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 be- tween 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 443 VerDate Sep<11>2014 09:46 Jun 21, 2016 Jkt 238079 PO 00000 Frm 00453 Fmt 8010 Sfmt 8010 Y:\SGML\238079.XXX 238079 Lhorne on DSK30JT082PROD with CFR § 120.2 22 CFR Ch. I (4–1–16 Edition) of Defense Trade Controls Licensing, from any agency of the U.S. Govern- which have responsibilities related to ment, who are ineligible to receive an licensing or other approvals of defense export license or other approval from trade, including references under parts any other agency of the U.S. Govern- 120, 123, 124, 125, 126, 129, and 130 of this ment, or who are subject to a Depart- subchapter. ment of State policy of denial, suspen- (ii) The Office of Defense Trade Con- sion, or revocation under § 126.7(a) of trols Compliance and the Director, Of- this subchapter, are generally ineli- fice of Defense Trade Controls Compli- gible to be involved in activities regu- ance, which have responsibilities re- lated under the subchapter. lated to violations of law or regulation (d) The exemptions provided in this and compliance therewith, including subchapter do not apply to trans- references contained in parts 122, 126, actions in which the exporter, any 127, 128, and 130 of this subchapter, and party to the export (see § 126.7(e) of this that portion under part 129 of this sub- subchapter), any source or manufac- chapter pertaining to registration. turer, broker or other participant in (iii) The Office of Defense Trade Con- the brokering activities, is generally trols Policy and the Director, Office of ineligible as set forth in paragraph Defense Trade Controls Policy, which (c)(2) of this section, unless prior writ- have responsibilities related to the ten authorization has been granted by general policies of defense trade, in- the Directorate of Defense Trade Con- cluding references under parts 120 and trols. 126 of this subchapter, and the com- [78 FR 52684, Aug. 26, 2013, as amended at 79 modity jurisdiction procedure under FR 8084, Feb. 11, 2014] part 120 of this subchapter. (c) Receipt of licenses and eligibility. (1) § 120.2 Designation of defense articles A U.S. person may receive a license or and defense services. other approval pursuant to this sub- The Arms Export Control Act (22 chapter. A foreign person may not re- U.S.C. 2778(a) and 2794(7)) provides that ceive such a license or other approval, the President shall designate the arti- except as follows: cles and services deemed to be defense (i) A foreign governmental entity in articles and defense services for pur- the U.S. may receive a license or other poses of import or export controls. The approval; President has delegated to the Sec- (ii) A foreign person may receive a retary of State the authority to con- reexport or retransfer approval; or trol the export and temporary import (iii) A foreign person may receive a of defense articles and services. The prior approval for brokering activities. items designated by the Secretary of A request for a license or other ap- State for purposes of export and tem- proval by a U.S. person or by a person porary import control constitute the referred to in paragraphs (c)(1)(i) and U.S. Munitions List specified in part (c)(1)(iii) of this section will be consid- 121 of this subchapter. Defense articles ered only if the applicant has reg- on the U.S. Munitions List specified in istered with the Directorate of Defense part 121 of this subchapter that are also Trade Controls pursuant to part 122 or subject to permanent import control 129 of this subchapter, as appropriate. by the Attorney General on the U.S. (2) Persons who have been convicted Munitions Import List enumerated in of violating the U.S. criminal statutes 27 CFR part 447 are subject to tem- enumerated in § 120.27, who have been porary import controls administered debarred pursuant to part 127 or 128 of by the Secretary of State. Designations this subchapter, who are subject to in- of defense articles and defense services dictment or are otherwise charged are made by the Department of State (e.g., charged by criminal information with the concurrence of the Depart- in lieu of indictment) with violating ment of Defense. The scope of the U.S. the U.S. criminal statutes enumerated Munitions List shall be changed only in § 120.27, who are ineligible to con- by amendments made pursuant to sec- tract with or to receive a license or tion 38 of the Arms Export Control Act 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 444 VerDate Sep<11>2014 09:46 Jun 21, 2016 Jkt 238079 PO 00000 Frm 00454 Fmt 8010 Sfmt 8010 Y:\SGML\238079.XXX 238079 Lhorne on DSK30JT082PROD with CFR Department of State § 120.4 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.