to acoustic spectrum control and awareness. See Note 10. XI(a), XI(c), XI(d) ...... Defense articles and services specific to USML Category ...... X X XI(b) (e.g., communications security (COMSEC) and TEMPEST). XI(d) ...... Software source code related to USML Category XI(a). See ...... X X Note 4. XI(d) ...... Manufacturing know-how related to USML Category XI(a)(3) X X X or XI(a)(4), and specially designed components therefor. See Note 5. XII ...... Defense articles and services specific to countermeasures ...... X X and counter- countermeasures. See Note 9. XII ...... Defense articles and services specific to USML Category X XII(c) articles, except any 1st- and 2nd-generation image intensification tubes and 1st- and 2nd-generation image intensification night sighting equipment. End-items in USML Category XII(c) and related technical data limited to basic operations, maintenance, and training information as authorized under the exemption in § 125.4(b)(5) of this subchapter may be exported directly to a Canadian Gov- ernment entity (i.e., federal, provincial, territorial, or municipal) consistent with § 126.5, other exclusions, and the provisions of this subchapter. XII ...... Technical data or defense services for night vision equip- X X X ment beyond basic operations, maintenance, and training data. However, the AS and UK Treaty exemptions apply when such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of § 126.16 or § 126.17 of this subchapter and is consistent with other exclusions of this supplement. XII(f) ...... Manufacturing know-how related to USML Category XII(d) X X X and specially designed components therefor. See Note 5. XII(f) ...... Software source code related to USML Category XII(a), ...... X X XII(b), XII(c), or XII(d). See Note 4. XIII(b) ...... Defense articles and services specific to USML Category ...... X X XIII(b) (Military Information Security Assurance Systems, cryptographic devices, software, and components). XIII(d) ...... Carbon/carbon billets and preforms which are reinforced in ...... X three or more dimensional planes, specifically designed, developed, modified, configured or adapted for defense articles. XIII(e) ...... Defense articles and services specific to armored plate ...... X manufactured to comply with a military standard or specification or suitable for military use. See Note 11. XIII(g) ...... Defense articles and services related to concealment and ...... X deception equipment and materials. XIII(h) ...... Energy conversion devices other than fuel cells ...... X XIII(j) ...... Defense articles and services related to hardware associ- ...... X X ated with the measurement or modification of system signatures for detection of defense articles as described in Note 2. XIII(l) ...... Software source code related to USML Category XIII(a)...... X X See Note 4. XIV ...... Defense articles and services related to toxicological ...... X X agents, including chemical agents, biological agents, and associated equipment.

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(CA) (AS) (UK) USML Category Exclusion § 126.5 § 126.16 § 126.17

XIV(a), XIV(b), Chemical agents listed in USML Category XIV(a), (d) and X XIV(d), XIV(e), (e), biological agents and biologically derived substances XIV(f). in USML Category XIV(b), and equipment listed in USML Category XIV(f) for dissemination of the chemical agents and biological agents listed in USML Category XIV(a), (b), (d), and (e). XV(a) ...... Defense articles and services specific to spacecraft/sat- X X X ellites. However, the Canadian exemption may be used for commercial communications satellites that have no other type of payload. XV(b) ...... Defense articles and services specific to ground control sta- ...... X X tions for spacecraft telemetry, tracking, and control. De- fense articles and services are not excluded under this entry if they do not control the spacecraft. Receivers for receiving satellite transmissions are also not excluded under this entry. XV(c) ...... Defense articles and services specific to GPS/PPS security ...... X X modules. XV(c) ...... Defense articles controlled in USML Category XV(c) except X end-items for end-use by the Federal Government of Canada exported directly or indirectly through a Cana- dian-registered person. XV(e) ...... Anti-jam systems with the ability to respond to incoming in- X terference by adaptively reducing antenna gain (nulling) in the direction of the interference. XV(e)(1) ...... Antennas having any of the following: ...... X a. Aperture (overall dimension of the radiating portions of the antenna) greater than 30 feet;. b. All sidelobes less than or equal to ¥35 dB relative to the peak of the main beam; or. c. Designed, modified, or configured to provide coverage area on the surface of the earth less than 200 nautical miles in diameter, where ‘‘coverage area’’ is defined as that area on the surface of the earth that is illuminated by the main beam width of the antenna (which is the angular distance between half power points of the beam). XV(e)(12) ...... Propulsion systems which permit acceleration of the satellite X on-orbit (i.e., after mission orbit injection) at rates greater than 0.1 g. XV(e)(10) ...... Attitude determination and control systems designed to pro- X vide spacecraft pointing determination and control or payload pointing system control better than 0.02 degrees per axis. XV(e) ...... All parts, components, accessories, attachments, equip- X ment, or systems for USML Category XV(a) items, except when specially designed for use in commercial communications satellites. XV(e) ...... Defense articles and services specific to spacecraft, ground ...... X X control station systems (only for spacecraft control as controlled in USML Category XV(b)), subsystems, components, parts, accessories, attachments, and associated equipment controlled in Category XV. XV(f) ...... Technical data and defense services directly related to the X X X other defense articles excluded from the exemptions for USML Category XV. XVI ...... Defense articles and services specific to design and testing X X X of nuclear weapons. XVII ...... Classified articles, and technical data and defense services X X X relating thereto, not elsewhere enumerated. See Note 1. XVIII ...... Defense articles and services specific to directed energy ...... X X weapon systems. XIX(e), XIX(f)(1), Defense articles and services specific to gas turbine engine ...... X X XIX(f)(2), XIX(g). hot section components and to Full Authority Digital En- gine Control Systems (FADEC) or Digital Electronic En- gine Controls (DEEC). See Note 8. XIX(g) ...... Technical data and defense services for gas turbine engine X X X hot sections. (This does not include hardware). See Note 8.

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(CA) (AS) (UK) USML Category Exclusion § 126.5 § 126.16 § 126.17

XX ...... Defense articles and services related to submersible ves- X X X sels, oceanographic, and associated equipment. XX ...... Defense articles and services specific to naval technology ...... X X and systems relating to acoustic spectrum control and awareness. See Note 10. XX ...... Defense articles specific to cryogenic equipment, and spe- ...... X cially designed components or accessories therefor, specially designed or configured to be installed in a vehicle for military ground, marine, airborne or space applications, capable of operating while in motion and of producing or maintaining temperatures below 103 K (¥170 °C). XX ...... Defense articles specific to superconductive electrical equip- ...... X ment (rotating machinery and transformers) specially designed or configured to be installed in a vehicle for military ground, marine, airborne, or space applications and capable of operating while in motion. This, however, does not include direct current hybrid homopolar generators that have single-pole normal metal armatures which rotate in a magnetic field produced by superconducting windings, provided those windings are the only superconducting component in the generator. XX(a) ...... Nuclear powered vessels...... X X X XX(b) ...... Defense articles and services specific to naval nuclear pro- X X X pulsion equipment. See Note 7. XX(c) ...... Defense articles and services specific to submarine combat ...... X X control systems. XX(d) ...... Software source code related to USML Category XX(a)...... X X See Note 4. XXI ...... Articles, and technical data and defense services relating X X X thereto, not otherwise enumerated on the USML, but placed in this category by the Director, Office of Defense Trade Controls Policy.

Note 1: Classified defense articles and services are not eligible for export under the Canadian exemptions. U.S. origin articles, technical data, and services controlled in USML Category XVII are not eligible for export under the UK Treaty exemption. U.S. origin classified defense articles and services are not eligible for export under either the UK or AS Treaty exemptions except when being released pursuant to a U.S. Department of Defense written request, directive, or contract that provides for the export of the defense article or service. Note 2: The phrase ‘‘any part of the spectrum’’ includes radio frequency (RF), infrared (IR), electro-optical, visual, ultraviolet (UV), acoustic, and magnetic. Defense articles related to reduced observables or counter reduced observables are defined as: (a) Signature reduction (radio frequency (RF), infrared (IR), Electro-Optical, visual, ultraviolet (UV), acoustic, magnetic, RF emissions) of defense platforms, including systems, subsystems, components, materials (including dual-purpose materials used for Electromagnetic Interference (EM) reduction), technologies, and signature prediction, test and measurement equipment and software, and material transmissivity/reflectivity prediction codes and optimization software. (b) Electronically scanned array radar, high power radars, radar processing algorithms, periscope-mounted radar systems (PA- TRIOT), LADAR, multistatic and IR focal plane array-based sensors, to include systems, subsystems, components, materials, and technologies. Note 3: Defense articles and services related to sensor fusion beyond that required for display or identification correlation is defined as techniques designed to automatically combine information from two or more sensors/sources for the purpose of target identification, tracking, designation, or passing of data in support of surveillance or weapons engagement. Sensor fusion involves sensors such as acoustic, infrared, electro optical, frequency, etc. Display or identification correlation refers to the combination of target detections from multiple sources for assignment of common target track designation. Note 4: Software source code beyond that source code required for basic operation, maintenance, and training for programs, systems, and/or subsystems is not eligible for use of the UK or AS Treaty exemptions, unless such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of § 126.16 or § 126.17 of this subchapter and is consistent with other exclusions of this supplement. Note 5: Manufacturing know-how, as defined in § 125.4(c)(6) of this subchapter, is not eligible for use of the UK or AS Treaty exemptions, unless such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of De- fense for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of § 126.16 or § 126.17 of this subchapter and is consistent with other exclusions of this supplement. Note 6: Defense articles and services specific to Man Portable Air Defense Systems (MANPADS) includes missiles that can be used without modification in other applications. It also includes production and test equipment and components specifically designed or modified for MANPAD systems, as well as training equipment specifically designed or modified for MANPAD systems. Note 7: Naval nuclear propulsion plants includes all of USML Category VI(e). Naval nuclear propulsion information consists of technical data that concern the design, arrangement, development, manufacture, testing, operation, administration, training, maintenance, and repair of the propulsion plants of naval nuclear-powered ships and prototypes, including the associated ship- board and shore-based nuclear support facilities. Examples of defense articles covered by this exclusion include nuclear propulsion plants and nuclear submarine technologies or systems; nuclear powered vessels (see USML Categories VI and XX).

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Note 8: A complete gas turbine engine with embedded hot section components or digital engine controls is eligible for export or transfer under the Treaties. Technical data, other than those data required for routine external maintenance and operation, related to the hot section is not eligible for export under the Canadian exemption. Technical data, other than those data required for routine external maintenance and operation, related to the hot section or digital engine controls, as well as individual hot section parts or components are not eligible for the Treaty exemption whether shipped separately or accompanying a complete engine. Gas turbine engine hot section exempted defense article components and technology are combustion chambers and liners; high pressure turbine blades, vanes, disks and related cooled structure; cooled low pressure turbine blades, vanes, disks and related cooled structure; cooled augmenters; and cooled nozzles. Examples of gas turbine engine hot section developmental technologies are Integrated High Performance Turbine Engine Technology (IHPTET), Versatile, Affordable Advanced Turbine Engine (VAATE), and Ultra-Efficient Engine Technology (UEET), which are also excluded from export under the exemptions. Note 9: Examples of countermeasures and counter-countermeasures related to defense articles not exportable under the AS or UK Treaty exemptions are: (a) IR countermeasures; (b) Classified techniques and capabilities; (c) Exports for precision radio frequency location that directly or indirectly supports fire control and is used for situation awareness, target identification, target acquisition, and weapons targeting and Radio Direction Finding (RDF) capabilities. Precision RF location is defined as angle of arrival accuracy of less than five degrees (RMS) and RF emitter location of less than ten percent range error; (d) Providing the capability to reprogram; and (e) Acoustics (including underwater), active and passive countermeasures, and counter-countermeasures Note 10: Examples of defense articles covered by this exclusion include underwater acoustic vector sensors; acoustic reduction; off-board, underwater, active and passive sensing, propeller/propulsor technologies; fixed mobile/floating/powered detection systems which include in-buoy signal processing for target detection and classification; autonomous underwater vehicles capable of long endurance in ocean environments (manned submarines excluded); automated control algorithms embedded in on-board autonomous platforms which enable (a) group behaviors for target detection and classification, (b) adaptation to the environment or tactical situation for enhancing target detection and classification; ‘‘intelligent autonomy’’ algorithms that define the status, group (greater than 2) behaviors, and responses to detection stimuli by autonomous, underwater vehicles; and low frequency, broad band ‘‘acoustic color,’’ active acoustic ‘‘fingerprint’’ sensing for the purpose of long range, single pass identification of ocean bottom objects, buried or otherwise (controlled under Category USML XI(a)(1), (a)(2), (b), (c), and (d)). Note 11: This exclusion does not apply to the platforms (e.g., vehicles) for which the armored plates are applied. For exclusions related to the platforms, refer to the other exclusions in this list, particularly for the category in which the platform is controlled. The excluded defense articles include constructions of metallic or non-metallic materials or combinations thereof specially designed to provide protection for military systems. The phrase ‘‘suitable for military use’’ applies to any articles or materials which have been tested to level IIIA or above IAW NIJ standard 0108.01 or comparable national standard. This exclusion does not include military helmets, body armor, or other protective garments which may be exported IAW the terms of the AS or UK Treaty. Note 12: Defense services or technical data specific to applied research (§ 125.4(c)(3) of this subchapter), design methodology (§ 125.4(c)(4) of this subchapter), engineering analysis (§ 125.4(c)(5) of this subchapter), or manufacturing know-how (§ 125.4(c)(6) of this subchapter) are not eligible for export under the Canadian exemptions. However, this exclusion does not include defense services or technical data specific to build-to-print as defined in § 125.4(c)(1) of this subchapter, build/design-to- specification as defined in § 125.4(c)(2) of this subchapter, or basic research as defined in § 125.4(c)(3) of this subchapter, or maintenance (i.e., inspection, testing, calibration or repair, including overhaul, reconditioning and one-to-one replacement of any defective items parts or components, but excluding any modification, enhancement, upgrade or other form of alteration or improvement that changes the basic performance of the item) of non-excluded defense articles which may be exported subject to other exclusions or terms of the Canadian exemptions. Note 13: The term ‘‘libraries’’ (parametric technical databases) means a collection of technical information of a military nature, reference to which may enhance the performance of military equipment or systems. Note 14: In order to utilize the authorized defense services under the Canadian exemption, the following must be complied with: (a) The Canadian contractor and subcontractor must certify, in writing, to the U.S. exporter that the technical data and defense services being exported will be used only for an activity identified in Supplement No. 1 to part 126 of this subchapter and in accordance with § 126.5 of this subchapter; and (b) A written arrangement between the U.S. exporter and the Canadian recipient must: (1) Limit delivery of the defense articles being produced directly to an identified manufacturer in the United States registered in accordance with part 122 of this subchapter; a department or agency of the United States Federal Government; a Canadian-registered person authorized in writing to manufacture defense articles by and for the Government of Canada; a Canadian Federal, Provincial, or Territorial Government; (2) Prohibit the disclosure of the technical data to any other contractor or subcontractor who is not a Canadian-registered person; (3) Provide that any subcontract contain all the limitations of § 126.5 of this subchapter; (4) Require that the Canadian contractor, including subcontractors, destroy or return to the U.S. exporter in the United States all of the technical data exported pursuant to the contract or purchase order upon fulfillment of the contract, unless for use by a Canadian or United States Government entity that requires in writing the technical data be maintained. The U.S. exporter must be provided written certification that the technical data is being retained or destroyed; and (5) Include a clause requiring that all documentation created from U.S. origin technical data contain the statement that, ‘‘This document contains technical data, the use of which is restricted by the U.S. Arms Export Control Act. This data has been provided in accordance with, and is subject to, the limitations specified in § 126.5 of the International Traffic in Arms Regulations (ITAR). By accepting this data, the consignee agrees to honor the requirements of the ITAR.’’ (c) The U.S. exporter must provide the Directorate of Defense Trade Controls a semi-annual report regarding all of their on- going activities authorized under § 126.5 of this subchapter. The report shall include the article(s) being produced; the end- user(s); the end-item into which the product is to be incorporated; the intended end-use of the product; and the names and addresses of all the Canadian contractors and subcontractors. Note 15: This exclusion does not apply to demining equipment in support of the clearance of landmines and unexploded ordnance for humanitarian purposes. As used in this exclusion, ‘‘anti-personnel landmine’’ means any mine placed under, on, or near the ground or other surface area, or delivered by artillery, rocket, mortar, or similar means or dropped from an aircraft and which is designed to be detonated or exploded by the presence, proximity, or contact of a person; any device or material which is designed, constructed, or adapted to kill or injure and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act; any manually-emplaced munition or device designed to kill, injure, or damage and which is actuated by remote control or automatically after a lapse of time. Note 16: The radar systems described are controlled in USML Category XI(a)(3)(i) through (v). As used in this entry, the term ‘‘systems’’ includes equipment, devices, software, assemblies, modules, components, practices, processes, methods, approaches, schema, frameworks, and models. Note 17: This exclusion does not apply to the export of defense articles previously notified to Congress pursuant to § 123.15 or § 124.11 of this subchapter. For use of the Australian and UK exemptions for congressional notification, see § 126.16(o) and § 126.17(o).

[79 FR 77885, Dec. 29, 2014]

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PART 127—VIOLATIONS AND ice for which a license or written ap- PENALTIES proval is required by this subchapter; or Sec. (5) To possess or attempt to possess 127.1 Violations. any defense article with intent to ex- 127.2 Misrepresentation and omission of port or transfer such defense article in facts. violation of 22 U.S.C. 2778 and 2779, or 127.3 Penalties for violations. any regulation, license, approval, or 127.4 Authority of U.S. Immigration and order issued thereunder. Customs Enforcement and U.S. Customs and Border Protection officers. (b) It is unlawful: 127.5 Authority of the Defense Security (1) To violate any of the terms or Service. conditions of a license or approval 126.6 Seizure and forfeiture in attempts at granted pursuant to this subchapter, illegal exports. any exemption contained in this sub- 127.7 Debarment. chapter, or any rule or regulation con- 127.8 [Reserved] tained in this subchapter; 127.9 Applicability of orders. 127.10 Civil penalty. (2) To engage in the business of 127.11 Past violations. brokering activities for which registra- 127.12 Voluntary disclosures. tion and a license or written approval is required by this subchapter without AUTHORITY: Sections 2, 38, and 42, Pub. L. 90–629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2791); first registering or obtaining the re- 22 U.S.C. 401; 22 U.S.C. 2651a; 22 U.S.C. 2779a; quired license or written approval from 22 U.S.C. 2780; E.O. 13637, 78 FR 16129. the Directorate of Defense Trade Con- SOURCE: 58 FR 39316, July 22, 1993, unless trols. For the purposes of this sub- otherwise noted. chapter, engaging in the business of brokering activities requires only one § 127.1 Violations. occasion of engaging in an activity as (a) Without first obtaining the re- reflected in § 129.2(b) of this subchapter. quired license or other written ap- (3) To engage in the United States in proval from the Directorate of Defense the business of either manufacturing or Trade Controls, it is unlawful: exporting defense articles or furnishing (1) To export or attempt to export defense services without complying from the United States any defense ar- with the registration requirements. ticle or technical data or to furnish or For the purposes of this subchapter, attempt to furnish any defense service engaging in the business of manufac- for which a license or written approval turing or exporting defense articles or is required by this subchapter; furnishing defense services requires (2) To reexport or retransfer or at- only one occasion of manufacturing or tempt to reexport or retransfer any de- exporting a defense article or fur- fense article, technical data, or defense nishing a defense service. service from one foreign end-user, end- (c) Any person who is granted a li- use, or destination to another foreign cense or other approval or acts pursu- end-user, end-use, or destination for ant to an exemption under this sub- which a license or written approval is chapter is responsible for the acts of required by this subchapter, including, employees, agents, brokers, and all au- as specified in § 126.16(h) and § 126.17(h) thorized persons to whom possession of of this subchapter, any defense article, the defense article, which includes technical data, or defense service that technical data, has been entrusted re- was exported from the United States garding the operation, use, possession, without a license pursuant to any ex- transportation, and handling of such emption under this subchapter; defense article abroad. All persons (3) To import or attempt to import abroad subject to U.S. jurisdiction who any defense article whenever a license obtain custody of a defense article ex- is required by this subchapter; ported from the United States or pro- (4) To conspire to export, import, reduced under an agreement described in export, retransfer, furnish or cause to part 124 of this subchapter, and regard- be exported, imported, reexported, re- less of the number of intermediate transferred or furnished, any defense transfers, are bound by the regulations article, technical data, or defense serv- of this subchapter in the same manner

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and to the same extent as the original (b) For the purpose of this sub- owner or transferor. chapter, export or temporary import con- (d) A person who is ineligible pursu- trol documents include the following: ant to § 120.1(c)(2) of this subchapter, or (1) An application for a permanent a person with knowledge that another export, reexport, retransfer, or a tem- person is ineligible pursuant to porary import license and supporting § 120.1(c)(2) of this subchapter, may not, documents. directly or indirectly, in any manner (2) Electronic Export Information fil- or capacity, without prior disclosure of ing. the facts to and written authorization (3) Invoice. from the Directorate of Defense Trade (4) Declaration of destination. Controls: (5) Delivery verification. (1) Apply for, obtain, or use any ex- (6) Application for temporary export. port control document as defined in (7) Application for registration. § 127.2(b) for such ineligible person; or (8) Purchase order. (2) Order, buy, receive, use, sell, de- (9) Foreign import certificate. liver, store, dispose of, forward, trans- (10) Bill-of-lading. port, finance, or otherwise service or (11) Airway bill. participate in any manner in any transaction subject to this subchapter (12) Nontransfer and use certificate. that may involve any defense article, (13) Any other document used in the which includes technical data, defense regulation or control of a defense arti- services, or brokering activities, where cle, defense service, or brokering activ- such ineligible person may obtain any ity regulated by this subchapter. benefit therefrom or have any direct or (14) Any other shipping document indirect interest therein. that has information related to the ex- (e) No person may knowingly or will- port of the defense article or defense fully attempt, solicit, cause, or aid, service. abet, counsel, demand, induce, procure, [58 FR 39316, July 22, 1993, as amended at 77 or permit the commission of any act FR 16642, Mar. 21, 2012; 78 FR 52689, Aug. 26, prohibited by, or the omission of any 2013] act required by 22 U.S.C. 2778, 22 U.S.C. 2779, or any regulation, license, ap- § 127.3 Penalties for violations. proval, or order issued thereunder. Any person who willfully: [77 FR 16641, Mar. 21, 2012, as amended at 78 (a) Violates any provision of § 38 or FR 52688, Aug. 26, 2013; 79 FR 8088, Feb. 11, § 39 of the Arms Export Control Act (22 2014] U.S.C. 2778 and 2779) or any rule or regulation issued under either § 38 or § 39 of § 127.2 Misrepresentation and omis- the Act, or any undertaking specifi- sion of facts. cally required by part 124 of this sub- (a) It is unlawful to use or attempt to chapter; or use any export or temporary import (b) In a registration, license applica- control document containing a false tion, or report required by § 38 or § 39 of statement or misrepresenting or omit- the Arms Export Control Act (22 U.S.C. ting a material fact for the purpose of 2778 and 2779) or by any rule or regula- exporting, transferring, reexporting, tion issued under either section, makes retransferring, obtaining, or furnishing any untrue statement of a material any defense article, technical data, or fact or omits a material fact required defense service. Any false statement, to be stated therein or necessary to misrepresentation, or omission of ma- make the statements therein not mis- terial fact in an export or temporary leading, shall upon conviction be sub- import control document will be con- ject to a fine or imprisonment, or both, sidered as made in a matter within the as prescribed by 22 U.S.C. 2778(c). jurisdiction of a department or agency of the United States for the purposes of [77 FR 16642, Mar. 21, 2012] 18 U.S.C. 1001, 22 U.S.C. 2778, and 22 U.S.C. 2779.

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§ 127.4 Authority of U.S. Immigration pliance with the Department of De- and Customs Enforcement and U.S. fense National Industrial Security Pro- Customs and Border Protection of- gram Operating Manual (unless such ficers. requirements are in direct conflict (a) U.S. Immigration and Customs with guidance provided by the Direc- Enforcement and U.S. Customs and torate of Defense Trade Controls, in Border Protection officers may take which case the latter guidance must be appropriate action to ensure observ- followed). Upon a request to the De- ance of this subchapter as to the export fense Security Service regarding the or the attempted export or the tem- export of any classified defense article porary import of any defense article or or technical data, the Defense Security technical data, including the inspec- Service official or a designated govern- tion of loading or unloading of any ves- ment transmittal authority may re- sel, vehicle, or aircraft. This applies quire the production of other relevant whether the export is authorized by li- documents and information relating to cense or by written approval issued the proposed export. under this subchapter or by exemption. [71 FR 20549, Apr. 21, 2006] (b) U.S. Immigration and Customs Enforcement and U.S. Customs and § 127.6 Seizure and forfeiture in at- Border Protection officers have the au- tempts at illegal exports. thority to investigate, detain or seize (a) An attempt to export from the any export or attempted export of de- United States any defense articles in fense articles or technical data con- violation of the provisions of this sub- trary to this subchapter. chapter constitutes an offense punish- (c) Upon the presentation to a U.S. able under section 401 of title 22 of the Customs and Border Protection Officer United States Code. Whenever it is of a license or written approval, or known or there is probable cause to be- claim of an exemption, authorizing the lieve that any defense article is in- export of any defense article, the cus- tended to be or is being or has been ex- toms officer may require the produc- ported or removed from the United tion of other relevant documents and States in violation of law, such article information relating to the final ex- and any vessel, vehicle or aircraft in- port. This includes an invoice, order, volved in such attempt is subject to packing list, shipping document, cor- seizure, forfeiture and disposition as respondence, instructions, and the doc- provided in section 401 of title 22 of the uments otherwise required by the U.S. United States Code. Customs and Border Protection or U.S. (b) Similarly, an attempt to violate Immigration and Customs Enforce- any of the conditions under which a ment. temporary export or temporary import (d) If an exemption under this sub- license was issued pursuant to this subchapter is used or claimed to export, chapter or to violate the requirements transfer, reexport or retransfer, fur- of § 123.2 of this subchapter also con- nish, or obtain a defense article, tech- stitutes an offense punishable under nical data, or defense service, law en- section 401 of title 22 of the United forcement officers may rely upon the States Code, and such article, together authorities noted, additional authority with any vessel, vehicle or aircraft in- identified in the language of the ex- volved in any such attempt is subject emption, and any other lawful means to seizure, forfeiture, and disposition or authorities to investigate such a as provided in section 401 of title 22 of matter. the United States Code. [70 FR 50965, Aug. 29, 2005, as amended at 77 FR 16642, Mar. 21, 2012] § 127.7 Debarment. (a) Administrative debarment. In imple- § 127.5 Authority of the Defense Secu- menting section 38 of the Arms Export rity Service. Control Act, the Assistant Secretary of In the case of exports involving clas- State for Political-Military Affairs sified technical data or defense arti- may debar and thereby prohibit any cles, the Defense Security Service may person from participating directly or take appropriate action to ensure com- indirectly in any activities that are

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subject to this subchapter for any of subchapter, is any violation of 22 the reasons listed below. Any such pro- U.S.C. 2778 or any rule or regulation hibition is referred to as an adminis- issued thereunder when such a viola- trative debarment for purposes of this tion is of such a character as to provide subchapter. The Assistant Secretary of a reasonable basis for the Directorate State for Political-Military Affairs of Defense Trade Controls to believe shall determine the appropriate period that the violator cannot be relied upon of time for administrative debarment, to comply with the statute or these which generally shall be for a period of rules or regulations in the future, and three years. Reinstatement is not auto- when such violation is established in matic, however, and in all cases the accordance with part 128 of this sub- debarred persons must submit a re- chapter. quest for reinstatement and be ap- (d) Appeals. Any person who is ineli- proved for reinstatement before engag- gible pursuant to paragraph (b) of this ing in any activities subject to this section may appeal to the Under Sec- subchapter. (See part 128 of this sub- retary of State for Arms Control and chapter for administrative procedures.) International Security for reconsider- (b) Statutory debarment. Section ation of the ineligibility determina- 38(g)(4) of the Arms Export Control Act tion. The procedures specified in § 128.13 prohibits the issuance of licenses to of this subchapter will be used in sub- persons who have been convicted of mitting a reconsideration appeal. violating the U.S. criminal statutes [78 FR 52689, Aug. 26, 2013] enumerated in section 38(g)(1) of the Arms Export Control Act. Discre- § 127.8 [Reserved] tionary authority to issue licenses is provided, but only if certain statutory § 127.9 Applicability of orders. requirements are met. It is the policy For the purpose of preventing eva- of the Department of State not to con- sion, orders of the Assistant Secretary sider applications for licenses or re- of State for Political-Military Affairs quests for approvals involving any per- debarring a person under § 127.7 may be son who has been convicted of violating made applicable to any other person the Arms Export Control Act or con- who may then or thereafter (during the victed of conspiracy to violate that Act term of the order) be related to the for a three year period following con- debarred person by affiliation, owner- viction. Such individuals shall be noti- ship, control, position of responsibility, fied in writing that they are statu- or other commercial connection. Ap- torily debarred pursuant to this policy. propriate notice and opportunity to re- A list of persons who have been con- spond to the basis for the suspension victed of such offenses and debarred for will be given. this reason shall be published periodically in the FEDERAL REGISTER. Statu- [78 FR 52689, Aug. 26, 2013] tory debarment in such cases is based solely upon the outcome of a criminal § 127.10 Civil penalty. proceeding, conducted by a court of the (a) The Assistant Secretary of State United States, that established guilt for Political-Military Affairs is author- beyond a reasonable doubt in accord- ized to impose a civil penalty in an ance with due process. The procedures amount not to exceed that authorized of part 128 of this subchapter are not by 22 U.S.C. 2778, 2779a, and 2780 for applicable in such cases. each violation of 22 U.S.C. 2778, 2779a, (c) Grounds. (1) The basis for statu- and 2780, or any regulation, order, li- tory debarment, as described in para- cense, or written approval issued there- graph (b) of this section, is any convic- under. This civil penalty may be either tion for violating the Arms Export in addition to, or in lieu of, any other Control Act (see § 127.3) or any con- liability or penalty which may be im- spiracy to violate the Arms Export posed. Control Act. (b) The Directorate of Defense Trade (2) The basis for administrative de- Controls may make: barment, as described in paragraph (a) (1) The payment of a civil penalty of this section and in part 128 of this under this section or

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(2) The completion of any adminis- shall consult with the Office of the trative action pursuant to this part 127 Legal Adviser and the Department of or 128 of this subchapter a prior condi- the Treasury regarding law enforce- tion for the issuance, restoration, or ment concerns, and may also request continuing validity of any export li- the views of other departments, includ- cense or other approval. ing the Department of Justice. If the Directorate of Defense Trade Controls [58 FR 39316, July 22, 1993, as amended at 62 FR 67276, Dec. 24, 1997; 71 FR 20550, Apr. 21, does grant the license or other ap- 2006; 77 FR 16642, Mar. 21, 2012] proval, subsequent applications from the same person need not repeat the in- § 127.11 Past violations. formation previously provided but (a) Presumption of denial. Pursuant to should instead refer to the favorable section 38 of the Arms Export Control decision. Act, licenses or other approvals may (c) Debarred persons. Persons debarred not be granted to persons who have pursuant to § 127.7(c) (statutory debar- been convicted of violating any of the ment) may not utilize the procedures U.S. criminal statutes enumerated in provided by this section while the de- § 120.27 of this subchapter or who are in- barment is in force. Such persons may eligible to receive any export licenses utilize only the procedures provided by from any agency of the U.S. Govern- § 127.7(d) of this part. ment, subject to a narrowly defined [71 FR 20550, Apr. 21, 2006, as amended at 79 statutory exception. This provision es- FR 8088, Feb. 11, 2014] tablishes a presumption of denial for licenses or other approvals involving § 127.12 Voluntary disclosures. such persons. This presumption is ap- (a) General policy. The Department plied by the Directorate of Defense strongly encourages the disclosure of Trade Controls to all persons convicted information to the Directorate of De- or deemed ineligible in this manner fense Trade Controls by persons (see since the effective date of the Arms Ex- § 120.14 of this subchapter) that believe port Control Act (Public Law 94–329; 90 they may have violated any export Stat. 729) (June 30, 1976). control provision of the Arms Export (b) Policy. An exception to the policy Control Act, or any regulation, order, of the Department of State to deny ap- license, or other authorization issued plications for licenses or other approv- under the authority of the Arms Ex- als that involve persons described in port Control Act. The Department may paragraph (a) of this section shall not consider a voluntary disclosure as a be considered unless there are extraor- mitigating factor in determining the dinary circumstances surrounding the administrative penalties, if any, that conviction or ineligibility to export, should be imposed. Failure to report a and only if the applicant demonstrates, violation may result in circumstances to the satisfaction of the Assistant detrimental to U.S. national security Secretary of State for Political-Mili- and foreign policy interests, and will be tary Affairs, that the applicant has an adverse factor in determining the taken appropriate steps to mitigate appropriate disposition of such viola- any law enforcement and other legiti- tions. mate concerns, and to deal with the (b) Limitations. (1) The provisions of causes that resulted in the conviction, this section apply only when informa- ineligibility, or debarment. Any person tion is provided to the Directorate of described in paragraph (a) of this sec- Defense Trade Controls for its review tion who wishes to request consider- in determining whether to take admin- ation of any application must explain, istrative action under part 128 of this in a letter to the Deputy Assistant Sec- subchapter concerning a violation of retary of State for Defense Trade Con- the export control provisions of the trols the reasons why the application Arms Export Control Act and these should be considered. If the Assistant regulations. Secretary of State for Political-Mili- (2) The provisions of this section tary Affairs concludes that the applica- apply only when information is re- tion and written explanation have suf- ceived by the Directorate of Defense ficient merit, the Assistant Secretary Trade Controls for review prior to such

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time that either the Department of in any civil, criminal, administrative, State or any other agency, bureau, or or other matter. department of the United States Gov- (5) Nothing in this section shall be ernment obtains knowledge of either interpreted to negate or lessen the af- the same or substantially similar infor- firmative duty pursuant to §§ 126.1(e), mation from another source and com- 126.16(h)(5), and 126.17(h)(5) of this sub- mences an investigation or inquiry chapter upon persons to inform the Di- that involves that information, and rectorate of Defense Trade Controls of that is intended to determine whether the actual or final sale, export, trans- the Arms Export Control Act or these fer, reexport, or retransfer of a defense regulations, or any other license, article, technical data, or defense serv- order, or other authorization issued ice to any country referred to in § 126.1 under the Arms Export Control Act has of this subchapter, any citizen of such been violated. country, or any person acting on its be- (3) The violation(s) in question, de- half. spite the voluntary nature of the dis- (c) Notification. (1) Any person want- closure, may merit penalties, adminis- ing to disclose information that con- trative actions, sanctions, or referrals stitutes a voluntary disclosure should, to the Department of Justice to con- in the manner outlined below, initially sider criminal prosecution. In the lat- notify the Directorate of Defense Trade ter case, the Directorate of Defense Controls immediately after a violation Trade Controls will notify the Depart- is discovered and then conduct a thor- ment of Justice of the voluntary na- ough review of all defense trade trans- ture of the disclosure, although the De- actions where a violation is suspected. partment of Justice is not required to (i) If the notification does not con- give that fact any weight. The Direc- tain all the information required by torate of Defense Trade Controls has 127.12(c)(2) of this section, a full disclo- the sole discretion to consider whether sure must be submitted within 60 cal- ‘‘voluntary disclosure,’’ in context endar days of the notification, or the with other relevant information in a particular case, should be a mitigating Directorate of Defense Trade Controls factor in determining what, if any, ad- will not deem the notification to qual- ministrative action will be imposed. ify as a voluntary disclosure. Some of the mitigating factors the Di- (ii) If the person is unable to provide rectorate of Defense Trade Controls a full disclosure within the 60 calendar may consider are: day deadline, an empowered official (i) Whether the transaction would (see § 120.25 of this subchapter) or a sen- have been authorized, and under what ior officer may request an extension of conditions, had a proper license request time in writing. A request for an exten- been made; sion must specify what information re- (ii) Why the violation occurred; quired by § 127.12(c)(2) of this section (iii) The degree of cooperation with could not be immediately provided and the ensuing investigation; the reasons why. (iv) Whether the person has insti- (iii) Before approving an extension of tuted or improved an internal compli- time to provide the full disclosure, the ance program to reduce the likelihood Directorate of Defense Trade Controls of future violation; may require the requester to certify in (v) Whether the person making the writing that they will provide the full disclosure did so with the full knowl- disclosure within a specific time pe- edge and authorization of the person’s riod. senior management. (If not, then the (iv) Failure to provide a full disclo- Directorate will not deem the disclosure within a reasonable time may re- sure voluntary as covered in this sec- sult in a decision by the Directorate of tion.) Defense Trade Controls not to consider (4) The provisions of this section do the notification as a mitigating factor not, nor should they be relied on to, in determining the appropriate disposi- create, confer, or grant any rights, ben- tion of the violation. In addition, the efits, privileges, or protection enforce- Directorate of Defense Trade Controls able at law or in equity by any person may direct the requester to furnish all

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relevant information surrounding the such violations, if any. In addition to violation. immediately providing written notifi- (2) Notification of a violation must cation, persons are strongly urged to be in writing and should include the conduct a thorough review of all ex- following information: port-related transactions where a pos- (i) A precise description of the nature sible violation is suspected. and extent of the violation (e.g., an un- (d) Documentation. The written dis- authorized shipment, doing business closure should be accompanied by cop- with a party denied U.S. export privi- ies of substantiating documents. Where leges, etc.); appropriate, the documentation should (ii) The exact circumstances sur- include, but not be limited to: rounding the violation (a thorough ex- (1) Licensing documents (e.g., license planation of why, when, where, and applications, export licenses, and end- how the violation occurred); user statements), exemption citation, (iii) The complete identities and ad- or other authorization description, if dresses of all persons known or sus- any; pected to be involved in the activities (2) Shipping documents (e.g., Elec- giving rise to the violation (including tronic Export Information filing, in- mailing, shipping, and e-mail address- cluding the Internal Transaction Num- es; telephone and fax/facsimile number, air waybills, and bills of laden, in- bers; and any other known identifying voices, and any other associated docu- information); ments); and (iv) Department of State license (3) Any other relevant documents numbers, exemption citation, or de- must be retained by the person making scription of any other authorization, if the disclosure until the Directorate of applicable; Defense Trade Controls requests them (v) U.S. Munitions List category and or until a final decision on the dis- subcategory, product description, closed information has been made. quantity, and characteristics or tech- (e) Certification. A certification must nological capability of the hardware, be submitted stating that all of the technical data or defense service in- representations made in connection volved; with the voluntary disclosure are true (vi) A description of corrective ac- and correct to the best of that person’s tions already undertaken that clearly knowledge and belief. Certifications identifies the new compliance initia- should be executed by an empowered tives implemented to address the official (See § 120.25 of this subchapter), causes of the violations set forth in the or by a senior officer (e.g. chief execu- voluntary disclosure and any internal tive officer, president, vice-president, disciplinary action taken; and how comptroller, treasurer, general coun- these corrective actions are designed to sel, or member of the board of direc- deter those particular violations from tors). If the violation is a major viola- occurring again; tion, reveals a systemic pattern of vio- (vii) The name and address of the per- lations, or reflects the absence of an ef- son making the disclosure and a point fective compliance program, the Direc- of contact, if different, should further torate of Defense Trade Controls may information be needed. require that such certification be made (3) Factors to be addressed in the vol- by a senior officer of the company. untary disclosure include, for example, (f) Oral presentations. Oral presen- whether the violation was intentional tation is generally not necessary to or inadvertent; the degree to which the augment the written presentation. person responsible for the violation However, if the person making the dis- was familiar with the laws and regula- closure believes a meeting is desirable, tions, and whether the person was the a request should be included with the subject of prior administrative or written presentation. criminal action under the AECA; (g) Send voluntary disclosures to the whether the violations are systemic; Office of Defense Trade Controls Com- and the details of compliance meas- pliance, Directorate of Defense Trade ures, processes and programs, including Controls. Consult the Directorate of training, that were in place to prevent Defense Trade Controls Web site at

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http://www.pmddtc.state.gov for the ap- clusion of the Administrative Proce- propriate street address. dure Act and is thereby expressly exempt from various provisions of that [58 FR 39316, July 22, 1993, as amended at 70 FR 34655, June 15, 2005; 71 FR 20550, Apr. 21, Act. Because the exercising of the for- 2006; 72 FR 70778, Dec. 13, 2007; 77 FR 16642, eign affairs function, including the de- Mar. 21, 2012] cisions required to implement the Arms Export Control Act, is highly dis- PART 128—ADMINISTRATIVE cretionary, it is excluded from review PROCEDURES under the Administrative Procedure Act. Sec. [61 FR 48831, Sept. 17, 1996] 128.1 Exclusion of functions from the Ad- ministrative Procedure Act. § 128.2 Administrative Law Judge. 128.2 Administrative Law Judge. 128.3 Institution of Administrative Pro- The Administrative Law Judge re- ceedings. ferred to in this part is an Administra- 128.4 Default. tive Law Judge appointed by the De- 128.5 Answer and demand for oral hearing. partment of State. The Administrative 128.6 Discovery. Law Judge is authorized to exercise the 128.7 Prehearing conference. powers and perform the duties provided 128.8 Hearings. for in §§ 127.7 and 128.3 through 128.16 of 128.9 Proceedings before and report of Ad- this subchapter. ministrative Law Judge. 128.10 Disposition of proceedings. [78 FR 52689, Aug. 26, 2013] 128.11 Consent agreements. 128.12 Rehearings. § 128.3 Institution of Administrative 128.13 Appeals. Proceedings. 128.14 Confidentiality of proceedings. 128.15 Orders containing probationary peri- (a) Charging letters. The Deputy As- ods. sistant Secretary of State for Defense 128.16 Extension of time. Trade Controls or the Director, Office 128.17 Availability of orders. of Defense Trade Controls Compliance, AUTHORITY: Sections. 2, 38, 40, 42, and 71, with the concurrence of the Office of Arms Export Control Act. 90 Stat. 744 (22 the Legal Adviser, Department of U.S.C. 2752, 2778, 2780, 2791, and 2797); 22 State, may initiate proceedings to im- U.S.C. 2651a; E.O. 12291, 46 FR 1981; E.O. 13637, pose debarment or civil penalties in ac- 78 FR 16129. cordance with § 127.7 or § 127.10 of this SOURCE: 58 FR 39320, July 22, 1993, unless subchapter, respectively. Administra- otherwise noted. tive proceedings shall be initiated by means of a charging letter. The charg- § 128.1 Exclusion of functions from the ing letter will state the essential facts Administrative Procedure Act. constituting the alleged violation and The Arms Export Control Act au- refer to the regulatory or other provi- thorizes the President to control the sion involved. It will give notice to the import and export of defense articles respondent to answer the charges with- and services in furtherance of world in 30 days, as provided in § 128.5(a), and peace and the security and foreign pol- indicate that a failure to answer will icy of the United States. It authorizes be taken as an admission of the truth the Secretary of State to make deci- of the charges. It will inform the re- sions on whether license applications spondent that he or she is entitled to or other written requests for approval an oral hearing if a written demand for shall be granted, or whether exemp- one is filed with the answer or within tions may be used. It also authorizes seven days after service of the answer. the Secretary of State to revoke, sus- The respondent will also be informed pend or amend licenses or other writ- that he or she may, if so desired, be ten approvals whenever the Secretary represented by counsel of his or her deems such action to be advisable. The choosing. Charging letters may be administration of the Arms Export amended from time to time, upon rea- Control Act is a foreign affairs func- sonable notice. tion encompassed within the meaning (b) Service. A charging letter is served of the military and foreign affairs ex- upon a respondent:

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(1) If the respondent is a resident of manner affect an order entered upon the United States, when it is mailed default and such order continues in full postage prepaid in a wrapper addressed force and effect unless a further order to the respondent at that person’s last is made modifying or terminating it. known address; or when left with the [61 FR 48832, Sept. 17, 1996] respondent or the agent or employee of the respondent; or when left at the re- § 128.5 Answer and demand for oral spondent’s dwelling with some person hearing. of suitable age and discretion then re- (a) When to answer. The respondent is siding herein; or required to answer the charging letter (2) If the respondent is a non-resident within 30 days after service. of the United States, when served upon (b) Contents of answer. An answer the respondent by any of the foregoing must be responsive to the charging let- means. If such methods of service are ter. It must fully set forth the nature not practicable or appropriate, the of the respondent’s defense or defenses. charging letter may be tendered for In the answer, the respondent must service on the respondent to an official admit or deny specifically each sepa- of the government of the country rate allegation of the charging letter, wherein the respondent resides, pro- unless the respondent is without vided that there is an agreement or un- knowledge, in which case the respond- derstanding between the United States ent’s answer shall so state and the Government and the government of the statement shall operate as denial. Fail- country wherein the respondent resi- ure to deny or controvert any par- dent permitting this action. ticular allegation will be deemed an [61 FR 48831, Sept. 17, 1996, as amended at 71 admission thereof. The answer may set FR 20551, Apr. 21, 2006; 78 FR 52689, Aug. 26, forth such additional or new matter as 2013] the respondent believes support a defense or claim of mitigation. Any de- § 128.4 Default. fense or partial defense not specifically (a) Failure to answer. If the respond- set forth in an answer shall be deemed ent fails to answer the charging letter, waived. Evidence offered thereon by the respondent may be held in default. the respondent at a hearing may be re- The case shall then be referred to the fused except upon good cause being Administrative Law Judge for consid- shown. If the respondent does not de- eration in a manner as the Administra- mand an oral hearing, he or she shall tive Law Judge may consider appro- transmit, within seven (7) days after priate. Any order issued shall have the the service of his or her answer, origi- same effect as an order issued fol- nal or photocopies of all correspond- lowing the disposition of contested ence, papers, records, affidavits, and charges. other documentary or written evidence (b) Petition to set aside defaults. Upon having any bearing upon or connection showing good cause, any respondent with the matters in issue. If any such against whom a default order has been materials are in language other than issued may apply to set aside the de- English, translations into English shall fault and vacate the order entered be submitted at the same time. thereon. The petition shall be sub- (c) Submission of answer. The answer, mitted to duplicate to the Assistant written demand for oral hearing (if Secretary for Political-Military Af- any) and supporting evidence required fairs, U.S. Department of State, 2201 C by paragraph (b) of this section shall be Street, NW., Washington, DC 20520. The in duplicate and mailed or delivered to Director will refer the petition to the the designated Administrative Law Administrative Law Judge for consid- Judge. A copy shall be simultaneously eration and a recommendation. The mailed to the Deputy Assistant Sec- Administrative law Judge will consider retary of State for Defense Trade Con- the application and may order a hear- trols, SA–1, Room 1200, Department of ing and require the respondent to sub- State, Washington, DC 20522–0112, or mit further evidence in support of his delivered to 2401 Street NW., Wash- or her petition. The filing of a petition ington, DC addressed to the Deputy As- to set aside a default does not in any sistant Secretary of State for Defense

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Trade Controls, SA–1, Room 1200, De- (d) Enforcement of discovery rights. If partment of State, Washington, DC the Directorate of Defense Trade Con- 20037. trols fails to provide the respondent with information in its possession [58 FR 39320, July 22, 1993, as amended at 61 which is not otherwise available and FR 48832, Sept. 17, 1996; 71 FR 20551, Apr. 21, 2006; 79 FR 8089, Feb. 11, 2014] which is necessary to the respondent’s defense, the Administrative Law Judge § 128.6 Discovery. may dismiss the charges on her or his own motion or on a motion of the re- (a) Discovery by the respondent. The spondent. If the respondent fails to re- respondent, through the Administra- spond with reasonable diligence to the tive Law Judge, may request from the requests for discovery by the Direc- Directorate of Defense Trade Controls torate of Defense Trade Controls or the any relevant information, not privi- Administrative Law Judge, on her or leged or otherwise not authorized for his own motion or motion of the Direc- release, that may be necessary or help- torate of Defense Trade Controls, and ful in preparing a defense. The Direc- upon such notice to the respondent as torate of Defense Trade Controls may the Administrative Law Judge may di- provide any relevant information, not rect, may strike respondent’s answer privileged or otherwise not authorized and declare the respondent in default, for release, that may be necessary or or make any other ruling which the helpful in preparing a defense. The Di- Administrative Law Judge deems nec- rectorate of Defense Trade Controls essary and just under the cir- may supply summaries in place of cumstances. If a third party fails to re- original documents and may withhold spond to the request for information, information from discovery if the in- the Administrative Law Judge shall terests of national security or foreign consider whether the evidence sought policy so require, or if necessary to is necessary to a fair hearing, and if it comply with any statute, executive is so necessary that a fair hearing may order or regulation requiring that the not be held without it, the Administra- information not be disclosed. The re- tive Law Judge shall determine wheth- spondent may request the Administra- er substitute information is adequate tive Law Judge to request any relevant to protect the rights of the respondent. information, books, records, or other If the Administrative Law Judge de- evidence, from any other person or gov- cides that a fair hearing may be held ernment agency so long as the request with the substitute information, then is reasonable in scope and not unduly the proceedings may continue. If not, burdensome. then the Administrative Law Judge (b) Discovery by the Directorate of De- may dismiss the charges. fense Trade Controls. The Directorate of Defense Trade Controls or the Adminis- [61 FR 48832, Sept. 17, 1996, as amended at 71 FR 20551, Apr. 21, 2006] trative Law Judge may make reasonable requests from the respondent of § 128.7 Prehearing conference. admissions of facts, answers to inter- rogatories, the production of books, (a)(1) The Administrative Law Judge records, or other relevant evidence, so may, upon his own motion or upon mo- long as the request is relevant and mation of any party, request the parties terial. or their counsel to a prehearing con- (c) Subpoenas. At the request of any ference to consider: party, the Administrative Law Judge (i) Simplification of issues; may issue subpoenas, returnable before (ii) The necessity or desirability of him, requiring the attendance of wit- amendments to pleadings; nesses and the production of books, (iii) Obtaining stipulations of fact records, and other documentary or and of documents to avoid unnecessary physical evidence determined by he Ad- proof; or ministrative Law Judge to be relevant (iv) Such other matter as may expe- and material to the proceedings, rea- dite the disposition of the proceeding. sonable in scope, and not unduly bur- (2) The Administrative Law Judge densome. will prepare a summary of the action

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agreed upon or taken at the con- obtain a copy upon payment of proper ference, and will incorporate therein costs. any written stipulations or agreements [61 FR 48833, Sept. 17, 1996] made by the parties. (3) The conference proceedings may § 128.9 Proceedings before and report be recorded magnetically or taken by a of Administrative Law Judge. reporter and transcribed, and filed with (a) The Administrative Law Judge the Administrative Law Judge. may conform any part of the pro- (b) If a conference is impracticable , ceedings before him or her to the Fed- the Administrative Law Judge may re- eral Rules of Civil Procedure. The quest the parties to correspond with record may be made available in any the person to achieve the purposes of a other administrative or other pro- conference. The Administrative Law ceeding involving the same respondent. Judge shall prepare a summary of ac- (b) The Administrative Law Judge, tion taken as in the case of a con- after considering the record, will pre- ference. pare a written report. The report will [61 FR 48832, Sept. 17, 1996, as amended at 71 include findings of fact, findings of law, FR 20551, Apr. 21, 2006] a finding whether a law or regulation has been violated, and the Administra- § 128.8 Hearings. tive Law Judge’s recommendations. It shall be transmitted to the Assistant (a) A respondent who had not filed a Secretary for Political-Military Af- timely written answer is not entitled fairs, Department of State. to a hearing, and the case may be considered by the Administrative Law [61 FR 48833, Sept. 17, 1996] Judge as provided in § 128.4(a). If any answer is filed, but no oral hearing de- § 128.10 Disposition of proceedings. manded, the Administrative Law Judge Where the evidence is not sufficient may proceed to consider the case upon to support the charges, the Deputy As- the written pleadings and evidence sistant Secretary of State for Defense available. The Administrative Law Trade Controls or the Administrative Judge may provide for the making of Law Judge will dismiss the charges. the record in such manner as the Ad- Where the Administrative Law Judge ministrative Law Judge deems appro- finds that a violation has been com- priate. If respondent answers and de- mitted, the Administrative Law mands an oral hearing, the Administra- Judge’s recommendation shall be advi- tive Law Judge, upon due notice, shall sory only. The Assistant Secretary of set the case for hearing, unless a re- State for Political-Military Affairs will spondent has raised in his answer no review the record, consider the report issues of material fact to be deter- of the Administrative Law Judge, and mined. If respondent fails to appear at make an appropriate disposition of the a scheduled hearing, the hearing never- case. The Deputy Assistant Secretary of State for Defense Trade Controls theless may proceed in respondent’s ab- may issue an order debarring the re- sence. The respondent’s failure to ap- spondent from participating in the ex- pear will not affect the validity of the port of defense articles or technical hearing or any proceedings or action data or the furnishing of defense serv- thereafter. ices as provided in § 127.7 of this sub- (b) The Administrative Law Judge chapter, impose a civil penalty as pro- may administer oaths and affirma- vided in § 127.10 of this subchapter, or tions. Respondent may be represented take such action as the Administrative by counsel. Unless otherwise agreed by Law Judge may recommend. Any de- the parties and the Administrative barment order will be effective for the Law Judge the proceeding will be period of time specified therein and taken by a reporter or by magnetic re- may contain such additional terms and cording, transcribed, and filed with the conditions as are deemed appropriate. Administrative Law Judge. Respondent A copy of the order together with a may examine the transcript and may copy of the Administrative Law

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Judge’s report will be served upon the at the original hearing. The Adminis- respondent. trative Law Judge will inform the parties of any further hearing, and will [79 FR 8089, Feb. 11, 2014] conduct such hearing and submit a re- § 128.11 Consent agreements. port and recommendations in the same manner as provided for the original (a) The Directorate of Defense Trade proceeding (Described in § 128.10). Controls and the respondent may, by agreement, submit to the Administra- [61 FR 48833, Sept. 17, 1996] tive Law Judge a proposal for the issuance of a consent order. The Ad- § 128.13 Appeals. ministrative Law Judge will review the (a) Filing of appeals. An appeal must facts of the case and the proposal and be in writing, and be addressed to and may conduct conferences with the par- filed with the Under Secretary of State ties and may require the presentation for Arms Control and International Se- of evidence in the case. If the Adminis- curity, Department of State, Wash- trative Law Judge does not approve the ington, DC 20520. An appeal from a proposal, the Administrative Law final order denying export privileges or Judge will notify the parties and the imposing civil penalties must be filed case will proceed as though no consent within 30 days after receipt of a copy of proposal had been made. If the proposal the order. If the Under Secretary can- is approved, the Administrative Law not for any reason act on the appeal, Judge will report the facts of the case he or she may designate another De- along with recommendations to the As- partment of State official to receive sistant Secretary of State for Polit- and act on the appeal. ical-Military Affairs. If the Assistant (b) Grounds and conditions for appeal. Secretary of State for Political-Mili- The respondent may appeal from the tary Affairs does not approve the pro- debarment or from the imposition of a posal, the case will proceed as though civil penalty (except the imposition of no consent proposal had been made. If civil penalties pursuant to a consent the Assistant Secretary of State for order pursuant to § 128.11) upon the Political-Military Affairs approves the ground: (1) That the findings of a viola- proposal, an appropriate order may be tion are not supported by any substan- issued. tial evidence; (2) that a prejudicial (b) Cases may also be settled prior to error of law was committed: or (3) that service of a charging letter. In such an the provisions of the order are arbi- event, a proposed charging letter shall trary, capricious, or an abuse of discre- be prepared, and a consent agreement tion. The appeal must specify upon which of these grounds the appeal is and order shall be submitted for the ap- based and must indicate from which proval and signature of the Assistant provisions of the order the appeal is Secretary for Political-Military Af- taken. An appeal from an order issued fairs, and no action by the Administra- upon default will not be entertained if tive Law Judge shall be required. Cases the respondent has failed to seek relief which are settled may not be reopened as provided in § 128.4(b). or appealed. (c) Matters considered on appeal. An [61 FR 48833, Sept. 17, 1996, as amended at 71 appeal will be considered upon the FR 20552, Apr. 21, 2006] basis of the assembled record. This record consists of (but is not limited § 128.12 Rehearings. to) the charging letter, the respond- The Administrative Law Judge may ent’s answer, the transcript or mag- grant a rehearing or reopen a pro- netic recording of the hearing before ceeding at any time for the purpose of the Administrative Law Judge, the rehearing any relevant and material evi- port of the Administrative Law Judge, dence which was not known or obtain- the order of the Assistant Secretary of able at the time of the original hear- State for Political-Military Affairs, ing. A report for rehearing or reopen- and any other relevant documents in- ing must contain a summary of such volved in the proceedings before the evidence, and must explain the reasons Administrative Law Judge. The Under why it could not have been presented Secretary of State for Arms Control

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and International Security may direct Government agency showing a proper a rehearing and reopening of the pro- interest therein. ceedings before the Administrative [61 FR 48834, Sept. 17, 1996] Law Judge if he or she finds that the record is insufficient or that new evi- § 128.15 Orders containing proba- dence is relevant and material to the tionary periods. issues and was not known and was not (a) Revocation of probationary periods. reasonably available to the respondent A debarment order may set a proba- at the time of the original hearings. tionary period during which the order (d) Effect of appeals. The taking of an may be held in abeyance for all or part appeal will not stay the operation of of the debarment period, subject to the any order. conditions stated therein. The Deputy (e) Preparation of appeals—(1) General Assistant Secretary of State for De- requirements. An appeal shall be in let- fense Trade Controls may apply, with- ter form. The appeal and accompanying out notice to any person to be affected material should be filed in duplicate, thereby, to the Administrative Law unless otherwise indicated, and a copy Judge for a recommendation on the ap- simultaneously mailed to the Deputy propriateness of revoking probation Assistant Secretary of State for De- when it appears that the conditions of fense Trade Controls, SA–1, Room 1200, the probation have been breached. The Department of State, Washington, DC facts in support of the application will 20522–0112 or delivered to 2401 E Street be presented to the Administrative NW., Washington, DC addressed to the Law Judge, who will report thereon Deputy Assistant Secretary of State and make a recommendation to the As- for Defense Trade Controls, SA–1, sistant Secretary of State for Polit- Room 1200, Department of State, Wash- ical-Military Affairs. The latter will ington, DC 20037. make a determination whether to re- (2) Oral presentation. The Under Sec- voke probation and will issue an appro- retary of State for Arms Control and priate order. The party affected by this International Security may grant the action may request the Assistant Sec- appellant an opportunity for oral argu- retary of State for Political-Military ment and will set the time and place Affairs to reconsider the decision by for oral argument and will notify the submitting a request within 10 days of parties, ordinarily at least 10 days be- the date of the order. fore the date set. (b) Hearings—(1) Objections upon no- (f) Decisions. All appeals will be con- tice. Any person affected by an applica- sidered and decided within a reasonable tion upon notice to revoke probation, time after they are filed. An appeal within the time specified in the notice, may be granted or denied in whole or may file objections with the Adminis- in part, or dismissed at the request of trative Law Judge. the appellant. The decision of the (2) Objections to order without notice. Under Secretary of State for Arms Any person adversely affected by an Control and International Security will order revoking probation, without no- be final. tice may request that the order be set [58 FR 39320, July 22, 1993, as amended at 61 aside by filing his objections thereto FR 48833, Sept. 17, 1996; 71 FR 20552, Apr. 21, with the Administrative Law Judge. 2006; 79 FR 8089, Feb. 11, 2014] The request will not stay the effective date of the order or revocation. § 128.14 Confidentiality of pro- (3) Requirements for filing objections. ceedings. Objections filed with the Administra- Proceedings under this part are con- tive Law Judge must be submitted in fidential. The documents referred to in writing and in duplicate. A copy must § 128.17 are not, however, deemed to be be simultaneously submitted to the Di- confidential. Reports of the Adminis- rectorate of Defense Trade Controls. trative Law Judge and copies of tran- Denials and admissions, as well as any scripts or recordings of hearings will be mitigating circumstances, which the available to parties and, to the extent person affected intends to present must of their own testimony, to witnesses. be set forth in or accompany the letter All records are available to any U.S. of objection and must be supported by

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evidence. A request for an oral hearing 129.6 Procedures for obtaining approval. may be made at the time of filing ob- 129.7 Policy on embargoes and other pro- jections. scriptions. (4) Determination. The application and 129.8 Submission of Statement of Registra- tion, registration fees, and notification objections thereto will be referred to of changes in information furnished by the Administrative Law Judge. An oral registrants. hearing if requested, will be conducted 129.9 Guidance. at an early convenient date, unless the 129.10 Reports. objections filed raise no issues of mate- 129.11 Maintenance of brokering records by rial fact to be determined. The Admin- registrants. istrative Law Judge will report the AUTHORITY: Section 38, Pub. L. 104–164, 110 facts and make a recommendation to Stat. 1437, (22 U.S.C. 2778); E.O. 13637, 78 FR the Assistant Secretary for Political- 16129. Military Affairs, who will determine SOURCE: 62 FR 67276, Dec. 24, 1997, unless whether the application should be otherwise noted. granted or denied and will issue an appropriate order. A copy of the order § 129.1 Purpose. and of the Administrative Law Judge’s (a) Section 38(b)(1)(A)(ii) of the Arms report will be furnished to any person Export Control Act (22 U.S.C. 2778) pro- affected thereby. vides that persons engaged in the busi- (5) Effect of revocation on other actions. ness of brokering activities shall reg- The revocation of a probationary pe- ister and pay a registration fee as pre- riod will not preclude any other action scribed in regulations, and that no per- concerning a further violation, even son may engage in the business of where revocation is based on the fur- brokering activities without a license ther violation. issued in accordance with the Act. [61 FR 48834, Sept. 17, 1996, as amended at 71 (b) The brokering activities identi- FR 20552, Apr. 21, 2006; 78 FR 52689, Aug. 26, fied in this subchapter apply to those 2013; 79 FR 8089, Feb. 11, 2014] defense articles and defense services controlled for purposes of export on the § 128.16 Extension of time. U.S. Munitions List (see part 121 of this The Administrative Law Judge, for subchapter) or for purposes of perma- good cause shown, may extend the time nent import on the U.S. Munitions Im- within which to prepare and submit an port List (see 27 CFR part 447). answer to a charging letter or to perform any other act required by this [78 FR 52690, Aug. 26, 2013] part. § 129.2 Definitions. [61 FR 48834, Sept. 17, 1996] As used in this part: (a) Broker means any person (see § 128.17 Availability of orders. § 120.14 of this subchapter) described All charging letters, debarment or- below who engages in the business of ders, and orders imposing civil pen- brokering activities: alties and probationary periods are (1) Any U.S. person (see § 120.15 of this available for public inspection in the subchapter) wherever located; Public Reading Room of the Depart- (2) Any foreign person (see § 120.16 of ment of State. this subchapter) located in the United [78 FR 52690, Aug. 26, 2013] States; or (3) Any foreign person located out- PART 129—REGISTRATION AND side the United States where the for- LICENSING OF BROKERS eign person is owned or controlled by a U.S. person.

Sec. NOTE TO PARAGRAPH (a)(3): For purposes of 129.1 Purpose. this paragraph, ‘‘owned by a U.S. person’’ 129.2 Definitions. means more than 50 percent of the out- 129.3 Requirement to register. standing voting securities of the firm are 129.4 Requirement for approval. owned by a U.S. person, and ‘‘controlled by a 129.5 Exemption from requirement for ap- U.S. person’’ means one or more U.S. persons proval. have the authority or ability to establish or

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direct the general policies or day-to-day op- (v) Activities performed by an affil- erations of the firm. U.S. person control is iate, as defined in § 120.40 of this sub- rebuttably presumed to exist where U.S. per- chapter, on behalf of another affiliate; sons own 25 percent or more of the out- or standing voting securities unless one foreign (vi) Activities by persons, including person controls an equal or larger percentage. their regular employees (see § 120.39 of this subchapter), that do not extend be- (b) Brokering activities means any ac- yond acting as an end-user of a defense tion on behalf of another to facilitate article or defense service exported pur- the manufacture, export, permanent suant to a license or other approval import, transfer, reexport, or re- under parts 123, 124, or 125 of this sub- transfer of a U.S. or foreign defense ar- chapter, or subsequently acting as a re- ticle or defense service, regardless of exporter or retransferor of such article its origin. or service under such license or other (1) Such action includes, but is not approval, or under an approval pursu- limited to: ant to § 123.9 of this subchapter. (i) Financing, insuring, transporting, (c) For the purposes of this sub- or freight forwarding defense articles chapter, engaging in the business of and defense services; or brokering activities requires only one (ii) Soliciting, promoting, negoti- occasion of brokering as described in paragraph (b) of this section. ating, contracting for, arranging, or otherwise assisting in the purchase, [78 FR 52690, Aug. 26, 2013] sale, transfer, loan, or lease of a defense article or defense service. § 129.3 Requirement to register. (2) Such action does not include: (a) Except as provided in paragraph (i) Activities by a U.S. person in the (b) of this section, any person who en- United States that are limited exclu- gages in brokering activities (see sively to U.S. domestic sales or trans- § 129.2) is required to register with the fers (e.g., not for export); Directorate of Defense Trade Controls. (ii) Activities by employees of the Registration under this section is gen- U.S. Government acting in an official erally a precondition for the issuance capacity; of approval for brokering activities required under this part 129 or the use of (iii) Activities by regular employees exemptions. (see § 120.39 of this subchapter) acting (b) Exemptions. Registration, ap- on behalf of their employer, including proval, recordkeeping, and reporting those regular employees who are dual under this section are not required for: nationals or third-country nationals (1) Foreign governments or inter- that satisfy the requirements of § 126.18 national organizations, including their of this subchapter; employees, acting in an official capac- NOTE TO PARAGRAPH (b)(2)(iii): The exclu- ity; or sion does not apply to persons subject to U.S. (2) Persons exclusively in the busi- jurisdiction with respect to activities involv- ness of financing, insuring, trans- ing a defense article or defense service origi- porting, customs brokering, or freight nating in or destined for any proscribed forwarding, whose activities do not ex- country, area, or person identified in § 126.1 tend beyond financing, insuring, trans- of this subchapter. porting, customs brokering, or freight (iv) Activities that do not extend be- forwarding. Examples include air car- yond administrative services, such as riers or freight forwarders that merely providing or arranging office space and transport or arrange transportation for equipment, hospitality, advertising, or licensed defense articles, and banks or clerical, visa, or translation services, credit companies who merely provide collecting product and pricing informa- commercially available lines or letters tion to prepare a response to Request of credit to persons registered or re- for Proposal, generally promoting com- quired to register in accordance with pany goodwill at trade shows, or activi- parts 122 or 129 of this subchapter. ties by an attorney that do not extend However, banks, firms, or other per- beyond the provision of legal advice to sons providing financing for defense ar- clients; ticles or defense services are required

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to register under certain cir- (2) Any of the following U.S. origin cumstances, such as when the bank or defense articles or defense services: its employees are directly involved in (i) Firearms and other weapons of a arranging transactions involving de- nature described by Category I(a) fense articles or defense services or through (d), Category II(a) and (d), and hold title to defense articles, even Category III(a) of § 121.1 of this sub- when no physical custody of defense ar- chapter; ticles is involved. In such cir- (ii) Rockets, bombs, and grenades as cumstances, the banks, firms, or other well as launchers for such defense arti- persons providing financing for defense cles of a nature described by Category articles or defense services are not ex- IV(a), and launch vehicles and missile empt. and anti-missile systems of a nature (c) Persons exempt from registration, described by Category IV(b) of § 121.1 of approval, recordkeeping, and reporting this subchapter (including man-port- as provided in § 129.3(b) are subject to able air-defense systems); the policy on embargoes and other pro- (iii) Vessels of war described by Cat- scriptions as outlined in § 129.7. egory VI of § 121.1 of this subchapter; (d) U.S. persons who are registered as (iv) Tanks and military vehicles de- a manufacturer or exporter in accord- scribed by Category VII of § 121.1 of this ance with part 122 of this subchapter, subchapter; including their U.S. or foreign subsidi- (v) Aircraft and unmanned aerial ve- aries and other affiliates listed on their hicles described by Category VIII of Statement of Registration who are re- § 121.1 of this subchapter; quired to register under this part, are (vi) Night vision-related defense arti- not required to submit a separate broker registration or pay a separate cles and inertial platform, sensor, and broker registration fee when more than guidance-related systems of a nature 50 percent of the voting securities are described by Category XII(c) and (d) of owned by the registrant or such sub- § 121.1 of this subchapter; sidiaries and affiliates are otherwise (vii) Chemical agents and precursors controlled by the registrant (see § 120.40 described by Category XIV(a), (c), and of this subchapter), and they are listed (e) of § 121.1 of this subchapter, biologi- and identified as brokers within their cal agents and biologically derived sub- manufacturer or exporter Statement of stances described by Category XIV(b) Registration. All other requirements of of § 121.1 of this subchapter, and equip- this part apply to such brokers and ment described by Category XIV(f) of their brokering activities. § 121.1 of this subchapter for dissemina- (e) Registration under this section is tion of the chemical agents and bio- a precondition for the issuance of ap- logical agents described by Category proval for brokering activities required XIV(a), (b), and (e) of § 121.1 of this sub- under this section or the use of exemp- chapter; tions, unless an exception is granted by (viii) Submersible vessels described the Directorate of Defense Trade Con- by Category XX of § 121.1 of this sub- trols. chapter; and (ix) Miscellaneous articles of a na- [78 FR 52690, Aug. 26, 2013] ture described by Category XXI of § 129.4 Requirement for approval. § 121.1 of this subchapter. (b) [Reserved] (a) Except as provided in § 129.5, no person who is required to register as a [78 FR 52691, Aug. 26, 2013] broker pursuant to § 129.3 of this subchapter may engage in the business of § 129.5 Exemption from requirement brokering activities pursuant to for approval. § 129.2(b) without first obtaining the ap- (a) Unless paragraph (c) of this sec- proval of the Directorate of Defense tion applies, brokering activities un- Trade Controls for the brokering of any dertaken for an agency of the U.S. Gov- of the following: ernment pursuant to a contract be- (1) Any foreign defense article or de- tween the broker and that agency are fense service (see § 120.44 of this sub- exempt from the requirement for ap- chapter, and § 129.5 for exemptions); or proval provided that:

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(1) The brokering activities concern (d) Brokers who use the exemptions defense articles or defense services in this section must comply with all solely for the use of the agency; or other provisions of this part 129. (2) The brokering activities are un- [78 FR 52691, Aug. 26, 2013] dertaken for carrying out a foreign assistance or sales program authorized § 129.6 Procedures for obtaining ap- by law and subject to control by the proval. President by other means, as dem- (a) All requests for approval of onstrated by one of the following con- brokering activities must be made to ditions being met: the Directorate of Defense Trade Con- (i) The U.S. Government agency controls, be signed by an empowered offi- tract with the broker contains an ex- cial, and include the following informa- plicit provision stating the contract tion: supports a foreign assistance or sales (1) The applicant’s name, address and program authorized by law and the registration code; contracting agency has established (2) A certification on whether: control of the activity covered by the (i) The applicant or the chief execu- contract by other means equivalent to tive officer, president, vice presidents, that established under this subchapter; secretary, partner, member, other sen- or ior officers or officials (e.g., comp- (ii) The Directorate of Defense Trade troller, treasurer, general counsel), or Controls provides written concurrence any member of the board of directors is in advance that the condition is met. the subject of an indictment or has (b) Unless paragraph (c) of this sec- been otherwise charged (e.g., by crimi- tion applies, brokering activities re- nal information in lieu of indictment) garding a foreign defense article or de- for, or has been convicted of, violating fense service (see § 120.44 of this sub- any of the U.S. criminal statutes enu- chapter) are exempt from the require- merated in § 120.27 of this subchapter; ment for approval when arranged whol- (ii) The applicant or the chief execu- ly within and destined exclusively for tive officer, president, vice presidents, the North Atlantic Treaty Organiza- secretary, partner, member, other sen- tion, any member country of that orga- ior officers or officials (e.g., comp- nization, Australia, Israel, Japan, New troller, treasurer, general counsel), or Zealand, or the Republic of Korea, ex- any member of the board of directors is cept in the case of the defense articles ineligible to contract with, or to re- or defense services specified in ceive a license or other approval to im- § 129.4(a)(2), for which approval is report defense articles or defense services quired. from, or to receive an export license or (c) Brokers engaging in brokering ac- other approval from, any agency of the tivities described in paragraph (a) or U.S. Government; and (b) of this section are not exempt from (iii) To the best of the applicant’s obtaining approval from the Direc- knowledge, any other person involved torate of Defense Trade Controls if: in the brokering activities enumerated (1) The broker is not registered as re- in the request for approval as defined quired by § 129.3; in § 129.2 is the subject of an indictment (2) The broker or any person who has or has been otherwise charged (e.g., charged by criminal information in a direct or indirect interest in or may lieu of indictment) for or has been con- benefit from the brokering activities, victed of violating any of the U.S. including any related defense article or criminal statutes enumerated in § 120.27 defense service transaction, is ineli- of this subchapter, or is ineligible to gible as defined in § 120.1(c)(2) of this contract with, or to receive a license or subchapter; or other approval to import defense arti- (3) A country or person referred to in cles or defense services from, or to re- § 126.1 of this subchapter is involved in ceive an export license or other ap- the brokering activities or such activi- proval from, any agency of the U.S. ties are otherwise subject to § 129.7. Government.

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(b) The request for approval shall de- emptions in § 129.5 from the require- scribe fully the brokering activities ment for approval are not applicable to that will be undertaken, including: brokering activities subject to this sec- (1) The action to be taken by the ap- tion. plicant to facilitate the manufacture, (b) No person may engage in or make export, import, or transfer of a defense a proposal to engage in brokering ac- article or defense service (which may tivities that involve any country, area, be referred to as a ‘‘defense article or or person referred to in § 126.1 of this defense service transaction’’); subchapter without first obtaining the (2) The name, nationality, address, approval of the Directorate of Defense and place of business of all persons who Trade Controls. may participate in the brokering ac- (c) No person may engage in or make tivities; a proposal to engage in brokering ac- (3) A description of each defense arti- tivities without first obtaining ap- cle or defense service that may be in- proval of the Directorate of Defense volved, including: Trade Controls if such activities in- (i) The U.S. Munitions List category volve countries or persons identified by and sub-category for each article; the Department of State through no- (ii) The name or military nomen- tice in the FEDERAL REGISTER, with re- clature of each defense article; spect to which certain limitations on (iii) Whether the defense article is defense articles or defense services are significant military equipment; imposed for reasons of U.S. national se- (iv) Estimated quantity of each de- curity, foreign policy, or law enforce- fense article; ment interests (e.g., an individual sub- (v) Estimated U.S. dollar value of de- ject to debarment pursuant to § 127.7 of fense articles and defense services; this subchapter). (See § 127.1(c) of this (vi) Security classification; and subchapter for additional disclosure (vii) End-user and end-use; and and approval requirements applicable (4) A statement whether the to brokering activities.) brokering activities are related to a (d) It is the policy of the Department sale through direct commercial sale or of State to deny requests for approval under the U.S. Foreign Military Sales of brokering activities or proposals to program or other activity in support of engage in brokering activities involv- the U.S. Government. ing the countries or persons referred to (c) The empowered official signing in paragraph (b) or (c) of this section. the request for approval shall include a Any person who knows or has reason to certification that the request is com- know of brokering activities involving plete and accurate. such countries or persons must imme- (d) If at the time of submission cer- diately inform the Directorate of De- tain information required by paragraph fense Trade Controls. (b) of this section is not yet available, this fact must be stated and explained [78 FR 52692, Aug. 26, 2013] in the certification required by para- § 129.8 Submission of Statement of graph (c) of this section. The Direc- Registration, registration fees, and torate of Defense Trade Controls will notification of changes in informa- take any such explanation into action furnished by registrants. count in deciding whether to approve (a) An intended registrant must sub- the request. mit a Department of State form DS– (e) The period of validity for an ap- 2032 (Statement of Registration) to the proval may not exceed four years. Office of Defense Trade Controls Com- [78 FR 52691, Aug. 26, 2013] pliance by following the submission guidelines available on the Directorate § 129.7 Policy on embargoes and other of Defense Trade Controls Web site at proscriptions. www.pmddtc.state.gov. The Statement (a) This section applies to brokering of Registration must be signed by a activities defined in § 129.2, regardless U.S. person senior officer (e.g., chief of whether the person involved in such executive officer, president, secretary, activities has registered or is exempt partner, member, treasurer, general from registration under § 129.3. The ex- counsel) who has been empowered by

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the intended registrant to sign such istrant shall include a certification by documents, with the exception that a an authorized senior officer of the fol- foreign senior officer may sign the lowing: Statement of Registration if the in- (1) Whether the intended registrant tended registrant seeks only to register or its parent, subsidiary, or other affil- as a foreign broker. The Statement of iate listed in the Statement of Reg- Registration may include subsidiaries istration, or any of its chief executive and affiliates when more than 50 per- officers, presidents, vice presidents, cent of the voting securities are owned secretaries, partners, members, other by the registrant or the subsidiaries senior officers or officials (e.g., comp- and affiliates are otherwise controlled troller, treasurer, general counsel), or by the registrant (see § 120.40 of this any member of the board of directors of subchapter). The intended registrant, the intended registrant, or of any par- whether a U.S. or foreign person, shall ent, subsidiary, or other affiliate listed submit documentation that dem- in the Statement of Registration: onstrates it is incorporated or other- (i) Has ever been indicted or otherwise authorized to do business in its re- wise charged (e.g., charged by criminal spective country. Foreign persons who information in lieu of indictment) for are required to register shall provide or has been convicted of violating any information that is substantially simi- U.S. criminal statutes enumerated in lar in content to that which a U.S. per- § 120.27 of this subchapter or violating a son would provide under this provision foreign criminal law on exportation of (e.g., foreign business license or similar defense articles where conviction of authorization to do business). The Di- such law carries a minimum term of rectorate of Defense Trade Controls imprisonment of greater than 1 year; will notify the registrant if the State- or ment of Registration (form DS–2032) is (ii) Is ineligible to contract with, or incomplete either by notifying the reg- to receive a license or other approval istrant of what information is required to import defense articles or defense or through the return of the entire registration package. services from, or to receive an export (b)(1) Frequency of registration and fee. license or other approval from, any A person who is required to register agency of the U.S. Government; and must do so on an annual basis by sub- (2) Whether the intended registrant is mitting a completed Statement of Reg- foreign owned or foreign controlled (see istration (form DS–2032) and a fee fol- § 120.37 of this subchapter). If the in- lowing the fee guidelines available on tended registrant is foreign owned or the Directorate of Defense Trade Con- foreign controlled, the certification trols Web site at www.pmddtc.state.gov. shall include an explanation of such Registrants are not required to submit ownership or control, including the a separate statement of registration identities of the foreign person or per- and pay an additional fee when provi- sons who ultimately own or control the sions in § 129.3(d) are met. registrant. This requirement applies to (2) Expiration of registration. A reg- a registrant who is a U.S. person and is istrant must submit its request for reg- owned or controlled by a foreign per- istration renewal at least 30 days, but son. It also applies to a registrant who no earlier than 60 days, prior to the ex- is a foreign person and is owned or con- piration date. trolled by a foreign person from the (3) Lapse in registration. A registrant same country or a foreign person from who fails to renew a registration and, another country. after an intervening period, seeks to (d) A registrant must, within five register again must pay registration days of the event, provide to the Direc- fees for any part of such intervening torate of Defense Trade Controls a period during which the registrant en- written notification, signed by a senior gaged in the business of brokering de- officer (e.g., chief executive officer, fense articles or defense services. president, secretary, partner, member, (c) Statement of Registration Certifi- treasurer, general counsel), if: cation. The Statement of Registration (1) Any of the persons referred to in (form DS–2032) of the intended reg- § 129.8(c) is indicted or otherwise

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charged (e.g., charged by criminal in- taining any prior approval required formation in lieu of indictment) for or under this subchapter. convicted of violating any of the U.S. (f) The new entity formed when a reg- criminal statutes enumerated in § 120.27 istrant merges with another company of this subchapter or violating a for- or acquires, or is acquired by, another eign criminal law on exportation of de- company or a subsidiary or division of fense articles where conviction of such another company, shall advise the Di- law carries a minimum term of impris- rectorate of Defense Trade Controls of onment of greater than 1 year; or be- the following: comes ineligible to contract with, or to (1) The new firm name and all pre- receive a license or other approval to vious firm names; export or import defense articles or de- (2) The registration number that will fense services from, any agency of the continue and those that are to be dis- U.S. government; or continued (if any); and (2) There is a change in the following (3) The numbers of all approvals for information contained in the State- brokering activities under the con- ment of Registration (form DS–2032): tinuing registration number, since any (i) Registrant’s name; approval not the subject of notification (ii) Registrant’s address; will be considered invalid. (iii) Registrant’s legal organization (g) A registrant whose registration structure; lapses because of failure to renew and, (iv) Ownership or control; after an intervening period, seeks to (v) The establishment, acquisition or register again must pay registration divestment of a U.S. or foreign sub- fees for any part of such intervening sidiary or other affiliate who is en- period during which the registrant engaged in brokering activities or other- gaged in the business of brokering ac- wise required to be listed in reg- tivities. istrant’s Statement of Registration; or [78 FR 52692, Aug. 26, 2013] (vi) Board of directors, senior officers, partners and owners. § 129.9 Guidance. NOTE 1 TO PARAGRAPH (d): All other (a) Any person desiring guidance on changes in the Statement of Registration whether an activity constitutes a must be provided as part of annual registra- brokering activity within the scope of tion renewal. this part 129 may request in writing NOTE 2 TO PARAGRAPH (d): For one year from October 25, 2013, ‘‘Amendment to the guidance from the Directorate of De- International Traffic in Arms Regulations: fense Trade Controls. The request for Registration and Licensing of Brokers, guidance shall identify the applicant Brokering Activities, and Related Provi- and registrant code (if applicable) and sions,’’ RIN 1400–AC37, the following changes describe fully the activities that will must be provided as part of the annual reg- be undertaken, including: istration renewal: pursuant to § 129.3(d), (1) The specific activities to be un- changes to combine an existing broker registration with an existing manufacturer/ex- dertaken by the applicant and any porter registration, and pursuant to other U.S. or foreign person; § 129.8(a), changes to an existing registration (2) The name, nationality, and geo- to remove partially owned and not otherwise graphic location of all U.S. and foreign controlled subsidiaries or affiliates, which persons who may participate in the ac- are not the subject of an internal reorganiza- tivities; tion, merger, acquisition, or divestiture. (3) A description of each defense arti- (e) A U.S. or foreign registrant must cle or defense service that may be in- provide written notification to the Di- volved, including: rectorate of Defense Trade Controls at (i) The U.S. Munitions List category least sixty (60) days in advance of any and sub-category for each article; intended sale or transfer to a foreign (ii) The name or military nomen- person of ownership or control of the clature of each defense article; registrant or any parent, subsidiary, or (iii) Whether the defense article is other affiliate listed and covered in its significant military equipment; Statement of Registration. Such notice (iv) Estimated quantity of each de- does not relieve the registrant from ob- fense article;

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(v) Estimated U.S. dollar value of de- sons who participated in the activities, fense articles and defense services; and including each person’s name, address, (vi) Security classification; nationality, and country where located (4) End-user and end-use; and and role or function; the quantity, de- (5) A copy of any agreement or docu- scription, and U.S. dollar value of the mentation, if available, between or defense articles or defense services; the among the requester and other persons type and U.S. dollar value of any con- who will be involved in the activity or sideration received or expected to be related transactions that describes the received, directly or indirectly, by any activity to be taken by such persons. person who participated in the (b) If at the time of submission cer- brokering activities, and the source tain information is not yet available, thereof. this circumstance must be stated and (c) If there were no brokering activi- explained. The Directorate of Defense ties, the report shall certify that there Trade Controls will take the complete- were no such activities. ness of the information into account in providing guidance on whether the ac- [78 FR 52694, Aug. 26, 2013] tivities constitute brokering activities. The guidance will constitute an official § 129.11 Maintenance of brokering records by registrants. determination by the Department of State. The guidance shall not sub- A person who is required to register stitute for approval when required pursuant to this part (including those under § 129.4. registered in accordance with § 129.3(d)) (c) Persons desiring guidance on must maintain records concerning other aspects of this part may also re- brokering activities in accordance with quest guidance from the Directorate of § 122.5 of this subchapter. Defense Trade Controls in a similar [78 FR 52694, Aug. 26, 2013] manner by submitting a description of the relevant facts or copies of relevant documentation. PART 130—POLITICAL CONTRIBU- TIONS, FEES AND COMMIS- [78 FR 52693, Aug. 26, 2013] SIONS § 129.10 Reports. Sec. (a) Any person required to register 130.1 Purpose. under this part (including those reg- 130.2 Applicant. istered in accordance with § 129.3(d)) 130.3 Armed forces. shall provide to the Directorate of De- 130.4 Defense articles and defense services. fense Trade Controls on an annual 130.5 Fee or commission. basis a report of its brokering activi- 130.6 Political contribution. ties in the previous twelve months. 130.7 Supplier. Such report shall be submitted along 130.8 Vendor. 130.9 Obligation to furnish information to with the registrant’s annual renewal the Directorate of Defense Trade Con- submission or, if not renewing, within trols. 30 days after expiration of registration. 130.10 Information to be furnished by appli- (b) The report shall include brokering cant or supplier to the Directorate of De- activities that received or were exempt fense Trade Controls. from approval as follows: 130.11 Supplementary reports. (1) The report shall identify the bro- 130.12 Information to be furnished by ven- ker’s name, address, and registration dor to applicant or supplier. code and be signed by an empowered of- 130.13 Information to be furnished to applicant, supplier or vendor by a recipient of ficial who shall certify that the report a fee or commission. is complete and accurate. The report 130.14 Recordkeeping. shall describe each of the brokering ac- 130.15 Confidential business information. tivities, including the number assigned 130.16 Other reporting requirements. by the Directorate of Defense Trade 130.17 Utilization of and access to reports Controls to the approval or the exemp- and records. tion claimed; and AUTHORITY: Sec. 39, Pub. L. 94–329, 90 Stat. (2) For each of the brokering activi- 767 (22 U.S.C. 2779); 22 U.S.C. 2651a; E.O. 13637, ties, the report shall identify all per- 78 FR 16129.

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SOURCE: 58 FR 39323, July 22, 1993, unless and whether or not pursuant to a writ- otherwise noted. ten contract, which is: (1) To or at the direction of any per- § 130.1 Purpose. son, irrespective of nationality, wheth- Section 39(a) of the Arms Export er or not employed by or affiliated with Control Act (22 U.S.C. 2779) provides an applicant, a supplier or a vendor; that the Secretary of State shall pre- and scribe regulations with respect to re- (2) For the solicitation or promotion porting on certain payments relating or otherwise to secure the conclusion to sales of defense articles and defense of a sale of defense articles or defense services. The provisions of this part services to or for the use of the armed implement that requirement. Defini- forces of a foreign country or inter- tions which apply to this part are con- national organization. tained in §§ 130.2 through 130.8. (b) The term fee or commission does not include: § 130.2 Applicant. (1) A political contribution or a pay- Applicant means any person who ap- ment excluded by § 130.6 from the defi- plies to the Directorate of Defense nition of political contribution; Trade Controls for any license or ap- (2) A normal salary (excluding con- proval required under this subchapter tingent compensation) established at for the export of defense articles or de- an annual rate and paid to a regular fense services valued in an amount of employee of an applicant, supplier or $500,000 or more which are being sold vendor; commercially to or for the use of the (3) General advertising or pro- armed forces of a foreign country or motional expenses not directed to any international organization. This term particular sale or purchaser; or also includes a person to whom the re- (4) Payments made, or offered or quired license or approval has been agreed to be made, solely for the pur- given. chase by an applicant, supplier or vendor of specific goods or technical, oper- [71 FR 20554, Apr. 21, 2006] ational or advisory services, which § 130.3 Armed forces. payments are not disproportionate in amount with the value of the specific Armed forces means the army, navy, goods or services actually furnished. marine, air force, or coast guard, as well as the national guard and national [58 FR 39323, July 22, 1993, as amended at 71 police, of a foreign country. This term FR 20554, Apr. 21, 2006] also includes any military unit or military personnel organized under or as- § 130.6 Political contribution. signed to an international organiza- Political contribution means any loan, tion. gift, donation or other payment of $1,000 or more made, or offered or § 130.4 Defense articles and defense agreed to be made, directly or indi- services. rectly, whether in cash or in kind, Defense articles and defense services which is: have the meaning given those terms in (a) To or for the benefit of, or at the paragraphs (3), (4) and (7) of section 47 direction of, any foreign candidate, of the Arms Export Control Act (22 committee, political party, political U.S.C. 2794 (3), (4), and (7)). When used faction, or government or govern- with reference to commercial sales, the mental subdivision, or any individual definitions in §§ 120.6 and 120.9 of this elected, appointed or otherwise des- subchapter apply. ignated as an employee or officer thereof; and § 130.5 Fee or commission. (b) For the solicitation or promotion (a) Fee or commission means, except as or otherwise to secure the conclusion provided in paragraph (b) of this sec- of a sale of defense articles or defense tion, any loan, gift, donation or other services to or for the use of the armed payment of $1,000 or more made, or of- forces of a foreign country or inter- fered or agreed to be made directly or national organization. Taxes, customs indirectly, whether in cash or in kind, duties, license fees, and other charges

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required to be paid by applicable law or information specified in § 130.10. The regulation are not regarded as political furnishing of such information or an contributions. explanation satisfactory to the Direc- tor of the Office of Defense Trade Con- § 130.7 Supplier. trols Licensing as to why all the infor- Supplier means any person who enters mation cannot be furnished at that into a contract with the Department of time is a condition precedent to the Defense for the sale of defense articles granting of the relevant license or ap- or defense services valued in an proval. amount of $500,000 or more under sec- (2) The requirements of this para- tion 22 of the Arms Export Control Act graph do not apply in the case of an ap- (22 U.S.C. 2762). plication with respect to a sale for which all the information specified in § 130.8 Vendor. § 130.10 which is required by this sec- (a) Vendor means any distributor or tion to be reported shall already have manufacturer who, directly or indi- been furnished. rectly, furnishes to an applicant or (b) Each supplier must inform the Di- supplier defense articles valued in an rectorate of Defense Trade Controls as amount of $500,000 or more which are to whether the supplier or its vendors end-items or major components as de- have paid, or offered or agreed to pay, fined in § 120.45 of this subchapter. It in respect of any sale: also means any person who, directly or (1) Political contributions in an ag- indirectly, furnishes to an applicant or gregate amount of $5,000 or more, or supplier defense articles or services (2) Fees or commissions in an aggre- valued in an amount of $500,000 or more gate amount of $100,000 or more. If so, when such articles or services are to be the supplier must furnish to the Direc- delivered (or incorporated in defense torate of Defense Trade Controls the articles or defense services to be deliv- information specified in § 130.10. The in- ered) to or for the use of the armed formation required to be furnished pur- forces of a foreign country or inter- suant to this paragraph must be so fur- national organization under: nished no later than 30 days after the (1) A sale requiring a license or ap- contract award to such supplier, or proval from the Directorate of Defense such earlier date as may be specified by Trade Controls under this subchapter; the Department of Defense. For pur- or poses of this paragraph, a contract (2) A sale pursuant to a contract with award includes a purchase order, exer- the Department of Defense under sec- cise of an option, or other procurement tion 22 of the Arms Export Control Act action requiring a supplier to furnish (22 U.S.C. 2762). defense articles or defense services to (b) [Reserved] the Department of Defense for the purposes of § 22 of the Arms Export Control [58 FR 39323, July 22, 1993, as amended at 71 FR 20554, Apr. 21, 2006; 79 FR 61236, Oct. 10, Act (22 U.S.C. 2762). 2014] (c) In determining whether an applicant or its vendors, or a supplier or its § 130.9 Obligation to furnish informa- vendors, as the case may be, have paid, tion to the Directorate of Defense or offered or agreed to pay, political Trade Controls. contributions in an aggregate amount (a)(1) Each applicant must inform the of $5,000 or more in respect of any sale Directorate of Defense Trade Controls so as to require a report under this sec- as to whether the applicant or its ven- tion, there must be included in the dors have paid, or offered or agreed to computation of such aggregate amount pay, in respect of any sale for which a any political contributions in respect license or approval is requested: of the sale which are paid by or on be- (i) Political contributions in an ag- half of, or at the direction of, any per- gregate amount of $5,000 or more, or son to whom the applicant, supplier or (ii) Fees or commissions in an aggre- vendor has paid, or offered or agreed to gate amount of $100,000 or more. If so, pay, a fee or commission in respect of applicant must furnish to the Direc- the sale. Any such political contribu- torate of Defense Trade Controls the tions are deemed for purposes of this

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part to be political contributions by (4) Except as provided in paragraph the applicant, supplier or vendor who (c) of this section, a statement setting paid or offered or agreed to pay the fee forth with respect to such sale: or commission. (i) The amount of each political con- (d) Any applicant or supplier which tribution paid, or offered or agreed to has informed the Directorate of De- be paid, or the amount of each fee or fense Trade Controls under this section commission paid, or offered or agreed that neither it nor its vendors have to be paid; paid, or offered or agreed to pay, polit- (ii) The date or dates on which each ical contributions or fees or commis- reported amount was paid, or offered or sions in an aggregate amount requiring agreed to be paid; (iii) The recipient of each such the information specified in § 130.10 to amount paid, or intended recipient if be furnished, must subsequently fur- not yet paid; nish such information within 30 days (iv) The person who paid, or offered after learning that it or its vendors had or agreed to pay such amount; and paid, or offered or agreed to pay, polit- (v) The aggregate amounts of political contributions or fees or commis- ical contributions and of fees or com- sions in respect of a sale in an aggre- mission, respectively, which shall have gate amount which, if known to appli- been reported. cant or supplier at the time of its pre- (b) In responding to paragraph (a)(4) vious communication with the Direc- of this section, the statement must: torate of Defense Trade Controls, (1) With respect to each payment re- would have required the furnishing of ported, state whether such payment information under § 130.10 at that time. was in cash or in kind. If in kind, it Any report furnished under this para- must include a description and valu- graph must, in addition to the informa- ation thereof. Where precise amounts tion specified in § 130.10, include a de- are not available because a payment tailed statement of the reasons why ap- has not yet been made, an estimate of plicant or supplier did not furnish the the amount offered or agreed to be paid information at the time specified in must be provided; paragraph (a) or paragraph (b) of this (2) With respect to each recipient, section, as applicable. state: (i) Its name; [58 FR 39323, July 22, 1993, as amended at 71 (ii) Its nationality; FR 20554, Apr. 21, 2006; 79 FR 8089, Feb. 11, (iii) Its address and principal place of 2014] business; (iv) Its employer and title; and § 130.10 Information to be furnished by applicant or supplier to the Di- (v) Its relationship, if any, to appli- rectorate of Defense Trade Con- cant, supplier, or vendor, and to any trols. foreign purchaser or end-user. (c) In submitting a report required by (a) Every person required under § 130.9, the detailed information speci- § 130.9 to furnish information specified fied in paragraph (a)(4) and (b) of this in this section in respect to any sale section need not be included if the pay- must furnish to the Directorate of De- ments do not exceed: fense Trade Controls: (1) $2,500 in the case of political con- (1) The total contract price of the tributions; and sale to the foreign purchaser; (2) $50,000 in the case of fees or com- (2) The name, nationality, address missions. and principal place of business of the In lieu of reporting detailed informa- applicant or supplier, as the case may tion with respect to such payments, be, and, if applicable, the employer and the aggregate amount thereof must be title; reported, identified as miscellaneous (3) The name, nationality, address political contributions or miscella- and principal place of business, and if neous fees or commissions, as the case applicable, employer and title of each may be. foreign purchaser, including the ulti- (d) Every person required to furnish mate end-user involved in the sale; the information specified in paragraphs

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(a) and (b) of this section must respond information specified in § 130.10 with re- fully to each subdivision of those para- spect to a sale, every applicant or sup- graphs and, where the correct response plier must obtain from each vendor, is ‘‘none’’ or ‘‘not applicable,’’ must so from or through whom the applicant state. acquired defense articles or defense [58 FR 39323, July 22, 1993, as amended at 71 services forming the whole or a part of FR 20554, Apr. 21, 2006] the sale, a full disclosure by the vendor of all political contributions or fees or § 130.11 Supplementary reports. commission paid, by vendor with re- (a) Every applicant or supplier who is spect to such sale. Such disclosure required under § 130.9 to furnish the in- must include responses to all the infor- formation specified in § 130.10 must sub- mation pertaining to vendor required mit a supplementary report in connec- to enable applicant or supplier, as the tion with each sale in respect of which case may be, to comply fully with applicant or supplier has previously §§ 130.9 and 130.10. If so required, they been required to furnish information if: must include the information furnished (1) Any political contributions aggre- by each vendor in providing the infor- gating $2,500 or more or fees or com- mation specified. missions aggregating $50,000 or more (b) Any vendor which has been re- not previously reported or paid, or of- quested by an applicant or supplier to fered or agreed to be paid by applicant furnish an initial statement under or supplier or any vendor; paragraph (a) of this section must, ex- (2) Subsequent developments cause cept as provided in paragraph (c) of the information initially reported to be this section, furnish such statement in no longer accurate or complete (as in a timely manner and not later than 20 the case where a payment actually days after receipt of such request. made is substantially different in (c) If the vendor believes that fur- amount from a previously reported es- nishing information to an applicant or timate of an amount offered or agreed supplier in a requested statement to be paid); or would unreasonably risk injury to the (3) Additional details are requested vendor’s commercial interests, the ven- by the Directorate of Defense Trade dor may furnish in lieu of the state- Controls with respect to any miscella- ment an abbreviated statement dis- neous payments reported under closing only the aggregate amount of § 130.10(c). all political contributions and the ag- (b) Supplementary reports must be gregate amount of all fees or commis- sent to the Directorate of Defense sions which have been paid, or offered Trade Controls within 30 days after the or agreed to be paid, or offered or payment, offer or agreement reported agreed to be paid, by the vendor with therein or, when requested by the Di- respect to the sale. Any abbreviated rectorate of Defense Trade Controls, statement furnished to an applicant or within 30 days after such request, and supplier under this paragraph must be must include: accompanied by a certification that (1) Any information specified in the requested information has been re- § 130.10 required or requested to be reported by the vendor directly to the Di- ported and which was not previously rectorate of Defense Trade Controls. reported; and The vendor must simultaneously re- (2) The Directorate of Defense Trade port fully to the Directorate of Defense Controls license number, if any, and Trade Controls all information which the Department of Defense contract the vendor would otherwise have been number, if any, related to the sale. required to report to the applicant or [58 FR 39323, July 22, 1993, as amended at 71 supplier under this section. Each such FR 20554, Apr. 21, 2006] report must clearly identify the sale with respect to which the reported in- § 130.12 Information to be furnished formation pertains. by vendor to applicant or supplier. (d)(1) If upon the 25th day after the (a) In order to determine whether it date of its request to vendor, an appli- is obliged under § 130.9 to furnish the cant or supplier has not received from

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the vendor the initial statement re- or vendor, as the case may be, to com- quired by paragraph (a) of this section, ply fully with §§ 130.9, 130.10, 130.11, and the applicant or supplier must submit 130.12. to the Directorate of Defense Trade (c) The applicant supplier or vendor, Controls a signed statement attesting as the case may be, must include any to: political contributions paid, or offered (i) The manner and extent of appli- or agreed to be paid, by or on behalf of, cant’s or supplier’s attempt to obtain or at the direction of, any person to from the vendor the initial statement whom it has paid, or offered or agreed required under paragraph (a) of this to pay a fee or commission in deter- section; mining whether applicant, supplier or (ii) Vendor’s failure to comply with this section; and vendor is required by §§ 130.9, 130.11, and (iii) The amount of time which has 130.12 to furnish information specified elapsed between the date of applicant’s in § 130.10. or supplier’s request and the date of the signed statement; § 130.14 Recordkeeping. (2) The failure of a vendor to comply Each applicant, supplier and vendor with this section does not relieve any must maintain a record of any infor- applicant or supplier otherwise re- mation it was required to furnish or quired by § 130.9 to submit a report to obtain under this part and all records the Directorate of Defense Trade Con- upon which its reports are based for a trols from submitting such a report. period of not less than five years fol- [58 FR 39323, July 22, 1993, as amended at 71 lowing the date of the report to which FR 20555, Apr. 21, 2006] they pertain.

§ 130.13 Information to be furnished to § 130.15 Confidential business informa- applicant, supplier or vendor by a tion. recipient of a fee or commission. (a) Any person who is required to fur- (a) Every applicant or supplier, and nish information under this part may each vendor thereof; identify any information furnished (1) In order to determine whether it hereunder which the person considers is obliged under § 130.9 or § 130.12 to furnish information specified in § 130.10 to be confidential business informa- with respect to a sale; and tion. No person, including any appli- (2) Prior to furnishing such informa- cant or supplier, shall publish, divulge, tion, must obtain from each person, if disclose, or make known in any man- any, to whom it has paid, or offered or ner, any information so identified by a agreed to pay, a fee or commission in vendor or other person unless author- respect of such sale, a timely state- ized by law or regulation. ment containing a full disclosure by (b) For purposes of this section, con- such a person of all political contribu- fidential business information means tions paid, or offered or agreed to be commercial or financial information paid, by it or on its behalf, or at its di- which by law is entitled to protection rection, in respect of such sale. Such from disclosure. (See, e.g., 5 U.S.C. disclosure must include responses to 552(b) (3) and (4); 18 U.S.C. 1905; 22 all the information required to enable U.S.C. 2778(e); Rule 26(c)(7), Federal the applicant, supplier or vendor, as Rules of Civil Procedure.) the case may be, to comply fully with §§ 130.9, 130.10, and 130.12. § 130.16 Other reporting requirements. (b) In obtaining information under paragraph (a) of this section, the appli- The submission of reports under this cant, supplier or vendor, as the case part does not relieve any person of any may be, must also require each person requirements to furnish information to to whom a fee or commission is paid, or any federal, state, or municipal agen- offered or agreed to be paid, to furnish cy, department or other instrumen- from time to time such reports of its tality as required by law, regulation or political contributions as may be nec- contract. essary to enable the applicant, supplier

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§ 130.17 Utilization of and access to re- U.S.C. 2776(a)(7) and (b)(1)) or any other ports and records. applicable law. (b) All confidential business informa- (a) All information reported and tion provided pursuant to this part records maintained under this part will shall be protected against disclosure to be made available, upon request for the extent provided by law. utilization by standing committees of (c) Nothing in this section shall pre- the Congress and subcommittees there- clude the furnishing of information to of, and by United States Government foreign governments for law enforce- agencies, in accordance with § 39(d) of ment or regulatory purposes under the Arms Export Control Act (22 U.S.C. international arrangements between 2779(d)), and reports based upon such the United States and any foreign gov- information will be submitted to Con- ernment. gress in accordance with sections [58 FR 39323, July 22, 1993, as amended at 71 36(a)(7) and 36(b)(1) of that Act (22 FR 20555, Apr. 21, 2006]

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