16396 Federal Register / Vol. 87, No. 56 / Wednesday, March 23, 2022 / Rules and Regulations 

DEPARTMENT OF STATE 

22 CFR Parts 120, 121, 122, 123, 124, 

125, 126, 127, 128, 129, and 130 

[Public Notice: 11657] 

RIN 1400–AE27 

International Traffic in Arms 

Regulations: Consolidation and 

Restructuring of Purposes and 

Definitions 

AGENCY: Department of State. 

ACTION: Interim final rule. 

SUMMARY: The Department of State is 

amending the International Traffic in 

Arms Regulations (ITAR) to better 

organize the purposes and definitions of 

the regulations. This rule consolidates 

and co-locates authorities, general 

guidance, and definitions. 

DATES: 

Effective date: This interim final rule 

is effective September 6, 2022. 

Comment due date: The Department 

of State will accept comments on this 

interim final rule until May 9, 2022. 

ADDRESSES: Interested parties may 

submit comments by one of the 

following methods: 

• Email: DDTCPublicComments@

state.gov with the subject line, 

International Traffic in Arms 

Regulations: Definitions. 

• Internet: At www.regulations.gov, 

search for this document using Docket 

DOS–2022–0004. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Heidema, Director, Office of 

Defense Trade Controls Policy, 

Department of State, telephone (202) 

663–1282; email DDTCResponseTeam@

state.gov. ATTN: Regulatory Change, 

Consolidation of Definitions and 

Restructuring of Part 120. 

SUPPLEMENTARY INFORMATION: The 

Directorate of Defense Trade Controls 

(DDTC), U.S. Department of State, 

administers the International Traffic in 

Arms Regulations (ITAR) (22 CFR parts 

120–130). The regulations, codified as 

subchapter M of chapter I, title 22 of the 

Code of Federal Regulations (‘‘the 

subchapter’’) implement those 

authorities of the Arms Export Control 

Act (AECA) (22 U.S.C. 2751 et seq.) 

delegated to the Secretary of State 

pursuant to Executive Order 13637. This 

rule restructures part 120 of the ITAR to 

better organize the definitions 

previously found in that part and other 

locations throughout the ITAR and to 

consolidate provisions that provide 

background information or otherwise 

apply throughout the regulations. In 

addition, this rule adds text not 

previously found in the ITAR and 

makes clarifying revisions to existing 

text. This rule is intended to be the first 

in a series of rulemakings that will 

further streamline and clarify the 

subchapter. The Department makes the 

following revisions to the ITAR in this 

interim final rule: 

Revisions of General Application 

Prior to this rulemaking, generally 

applicable information and definitions 

were spread throughout the subchapter. 

As a result of this rulemaking, part 120 

is dividing into three subparts: Subpart 

A—General Information; Subpart B— 

General Policies and Processes; and 

Subpart C—Definitions. The division 

into subparts is intended to provide the 

reader with a roadmap for the 

regulations. Subpart A—General 

Information, consolidates and explains 

the legislative authority and purpose of 

the regulations to aid in understanding 

their importance and source. Subpart 

B—General Policies and Processes, 

outlines the general processes and 

policies of the ITAR. Finally, Subpart 

C—Definitions, provides a consolidated 

list of defined terms that are applicable 

throughout the ITAR. Part and sectionspecific information and definitions 

continue to be located in the applicable 

part or section of the regulations. DDTC 

notes that the definitions in subpart C 

are not included in alphabetical order. 

DDTC endeavored to include definitions 

in a logical order so as to provide larger 

conceptual definitions first, to keep like 

concepts together, to nest related 

definitions in single sections, and to 

match the framework of the regulations. 

DDTC believes that this structure 

outweighs any ease in finding a 

definition through the use of 

alphabetization, particularly 

considering modern methods of 

electronic search. Finally, DDTC 

believes that the relatively limited 

number of defined terms within the 

subchapter makes this subpart 

manageable in this way. 

DDTC is revising those sections 

affected by this rule that use acronyms 

to follow a standard format. Where a 

single term for which there is a known 

acronym appears on more than two 

occasions within any one section, the 

first instance is followed by a 

parenthetical containing the acronym 

and subsequent use of the term is by 

acronym. This will provide consistency 

of format without sacrificing clarity and 

limits unnecessary text. 

Section-Specific Revisions 

The following descriptions explain 

non-editorial changes in text to sections 

in this rule. Further, when discussing 

amended text that also involves the 

movement of text to a new location or 

the creation of new text modeled on 

existing language, the former or existing 

location is provided. When discussing 

amended text below, citations are to the 

section cites of this rule (i.e., the new 

location). When discussing text that has 

been moved by this rule, the location of 

the text prior to this rule is referred to 

as its ‘‘former’’ location. When 

discussing a section or text that is not 

moved by this rule, the location is 

referred to as its ‘‘existing’’ location. 

The table at the conclusion of the 

preamble provides both the former and 

new ITAR citations for all relocations of 

regulatory text at the section or sentence 

level for assistance in associating new 

citations with former citations. It also 

identifies all existing (i.e., nonrelocated) sections that have been 

revised. This rule does not amend or 

relocate any ITAR provisions not 

included in the table below. In order to 

maintain focus on changes to the text of 

the ITAR as it appeared prior to this rule 

and to the addition of new text to the 

subchapter and to minimize 

unnecessary explanation, the following 

preamble text does not describe the new 

location of the text formerly located in 

the section cites discussed. Persons 

interested in the movement of sections 

should review the table at the end of 

this section. 

Section 120.1 General Authorities 

Revising the section heading of 

existing § 120.1 from ‘‘General 

authorities, receipt of licenses, and 

ineligibility’’ to ‘‘General Authorities’’ 

to reflect the revised focus of the 

section. Revising the introductory 

paragraph of § 120.1(a) to clarify the 

manner of delegation by the Secretary of 

State to the Deputy Assistant Secretary 

of State for Defense Trade Controls, 

Bureau of Political-Military Affairs of 

the authority to administer the ITAR. 

Section 120.2 Designation of Defense 

Articles and Defense Services 

Revising the fifth sentence of existing 

§ 120.2 to include a limitation to 

defense articles and defense services 

‘‘on the USML in part 121 of this 

subchapter’’ in order to account for the 

delegation to the Attorney General of 

the authority to designate defense 

articles and services subject to control 

for permanent import by section 1(n)(ii) 

of Executive Order 13637. 

Section 120.4 Commodity Jurisdiction 

Revising existing § 120.4 to limit it to 

a statement of policy, by relocating its 

procedural aspects. Former paragraphs 

(c) through (g) of § 120.4, which provide 


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information about the procedures and 

processes for submitting a commodity 

jurisdiction request, have been relocated 

to new § 120.12 titled Commodity 

Jurisdiction Determination Requests. 

Section 120.5 Relation to Regulations 

of Other Agencies 

Revising the title of § 120.5 to 

eliminate reference to export of items 

subject to the EAR in order to more 

accurately describe the scope of the 

revised section, which is expanded to 

include relation to nuclear related 

controls and the Department of Energy 

and Nuclear Regulatory Commission 

(formerly found at § 123.20). In 

addition, revising § 120.5 to provide 

introductory headings to each paragraph 

to identify the related agencies. Revising 

existing § 120.5(a) by limiting its scope 

to the relation to the Department of 

Justice, moving the language regarding 

the relation to the Department of 

Commerce beginning at sentence 7 to a 

new paragraph (b), and by removing the 

cross-reference to former § 123.20 which 

is no longer necessary given the 

addition of § 120.5(c) (formerly found at 

§ 123.20). Revising § 120.5(b)(2) 

(formerly § 120.5(b)) by moving the 

sentence that says items subject to the 

Export Administration Regulations 

(EAR) but exported under authorization 

from DDTC do not require separate 

authorization from the Department of 

Commerce. That sentence now appears 

just before the sentence prohibiting the 

use of ITAR exemptions for items 

subject to the EAR that are 

unaccompanied by a defense article. 

DDTC believes this change minimizes 

possible confusion regarding 

requirements for Commerce approval 

and the use of ITAR exemptions. The 

change also clarifies that the reference 

to ‘‘these items’’ in new sentence three 

applies to the items discussed in 

sentences one and two. Also, the final 

parenthetical to § 120.5(b) is removed as 

an unnecessary restatement of general 

information. 

Section 120.6 U.S. Criminal Statutes 

Revising § 120.6(b) and (d) (formerly 

found at § 120.27(a)(2) and (4), 

respectively) to update U.S. Code 

citations to the Export Administration 

Act, to add a reference to the Export 

Control Reform Act, and to reflect the 

elimination of the Appendix to Title 50. 

Section 120.10 Introduction to the U.S. 

Munitions List 

Revising in § 120.10(a) (formerly 

found at § 121.1(a)) reference from ‘‘[i]n 

this part’’ to ‘‘part 121 of this 

subchapter’’ in order to reflect the move 

of the ‘‘Introduction to the U.S. 

Munitions List’’ from part 121 to new 

subpart A. Revising the paragraph 

heading in § 120.10(c) (formerly found 

at § 121.1(a)(2) from ‘‘Significant 

Military Equipment.’’ to ‘‘Significant 

Military Equipment paragraphs in the 

USML.’’ in order to more clearly 

distinguish the explanation of 

identifiers in the USML from the 

definition of significant military 

equipment at § 120.36(a) (formerly 

found at § 120.7(a)). 

Section 120.11 Order of Review 

Adding in § 120.11(c) a statement of 

the Department’s interpretation that 

defense articles remain controlled 

following incorporation or integration 

into non-defense articles. 

Section 120.12 Commodity 

Jurisdiction Determination Requests 

Revising § 120.12 in its entirety from 

its former purpose as the address of the 

Directorate of Defense Trade Controls to 

a new purpose describing the process 

for obtaining a CJ determination. The 

revised section is constructed by 

moving parts of former § 120.4(a) and all 

of § 120.4(f) to § 120.12(a) and former 

§ 120.4(c) and (d)(2) to § 120.12(b). 

Specific reference to part 121 is added 

to paragraph (a) in order to clarify that 

DDTC determinations using the CJ 

process are limited to defense articles 

and services in that part. Persons with 

questions regarding the U.S. Munitions 

Import List (USMIL) should first address 

those questions to the Bureau of 

Alcohol, Tobacco, Firearms and 

Explosives. The references to 

‘‘designation’’ (formerly found at 

§ 120.4(d)(2) and (3)) is revised to 

‘‘determination’’ in § 120.12(b) and (c) 

in order to minimize possible confusion 

regarding commodity jurisdiction 

determination requests. In addition, a 

reference to Category XXI (Articles, 

Technical Data, and Defense Services 

Not Otherwise Enumerated) is added to 

paragraph (c) in order to clarify that the 

determination of the request is that the 

article or service warrants control, but 

that at the time of the request the article 

or service does not meet the criteria of 

a defense article or defense service on 

the USML, or provide the equivalent 

performance capabilities of a defense 

article on the USML. 

Revising in § 120.12(f) (formerly 

found at § 120.4(b)) the statement 

regarding registration and the CJ 

process. The second sentence of former 

§ 120.4(b) regarding the requirement to 

register following a determination that a 

commodity is covered by the USML is 

removed from § 120.12(f) as it is a 

duplicative statement of the general 

registration requirements found in part 

122 and therefore unnecessary. Removal 

is for clarification purposes only and 

does not reflect a change in policy. 

Section 120.13 Registration 

Adding in § 120.13(b) a statement of 

registration policy regarding brokering 

derived from the requirements of 

§§ 129.2(a) and 129.3(a). This statement 

is for clarity and does not reflect a 

change in policy or regulation. 

Section 120.14 Licenses and Related 

Authorizations 

Adding in § 120.14 a general 

statement of policy regarding activities 

that are controlled and require a license 

or related authorization. Those activities 

are divided into three paragraphs: (a) 

Export, reexport, retransfer, or 

temporary import of defense articles, 

derived from existing § 123.1(a); (b) 

furnishing or providing defense 

services, derived from existing 

§ 124.1(a); and (c) brokering activities, 

derived from existing § 129.4(a). The 

general statement of policy is slightly 

revised from the language of the existing 

authorization sections in that it 

distinguishes between authorizations 

requiring a request for approval to be 

obtained from DDTC (i.e., the existing 

authorization sections), and the use of 

an exemption, for which no request is 

required to be submitted to DDTC. 

Section 120.15 Exemptions 

Adding in § 120.15(a) an explicit 

statement that persons otherwise 

required to register with DDTC may not 

utilize an exemption without being 

registered, derived from existing 

§ 120.1(c) and the Note to § 122.1(b). 

Relocating to § 120.15(b) the statement 

in former § 120.1(d) that exemptions are 

not available when parties to the export 

are generally ineligible. Stating in 

§ 120.15(c) that exemptions generally 

are not available for use with § 126.1 

countries, except as provided in that 

section. Stating in § 120.15(d) that 

exemptions are limited as described by 

each specific exemption section, and 

adding in § 120.15(f) (formerly found in 

§ 125.6) an overview of the certification 

requirements to utilize an exemption to 

the licensing requirements of the ITAR 

for the export of technical data, which 

is removed and reserved. 

Section 120.16 Eligibility for 

Approvals 

Revising in § 120.16(a)(3) (formerly 

found at § 120.1(c)(1)(iii)) reference to 

brokering authorizations from ‘‘prior 

approval’’ to ‘‘approval’’ to reflect 

current usage in part 129. Adding in 

§ 120.16(c) (formerly found at § 120.1(c)) 

a new reference to publicly announced 


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Department of State policies regarding 

eligibility in order to address concerns 

regarding the use of exemptions and 

public awareness of the status of endusers or other consignees. 

Section 120.17 End-Use Monitoring 

Adding in § 120.17 a description of 

the Blue Lantern End-Use Monitoring 

program. This description did not 

previously appear in the ITAR, but is 

added here to provide an explanation to 

the regulated community of the 

Department’s obligations pursuant to 22 

U.S.C. 2785 to vet regulated transactions 

both before and after licensing 

determinations. 

Section 120.18 Denial, Revocation, 

Suspension, or Amendment of Licenses 

and Other Approvals 

Revising in § 120.18(a)(2) (formerly 

found at § 126.7(a)(2)) reference from 

‘‘Export Administration Act’’ to ‘‘Export 

Administration Regulations’’ to more 

accurately reflect the mechanism 

through which the Department of 

Commerce authorizes exports. Revising 

in § 120.18(a)(6) (formerly found at 

§ 126.7(a)(6)) reference from 

‘‘debarment’’ to ‘‘order denying export 

privileges’’ in relation to Department of 

Commerce actions in order to reflect the 

language of the EAR. Adding in 

§ 120.18(a)(9) the statement that an 

unfavorable finding of an end-use 

monitoring check may be the basis for 

disapproving, revoking, suspending, or 

amending any existing license or license 

application. 

Section 120.19 Violations and 

Penalties 

Adding in § 120.19 a general 

statement in paragraph (a) of the 

authority to impose penalties for 

violations of the ITAR and a reference 

to part 127 (conduct that constitutes a 

violation), and in paragraph (b) a 

statement derived from existing 

§ 127.12(a) of the Department’s 

encouragement of the voluntary 

disclosure of violations when 

discovered. 

Section 120.20 Administrative 

Procedures 

Adding in § 120.20 general statements 

(derived from revised language at 

existing § 128.1) regarding 

administrative procedures under the 

ITAR and the relationship of the AECA 

to the Administrative Procedure Act, 

respectively. 

Section 120.21 Disclosure of 

Information 

Removing in § 120.21(b) (formerly 

found at § 126.10(b)) reference to section 

12(c) of the Export Administration Act, 

to streamline the text while restating the 

substantive requirements stated in the 

AECA. 

Section 120.23 Organizations and 

Arrangements 

Creating in § 120.23 a new grouping of 

various international organizations and 

arrangements. Revising in § 120.23(a) 

(formerly found at § 120.31) the 

description of NATO from a static list of 

member countries to include reference 

to admitted member states not listed. 

This will prevent unnecessary 

amendment to the section or public 

confusion regarding references to NATO 

in the ITAR and the status of member 

states. Adding in § 120.23(c) reference to 

the Wassenaar Arrangement on Export 

Controls not formerly found in the 

subchapter. Removing in § 120.23(d)(3) 

(formerly found at § 120.29(c)) an 

unnecessary reference to the relevant 

statutory authority regarding Missile 

Technology Control Regime items and 

the USML in order to streamline the 

text. 

Section 120.37 Major Defense 

Equipment 

Revising § 120.37 (formerly found at 

§ 120.8) to more closely follow the 

definitions structure by beginning the 

paragraph with the defined term. 

Section 120.38 Classified 

Adding in § 120.38 (formerly found at 

§ 120.46) the phrase ‘‘or predecessor 

order’’ to the definition of classified to 

conform the single instance definition 

with the individual definitions of 

classified previously found within the 

individual categories of the USML. This 

change does not expand the applicable 

scope of the definition of classified. 

Corresponding changes are made to 

remove from Categories I through XXI of 

§ 121.1 individual ‘‘Note to paragraph’’ 

definitions of classified wherever found 

within the USML. 

Section 120.40 Compositional Terms 

Revising the section heading from 

‘‘End-items, components, accessories, 

attachments, parts, firmware, software, 

systems, and equipment’’ to 

‘‘Compositional terms’’ to more 

accurately address the contents of the 

section (formerly found at § 120.45). The 

section as formerly written included 

items that could be either an element of 

a defense article, or a defense article in 

and of itself, or might be a part (or 

component, etc.) of a defense article 

without being a defense article itself. In 

order to clarify that the section defines 

terms that can be used in relation to 

articles other than defense articles, the 

section heading is expanded. Other 

changes include: Adding in § 120.40 a 

new paragraph (a) to include a single 

instance definition of commodity, 

formerly found in Note to paragraphs (a) 

and (b) of § 120.41, in order to clarify its 

application throughout the ITAR; and 

revising the explanatory note to the 

definition of system in paragraph (h) 

(formerly found at Note to paragraph (g) 

of § 120.45) in order to eliminate the 

redundant second sentence as 

unnecessary and to limit reference to 

the relevant source materials and delete 

the citations to outdated versions of 

those materials. 

Section 120.41 Specially Designed 

Revising existing § 120.41 to move 

from § 120.41 those notes that contain 

definitions of broad applicability to 

single instance definitions in §§ 120.42 

and 120.43 and to make certain nonsubstantive revisions to the order and 

numbering of notes to the section in 

accordance with Code of Federal 

Regulations drafting requirements. 

Section 120.42 Form, Fit, Function, 

Performance Capability, Equivalent, 

Enumerated, and Catch-All Control 

In § 120.42 incorporating single 

instance definitions of form, fit, 

function, and performance capability 

(formerly found at Notes 1 and 2 to 

paragraph (d) of § 120.4 and Note 4 to 

paragraph (b)(3) of § 120.41); and single 

instance definitions of equivalent, 

enumerated, and catch-all control 

(formerly found at Note 5 to paragraph 

(b)(3) and Note to paragraph (b) of 

§ 120.41). Revising in § 120.42(f) 

(formerly found at Note to paragraph (b) 

of § 120.41) reference from ‘‘article on 

the U.S. Munitions List’’ to ‘‘item 

designated on the U.S. Munitions List’’ 

to more accurately reflect the 

constitution of the USML and to 

distinguish from the reference to ‘‘item’’ 

in the same sentence as applied to the 

Export Administration Regulations. 

Section 120.43 Development, 

Production, and Related Terms; Basic 

and Applied Research 

Adding in § 120.43(a) and (b) single 

instance definitions of development and 

production formerly found in § 120.41 

specifically. These single instance 

definitions were originally included in 

a previous proposed rule (80 FR 31525, 

June 3, 2015), and were to be taken from 

existing Notes 2 and 1, respectively, to 

§ 120.41(b)(3). Although not adopted at 

that time, DDTC now implements the 

revision. In response to the 2015 

proposed rule, the Department received 

several public comments regarding the 

single instance definitions for 


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development and production. Those 

comments are addressed here. 

One commenter suggested that the 

department add ‘‘but not limited to’’ 

following ‘‘such as’’ in the definition of 

‘‘development.’’ The Department does 

not make this change. The use of the 

term ‘‘such as’’ necessarily implies that 

the following list is non-exclusive, so 

the addition of the phrase ‘‘but not 

limited to’’ is redundant. 

Several commenters requested that 

the Department insert a note to the 

definition of ‘‘development’’ to state 

that fabrication of prototypes by 

universities for academic demonstration 

or to otherwise test a hypothesis is not 

development, because the inclusion of 

these activities within the definition of 

‘‘development’’ somehow limits the 

fundamental research exception. The 

Department does not make this change. 

The Department believes that the 

activity is appropriately captured by the 

definition of ‘‘development’’. 

A commenter requested that the 

Department remove the last sentence of 

the definition of ‘‘development,’’ which 

stated ‘‘[d]evelopment includes 

modification of the design of an existing 

item.’’ The Department does not make 

this change. Modification of an existing 

design creates a distinct design, 

regardless of the modification. 

A commenter suggested that the 

Department add engineering analysis 

and design methodology to the 

definition of ‘‘development’’ in place of 

design analysis and design concepts, 

and add manufacturing know-how to 

the definition of ‘‘production’’ in place 

of manufacture. The Department does 

not make this change. The terms 

suggested by the commenter are used in 

specific places in the ITAR for specific 

purposes, and their inclusion within 

these definitions would not provide 

additional clarity. Additionally, the 

definitions of ‘‘development’’ and 

‘‘production’’ are being moved from 

within the definition of specially 

designed and made applicable to the 

entire ITAR, in part, to harmonize the 

definition of ‘‘technical data’’ with the 

definition of technology in the EAR. To 

modify these definitions would result in 

unnecessary variation from the EAR 

without significant benefit. 

One commenter suggested that the 

Department add the Defense Federal 

Acquisition Regulations Supplement 

(DFARS) term ‘‘advanced technological 

development’’ to the definition of 

‘‘development.’’ The Department notes 

the actual term is ‘‘advanced technology 

development’’ and does not make this 

change. While any advanced technology 

development would be included within 

this definition of ‘‘development,’’ the 

value of adding the DFARS term is 

outweighed by the loss of 

harmonization with the EAR and 

multilateral export control regimes. 

One commenter suggested that the 

Department replace the term ‘‘serial 

production’’ with ‘‘production.’’ The 

Department does not make this change. 

Products generally pass through 

multiple phases of development, some 

of which may include the production of 

prototypes or prototype production 

facilities. All of these activities are 

included within the development phase 

of the products. 

Several commenters noted that the 

definition of ‘‘production’’ includes 

manufacture and assert that this creates 

a conflict with the definitions of 

‘‘manufacturing license agreement’’ 

(MLA) and ‘‘technical assistance 

agreement’’ (TAA) in §§ 120.21 and 

120.22. The Department does not make 

any change. An MLA is an 

‘‘authorization to manufacture defense 

articles abroad. . . .’’ There may be an 

agreement that involves technical data 

for the production of a defense article 

that is not an ‘‘authorization to 

manufacture defense articles abroad,’’ 

and in these instances, an MLA would 

not be required. However, in instances 

where there is an ‘‘authorization to 

manufacture defense articles abroad’’ 

that involves the export of technical 

data, an MLA is required regardless of 

the type of technical data exported. One 

commenter noted that the provisions of 

§ 124.4(b)(1) through (4) apply to 

agreements that involve coproduction or 

licensed production outside of the 

United States of defense articles of 

United States origin, and asserts that the 

new definition of ‘‘production’’ may 

implicate some TAAs, in addition to 

MLAs. The commenter requested that 

§ 124.4(b) be revised to limit the scope 

of that provision to ‘‘licensed 

manufacturing.’’ The Department does 

not make this change. The reporting 

requirements of § 124.4(b) apply only to 

‘‘coproduction or licensed production 

outside of the United States,’’ which is 

only authorized via MLAs that involve 

offshore production. Additional 

revisions are not necessary. 

One commenter stated that the 

definitions would undermine the utility 

of the exemption at § 125.4(b)(6), which 

authorizes the export of technical data 

‘‘related to firearms not in excess of 

caliber .50 and ammunition for such 

weapons, except detailed design, 

development, production or 

manufacturing information.’’ The 

Department confirms that these 

definitions do not change the scope of 

this exemption. 

In reviewing the definition of 

development from the 2015 proposed 

rule, and not in response to public 

comment, the Department determined to 

revise the final sentence of the 

definition to focus on design rather than 

items. This is intended to be in keeping 

with the attempt to better align 

definitions across the EAR and ITAR, as 

expressed in the 2015 proposed rule, 

and to clarify that development is 

common to pre-production for all goods 

and is not specific to the USML. 

Although the final sentence of the 

definition of development is not found 

directly in the EAR definition of 

development, an analogous provision is 

found in Note 2 to the definition of 

technology (see 15 CFR 772.1). 

Adding in § 120.43(c) through (i) 

single instance definitions and 

explanations of terms for design 

methodology, engineering analysis, 

manufacturing know-how, build-toprint, build/design-to-specification, 

basic research, and applied research (the 

definition of which was formerly found 

within the definition of basic research 

and which this rule separates into two 

definitions), formerly found at 

§§ 124.2(c)(4) and 125.4(c). Although 

formerly described in §§ 124.2(c)(4) and 

125.4(c), for purposes of clarity as to the 

application of an exemption the terms 

were used in other locations in the 

ITAR, demonstrating that the 

explanations were intended to have 

broader applicability. Conforming 

changes are made to citation references 

in Category XIII(i)(6) of § 121.1, 

Supplement No. 1 to part 126, and Note 

5 and Note 12 to that supplement. In 

addition, revisions are made to existing 

§ 124.2(c)(4) to eliminate the 

unnecessary duplication of definitions 

of design methodology, engineering 

analysis, and manufacturing know-how 

by deleting existing § 124.2(c)(4)(i) 

through (iii). Also, the parenthetical 

explanation of build-to-print at existing 

§ 124.13(b) is removed for the same 

reason. 

Section 120.57 Authorization Types 

In § 120.57 consolidating and 

incorporating single instance definitions 

for the various authorization types for 

transactions subject to the ITAR 

(formerly found in §§ 120.20, 120.21, 

120.22 and 120.23) and adding in 

§ 120.57(c) a single instance definition 

of exemption to provide a single 

reference for the concept, used 

throughout the ITAR, for an 

authorization other than by license or 

other written approval. 


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Section 120.68 Party to the Export 

Establishing in § 120.68 (formerly 

found at § 126.7(e)) a single instance 

definition of ‘‘party to the export’’. 

Part 121 The United States Munitions 

List 

Adding a new § 121.0 to provide 

cross-reference to §§ 120.10 and 120.11, 

Introduction to the U.S. Munitions List 

and Order of review, respectively 

(formerly found at paragraphs (a) and (b) 

of § 121.1). Removing and reserving 

paragraphs (a) and (b) of § 121.1. 

Revising for purpose of consistency only 

the technical data and defense service 

definition parentheticals in the 

technical data paragraphs for all 

categories previously revised as part of 

the multi-year process of reviewing and 

revising the USML as part of the USML 

to the Commerce Control List (CCL) 

process, beginning with 78 FR 22740, 

Apr. 16, 2013. These revisions are not 

intended to make any substantive 

change. Previously, these paragraphs 

used ‘‘see’’ and ‘‘as defined in’’ 

interchangeably. Removing from the 

USML those notes to category 

paragraphs that contain definitions for 

‘‘classified’’ in order to preclude any 

variation from the definition of 

classified in § 120.38 (formerly found at 

§ 120.46). Removing the parentheticals 

‘‘(see § 120.4 of this subchapter)’’ 

relating to commodity jurisdiction, ‘‘(see 

§ 120.42 of this subchapter)’’ relating to 

‘‘subject to the EAR’’, and the phrase 

‘‘(see § 120.10(a)(2) of this subchapter)’’ 

relating to ‘‘classified’’ as they are either 

used inconsistently or because they are 

generally understood by the regulated 

community and defined elsewhere in 

the regulations. Finally, cross-references 

to sections moved by this rule are 

updated. 

Section 128.1 Exclusion of Functions 

From the Administrative Procedure Act 

Revising § 128.1 to clarify that the 

Secretary of State has been delegated 

authority to make licensing decisions. 

Section 128.2 Administrative Law 

Judge 

Revising § 128.2 regarding authorities 

of an Administrative Law Judge to 

eliminate reference to § 127.7. This 

change clarifies that an Administrative 

Law Judge may only recommend 

debarment pursuant to that section, and 

any such order is issued by the 

Assistant Secretary of State for PoliticalMilitary Affairs. 

Other Revisions 

Removing and reserving § 120.26, 

Presiding Official, as unnecessary as the 

term does not otherwise appear in the 

regulations. 

Removing the list of forms referenced 

in the ITAR and formerly found at 

§ 120.28. This section, which provides 

the list of forms referred to in the ITAR, 

is being removed in its entirety as an 

unnecessary inclusion to the 

regulations. Due to previous revisions to 

the regulations, the list presented is not 

accurate. In order to prevent 

unnecessary regulatory activity in the 

form of future conforming revisions to 

the section, due to expected changes to 

the forms that appear in the regulations, 

it is being removed and the section 

reserved. 

Reserving § 120.29 (formerly Missile 

Technology Control Regime) and 

moving the former text of § 120.29 to 

paragraph (d) of new § 120.23, 

Organizations and arrangements. 

Reserving § 120.46 (formerly 

Classified) and moving the former text 

of § 120.46 to new § 120.38. 

Reserving § 123.20 (formerly Nuclear 

related controls) and moving the former 

text of § 123.20 to new § 120.5(c). 

Reserving § 123.26 (formerly 

Recordkeeping for exemptions) and 

moving the requirements of the former 

§ 123.26 to new § 120.15(e). 

Reserving § 125.6 (formerly 

Certification requirements for 

exemptions) and moving and revising 

the former text of § 125.6 as described 

in the discussion of § 120.15 above. 

Reserving § 126.7 (formerly Denial, 

revocation, suspension, or amendment 

of licenses and other approvals) and 

moving the former text of § 126.7(a)–(d) 

and (e) to new §§ 120.18 and 120.68, 

respectively. 

Reserving § 126.9 (formerly Advisory 

opinions and related authorizations) 

and moving the former text of § 126.9 to 

new § 120.22. 

Reserving § 126.10 (formerly 

Disclosure of information) and moving 

the former text of § 126.10 to new 

§ 120.21. 

Reserving §§ 126.11 and 126.12 

(formerly Relations to other provisions 

of law, and Continuation in force, 

respectively) and moving the former text 

of each to new § 120.7(a) and (b), 

respectively. 

Removing in its entirety the MTCR 

Annex formerly found at § 121.16, as the 

relevant information of the MTCR 

Annex is conveyed directly through 

notations in the USML and to eliminate 

unnecessary sections of the ITAR and 

the obligation to amend to reflect 

revisions to the MTCR Annex in both 

the USML and in former § 121.16, in 

conjunction with the adoption of 

reference to the Missile Technology 

Control Regime in new § 120.23(d). 

Revising references to ‘‘U.S. 

Government’’ from ‘‘U.S. government’’ 

at §§ 120.11(d), 120.18(a)(6), and 

120.34(a)(7). 

Revising order and numbering of 

notes to affected sections in accordance 

with Code of Federal Regulations 

drafting requirements. 

Revising formatting of cites and 

signals wherever found for consistency 

of application. 

The following former paragraphs of 

the ITAR were marked as reserved and 

are removed by this rule: 

§§ 120.27(a)(11), 120.27(b), and 

125.4(d). 

Definitions of general applicability 

from throughout the subchapter are 

consolidated in Part 120—Purpose and 

Definitions, Subpart C—Definitions. 

These movements are identified in the 

table below. Cross references are revised 

throughout the subchapter and efforts 

were made to standardize certain 

terminologies (e.g., reference to ‘‘subject 

to the ITAR’’ revised to the more 

commonly used ‘‘subject to this 

subchapter’’) and in the use of 

abbreviations and acronyms. 

This rule primarily moves and 

reorganizes existing regulatory text 

without revision. Much of this text was 

drafted at different times, by different 

authors. The Department intends to 

propose additional revisions to 

regulatory text to improve readability 

and flow. 

The table below identifies to the 

sentence level all: 

1. Movements or renumbering of text made 

by this rule from their former location to the 

location as effected by this rule. The former 

location of moved text is italicized. 

2. All text revised in any manner by this 

rule, whether moved or not. Revised sections, 

paragraphs, and text locations appear in bold. 

3. All text removed/reserved from the ITAR 

in any location. Removed sections, 

paragraphs, and text locations appear as 

strikethrough. 

4. Any new general information text 

sections that are derived from an existing 

ITAR section which is not revised or 

removed are identified in the ‘‘Model for’’ 

column and the source material identified by 

underlined text. 

5. Where a section or paragraph is moved, 

revised, and/or formed the basis for new text 

elsewhere, it is identified by each font type 

(e.g., the text of § 123.26 is revised and 

moved and the section reserved, so it appears 

in the table as bold struck through text). 

6. Each level (to the sentence) of any 

section affected by this rule is identified by 

a unique row and then by font type within 

the row. For example, the first six rows of the 

table identify changes to § 120.1. Row 1 

shows § 120.1 in bold, indicating a change to 

the text of the section title. Row two shows 

paragraph (a) in bold, indicating a change to 

the text of that paragraph. Row three shows 


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paragraph (b) in bold, indicating a change to 

the text of that paragraph. Row four shows 

paragraph (1) under paragraph (b) in bold, 

indicating a change to the text of paragraph 

(b)(1). Row five shows paragraph (ii) in bold 

and paragraph (2) in regular text under 

paragraph (b), indicating a change in text to 

paragraph (b)(2)(ii), but no change to the text 

of paragraph (b)(2) itself. Finally, row six 

shows paragraph (c) in italic and underlined, 

indicating that the paragraph has been moved 

(but not revised) and relocated to post-rule 

location § 120.16 as well as providing the 

basis for new text at § 120.15(b). Subsequent 

rows show the new locations of paragraphs 

within prior § 120.1(c). 

7. Where consecutive paragraphs within a 

section are affected in the same manner, they 

are combined into a single row. See, e.g., 

§ 120.9, where paragraph (a)(1) is in a single 

row and identified in italic as having been 

moved to § 120.32(a)(1), and paragraphs (a)(2) 

and (3) are in a single row and both 

identified in bold and italic as having been 

revised and moved to § 120.32(a)(2) and (3). 

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BILLING CODE 4710–25–C 

Regulatory Analysis and Notices 

Administrative Procedure Act 

The Department of State is of the 

opinion that controlling the import and 

export of defense articles and services is 

a military or foreign affairs function of 

the United States Government and that 

rules implementing this function are 

exempt from sections 553 (rulemaking) 

and 554 (adjudications) of the 

Administrative Procedure Act (APA). 

Although the Department is of the 

opinion that this interim final rule is 

exempt from the rulemaking provisions 

of the APA, the Department is 

publishing this rule as an interim final 

rule and with a 45-day provision for 

public comment and without prejudice 

to its determination that controlling the 

import and export of defense services is 

a foreign affairs function. 

Regulatory Flexibility Act 

Since the Department is of the 

opinion that this interim final rule is 

exempt from the provisions of 5 U.S.C. 

553, there is no requirement for an 

analysis under the Regulatory 

Flexibility Act. 

Unfunded Mandates Reform Act of 1995 

This amendment does not involve a 

mandate that will result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any year and it will not significantly 

or uniquely affect small governments. 

Therefore, no actions were deemed 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995. 

Congressional Review Act 

This rulemaking has been found not 

to be a major rule within the definition 

of Small Business Regulatory 

Enforcement Fairness Act of 1996. 

Executive Orders 12372 and 13132 

This rulemaking will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this rulemaking 

does not have sufficient federalism 

implications to require consultations or 

warrant the preparation of a federalism 

summary impact statement. The 

regulations implementing Executive 

Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities do not 

apply to this rulemaking. 

Executive Orders 12866 and 13563 

Executive Orders 12866 and 13563 

direct agencies to assess costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributed impacts, and equity). 

These executive orders stress the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. Although the Department is 

of the opinion that this rulemaking is 

exempt from Executive Order 12866 as 

this rule pertains to a military or foreign 

affairs function of the United States as 

provided in Section 3(d)(2), the 

Department nevertheless has 

determined that, given the nature of the 

amendments made in this rulemaking, 

there will be no change to any person’s 

substantive rights or obligations as a 

result of this rule, and the only cost to 

the public, the cost of updating 

compliance regimes to account for the 

movement of regulatory text within the 

ITAR, is less than the benefit to the 

public in the increased utility of the 

ITAR. Therefore, the benefits of this 

rulemaking outweigh the cost. This rule 

has been designated a ‘‘significant 

regulatory action,’’ although not 

economically significant, by the Office 

and Information and Regulatory Affairs 

under Executive Order 12866. 

Executive Order 12988 

The Department of State reviewed this 

rulemaking in light of sections 3(a) and 

3(b)(2) of Executive Order 12988 to 

eliminate ambiguity, minimize 

litigation, establish clear legal 

standards, and reduce burden. 

Executive Order 13175 

The Department of State determined 

that this rulemaking will not have tribal 

implications, will not impose 

substantial direct compliance costs on 

Indian tribal governments, and will not 

preempt tribal law. Accordingly, 

Executive Order 13175 does not apply 

to this rulemaking. 

Paperwork Reduction Act 

This rule does not impose any new 

reporting or recordkeeping requirements 

subject to the Paperwork Reduction Act, 

44 U.S.C. Chapter 35. 

List of Subjects 

22 CFR Parts 120, 121, and 125 

Arms and munitions, Classified 

information, Exports. 

22 CFR Parts 122 and 123 

Arms and munitions, Exports, 

Reporting and recordkeeping. 

22 CFR Part 124 

Arms and munitions, Exports, 

Technical assistance. 

22 CFR Part 126 

Arms and munitions, Exports. 

22 CFR Part 127 

Arms and munitions, Crime, Exports, 

Penalties, Seizures and forfeitures. 


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22 CFR Part 128 

Administrative practice and 

procedure, Arms and munitions, 

Exports. 

22 CFR Part 129 

Arms and munitions, Brokers, 

Exports. 

22 CFR Part 130 

Arms and munitions, Campaign 

funds, Confidential business 

information, Exports, Reporting and 

recordkeeping requirements. 

Amendatory Instructions 

Accordingly, for the reasons set forth 

above and under the authority of 22 

U.S.C. 2778, and 22 U.S.C. 2779, the 

Department of State amends title 22, 

chapter I, subchapter M, parts 120 

through 130 as follows: 

■ 1. Part 120 is revised to read as 

follows: 

PART 120—PURPOSE AND 

DEFINITIONS 

Subpart A—General Information 

Sec. 

120.1 General authorities. 

120.2 Designation of defense articles and 

defense services. 

120.3 Policy on designating or determining 

defense articles and services on the U.S. 

Munitions List. 

120.4 Commodity jurisdiction. 

120.5 Relation to regulations of other 

agencies. 

120.6 U.S. criminal statutes. 

120.7 Relations to other provisions of law. 

120.8–120.9 [Reserved] 

Subpart B—General Policies and Processes 

120.10 Introduction to the U.S. Munitions 

List. 

120.11 Order of review. 

120.12 Commodity jurisdiction 

determination requests. 

120.13 Registration. 

120.14 Licenses and related authorizations. 

120.15 Exemptions. 

120.16 Eligibility for approvals. 

120.17 End-use monitoring. 

120.18 Denial, revocation, suspension, or 

amendment of licenses and other 

approvals. 

120.19 Violations and penalties. 

120.20 Administrative procedures. 

120.21 Disclosure of information. 

120.22 Advisory opinions and related 

authorizations. 

120.23 Organizations and arrangements. 

120.24–120.29v [Reserved] 

Subpart C—Definitions 

120.30 Directorate of Defense Trade 

Controls. 

120.31 Defense article. 

120.32 Defense service. 

120.33 Technical data. 

120.34 Public domain. 

120.35 [Reserved] 

120.36 Significant military equipment. 

120.37 Major defense equipment. 

120.38 Classified. 

120.39 Foreign defense article or defense 

service. 

120.40 Compositional terms. 

120.41 Specially designed. 

120.42 Form, fit, function, performance 

capability, equivalent, enumerated, and 

catch-all control. 

120.43 Development, production, and 

related terms; Basic and applied 

research. 

120.44 [Reserved] 

120.45 Maintenance levels. 

120.46–120.49 [Reserved] 

120.50 Export. 

120.51 Reexport. 

120.52 Retransfer. 

120.53 Temporary import. 

120.54 Activities that are not exports, 

reexports, retransfers, or temporary 

imports. 

120.55 Access information. 

120.56 Release. 

120.57 Authorization types. 

120.58 Subject to the Export Administration 

Regulations (EAR). 

120.59 [Reserved] 

120.60 United States. 

120.61 Person. 

120.62 U.S. person. 

120.63 Foreign person. 

120.64 Regular employee. 

120.65 Foreign ownership and foreign 

control. 

120.66 Affiliate. 

120.67 Empowered official. 

120.68 Party to the export. 

120.69 Port Directors. 

Authority: 22 U.S.C. 2651a, 2752, 2753, 

2776, 2778, 2779, 2779a, 2785, 2794, 2797; 

E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp., 

p. 223. 

Subpart A—General Information 

§ 120.1 General authorities. 

(a) Authority and delegation. Section 

38 of the Arms Export Control Act (22 

U.S.C. 2778), as amended, authorizes 

the President to control the export and 

import of defense articles and defense 

services. The statutory authority of the 

President to promulgate regulations 

with respect to exports of defense 

articles and defense services is 

delegated to the Secretary of State by 

Executive Order 13637. This subchapter 

implements that authority, as well as 

other relevant authorities in the Arms 

Export Control Act (22 U.S.C. 2751 et 

seq.). The Secretary of State delegates 

the authority to administer the 

regulations in this subchapter to the 

Deputy Assistant Secretary of State for 

Defense Trade Controls, Bureau of 

Political-Military Affairs. 

(b) Authorized officials. (1) All 

authorities administered by the Deputy 

Assistant Secretary of State for Defense 

Trade Controls pursuant to this 

subchapter may be exercised at any time 

by the Under Secretary of State for Arms 

Control and International Security or 

the Assistant Secretary of State for 

Political-Military Affairs. 

(2) The Deputy Assistant Secretary of 

State for Defense Trade Controls 

supervises the Directorate of Defense 

Trade Controls, which is comprised of 

the following offices: 

(i) The Office of Defense Trade 

Controls Licensing and the Director, 

Office of Defense Trade Controls 

Licensing, which have responsibilities 

related to licensing or other approvals of 

defense trade, including references 

under this part and parts 123, 124, 125, 

126, 129, and 130 of this subchapter. 

(ii) The Office of Defense Trade 

Controls Compliance and the Director, 

Office of Defense Trade Controls 

Compliance, which have 

responsibilities related to violations of 

law or regulation and compliance 

therewith, including references 

contained in parts 122, 126, 127, 128, 

and 130 of this subchapter, and those 

portions under this part and part 129 of 

this subchapter pertaining to 

registration. 

(iii) The Office of Defense Trade 

Controls Policy and the Director, Office 

of Defense Trade Controls Policy, which 

have responsibilities related to the 

general policies of defense trade, 

including references under this part and 

part 126 of this subchapter, and the 

commodity jurisdiction procedure 

under this part. 

§ 120.2 Designation of defense articles 

and defense services. 

The Arms Export Control Act (22 

U.S.C. 2778(a) and 2794(7)) provides 

that the President shall designate the 

articles and services deemed to be 

defense articles and defense services for 

purposes of import or export controls. 

The President has delegated to the 

Secretary of State the authority to 

control the export and temporary import 

of defense articles and services. The 

items designated by the Secretary of 

State for purposes of export and 

temporary import control constitute the 

U.S. Munitions List (USML) specified in 

part 121 of this subchapter. Defense 

articles on the USML specified in part 

121 of this subchapter that are also 

subject to permanent import control by 

the Attorney General on the U.S. 

Munitions Import List enumerated in 27 

CFR part 447 are subject to temporary 

import controls administered by the 

Secretary of State. Designations of 

defense articles and defense services on 

the USML in part 121 of this subchapter 

are made by the Department of State 

with the concurrence of the Department 

of Defense. The scope of the USML shall 


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be changed only by amendments made 

pursuant to section 38 of the Arms 

Export Control Act (22 U.S.C. 2778). For 

a designation or determination on 

whether a particular item is enumerated 

on the USML, see § 120.4. 

§ 120.3 Policy on designating or 

determining defense articles and services 

on the U.S. Munitions List. 

(a) For purposes of this subchapter, a 

specific article or service may be 

designated a defense article (see 

§ 120.31) or defense service (see 

§ 120.32) if it: 

(1) Meets the criteria of a defense 

article or defense service on the U.S. 

Munitions List (USML) (part 121 of this 

subchapter); or 

(2) Provides the equivalent 

performance capabilities of a defense 

article on the USML. 

(b) For purposes of this subchapter, a 

specific article or service shall be 

determined in the future as a defense 

article or defense service if it provides 

a critical military or intelligence 

advantage such that it warrants control 

under this subchapter. 

Note 1 to paragraphs (a) and (b): An article 

or service determined in the future pursuant 

to this subchapter as a defense article or 

defense service, but not currently on the 

USML, will be placed in Category XXI of 

§ 121.1 of this subchapter until the 

appropriate category of the USML has been 

amended to provide the necessary entry. 

(c) A specific article or service is not 

a defense article or defense service for 

purposes of this subchapter if it: 

(1) Is determined to be under the 

jurisdiction of another department or 

agency of the U.S. Government (see 

§ 120.5) pursuant to a commodity 

jurisdiction determination (see § 120.4) 

unless superseded by changes to the 

USML or by a subsequent commodity 

jurisdiction determination; or 

(2) Meets one of the criteria of 

§ 120.41(b) when the article is used in 

or with a defense article and specially 

designed is used as a control criteria. 

Note 2 to § 120.3: The intended use of the 

article or service after its export (i.e., for a 

military or civilian purpose), by itself, is not 

a factor in determining whether the article or 

service is subject to the controls of this 

subchapter. 

§ 120.4 Commodity jurisdiction. 

(a) The commodity jurisdiction 

procedure is used with the U.S. 

Government if doubt exists as to 

whether an article or service is covered 

by the U.S. Munitions List (USML). It 

may also be used for consideration of a 

redesignation of an article or service 

currently covered by the USML. The 

Department must provide notice to 

Congress at least 30 days before any 

item is removed from the USML. 

(b) The procedure for submitting a 

Commodity Jurisdiction Determination 

Request to the Directorate of Defense 

Trade Controls is set forth in § 120.12. 

§ 120.5 Relation to regulations of other 

agencies. 

(a) The Department of Justice, the U.S. 

Munitions Import List (USMIL), and 

permanent imports. Defense articles and 

defense services covered by the U.S. 

Munitions List set forth in this 

subchapter are regulated by the 

Department of State (see also § 120.2) for 

purposes of export, reexport, retransfer, 

and temporary import. The President 

has delegated the authority to control 

the permanent import of defense articles 

and services to the Attorney General. 

The defense articles and services 

controlled by the Secretary of State and 

the Attorney General collectively 

comprise the U.S. Munitions List under 

the Arms Export Control Act. As the 

Attorney General exercises independent 

delegated authority to designate defense 

articles and services for purposes of 

permanent import controls, the 

permanent import control list 

administered by the Department of 

Justice has been separately labeled the 

U.S. Munitions Import List (27 CFR part 

447) to distinguish it from the list set 

out in this subchapter. In carrying out 

the functions delegated to the Attorney 

General pursuant to the Arms Export 

Control Act, the Attorney General shall 

be guided by the views of the Secretary 

of State on matters affecting world peace 

and the external security and foreign 

policy of the United States. 

(b) The Department of Commerce and 

the Export Administration 

Regulations—(1) Export of items subject 

to the Export Administration 

Regulations by authority of the 

Department of Commerce. The 

Department of Commerce regulates the 

export, reexport, and in-country transfer 

of items on the Commerce Control List 

and other items subject to its 

jurisdiction, as well as certain activities 

performed by U.S. persons, including 

those that may contribute to the 

proliferation of weapons of mass 

destruction, under the Export 

Administration Regulations (EAR) (15 

CFR parts 730 through 774). 

(2) Export of items subject to the EAR 

by authority of the Department of State. 

A license or other approval (see 

§ 120.57) from the Department of State 

granted in accordance with this 

subchapter may also authorize the 

export of items subject to the EAR (see 

§ 120.58). An exemption (see § 120.57 

and parts 123, 124, 125, and 126 of this 

subchapter) may only be used to export 

an item subject to the EAR that is for use 

in or with a defense article and is 

included in the same shipment as any 

defense article. Separate approval from 

the Department of Commerce is not 

required for these items. No exemption 

under this subchapter may be utilized to 

export an item subject to the EAR if not 

accompanied by a defense article. Those 

items subject to the EAR exported 

pursuant to a Department of State 

license or other approval would remain 

under the jurisdiction of the Department 

of Commerce for any subsequent 

transactions. The inclusion of items 

subject to the EAR on a Department of 

State license or other approval does not 

change the licensing jurisdiction of the 

items. 

(c) Nuclear related controls; 

Department of Energy and the Nuclear 

Regulatory Commission. (1) The 

provisions of this subchapter do not 

apply to articles, technical data, or 

services in Category VI, Category XV, 

Category XVI, and Category XX of 

§ 121.1 of this subchapter to the extent 

that exports of such articles, technical 

data, or services are controlled by the 

Department of Energy or the Nuclear 

Regulatory Commission pursuant to the 

Atomic Energy Act of 1954 (AEA), as 

amended, and the Nuclear NonProliferation Act of 1978, as amended, 

or are government transfers authorized 

pursuant to these Acts. For Department 

of Commerce controls, see 15 CFR 742.3 

and 744.2, administered pursuant to 

Section 309(c) of the Nuclear 

Nonproliferation Act of 1978, as 

amended (42 U.S.C. 2139a(c)), and 15 

CFR 744.5, which are not subject to this 

subchapter. 

(2) The transfer of materials, 

including special nuclear materials, 

nuclear parts of nuclear weapons, or 

other, non-nuclear parts of nuclear 

weapons systems involving Restricted 

Data or of assistance involving any 

person directly or indirectly engaging in 

the production or use thereof is 

prohibited except as authorized by the 

AEA. The transfer of Restricted Data or 

such assistance is prohibited except as 

authorized by the AEA. The technical 

data or defense services relating to 

nuclear weapons, nuclear weapons 

systems or related defense purposes 

(and such data or services relating to 

applications of atomic energy for 

peaceful purposes, or related research 

and development) may constitute 

Restricted Data or such assistance, 

subject to the foregoing prohibition. 

(3) A license for the export of a 

defense article, technical data, or the 

furnishing of a defense service relating 

to defense articles referred to in 


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Category VI(e) or Category XX(b)(1) of 

§ 121.1 of this subchapter will not be 

granted unless the defense article, 

technical data, or defense service comes 

within the scope of an existing 

Agreement for Cooperation for Mutual 

Defense Purposes concluded pursuant 

to the AEA with the government of the 

country to which the defense article, 

technical data, or defense service is to 

be exported. Licenses may be granted in 

the absence of such an agreement only: 

(i) If the proposed export involves an 

article which is identical to that in use 

in an unclassified civilian nuclear 

power plant; 

(ii) If the proposed export has no 

relationship to naval nuclear 

propulsion; and 

(iii) If it is not for use in a naval 

propulsion plant. 

§ 120.6 U.S. criminal statutes. 

For purposes of this subchapter, the 

phrase U.S. criminal statutes comprises 

the following: 

(a) Section 38 of the Arms Export 

Control Act (22 U.S.C. 2778); 

(b) Section 1760 of the Export Control 

Reform Act of 2018 (50 U.S.C. 4819) or 

section 11 of the Export Administration 

Act of 1979 (50 U.S.C. 4610); 

(c) Section 793, 794, or 798 of title 18, 

United States Code (relating to 

espionage involving defense or 

classified information) or section 2332d, 

2339A, 2339B, 2339C, or 2339D of such 

title (relating to financial transactions 

with the government of a country 

designated as a country supporting 

international terrorism, providing 

material support to terrorists or terrorist 

organizations, financing of terrorism, or 

receiving military-type training from a 

foreign terrorist organization); 

(d) Section 16 of the Trading with the 

Enemy Act (50 U.S.C. 4315); 

(e) Section 206 of the International 

Emergency Economic Powers Act 

(relating to foreign assets controls; 50 

U.S.C. 1705); 

(f) Section 30A of the Securities 

Exchange Act of 1934 (15 U.S.C. 78dd– 

1) or section 104 of the Foreign Corrupt 

Practices Act (15 U.S.C. 78dd–2 or 

78dd–3); 

(g) Chapter 105 of title 18, United 

States Code (relating to sabotage); 

(h) Section 4(b) of the Internal 

Security Act of 1950 (relating to 

communication of classified 

information; 50 U.S.C. 783(a)); 

(i) Sections 57, 92, 101, 104, 222, 224, 

225, or 226 of the Atomic Energy Act of 

1954 (42 U.S.C. 2077, 2122, 2131, 2134, 

2272, 2274, 2275, and 2276); 

(j) Section 601 of the National 

Security Act of 1947 (relating to 

intelligence identities protection; 50 

U.S.C. 421); 

(k) Section 371 of title 18, United 

States Code (when it involves 

conspiracy to violate any of the statutes 

listed in this section); 

(l) Sections 3, 4, 5, and 6 of the 

Intelligence Reform and Terrorism 

Prevention Act of 2004, Public Law 

108–458 sections 6903–6906, relating to 

missile systems designed to destroy 

aircraft (18 U.S.C. 2332g), prohibitions 

governing atomic weapons (42 U.S.C. 

2122), radiological dispersal services (18 

U.S.C. 2332h), and variola virus (18 

U.S.C. 175c); 

(m) Sections 2779 and 2780 of title 22, 

United States Code (relating to fees of 

military sales agents and other 

payments, and transactions with 

countries supporting acts of 

international terrorism); 

(n) Section 542 of title 18, United 

States Code (relating to the entry of 

goods by means of false statements), 

where the underlying offense involves a 

defense article, including technical data, 

or violations related to the Arms Export 

Control Act (AECA) or International 

Traffic in Arms Regulations (ITAR) in 

this subchapter; 

(o) Section 545 of title 18, United 

States Code (relating to smuggling goods 

into the United States), where the 

underlying offense involves a defense 

article, including technical data, or 

violations related to the AECA or ITAR; 

(p) Section 554 of title 18, United 

States Code (relating to smuggling goods 

from the United States), where the 

underlying offense involves a defense 

article, including technical data, or 

violations related to the AECA or ITAR; 

and 

(q) Section 1001 of title 18, United 

States Code (relating to false statements 

or entries generally), Section 1831 of 

title 18, United States Code (relating to 

economic espionage), and Section 1832 

of title 18, United States Code (relating 

to theft of trade secrets) where the 

underlying offense involves a defense 

article, including technical data, or 

violations related to the AECA or ITAR. 

§ 120.7 Relations to other provisions of 

law. 

(a) The provisions in this subchapter 

are in addition to, and are not in lieu of, 

any other provisions of law or 

regulations. The sale of firearms in the 

United States, for example, remains 

subject to the provisions of the Gun 

Control Act of 1968 and regulations 

administered by the Department of 

Justice. The performance of defense 

services on behalf of foreign 

governments by retired military 

personnel continues to require consent 

pursuant to part 3a of this title. Persons 

who intend to export defense articles or 

furnish defense services should not 

assume that satisfying the requirements 

of this subchapter relieves one of other 

requirements of law. 

(b) All determinations, authorizations, 

licenses, approvals of contracts and 

agreements, and other action issued, 

authorized, undertaken, or entered into 

by the Department of State pursuant to 

section 414 of the Mutual Security Act 

of 1954, as amended, or under the 

previous provisions of this subchapter, 

continue in full force and effect until or 

unless modified, revoked, or superseded 

by the Department of State. 

§§ 120.8–120.9 [Reserved] 

Subpart B—General Policies and 

Processes 

§ 120.10 Introduction to the U.S. Munitions 

List. 

(a) The U.S. Munitions List. The 

articles, services, and related technical 

data designated as defense articles or 

defense services pursuant to sections 38 

and 47(7) of the Arms Export Control 

Act appear in part 121 of this 

subchapter and constitute the U.S. 

Munitions List (USML). Changes in 

designations are published in the 

Federal Register. Paragraphs (b) through 

(d) of this section describe or explain 

the elements of a USML category. 

(b) Composition of U.S. Munitions List 

categories. USML categories are 

organized by paragraphs and 

subparagraphs identified 

alphanumerically. They usually start by 

enumerating or otherwise describing 

end-items, followed by major systems 

and equipment; parts, components, 

accessories, and attachments; and 

technical data and defense services 

directly related to the defense articles of 

that USML category. 

(c) Significant Military Equipment 

paragraphs in the USML. All items 

described within a USML paragraph or 

subordinate paragraph that is preceded 

by an asterisk (*) are designated 

Significant Military Equipment (SME). 

Note that technical data directly related 

to the manufacture or production of a 

defense article designated as SME is 

also designated as SME. 

(d) Missile Technology Control 

Regime (MTCR) designation. Annotation 

with the parenthetical (MT) at the end 

of a USML entry indicates those defense 

articles that are on the MTCR Annex. 

§ 120.11 Order of review. 

(a) Control. Articles are controlled on 

the U.S. Munitions List (USML) because 

they are either: 

(1) Enumerated in a category; or 

(2) Described in a catch-all paragraph 

that incorporates specially designed as a 


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control parameter. In order to classify an 

item on the USML, begin with a review 

of the general characteristics of the item. 

This should guide you to the 

appropriate category, whereupon you 

should attempt to match the particular 

characteristics and functions of the 

article to a specific entry within that 

category. 

(b) Specially designed. (1) If the entry 

includes the term specially designed, 

refer to § 120.41 to determine if the 

article qualifies for one or more of the 

exclusions articulated in § 120.41(b). 

(2) An item described in multiple 

entries should be categorized according 

to an enumerated entry rather than a 

specially designed catch-all paragraph. 

(c) Integration of controlled items. 

Defense articles described on the USML 

are controlled and remain subject to this 

subchapter following incorporation or 

integration into any item not described 

on the USML, unless specifically 

provided otherwise in this subchapter. 

(d) Other controls. In all cases, articles 

not controlled on the USML may be 

subject to another U.S. Government 

regulatory agency (see § 120.5, and 

Supplement No. 4 to part 774 of the 

Export Administration Regulations 

(EAR) in title 15 of the CFR for guidance 

on classifying an item subject to the 

EAR). 

§ 120.12 Commodity jurisdiction 

determination requests. 

(a) Upon electronic submission of a 

Commodity Jurisdiction Determination 

Form (Form DS–4076), the Directorate 

of Defense Trade Controls (DDTC) shall 

provide a determination of whether a 

particular article or service is covered 

by the U.S. Munitions List in part 121 

of this subchapter. The determination, 

consistent with §§ 120.2, 120.3, and 

120.4, entails consultation among the 

Departments of State, Defense, 

Commerce, and other U.S. Government 

agencies and industry in appropriate 

cases. State, Defense, and Commerce 

will resolve commodity jurisdiction 

determination disputes in accordance 

with established procedures. State shall 

notify Defense and Commerce, and 

other U.S. Government agencies as 

appropriate, of the initiation and 

conclusion of each case. 

(b) A determination that an article or 

service meets the criteria of a defense 

article or defense service, or provides 

the equivalent performance capabilities 

of a defense article on the U.S. 

Munitions List, is made on a case-bycase basis, taking into account: 

(1) The form and fit of the article; 

(2) The function and performance 

capability of the article; and 

(3) Other applicant-provided 

information, to include a history of the 

product’s design, development, and use, 

as well as specifications and any other 

relevant data as described in brochures 

and other related documents. 

(c) A determination that an article or 

service has a critical military or 

intelligence advantage such that it 

warrants control under Category XXI of 

§ 121.1 of this subchapter is made, on a 

case-by-case basis, taking into account: 

(1) The function and performance 

capability of the article; and 

(2) The nature of controls imposed by 

other nations on such items (including 

the Wassenaar Arrangement and other 

multilateral controls). 

(d) DDTC will provide a preliminary 

response within 10 working days of 

receipt of a complete request for 

commodity jurisdiction determination. 

If after 45 days DDTC has not provided 

a final commodity jurisdiction 

determination, the applicant may 

request in writing to the Director, Office 

of Defense Trade Controls Policy that 

this determination be given expedited 

processing. 

(e) A person may appeal a commodity 

jurisdiction determination by 

submitting a written request for 

reconsideration to the Deputy Assistant 

Secretary of State for Defense Trade 

Controls. The Deputy Assistant 

Secretary’s determination of the appeal 

will be provided, in writing, within 30 

days of receipt of the appeal. If desired, 

an appeal of the Deputy Assistant 

Secretary’s decision can then be made to 

the Assistant Secretary of State for 

Political-Military Affairs. 

(f) Registration with DDTC as 

described in part 122 of this subchapter 

is not required prior to submission of a 

commodity jurisdiction determination 

request. 

§ 120.13 Registration. 

(a) Any person who engages in the 

United States in the business of 

manufacturing or exporting or 

temporarily importing defense articles, 

or furnishing defense services, is 

required to register with the Directorate 

of Defense Trade Controls as set forth in 

part 122 of this subchapter. For the 

purpose of this subchapter, engaging in 

such a business requires only one 

occasion of manufacturing or exporting 

or temporarily importing a defense 

article or furnishing a defense service. A 

manufacturer who does not engage in 

exporting must nevertheless register. 

(b) Any U.S. person; foreign person 

located in the United States; or foreign 

person located outside the United States 

that is owned or controlled by a U.S. 

person, who engages in brokering 

activities is required to register with the 

Directorate of Defense Trade Controls as 

set forth in part 129 of this subchapter. 

§ 120.14 Licenses and related 

authorizations. 

(a) Export, reexport, retransfer, or 

temporary import, of defense articles. 

The approval of the Directorate of 

Defense Trade Controls (DDTC) must be 

requested and obtained before the 

export, reexport, retransfer, or 

temporary import of a defense article, 

unless an exemption under the 

provisions of this subchapter is 

applicable. 

(b) Furnishing defense services. The 

approval of DDTC must be requested 

and obtained before a defense service 

may be furnished, unless an exemption 

under the provisions of this subchapter 

is applicable. 

(c) Brokering activities. The approval 

of DDTC must be requested and 

obtained before engaging in the business 

of brokering activities for the defense 

articles described in § 129.4(a) of this 

subchapter by a person who is required 

to register as a broker under part 129 of 

this subchapter, unless an exemption 

under the provisions of part 129 is 

applicable. 

§ 120.15 Exemptions. 

(a) Persons otherwise required to 

register with the Directorate of Defense 

Trade Controls in accordance with this 

subchapter must do so prior to 

utilization of an exemption. 

(b) Exemptions provided in this 

subchapter may not be utilized for 

transactions in which the exporter, any 

party to the export, any source or 

manufacturer, broker or other 

participant in the brokering activities, is 

generally ineligible as set forth in 

§ 120.16, unless prior written 

authorization has been granted by the 

Directorate of Defense Trade Controls. 

(c) Exemptions provided in this 

subchapter do not apply with respect to 

defense articles or defense services 

originating in or for export to any 

proscribed countries, areas, or persons 

identified in § 126.1 of this subchapter, 

except as provided in § 126.1. 

(d) Each exemption provided in this 

subchapter is subject to limitation as 

described in the section or paragraph of 

this subchapter in which the exemption 

is prescribed. 

(e) Any person engaging in any 

export, reexport, transfer, or retransfer 

of a defense article or defense service 

pursuant to an exemption must 

maintain records of each such export, 

reexport, transfer, or retransfer. The 

records shall, to the extent applicable to 

the transaction and consistent with the 


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requirements of § 123.22 of this 

subchapter, include the following 

information: A description of the 

defense article, including technical data, 

or defense service; the name and 

address of the end-user and other 

available contact information (e.g., 

telephone number and electronic mail 

address); the name of the natural person 

responsible for the transaction; the 

stated end-use of the defense article or 

defense service; the date of the 

transaction; the Electronic Export 

Information (EEI) Internal Transaction 

Number (ITN); and the method of 

transmission. The person using or acting 

in reliance upon the exemption shall 

also comply with any additional 

recordkeeping requirements enumerated 

in the text of the regulations concerning 

such exemption (e.g., requirements 

specific to the Defense Trade 

Cooperation Treaties in §§ 126.16 and 

126.17 of this subchapter). 

(f) To claim an exemption for the 

export of technical data under the 

provisions of this subchapter (e.g., 

§§ 125.4 and 125.5 of this subchapter), 

the exporter must certify that the 

proposed export is covered by a relevant 

section of this subchapter, to include 

the paragraph and applicable 

subordinate paragraph. Certifications 

consist of clearly marking the package 

or letter containing the technical data 

‘‘22 CFR [insert ITAR exemption] 

applicable.’’ This certification must be 

made in written form and retained in 

the exporter’s files for a period of 5 

years. For exports that are oral, visual, 

or electronic the exporter must also 

complete a written certification and 

retain it for a period of 5 years. 

§ 120.16 Eligibility for approvals. 

(a) A U.S. person may receive a 

license or other approval pursuant to 

this subchapter. A foreign person may 

not receive such a license or other 

approval, except as follows: 

(1) A foreign governmental entity in 

the U.S. may receive a license or other 

approval; 

(2) A foreign person may receive a 

reexport or retransfer approval; or 

(3) A foreign person may receive an 

approval for brokering activities. 

(b) A request for a license or other 

approval by a U.S. person or by a person 

referred to in paragraphs (a)(1) and (3) 

of this section will be considered only 

if the applicant has registered with the 

Directorate of Defense Trade Controls 

pursuant to part 122 or 129 of this 

subchapter, as appropriate. 

(c) Persons who have been convicted 

of violating the U.S. criminal statutes 

enumerated in § 120.6, who have been 

debarred pursuant to part 127 or 128 of 

this subchapter, who are subject to 

indictment or are otherwise charged 

(e.g., charged by criminal information in 

lieu of indictment) with violating the 

U.S. criminal statutes enumerated in 

§ 120.6, who are ineligible to contract 

with or to receive a license or other form 

of authorization to import defense 

articles or defense services from any 

agency of the U.S. Government, who are 

ineligible to receive an export license or 

other approval from any other agency of 

the U.S. Government, or who are subject 

to a publicly announced Department of 

State policy of denial, suspension, or 

revocation under § 120.18(a), are 

generally ineligible to be involved in 

activities regulated under this 

subchapter. 

§ 120.17 End-use monitoring. 

(a) Pursuant to section 40A of the 

Arms Export Control Act (22 U.S.C. 

2785) and related delegations of 

authority, the Department of State is 

required to establish a monitoring 

program in order to improve 

accountability with respect to defense 

articles and defense services, sold, 

leased, or exported under Department of 

State licenses or other approvals under 

section 38 of the Arms Export Control 

Act and this subchapter. 

(b) All exports of defense articles, 

technical data, services, and brokering 

activities made pursuant to this 

subchapter are subject to end-use 

monitoring by the Department of State 

through the Blue Lantern program. 

§ 120.18 Denial, revocation, suspension, 

or amendment of licenses and other 

approvals. 

(a) Policy. Licenses or approvals shall 

be denied or revoked whenever required 

by any statute of the United States. Any 

application for an export license or 

other approval under this subchapter 

may be disapproved, and any license or 

other approval or exemption granted 

under this subchapter may be revoked, 

suspended, or amended without prior 

notice whenever: 

(1) The Department of State deems 

such action to be in furtherance of 

world peace, the national security or the 

foreign policy of the United States, or is 

otherwise advisable; or 

(2) The Department of State believes 

that 22 U.S.C. 2778, any regulation 

contained in this subchapter, or the 

terms of any U.S. Government export 

authorization (including the terms of a 

manufacturing license or technical 

assistance agreement, or export 

authorization granted pursuant to the 

Export Administration Regulations in 15 

CFR parts 730 through 774) has been 

violated by any party to the export or 

other person having significant interest 

in the transaction; or 

(3) An applicant is the subject of a 

criminal complaint, other criminal 

charge (e.g., an information), or 

indictment for a violation of any of the 

U.S. criminal statutes enumerated in 

§ 120.6; or 

(4) An applicant or any party to the 

export or the agreement has been 

convicted of violating any of the U.S. 

criminal statutes enumerated in § 120.6; 

or 

(5) An applicant is ineligible to 

contract with, or to receive a license or 

other authorization to import defense 

articles or defense services from, any 

agency of the U.S. Government; or 

(6) An applicant, any party to the 

export or agreement, any source or 

manufacturer of the defense article or 

defense service or any person who has 

a significant interest in the transaction 

has been debarred, suspended, or 

otherwise is ineligible to receive an 

export license or other authorization 

from any agency of the U.S. Government 

(e.g., pursuant to an order denying 

export privileges issued by the 

Department of Commerce under 15 CFR 

part 766 or by the Department of State 

under part 127 or 128 of this 

subchapter); or 

(7) An applicant has failed to include 

any of the information or 

documentation expressly required to 

support a license application, 

exemption, or other request for approval 

under this subchapter, or as required in 

the instructions in the applicable 

Department of State form or has failed 

to provide notice or information as 

required under this subchapter; or 

(8) An applicant is subject to 

sanctions under other relevant U.S. laws 

(e.g., the Missile Technology Controls 

title of the National Defense 

Authorization Act for FY 1991 (Pub. L. 

101–510); the Chemical and Biological 

Weapons Control and Warfare 

Elimination Act of 1991 (Pub. L. 102– 

182); or the Iran-Iraq Arms NonProliferation Act of 1992 (Pub. L. 102– 

484)); or 

(9) Any person involved in the 

transaction has been the subject of an 

unfavorable finding of an end-use 

monitoring check as described in 

§ 120.17. 

(b) Notification. The Directorate of 

Defense Trade Controls will notify 

applicants or licensees or other 

appropriate U.S. persons of actions 

taken pursuant to paragraph (a) of this 

section. The reasons for the action will 

be stated as specifically as security and 

foreign policy considerations permit. 

(c) Reconsideration. If a written 

request for reconsideration of an adverse 


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decision is made within 30 days after a 

person has been informed of the 

decision, the U.S. person will be 

accorded an opportunity to present 

additional information. The case will 

then be reviewed by the Directorate of 

Defense Trade Controls. 

(d) Reconsideration of certain 

applications. Applications for licenses 

or other requests for approval denied for 

repeated failure to provide information 

or documentation expressly required 

will normally not be reconsidered 

during the 30 day period following 

denial. They will be reconsidered after 

this period only after a final decision is 

made on whether the applicant will be 

subject to an administrative penalty 

imposed pursuant to this subchapter. 

Any request for reconsideration shall be 

accompanied by a letter explaining the 

steps that have been taken to correct the 

failure and to ensure compliance with 

the requirements of this subchapter. 

§ 120.19 Violations and penalties. 

(a) Part 127 of this subchapter 

specifies conduct that constitutes a 

violation of the Arms Export Control 

Act (AECA) and/or the International 

Traffic in Arms Regulations in this 

subchapter and the sanctions that may 

be imposed for such violations. 

(b) The Department strongly 

encourages the disclosure of 

information to the Directorate of 

Defense Trade Controls by persons that 

believe they may have violated any 

export control provision of the AECA, or 

any regulation in this subchapter, order, 

license, or other authorization issued 

under the authority of the AECA. 

§ 120.20 Administrative procedures. 

The Arms Export Control Act (AECA) 

authorizes the President to control the 

import and export of defense articles 

and services in furtherance of world 

peace and the security and foreign 

policy of the United States. Pursuant to 

delegated authorities, the Secretary of 

State is authorized to make decisions on 

whether license applications or other 

written requests for approval shall be 

granted, or whether exemptions may be 

used. The Secretary of State is also 

authorized to revoke, suspend, or 

amend licenses or other written 

approvals whenever such action is 

deemed to be advisable. The 

administration of the AECA is a foreign 

affairs function encompassed within the 

meaning of the military and foreign 

affairs exclusion of the Administrative 

Procedure Act and is thereby expressly 

exempt from various provisions of that 

Act. Because the exercising of the 

foreign affairs function, including the 

decisions required to implement the 

AECA, is highly discretionary, it is 

excluded from review under the 

Administrative Procedure Act. 

§ 120.21 Disclosure of information. 

(a) Freedom of information. 

Subchapter R of this title contains 

regulations on the availability to the 

public of information and records of the 

Department of State. The provisions of 

subchapter R apply to such disclosures 

by the Directorate of Defense Trade 

Controls. 

(b) Determinations required by law. 

Section 38(e) of the Arms Export 

Control Act (AECA) (22 U.S.C. 2778(e)) 

provides that information obtained for 

the purpose of consideration of, or 

concerning, license applications shall be 

withheld from public disclosure unless 

the release of such information is 

determined by the Secretary of State to 

be in the national interest. Section 38(e) 

of the AECA further provides that the 

names of countries and types and 

quantities of defense articles for which 

licenses are issued under this section 

shall not be withheld from public 

disclosure unless certain determinations 

are made that the release of such 

information would be contrary to the 

national interest. Such determinations 

required by section 38(e) shall be made 

by the Assistant Secretary of State for 

Political-Military Affairs. 

(c) Information required under part 

130 of this subchapter. Part 130 

contains specific provisions on the 

disclosure of information described in 

that part. 

(d) National interest determinations. 

In accordance with section 38(e) of the 

AECA, the Secretary of State has 

determined that the following 

disclosures are in the national interest 

of the United States: 

(1) Furnishing information to foreign 

governments for law enforcement or 

regulatory purposes; and 

(2) Furnishing information to foreign 

governments and other agencies of the 

U.S. Government in the context of 

multilateral or bilateral export regimes 

(e.g., the Missile Technology Control 

Regime, the Australia Group, and 

Wassenaar Arrangement). 

§ 120.22 Advisory opinions and related 

authorizations. 

(a) Preliminary authorization 

determinations. A person may request 

information from the Directorate of 

Defense Trade Controls (DDTC) as to 

whether it would likely grant a license 

or other approval for a particular 

defense article or defense service to a 

particular country. Such information 

from DDTC is issued on a case-by-case 

basis and applies only to the particular 

matters presented to DDTC. These 

opinions are not binding on the 

Department of State and may not be 

used in future matters before the 

Department. A request for an advisory 

opinion must be made in writing and 

must outline in detail the equipment, its 

usage, the security classification (if any) 

of the articles or related technical data, 

and the country or countries involved. 

(b) Related authorizations. DDTC 

may, as appropriate, in accordance with 

the procedures set forth in paragraph (a) 

of this section, provide export 

authorization, subject to all other 

relevant requirements of this 

subchapter, both for transactions that 

have been the subject of advisory 

opinions requested by prospective U.S. 

exporters, or for the Directorate’s own 

initiatives. Such initiatives may cover 

pilot programs, or specifically 

anticipated circumstances for which the 

Directorate considers special 

authorizations appropriate. 

(c) Interpretations of the International 

Traffic in Arms Regulations in this 

subchapter. Any person may request an 

interpretation of the requirements set 

forth in this subchapter in the form of 

an advisory opinion. A request for an 

advisory opinion must be made in 

writing. Any response to an advisory 

opinion provided by DDTC pursuant to 

this paragraph (c) shall not be an 

authorization to export and shall not 

bind the Department to grant or deny 

any such authorization. 

§ 120.23 Organizations and arrangements. 

(a) North Atlantic Treaty 

Organization. North Atlantic Treaty 

Organization (NATO) refers to the 

organization of member states that are 

parties to the North Atlantic Treaty, 

which members include: Albania, 

Belgium, Bulgaria, Canada, Croatia, 

Czech Republic, Denmark, Estonia, 

France, Germany, Greece, Hungary, 

Iceland, Italy, Latvia, Lithuania, 

Luxembourg, Montenegro, the 

Netherlands, North Macedonia, Norway, 

Poland, Portugal, Romania, Slovakia, 

Slovenia, Spain, Turkey, the United 

Kingdom, the United States, and any 

state not included here that has 

deposited an instrument of accession in 

accordance with Article 10 of the North 

Atlantic Treaty. 

(b) Major non-NATO ally. (1) Major 

non-NATO ally, as defined in section 

644(q) of the Foreign Assistance Act of 

1961 (22 U.S.C. 2403(q)), means a 

country that is designated in accordance 

with section 517 of the Foreign 

Assistance Act of 1961 (22 U.S.C. 

2321k) as a major non-NATO ally for 

purposes of the Foreign Assistance Act 

of 1961 and the Arms Export Control 


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Act (22 U.S.C. 2151 et seq. and 22 

U.S.C. 2751 et seq.). 

(2) The following countries are 

designated as major non-NATO allies: 

Afghanistan (see § 126.1(g) of this 

subchapter), Argentina, Australia, 

Bahrain, Brazil, Egypt, Israel, Japan, 

Jordan, Kuwait, Morocco, New Zealand, 

Pakistan, the Philippines, the Republic 

of Korea, Thailand, and Tunisia. Taiwan 

shall be treated as though it were 

designated a major non-NATO ally. 

(c) Wassenaar Arrangement. (1) The 

Wassenaar Arrangement refers to the 

Wassenaar Arrangement on Export 

Controls for Conventional Arms and 

Dual-Use Goods and Technologies 

among the United States, Argentina, 

Australia, Austria, Belgium, Bulgaria, 

Canada, Croatia, the Czech Republic, 

Denmark, Estonia, Finland, France, 

Germany, Greece, Hungary, India 

Ireland, Italy, Japan, Latvia, Lithuania, 

Luxembourg, Malta, Mexico, 

Netherlands, New Zealand, Norway, 

Poland, Portugal, the Republic of Korea, 

Romania, the Russian Federation, 

Slovakia, Slovenia, South Africa, Spain, 

Sweden, Switzerland, Turkey, Ukraine, 

and the United Kingdom, established on 

12 July 1996, to promote transparency 

and greater responsibility in transfers of 

conventional arms and dual-use goods 

and technologies. 

(2) The term Wassenaar Munitions 

List (WAML) refers to the list of military 

items for which all participants have 

agreed to maintain national export 

controls. 

(d) Missile Technology Control 

Regime—(1) Regime. Missile 

Technology Control Regime (MTCR) 

refers to the policy statement among the 

United States, the United Kingdom, the 

Federal Republic of Germany, France, 

Italy, Canada, and Japan, announced on 

April 16, 1987, to restrict sensitive 

missile-relevant transfers based on the 

MTCR Annex, and any amendments 

thereto. 

(2) MTCR Annex. The term MTCR 

Annex refers to the MTCR Guidelines 

and the Equipment, Software and 

Technology Annex of the MTCR, and 

any amendments thereto. 

(3) List of all items on the MTCR 

Annex. MTCR Annex items specified in 

the U.S. Munitions List shall be 

annotated by the parenthetical (MT) at 

the end of each applicable paragraph. 

(e) Defense Trade Cooperation Treaty 

between the United States and 

Australia. Defense Trade Cooperation 

Treaty between the United States and 

Australia refers to the Treaty between 

the Government of the United States of 

America and the Government of 

Australia Concerning Defense Trade 

Cooperation, done at Sydney, 

September 5, 2007. For additional 

information on making exports pursuant 

to this treaty, see § 126.16 of this 

subchapter. 

(f) Australia Implementing 

Arrangement. Australia Implementing 

Arrangement refers to the Implementing 

Arrangement Pursuant to the Treaty 

between the Government of the United 

States of America and the Government 

of Australia Concerning Defense Trade 

Cooperation, done at Washington, 

March 14, 2008, as it may be amended. 

(g) Defense Trade Cooperation Treaty 

between the United States and the 

United Kingdom. Defense Trade 

Cooperation Treaty between the United 

States and the United Kingdom refers to 

the Treaty between the Government of 

the United States of America and the 

Government of the United Kingdom of 

Great Britain and Northern Ireland 

Concerning Defense Trade Cooperation, 

done at Washington and London, June 

21 and 26, 2007. For additional 

information on making exports pursuant 

to this treaty, see § 126.17 of this 

subchapter. 

(h) United Kingdom Implementing 

Arrangement. United Kingdom 

Implementing Arrangement refers to the 

Implementing Arrangement Pursuant to 

the Treaty between the Government of 

the United States of America and the 

Government of the United Kingdom of 

Great Britain and Northern Ireland 

Concerning Defense Trade Cooperation, 

done at Washington, February 14, 2008, 

as it may be amended. 

§§ 120.24–120.29 [Reserved] 

Subpart C—Definitions 

§ 120.30 Directorate of Defense Trade 

Controls. 

Directorate of Defense Trade Controls, 

Bureau of Political-Military Affairs, 

Department of State, Washington, DC 

20522–0112. 

§ 120.31 Defense article. 

(a) Defense article means any item or 

technical data designated in § 121.1 of 

this subchapter and includes: 

(1) Technical data recorded or stored 

in any physical form, models, mockups 

or other items that reveal technical data 

directly relating to items designated in 

§ 121.1 of this subchapter; and 

(2) Forgings, castings, and other 

unfinished products, such as extrusions 

and machined bodies, that have reached 

a stage in manufacturing where they are 

clearly identifiable by mechanical 

properties, material composition, 

geometry, or function as defense 

articles. 

(b) It does not include basic marketing 

information on function or purpose or 

general system descriptions. 

(c) The policy described in § 120.3 is 

applicable to designations of additional 

items. 

§ 120.32 Defense service. 

(a) Defense service means: 

(1) The furnishing of assistance 

(including training) to foreign persons, 

whether in the United States or abroad 

in the design, development, 

engineering, manufacture, production, 

assembly, testing, repair, maintenance, 

modification, operation, 

demilitarization, destruction, 

processing, or use of defense articles; 

(2) The furnishing to foreign persons 

of any technical data controlled under 

this subchapter, whether in the United 

States or abroad; or 

(3) Military training of foreign units 

and forces, regular and irregular, 

including formal or informal instruction 

of foreign persons in the United States 

or abroad or by correspondence courses, 

technical, educational, or information 

publications and media of all kinds, 

training aid, orientation, training 

exercise, and military advice. 

(b) [Reserved] 

§ 120.33 Technical data. 

(a) Technical data means for purposes 

of this subchapter: 

(1) Information, other than software as 

defined in § 120.40(g), which is required 

for the design, development, 

production, manufacture, assembly, 

operation, repair, testing, maintenance, 

or modification of defense articles. This 

includes information in the form of 

blueprints, drawings, photographs, 

plans, instructions, or documentation; 

(2) Classified information relating to 

defense articles and defense services on 

the U.S. Munitions List and 600-series 

items controlled by the Commerce 

Control List; 

(3) Information covered by an 

invention secrecy order; or 

(4) Software (see § 120.40(g)) directly 

related to defense articles. 

(b) The definition in paragraph (a) of 

this section does not include 

information concerning general 

scientific, mathematical, or engineering 

principles commonly taught in schools, 

colleges, and universities, or 

information in the public domain as 

defined in § 120.34 or telemetry data as 

defined in note 3 to Category XV(f) of 

§ 121.1 of this subchapter. It also does 

not include basic marketing information 

on function or purpose or general 

system descriptions of defense articles. 


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§ 120.34 Public domain. 

(a) Public domain means information 

which is published and which is 

generally accessible or available to the 

public: 

(1) Through sales at newsstands and 

bookstores; 

(2) Through subscriptions which are 

available without restriction to any 

individual who desires to obtain or 

purchase the published information; 

(3) Through second class mailing 

privileges granted by the U.S. 

Government; 

(4) At libraries open to the public or 

from which the public can obtain 

documents; 

(5) Through patents available at any 

patent office; 

(6) Through unlimited distribution at 

a conference, meeting, seminar, trade 

show, or exhibition, generally accessible 

to the public, in the United States; 

(7) Through public release (i.e., 

unlimited distribution) in any form (e.g., 

not necessarily in published form) after 

approval by the cognizant U.S. 

Government department or agency (see 

also § 125.4(b)(13) of this subchapter); or 

(8) Through fundamental research in 

science and engineering at accredited 

institutions of higher learning in the 

U.S. where the resulting information is 

ordinarily published and shared broadly 

in the scientific community. 

Fundamental research is defined to 

mean basic and applied research in 

science and engineering where the 

resulting information is ordinarily 

published and shared broadly within 

the scientific community, as 

distinguished from research the results 

of which are restricted for proprietary 

reasons or specific U.S. Government 

access and dissemination controls. 

University research will not be 

considered fundamental research if: 

(i) The University or its researchers 

accept other restrictions on publication 

of scientific and technical information 

resulting from the project or activity; or 

(ii) The research is funded by the U.S. 

Government and specific access and 

dissemination controls protecting 

information resulting from the research 

are applicable. 

(b) [Reserved] 

§ 120.35 [Reserved] 

§ 120.36 Significant military equipment. 

(a) Significant military equipment 

means articles for which special export 

controls are warranted because of their 

capacity for substantial military utility 

or capability. 

(b) Significant military equipment 

includes: 

(1) Items in § 121.1 of this subchapter 

that are preceded by an asterisk; and 

(2) All classified articles enumerated 

in § 121.1 of this subchapter. 

§ 120.37 Major defense equipment. 

Major defense equipment, pursuant to 

section 47(6) of the Arms Export Control 

Act (22 U.S.C. 2794(6)), means any item 

of significant military equipment on the 

U.S. Munitions List having a 

nonrecurring research and development 

cost of more than $50,000,000 or a total 

production cost of more than 

$200,000,000. 

§ 120.38 Classified. 

Classified means classified pursuant 

to Executive Order 13526, or 

predecessor order, and a security 

classification guide developed pursuant 

thereto or equivalent, or to the 

corresponding classification rules of 

another government or international 

organization. 

§ 120.39 Foreign defense article or 

defense service. 

Foreign defense article or defense 

service means any article or service 

described on the U.S. Munitions List of 

non-U.S. origin. Unless otherwise 

provided in this subchapter, the terms 

defense article and defense service refer 

to both U.S. and foreign origin defense 

articles and defense services described 

on the U.S. Munitions List. A defense 

article or defense service is determined 

exclusively in accordance with the 

Arms Export Control Act and this 

subchapter, regardless of any 

designation (either affirming or 

contrary) that may be attributed to the 

same article or service by any foreign 

government or international 

organization. 

§ 120.40 Compositional terms. 

(a) Commodity means any article, 

material, or supply, except technology/ 

technical data or software. 

(b) An end-item is a system, 

equipment, or an assembled article 

ready for its intended use. Only 

ammunition or fuel or other energy 

source is required to place it in an 

operating state. 

(c) A component is an item that is 

useful only when used in conjunction 

with an end-item: 

(1) A major component includes any 

assembled element that forms a portion 

of an end-item without which the enditem is inoperable; and 

(2) A minor component includes any 

assembled element of a major 

component. 

(d) Accessories and attachments are 

associated articles for any component, 

equipment, system, or end-item, and 

which are not necessary for its 

operation, but which enhance its 

usefulness or effectiveness. 

(e) A part is any single unassembled 

element of a major or a minor 

component, accessory, or attachment 

which is not normally subject to 

disassembly without the destruction or 

the impairment of designed use. 

(f) Firmware and any related unique 

support tools (such as computers, 

linkers, editors, test case generators, 

diagnostic checkers, library of functions, 

and system test diagnostics) directly 

related to equipment or systems covered 

under any category of the U.S. 

Munitions List are considered as part of 

the end-item or component. Firmware 

includes but is not limited to circuits 

into which software has been 

programmed. 

(g) Software includes but is not 

limited to the system functional design, 

logic flow, algorithms, application 

programs, operating systems, and 

support software for design, 

implementation, test, operation, 

diagnosis, and repair. A person who 

intends to export only software should, 

unless it is specifically enumerated in 

§ 121.1 of this subchapter (e.g., USML 

Category XIII(b)), apply for a technical 

data license pursuant to part 125 of this 

subchapter. 

(h) A system is a combination of parts, 

components, accessories, attachments, 

firmware, software, equipment, or enditems that operate together to perform a 

function. 

Note 1 to paragraph (h): The industrial 

standards established by the International 

Council on Systems Engineering (INCOSE), 

National Aeronautics and Space 

Administration (NASA), and International 

Organization for Standardization (ISO) 

provide examples for when commodities and 

software operate together to perform a 

function as a system. 

(i) Equipment is a combination of 

parts, components, accessories, 

attachments, firmware, or software that 

operate together to perform a function 

of, as, or for an end-item or system. 

Equipment may be a subset of an enditem based on the characteristics of the 

equipment. Equipment that meets the 

definition of an end-item in paragraph 

(b) of this section is an end-item. 

Equipment that does not meet the 

definition of an end-item is a 

component, accessory, attachment, 

firmware, or software. 

§ 120.41 Specially designed. 

(a) Except for commodities or 

software described in paragraph (b) of 

this section, a commodity or software is 

specially designed if it: 

(1) As a result of development, has 

properties peculiarly responsible for 


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achieving or exceeding the controlled 

performance levels, characteristics, or 

functions described in the relevant U.S. 

Munitions List (USML) paragraph in 

§ 121.1 of this subchapter; or 

Note 1 to paragraph (a)(1): An example of 

a commodity that as a result of development 

has properties peculiarly responsible for 

achieving or exceeding the controlled 

performance levels, functions, or 

characteristics in a USML category would be 

a swimmer delivery vehicle specially 

designed to dock with a submarine to 

provide submerged transport for swimmers 

or divers from submarines. 

(2) Is a part, component, accessory, 

attachment, or software for use in or 

with a defense article. 

(b) For purposes of this subchapter, a 

part, component, accessory, attachment, 

or software is not specially designed if 

it: 

(1) Is subject to the EAR pursuant to 

a commodity jurisdiction determination; 

(2) Is, regardless of form or fit, a 

fastener (e.g., screws, bolts, nuts, nut 

plates, studs, inserts, clips, rivets, pins), 

washer, spacer, insulator, grommet, 

bushing, spring, wire, or solder; 

(3) Has the same function, 

performance capabilities, and the same 

or equivalent form and fit as a 

commodity or software used in or with 

a commodity that: 

(i) Is or was in production (i.e., not in 

development); and 

(ii) Is not enumerated on the USML; 

(4) Was or is being developed with 

knowledge that it is or would be for use 

in or with both defense articles 

enumerated on the USML and also 

commodities not on the USML; or 

(5) Was or is being developed as a 

general purpose commodity or software, 

i.e., with no knowledge for use in or 

with a particular commodity (e.g., a F/ 

A–18 or HMMWV) or type of 

commodity (e.g., an aircraft or machine 

tool). 

Note 2 to paragraph (b): For a defense 

article not to be specially designed on the 

basis of paragraph (b)(4) or (5) of this section, 

documents contemporaneous with its 

development, in their totality, must establish 

the elements of paragraph (b)(4) or (5). Such 

documents may include concept design 

information, marketing plans, declarations in 

patent applications, or contracts. Absent such 

documents, the commodity may not be 

excluded from being specially designed by 

either paragraph (b)(4) or (5). 

Note 3 to paragraph (b): For the purpose 

of paragraphs (b)(4) and (5) of this section, 

‘‘knowledge’’ includes not only the positive 

knowledge a circumstance exists or is 

substantially certain to occur, but also an 

awareness of a high probability of its 

existence or future occurrence. Such 

awareness is inferred from evidence of the 

conscious disregard of facts known to a 

person and is also inferred from a person’s 

willful avoidance of facts. 

§ 120.42 Form, fit, function, performance 

capability, equivalent, enumerated, and 

catch-all control. 

(a) Form. The form of a commodity is 

defined by its configuration (including 

the geometrically measured 

configuration), material, and material 

properties that uniquely characterize it. 

For software, the form means the design, 

logic flow, and algorithms. 

(b) Fit. The fit of a commodity is 

defined by its ability to physically 

interface or connect with or become an 

integral part of another commodity. For 

software, the fit is defined by its ability 

to interface or connect with a defense 

article. 

(c) Function. The function of a 

commodity is the action or actions it is 

designed to perform. For software, the 

function means the action or actions the 

software performs directly related to a 

defense article or as a standalone 

application. 

(d) Performance capability. 

Performance capability is the measure of 

a commodity’s effectiveness to perform 

a designated function in a given 

environment (e.g., measured in terms of 

speed, durability, reliability, pressure, 

accuracy, efficiency). For software, 

performance capability means the 

measure of the software’s effectiveness 

to perform a designated function. 

(e) Equivalent. With respect to a 

commodity, equivalent means its form 

has been modified solely for fit 

purposes. 

(f) Enumerated. Enumerated refers to 

any item designated on the U.S. 

Munitions List or item on the Commerce 

Control List and not in a catch-all 

control. 

(g) Catch-all control. A catch-all 

control is one that does not refer to 

specific types of parts, components, 

accessories, or attachments, but rather 

controls unspecified parts, components, 

accessories, or attachments only if they 

were specially designed for an 

enumerated item. 

§ 120.43 Development, production, and 

related terms; Basic and applied research. 

(a) Development is related to all stages 

prior to serial production, such as 

design, design research, design analyses, 

design concepts, assembly and testing of 

prototypes, pilot production schemes, 

design data, process of transforming 

design data into a product, 

configuration design, integration design, 

and layouts. Development includes 

modification of an existing design. 

(b)(1) Production means all 

production stages, such as product 

engineering, manufacture, integration, 

assembly (mounting), inspection, 

testing, and quality assurance. This 

includes serial production where 

commodities have passed production 

readiness testing (i.e., an approved, 

standardized design ready for large scale 

production) and have been or are being 

produced on an assembly line for 

multiple commodities using the 

approved, standardized design. 

(2) Commodities in production that 

are subsequently subject to development 

activities, such as those that would 

result in enhancements or 

improvements only in the reliability or 

maintainability of the commodity (e.g., 

an increased mean time between 

failure), including those pertaining to 

quality improvements, cost reductions, 

or feature enhancements, remain in 

production. However, any new models 

or versions of such commodities 

developed from such efforts that change 

the basic performance or capability of 

the commodity are in development until 

and unless they enter into production. 

(c) Design methodology includes the 

underlying engineering methods and 

design philosophy utilized (i.e., 

information that explains the rationale 

for a particular design decision, 

engineering feature, or performance 

requirement); engineering experience 

(e.g., lessons learned); and the rationale 

and associated databases (e.g., design 

allowables, factors of safety, component 

life predictions, failure analysis criteria) 

that establish the operational 

requirements (e.g., performance, 

mechanical, electrical, electronic, 

reliability and maintainability) of a 

defense article. (Final analytical results 

and the initial conditions and 

parameters may be provided.) 

(d) Engineering analysis includes the 

analytical methods and tools used to 

design or evaluate a defense article’s 

performance against the operational 

requirements. Analytical methods and 

tools include the development and/or 

use of mockups, computer models and 

simulations, and test facilities. (Final 

analytical results and the initial 

conditions and parameters may be 

provided.) 

(e) Manufacturing know-how includes 

information that provides detailed 

manufacturing processes and techniques 

needed to translate a detailed design 

into a qualified, finished defense article. 

(Information may be provided in a 

build-to-print package that is necessary 

in order to produce an acceptable 

defense article.) 

(f) Build-to-print means that a foreign 

consignee can produce a defense article 

from engineering drawings without any 

technical assistance from a U.S. 


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exporter. This transaction is based 

strictly on a hands-off approach since 

the foreign consignee is understood to 

have the inherent capability to produce 

the defense article and only lacks the 

necessary drawings. Supporting 

documentation (e.g., acceptance criteria, 

object code software for numerically 

controlled machines) may be released 

on an as-required basis (i.e., must have) 

such that the foreign consignee would 

not be able to produce an acceptable 

defense article without this additional 

supporting documentation. Build-toprint does not include the release of any 

information which discloses design 

methodology, engineering analysis, 

detailed process information or 

manufacturing know-how. 

Documentation which is not absolutely 

necessary to permit manufacture of an 

acceptable defense article (i.e. nice to 

have) is not considered within the 

boundaries of a build-to-print data 

package. 

(g) Build/design-to-specification 

means that a foreign consignee can 

design and produce a defense article 

from requirement specifications without 

any technical assistance from the U.S. 

exporter. This transaction is based 

strictly on a hands-off approach since 

the foreign consignee is understood to 

have the inherent capability to both 

design and produce the defense article 

and only lacks the necessary 

requirement information. 

(h) Basic research means a systemic 

study directed toward greater 

knowledge or understanding of the 

fundamental aspects of phenomena and 

observable facts without specific 

applications towards processes or 

products in mind. It does not include 

applied research. 

(i) Applied research means a systemic 

study to gain knowledge or 

understanding necessary to determine 

the means by which a recognized and 

specific need may be met. It is a 

systematic application of knowledge 

toward the production of useful 

materials, devices, and systems or 

methods, including design, 

development, and improvement of 

prototypes and new processes to meet 

specific requirements. 

§ 120.44 [Reserved] 

§ 120.45 Maintenance levels. 

(a) Organizational-level maintenance 

(or basic-level maintenance) is the first 

level of maintenance that can be 

performed on-equipment (directly on 

the defense article or support 

equipment) without specialized 

training. It consists of repairing, 

inspecting, servicing, calibrating, 

lubricating, or adjusting equipment, as 

well as replacing minor parts, 

components, assemblies, and linereplaceable spares or units. This 

includes modifications, enhancements, 

or upgrades that would result in 

improving only the reliability or 

maintainability of the commodity (e.g., 

an increased mean time between failure) 

and does not enhance the basic 

performance or capability of the defense 

article. 

(b) Intermediate-level maintenance is 

second-level maintenance performed 

off-equipment (on removed parts, 

components, or equipment) at or by 

designated maintenance shops or 

centers, tenders, or field teams. It may 

consist of calibrating, repairing, testing, 

or replacing damaged or unserviceable 

parts, components, or assemblies. This 

includes modifications, enhancements, 

or upgrades that would result in 

improving only the reliability or 

maintainability of the commodity (e.g., 

an increased mean time between failure) 

and does not enhance the basic 

performance or capability of the defense 

article. 

(c) Depot-level maintenance is thirdlevel maintenance performed on- or offequipment at or by a major repair 

facility, shipyard, or field team, each 

with necessary equipment and 

personnel of requisite technical skill. It 

consists of providing evaluation or 

repair beyond unit or organization 

capability. This maintenance consists of 

inspecting, testing, calibrating, 

repairing, overhauling, refurbishing, 

reconditioning, and one-to-one 

replacing of any defective parts, 

components, or assemblies. This 

includes modifications, enhancements, 

or upgrades that would result in 

improving only the reliability or 

maintainability of the commodity (e.g., 

an increased mean time between failure) 

and does not enhance the basic 

performance or capability of the defense 

article. 

§§ 120.46–120.49 [Reserved] 

§ 120.50 Export. 

(a) Export, except as set forth in 

§ 120.54 or § 126.16 or § 126.17 of this 

subchapter, means: 

(1) An actual shipment or 

transmission out of the United States, 

including the sending or taking of a 

defense article out of the United States 

in any manner; 

(2) Releasing or otherwise transferring 

technical data to a foreign person in the 

United States (a deemed export); 

(3) Transferring registration, control, 

or ownership of any aircraft, vessel, or 

satellite subject to this subchapter by a 

U.S. person to a foreign person; 

(4) Releasing or otherwise transferring 

a defense article to an embassy or to any 

of its agencies or subdivisions, such as 

a diplomatic mission or consulate, in 

the United States; 

(5) Performing a defense service on 

behalf of, or for the benefit of, a foreign 

person, whether in the United States or 

abroad; or 

(6) The release of previously 

encrypted technical data as described in 

§ 120.56(a)(3) and (4). 

(b) Any release in the United States of 

technical data to a foreign person is 

deemed to be an export to all countries 

in which the foreign person has held or 

holds citizenship or holds permanent 

residency. 

§ 120.51 Reexport. 

(a) Reexport, except as set forth in 

§ 120.54 or § 126.16 or § 126.17 of this 

subchapter, means: 

(1) An actual shipment or 

transmission of a defense article from 

one foreign country to another foreign 

country, including the sending or taking 

of a defense article to or from such 

countries in any manner; 

(2) Releasing or otherwise transferring 

technical data to a foreign person who 

is a citizen or permanent resident of a 

country other than the foreign country 

where the release or transfer takes place 

(a deemed reexport); or 

(3) Transferring registration, control, 

or ownership of any aircraft, vessel, or 

satellite subject to this subchapter 

between foreign persons. 

(b) Any release outside the United 

States of technical data to a foreign 

person is deemed to be a reexport to all 

countries in which the foreign person 

has held or holds citizenship or holds 

permanent residency. 

§ 120.52 Retransfer. 

(a) Retransfer, except as set forth in 

§ 120.54 or § 126.16 or § 126.17 of this 

subchapter, means: 

(1) A change in end-use or end-user, 

or a temporary transfer to a third party, 

of a defense article within the same 

foreign country; or 

(2) A release of technical data to a 

foreign person who is a citizen or 

permanent resident of the country 

where the release or transfer takes place. 

(b) [Reserved] 

§ 120.53 Temporary import. 

(a) Temporary import, except as set 

forth in § 120.54, means bringing into 

the United States from a foreign country 

any defense article that is: 

(1) To be returned to the country from 

which it was shipped or taken; or 


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(2) Any defense article that is in 

transit to another foreign destination. 

(b) Temporary import includes 

withdrawal of a defense article from a 

customs bonded warehouse or foreign 

trade zone for the purpose of returning 

it to the country of origin or country 

from which it was shipped or for 

shipment to another foreign destination. 

(c) Permanent imports are regulated 

by the Attorney General under the 

direction of the Department of Justice’s 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives (see 27 CFR parts 447, 

478, 479, and 555). 

§ 120.54 Activities that are not exports, 

reexports, retransfers, or temporary 

imports. 

(a) The following activities are not 

exports, reexports, retransfers, or 

temporary imports: 

(1) Launching a spacecraft, launch 

vehicle, payload, or other item into 

space; 

(2) Transmitting or otherwise 

transferring technical data to a U.S. 

person in the United States from a 

person in the United States; 

(3) Transmitting or otherwise 

transferring within the same foreign 

country technical data between or 

among only U.S. persons, so long as the 

transmission or transfer does not result 

in a release to a foreign person or 

transfer to a person prohibited from 

receiving the technical data; 

(4) Shipping, moving, or transferring 

defense articles between or among the 

United States as defined in § 120.60; 

(5) Sending, taking, or storing 

technical data that is: 

(i) Unclassified; 

(ii) Secured using end-to-end 

encryption; 

(iii) Secured using cryptographic 

modules (hardware or software) 

compliant with the Federal Information 

Processing Standards Publication 140–2 

(FIPS 140–2) or its successors, 

supplemented by software 

implementation, cryptographic key 

management and other procedures and 

controls that are in accordance with 

guidance provided in current U.S. 

National Institute for Standards and 

Technology (NIST) publications, or by 

other cryptographic means that provide 

security strength that is at least 

comparable to the minimum 128 bits of 

security strength achieved by the 

Advanced Encryption Standard (AES– 

128); and 

(iv) Not intentionally sent to a person 

in or stored in a country proscribed in 

§ 126.1 of this subchapter or the Russian 

Federation; and 

Note 1 to paragraph (a)(5)(iv): Data intransit via the internet is not deemed to be 

stored. 

(v) Not sent from a country proscribed 

in § 126.1 of this subchapter or the 

Russian Federation. 

(b)(1) For purposes of this section, 

end-to-end encryption is defined as: 

(i) The provision of cryptographic 

protection of data, such that the data is 

not in an unencrypted form, between an 

originator (or the originator’s in-country 

security boundary) and an intended 

recipient (or the recipient’s in-country 

security boundary); and 

(ii) The means of decryption are not 

provided to any third party. 

(2) The originator and the intended 

recipient may be the same person. The 

intended recipient must be the 

originator, a U.S. person in the United 

States, or a person otherwise authorized 

to receive the technical data, such as by 

a license or other approval pursuant to 

this subchapter. 

(c) The ability to access technical data 

in encrypted form that satisfies the 

criteria set forth in paragraph (a)(5) of 

this section does not constitute the 

release or export of such technical data. 

§ 120.55 Access information. 

Access information is information 

that allows access to encrypted 

technical data subject to this subchapter 

in an unencrypted form. Examples 

include decryption keys, network access 

codes, and passwords. 

§ 120.56 Release. 

(a) Release. Technical data is released 

through: 

(1) Visual or other inspection by 

foreign persons of a defense article that 

reveals technical data to a foreign 

person; 

(2) Oral or written exchanges with 

foreign persons of technical data in the 

United States or abroad; 

(3) The use of access information to 

cause or enable a foreign person, 

including yourself, to access, view, or 

possess unencrypted technical data; or 

(4) The use of access information to 

cause technical data outside of the 

United States to be in unencrypted 

form. 

(b) Provision of access information. 

Authorization for a release of technical 

data to a foreign person is required to 

provide access information to that 

foreign person, if that access 

information can cause or enable access, 

viewing, or possession of the 

unencrypted technical data. 

§ 120.57 Authorization types. 

(a) License means a document bearing 

the word ‘‘license’’ issued by the Deputy 

Assistant Secretary of State for Defense 

Trade Controls, or authorized designee, 

that permits the export, reexport, 

retransfer, temporary import, or 

brokering of a specific defense article or 

defense service controlled by this 

subchapter. 

(b) Other approval means a document, 

other than a license, issued by the 

Deputy Assistant Secretary of State for 

Defense Trade Controls, or authorized 

designee, that approves an activity 

regulated by this subchapter (e.g., 

approvals for brokering activities or 

retransfer authorizations), or the use of 

an exemption to the license 

requirements as described in this 

subchapter. 

(c) Exemption means a provision of 

this subchapter that authorizes the 

export, reexport, retransfer, temporary 

import, or brokering of a specific 

defense article or defense service 

without a license or other written 

authorization. 

(d) Manufacturing license agreement 

means an agreement (e.g., contract), 

approved by the Directorate of Defense 

Trade Controls (DDTC), whereby a U.S. 

person grants a foreign person an 

authorization to manufacture defense 

articles abroad and which involves or 

contemplates: 

(1) The export of technical data or 

defense articles or the performance of a 

defense service; or 

(2) The use by the foreign person of 

technical data or defense articles 

previously exported by the U.S. person. 

(e) Technical assistance agreement 

means an agreement (e.g., contract), 

approved by DDTC, for the performance 

of a defense service(s) or the disclosure 

of technical data, as opposed to an 

agreement granting a right or license to 

manufacture defense articles. Assembly 

of defense articles is included under 

this section, provided production rights 

or manufacturing know-how are not 

conveyed. Should such rights be 

transferred, paragraph (d) of this section 

is applicable. 

(f) Distribution agreement means an 

agreement (e.g., a contract), approved by 

DDTC, to establish a warehouse or 

distribution point abroad for defense 

articles exported from the United States 

for subsequent distribution to entities in 

an approved sales territory. 

§ 120.58 Subject to the Export 

Administration Regulations (EAR). 

Items subject to the EAR are those 

items listed on the Commerce Control 

List in part 774 of the Export 

Administration Regulations (EAR) and 

all other items that meet the definition 

of that term in accordance with § 734.3 

of the EAR. The EAR is found at 15 CFR 

parts 730 through 774. 


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§ 120.59 [Reserved] 

§ 120.60 United States. 

United States, when used in the 

geographical sense, includes the several 

states, the Commonwealth of Puerto 

Rico, the insular possessions of the 

United States, the District of Columbia, 

the Commonwealth of the Northern 

Mariana Islands, any territory or 

possession of the United States, and any 

territory or possession over which the 

United States exercises any powers of 

administration, legislation, and 

jurisdiction. 

§ 120.61 Person. 

Person means a natural person as well 

as a corporation, business association, 

partnership, society, trust, or any other 

entity, organization or group, including 

governmental entities. If a provision in 

this subchapter does not refer 

exclusively to a foreign person or U.S. 

person, then it refers to both. 

§ 120.62 U.S. person. 

U.S. person means a person who is a 

lawful permanent resident as defined by 

8 U.S.C. 1101(a)(20) or who is a 

protected individual as defined by 8 

U.S.C. 1324b(a)(3). It also means any 

corporation, business association, 

partnership, society, trust, or any other 

entity, organization, or group that is 

incorporated to do business in the 

United States. It also includes any 

governmental (Federal, state, or local) 

entity. It does not include any foreign 

person as defined in § 120.63. 

§ 120.63 Foreign person. 

Foreign person means any natural 

person who is not a lawful permanent 

resident as defined by 8 U.S.C. 

1101(a)(20) or who is not a protected 

individual as defined by 8 U.S.C. 

1324b(a)(3). It also means any foreign 

corporation, business association, 

partnership, trust, society, or any other 

entity or group that is not incorporated 

or organized to do business in the 

United States, as well as international 

organizations, foreign governments, and 

any agency or subdivision of foreign 

governments (e.g., diplomatic missions). 

§ 120.64 Regular employee. 

(a) Regular employee means: 

(1) An individual permanently and 

directly employed by the company; or 

(2) An individual in a long term 

contractual relationship with the 

company where the individual works at 

the company’s facilities, works under 

the company’s direction and control, 

works full time and exclusively for the 

company, and executes nondisclosure 

certifications for the company, and 

where the staffing agency that has 

seconded the individual has no role in 

the work the individual performs (other 

than providing that individual for that 

work) and the staffing agency would not 

have access to any controlled 

technology (other than where 

specifically authorized by a license). 

(b) [Reserved] 

§ 120.65 Foreign ownership and foreign 

control. 

(a) Foreign ownership means more 

than 50 percent of the outstanding 

voting securities of the firm are owned 

by one or more foreign persons. 

(b) Foreign control means one or more 

foreign persons have the authority or 

ability to establish or direct the general 

policies or day-to-day operations of the 

firm. Foreign control is presumed to 

exist where foreign persons own 25 

percent or more of the outstanding 

voting securities unless one U.S. person 

controls an equal or larger percentage. 

§ 120.66 Affiliate. 

(a) Affiliate (of a registrant) means a 

person that directly, or indirectly 

through one or more intermediaries, 

controls, or is controlled by, or is under 

common control with, such registrant. 

(b) For purposes of this section, 

‘‘control’’ means having the authority or 

ability to establish or direct the general 

policies or day-to-day operations of the 

firm. Control is rebuttably presumed to 

exist where there is ownership of 25 

percent or more of the outstanding 

voting securities if no other person 

controls an equal or larger percentage. 

§ 120.67 Empowered official. 

(a) Empowered official means a U.S. 

person who: 

(1) Is directly employed by the 

applicant or a subsidiary in a position 

having authority for policy or 

management within the applicant 

organization; and 

(2) Is legally empowered in writing by 

the applicant to sign license 

applications or other requests for 

approval on behalf of the applicant; and 

(3) Understands the provisions and 

requirements of the various export 

control statutes and regulations, and the 

criminal liability, civil liability, and 

administrative penalties for violating 

the Arms Export Control Act and the 

International Traffic in Arms 

Regulations in this subchapter; and 

(4) Has the independent authority to: 

(i) Inquire into any aspect of a 

proposed export, temporary import, or 

brokering activity by the applicant; 

(ii) Verify the legality of the 

transaction and the accuracy of the 

information to be submitted; and 

(iii) Refuse to sign any license 

application or other request for approval 

without prejudice or other adverse 

recourse. 

(b) For the purposes of a broker who 

is a foreign person, the empowered 

official may be a foreign person who 

otherwise meets the criteria for an 

empowered official in paragraph (a) of 

this section. 

§ 120.68 Party to the export. 

(a) Party to the export means: 

(1) The chief executive officer, 

president, vice-presidents, other senior 

officers and officials (e.g., comptroller, 

treasurer, general counsel), and any 

member of the board of directors of the 

applicant; 

(2) The freight forwarders or 

designated exporting agent of the 

applicant; and 

(3) Any consignee or end-user of any 

item to be exported. 

(b) [Reserved] 

§ 120.69 Port Directors. 

Port Directors means the U.S. 

Customs and Border Protection Port 

Directors at the U.S. Customs and 

Border Protection Ports of Entry (other 

than the port of New York, New York 

where their title is the Area Directors). 

PART 121—THE UNITED STATES 

MUNITIONS LIST 

■ 2. The authority citation for part 121 

is revised to read as follows: 

Authority: 22 U.S.C. 2752, 2778, 2797; 22 

U.S.C. 2651a; Sec. 1514, Pub. L. 105–261, 112 

Stat. 2175; E.O. 13637, 78 FR 16129, 3 CFR, 

2013 Comp., p. 223. 

■ 3. Add § 121.0 to read as follows: 

§ 121.0 United States Munitions List 

description and definitions. 

(a) For a description of the U.S. 

Munitions List and its designations, 

including the use of asterisks and the 

parenthetical ‘‘(MT)’’, see § 120.10 of 

this subchapter. 

(b) As used in this part, EAR means 

Export Administration Regulations in 15 

CFR parts 730 through 774. 

§ 121.1 [Amended] 

■ 4. Section 121.1 is amended as 

follows: 

■ a. Remove and reserve paragraphs (a) 

and (b); and 

■ b. In the United States Munitions List: 

■ i. Remove ‘‘i.e.,’’, ‘‘See’’, and ‘‘see’’ 

everywhere they appear and add in their 

places ‘‘i.e.,’’, ‘‘See’’, and ‘‘see’’ 

respectively; 

■ ii. Remove the phrases ‘‘(see § 120.4 of 

this subchapter)’’ and ‘‘(see § 120.42 of 

this subchapter)’’ everywhere they 

appear; 

■ iii. Remove the phrase ‘‘(see § 120.10 

of this subchapter) and defense services 


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(see § 120.9 of this subchapter)’’ 

everywhere it appears and add in its 

place ‘‘(see § 120.33 of this subchapter) 

and defense services (see § 120.32 of 

this subchapter)’’; 

■ iv. In Category II, remove Note 1 to 

paragraph (j)(17); 

■ v. In Category III, remove Note 1 to 

paragraph (d)(15); 

■ vi. In Category IV, remove the note to 

paragraph (h)(30); 

■ vii. In Category V: 

■ A. In paragraph (h)(2), remove the 

phrase ‘‘(see § 120.10(a)(2) of this 

subchapter)’’; 

■ B. Remove Note to paragraph (h); and 

■ C. In paragraph (j): 

■ 1. Remove the phrase ‘‘(as defined in 

§ 120.10 of this subchapter) and defense 

services (as defined in § 120.9 of this 

subchapter)’’ and add in its place ‘‘(see 

§ 120.33 of this subchapter) and defense 

services (see § 120.32 of this 

subchapter)’’; 

■ 2. Remove ‘‘(see also § 123.20 of this 

subchapter)’’ and add in its place ‘‘(see 

also § 120.5(c) of this subchapter for 

nuclear related controls)’’; 

■ viii. In Category VI: 

■ A. Remove the phrase ‘‘see 

§ 120.45(g)’’ and add in its place ‘‘see 

§ 120.40(h)’’ in Note to paragraph (b)(4); 

■ B. Remove ‘‘(see § 123.20 of this 

subchapter)’’ and add in its place ‘‘(see 

also § 120.5(c) of this subchapter for 

nuclear related controls)’’ in paragraphs 

(e) and (f)(5); and 

■ C. Remove the second sentence of 

paragraph of (f)(9)(iii); 

■ ix. In Category VII: 

■ A. Remove the phrase ‘‘see 

§ 120.45(g)’’ and add in its place ‘‘see 

§ 120.40(h)’’ in Note to paragraph (c); 

and 

■ B. Remove the undesignated sentence 

following paragraph (g)(14)(iii); 

■ x. In Category VIII, remove Note to 

paragraph (h)(20); 

■ xi. In Category IX: 

■ A. Remove Note to paragraph (a)(11) 

and Note to paragraph (b)(5); and 

■ B. Remove the phrase ‘‘see, 

§ 120.9(a)(3)’’ and add in its place ‘‘see 

§ 120.32(a)(3)’’ in paragraph (e)(3); 

■ xii. In Category X, remove Note to 

paragraph (d)(4); 

■ xiii. In Category XI: 

■ A. Remove the phrase ‘‘(see 

§ 120.10(a)(2) of this subchapter)’’ in 

paragraph (c)(19)(iii); 

■ B. Remove Note to paragraph (c)(19); 

and 

■ C. Remove the phrase ‘‘see § 121.8(f)’’ 

and add in its place ‘‘see § 120.40(g)’’ in 

Note to paragraph (c)(19)(ii); 

■ xiv. In Category XII: 

■ A. Remove Note to paragraph (e)(23); 

■ B. Remove the phrase ‘‘(see § 120.10) 

and defense services (see § 120.9)’’ and 

add in its place ‘‘(see § 120.33 of this 

subchapter) and defense services (see 

§ 120.32 of this subchapter)’’ in 

paragraph (f); and 

■ C. Remove the reference ‘‘§ 120.4’’ and 

add in its place ‘‘§§ 120.4 and 120.12’’ 

in Note to Category XII; 

■ xv. In Category XIII: 

■ A. Remove the undesignated sentence 

following paragraph (f)(iii); 

■ B. Remove the phrase ‘‘see 

§ 125.4(c)(4)’’ and add in its place ‘‘see 

§ 120.43(c)’’ in paragraph (i)(6); and 

■ C. In paragraph (l): 

■ 1. Remove the phrase ‘‘(see § 120.10 of 

this subchapter) directly related to the 

defense articles described in paragraphs 

(a) through (h), (j), and (k) of this 

category and defense services (see 

§ 120.9 of this subchapter)’’ and add in 

its place ‘‘(see § 120.33 of this 

subchapter) directly related to the 

defense articles described in paragraphs 

(a) through (h), (j), and (k) of this 

category and defense services (see 

§ 120.32) of this subchapter)’’; and 

■ 2. Add at the end of the first sentence 

‘‘(see also § 120.5(c) of this subchapter 

for nuclear related controls)’’; and 

■ 3. Remove the first parenthetical 

sentence; 

■ xvi. In Category XIV: 

■ A. Remove Note to paragraph (f)(8); 

and 

■ B. Remove the phrase ‘‘(as defined in 

§ 120.10 of this subchapter) and defense 

services (as defined in § 120.9 of this 

subchapter)’’ and add in its place ‘‘(see 

§ 120.33 of this subchapter) and defense 

services (see § 120.32 of this 

subchapter)’’ in paragraph (m); 

■ xvii. In Category XV: 

■ A. Remove the phrase ‘‘(see § 120.7 of 

this subchapter)’’ in Note 3 to paragraph 

(a)(7); and 

■ B. Remove the second sentence of 

paragraph (a)(13) and Note to paragraph 

(e)(21); 

■ xvii. In Category XVI(e): 

■ A. Add ‘‘(see also § 120.5(c) of this 

subchapter for nuclear related controls)’’ 

at the end of the first sentence; and 

■ B. Remove the parenthetical sentence 

at the end of the paragraph; 

■ xviii. In Category XVIII(g), remove the 

phrase ‘‘(see § 120.10 of this subchapter) 

and defense services (as defined in 

§ 120.9 of this subchapter)’’ and add in 

its place ‘‘(see § 120.33 of this 

subchapter) and defense services (see 

§ 120.32 of this subchapter)’’; 

■ xix. In Category XIX, remove Note to 

paragraph (f)(6); 

■ xx. In Category XX: 

■ A. Remove the phrase ‘‘see 

§ 120.45(g)’’ and add in its place ‘‘see 

§ 120.40(h)’’ in Note to paragraph (a)(7); 

and 

■ B. Remove ‘‘(see § 123.20 of this 

subchapter)’’ and add in its place ‘‘(see 

also § 120.5(c) of this subchapter for 

nuclear related controls)’’ in paragraph 

(b)(1); and 

■ xxi. In Category XXI(a), remove the 

phrase ‘‘(see § 120.7 of this 

subchapter)’’. 

§ 121.16 [Removed and Reserved] 

■ 5. Remove and reserve § 121.16. 

PART 122—REGISTRATION OF 

MANUFACTURERS AND EXPORTERS 

■ 6. The authority citation for part 122 

continues to read as follows: 

Authority: Sections 2 and 38, Pub. L. 90– 

629, 90 Stat. 744 (22 U.S.C. 2752, 2778); 22 

U.S.C. 2651a; E.O. 13637, 78 FR 16129. 

§ 122.2 [Amended] 

■ 7. In § 122.2: 

■ a. In paragraph (a), remove the 

reference ‘‘§ 120.40’’ and add in its 

place ‘‘§ 120.66’’; 

■ b. In paragraph (b)(1)(i), remove the 

reference ‘‘§ 120.27’’ and add in its 

place ‘‘§ 120.6’’; and 

■ c. In paragraph (b)(2), remove the 

reference ‘‘§ 120.37’’ and add in its 

place ‘‘§ 120.65’’. 

§ 122.4 [Amended] 

■ 8. In § 122.4: 

■ a. In paragraph (a)(1), remove the 

reference ‘‘§ 120.27’’ and add in its 

place ‘‘§ 120.6’’; and 

■ b. In paragraph (b), remove the 

reference ‘‘§§ 120.10 and 126.1(e)’’ and 

add in its place ‘‘§ 126.1(e)’’. 

PART 123—LICENSES FOR THE 

EXPORT AND TEMPORARY IMPORT 

OF DEFENSE ARTICLES 

■ 9. The authority citation for part 123 

continues to read as follows: 

Authority: Secs. 2, 38, and 71, Pub. L. 90– 

629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 

2797); 22 U.S.C. 2753; 22 U.S.C. 2651a; 22 

U.S.C. 2776; Pub. L. 105–261, 112 Stat. 1920; 

Sec. 1205(a), Pub. L. 107–228; Sec. 520, Pub. 

L. 112–55; Section 1261, Pub. L. 112–239; 

E.O. 13637, 78 FR 16129. 

§ 123.1 [Amended] 

■ 10. In § 123.1: 

■ a. In paragraph (b) introductory text, 

remove the phrase ‘‘(see § 120.42 of this 

subchapter)’’; and 

■ b. In paragraph (d), remove the 

reference ‘‘§ 120.9(a)’’ and add in its 

place ‘‘§ 120.32’’. 

§ 123.4 [Amended] 

■ 11. In § 123.4, in paragraph (c)(1), 

remove the reference ‘‘§ 120.1(c)’’ and 

add in its place ‘‘§ 120.16’’. 

§ 123.9 [Amended] 

■ 12. In § 123.9, in paragraph (b)(2), 

remove the phrase ‘‘(see §§ 120.5, 


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120.42 and 123.1(b) of this 

subchapter)’’. 

§ 123.15 [Amended] 

■ 13. In § 123.15, in paragraph (a) 

introductory text, remove the reference 

‘‘§ 120.8’’ and add in its place 

‘‘§ 120.37’’. 

§ 123.16 [Amended] 

■ 14. In § 123.16: 

■ a. In paragraph (a), remove the 

reference ‘‘§ 120.1(c)’’ and add in its 

place ‘‘§ 120.16’’; 

■ b. In paragraph (b)(4), remove the 

reference ‘‘§ 120.45(b)’’ and add in its 

place ‘‘§ 120.40(c)’’; and 

■ c. In paragraph (b)(9) introductory 

text, remove the reference ‘‘§ 120.37’’ 

and add in its place ‘‘§ 120.65’’. 

§ 123.17 [Amended] 

■ 15. In § 123.17, in paragraph (k), 

remove the reference ‘‘§§ 120.1(c) and 

(d)’’ and add in its place ‘‘§§ 120.15(d) 

and 120.16(c)’’. 

§§ 123.20 and 123.26 [Removed and 

Reserved] 

■ 16. Remove and reserve §§ 123.20 and 

123.26. 

§ 123.27 [Amended] 

■ 17. In § 123.27, in paragraph (a)(1), 

remove the references ‘‘(see § 120.31 of 

this subchapter)’’ and ‘‘(see § 120.32 of 

this subchapter)’’. 

PART 124—AGREEMENTS, OFFSHORE PROCUREMENT, AND OTHER 

DEFENSE SERVICES 

■ 18. The authority citation for part 124 

continues to read as follows: 

Authority: Secs. 2, 38, and 71, Pub. L. 90– 

629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 

2797); 22 U.S.C. 2651a; 22 U.S.C. 2776; 

Section 1514, Pub. L. 105–261; Pub. L. 111– 

266; Section 1261, Pub. L. 112–239; E.O. 

13637, 78 FR 16129. 

§ 124.1 [Amended] 

■ 19. In § 124.1, in paragraph (a), 

remove the reference ‘‘§ 120.9(a)’’ 

everywhere it appears and add in its 

place ‘‘§ 120.32’’. 

■ 20. In § 124.2: 

■ a. In paragraph (b), remove the 

reference ‘‘§ 120.9’’ and add in its place 

‘‘§ 120.32’’; and 

■ b. Revise paragraph (c)(4). 

The revision reads as follows: 

§ 124.2 Exemptions for training and 

military service. 

* * * * * 

(c) * * * 

(4) Supporting technical data must be 

unclassified and must not include 

software documentation on the design 

or details of the computer software, 

software source code, design 

methodology, engineering analysis, or 

manufacturing know-how. 

* * * * * 

§ 124.11 [Amended] 

■ 21. In § 124.11, in paragraph (a), 

remove the phrases ‘‘as defined in 

Sections 120.21 and 120.22 

respectively’’, ‘‘(see § 120.7 of this 

subchapter)’’ and ‘‘, as defined in 

§ 120.8 of this subchapter’’. 

■ 22. In § 124.13, revise the section 

heading and paragraph (b) to read as 

follows: 

§ 124.13 Procurement by U.S. persons in 

foreign countries (offshore procurement). 

* * * * * 

(b) The technical data of U.S.-origin to 

be used in the foreign manufacture of 

defense articles does not exceed that 

required for bid purposes on a build-toprint basis; and 

* * * * * 

PART 125—LICENSES FOR THE 

EXPORT OF TECHNICAL DATA AND 

CLASSIFIED DEFENSE ARTICLES 

■ 23. The authority citation for part 125 

continues to read as follows: 

Authority: Secs. 2 and 38, Pub. L. 90–629, 

90 Stat. 744 (22 U.S.C. 2752, 2778); 22 U.S.C. 

2651a; E.O. 13637, 78 FR 16129. 

§ 125.1 [Amended] 

■ 24. In § 125.1: 

■ a. In paragraph (a), remove the phrase 

‘‘see § 120.11’’ and add in its place ‘‘see 

§ 120.34’’; and 

■ b. In paragraph (e), remove the phrase 

‘‘please see § 123.20’’ and add in its 

place ‘‘see § 120.5(c)’’. 

■ 25. In § 125.4: 

■ a. In paragraph (a), remove the 

reference ‘‘§ 120.1(c)’’ and add in its 

place ‘‘§ 120.16’’; 

■ b. Revise paragraph (c); and 

■ c. Remove paragraph (d). 

The revision reads as follows: 

§ 125.4 Exemptions of general 

applicability. 

* * * * * 

(c) Defense services and related 

unclassified technical data are exempt 

from the licensing requirements of this 

subchapter, to nationals of NATO 

countries, Australia, Japan, and Sweden, 

for the purposes of responding to a 

written request from the Department of 

Defense for a quote or bid proposal. 

Such exports must be pursuant to an 

official written request or directive from 

an authorized official of the U.S. 

Department of Defense. The defense 

services and technical data are limited 

to paragraphs (f), (g), and (h) (build-toprint, build/design-to-specification, and 

basic research, respectively) of § 120.43 

of this subchapter and must not include 

paragraph (c), (d), (e), or (i) (design 

methodology, engineering analysis, 

manufacturing know-how, and applied 

research, respectively) of § 120.43. 

§ 125.6 [Removed and Reserved] 

■ 26. Remove and reserve § 125.6. 

PART 126—GENERAL POLICIES AND 

PROVISIONS 

■ 27. The authority citation for part 126 

continues to read as follows: 

Authority: 22 U.S.C. 2752, 2778, 2780, 

2791, and 2797; 22 U.S.C. 2651a; 22 U.S.C. 

287c; Sec. 1225, Pub. L. 108–375; Sec. 7089, 

Pub. L. 111–117; Pub. L. 111–266; Sections 

7045 and 7046, Pub. L. 112–74; E.O. 13637, 

78 FR 16129. 

§ 126.1 [Amended] 

■ 28. In § 126.1, in paragraph (c)(1), 

remove the reference ‘‘§ 120.15’’ and 

add in its place ‘‘§ 120.62’’. 

§ 126.5 [Amended] 

■ 29. In § 126.5: 

■ a. In paragraph (a), remove the phrase 

‘‘(see § 120.6 of this subchapter)’’; and 

■ b. In paragraph (b): 

■ i. Remove the reference ‘‘22 CFR 

120.1(c) and (d)’’ and add in its place 

‘‘§§ 120.15(d) and 120.16’’; and 

■ ii. Remove the reference ‘‘§ 126.1 of 

this subchapter’’ and add in its place 

‘‘§ 126.1’’. 

§§ 126.7, 126.9, 126.10, 126.11, and 126.12 

[Removed and Reserved] 

■ 30. Remove and reserve §§ 126.7, 

126.9, 126.10, 126.11, and 126.12. 

§ 126.13 [Amended] 

■ 31. In § 126.13: 

■ a. In paragraph (a)(1), remove the 

reference ‘‘§ 120.27’’ and add in its 

place ‘‘§ 120.6’’; and 

■ b. In paragraph (a)(3), remove the 

references ‘‘§ 126.7(e)’’ and ‘‘§ 120.27’’ 

add in their places ‘‘§ 120.68(a) of this 

subchapter’’ and ‘‘§ 120.6,’’ respectively; 

§ 126.16 [Amended] 

■ 32. In § 126.16: 

■ a. In paragraph (g)(1), remove the 

reference ‘‘§ 120.17’’ and add in its 

place ‘‘§ 120.50’’; and 

■ b. In paragraph (o)(1)(iii), remove the 

phrase ‘‘see § 120.7’’ and add in its 

place ‘‘see § 120.36’’. 

§ 126.17 [Amended] 

■ 33. In § 126.17: 


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■ a. In paragraph (g)(1), remove the 

reference ‘‘§ 120.17’’ and add in its 

place ‘‘§ 120.50’’; and 

■ b. In paragraph (o)(1)(iii), remove the 

phrase ‘‘see § 120.7’’ and add in its 

place ‘‘see § 120.36’’. 

§ 126.18 [Amended] 

■ 34. In § 126.18: 

■ a. In paragraph (a), remove the phrase 

‘‘(see § 120.6)’’; and 

■ b. In paragraph (b), remove the 

references ‘‘§ 127.1(b)’’ and ‘‘§ 120.16’’ 

and add in their places ‘‘§ 127.1(b) of 

this subchapter’’ and ‘‘§ 120.63 of this 

subchapter,’’ respectively. 

■ 35. In Supplement No. 1 to part 126: 

■ a. In the table, revise the 14th entry 

‘‘I–XXI’’; 

■ b. In Note 5: 

■ i. Remove the reference 

‘‘§ 125.4(c)(6)’’ and add in its place 

‘‘§ 120.43(g)’’; and 

■ ii. Remove the reference ‘‘(e)(1), (e)(2), 

or (e)(4)’’ and add in its place ‘‘(e)(1), 

(2), or (4)’’; and 

■ c. In Note 12: 

■ i. Remove the phrase ‘‘applied 

research (§ 125.4(c)(3) of this 

subchapter)’’ and add in its place 

‘‘applied research (§ 120.43(i) of this 

subchapter)’’; 

■ ii. Remove the reference 

‘‘§ 125.4(c)(4)’’ and add in its place 

‘‘§ 120.43(c)’’; 

■ iii. Remove the reference 

‘‘§ 125.4(c)(5)’’ and add in its place 

‘‘§ 120.43(d)’’; 

■ iv. Remove the reference 

‘‘§ 125.4(c)(6)’’ and add in its place 

‘‘§ 120.43(e); 

■ v. Remove the reference 

‘‘§ 125.4(c)(1)’’ and add in its place 

‘‘§ 120.43(f)’’; 

■ vi. Remove the reference 

‘‘§ 125.4(c)(2)’’ and add in its place 

‘‘§ 120.43(g)’’; and 

■ vii. Remove the phrase ‘‘basic 

research as defined in § 125.4(c)(3) of 

this subchapter’’ and add in its place 

‘‘basic research as defined in § 120.43(h) 

of this subchapter’’. 

The revision reads as follows: 

Supplement No. 1 to Part 126 

* * * * * 

USML category Exclusion (CA) 

§ 126.5 

(AS) 

§ 126.16 

(UK) 

§ 126.17 

*******

I–XXI ....................... Defense services or technical data specific to applied research as defined in § 120.43(i) of this subchapter, design methodology as defined in § 120.43(c) of this subchapter, engineering analysis as defined in § 120.43(d) of this subchapter, or manufacturing know-how 

as defined in § 120.43(e) of this subchapter. See Note 12.

X 

* * * * * * * 

* * * * * 

PART 127—VIOLATIONS AND 

PENALTIES 

■ 36. The authority citation for part 127 

continues to read as follows: 

Authority: Sections 2, 38, and 42, Pub. L. 

90–629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 

2791); 22 U.S.C. 401; 22 U.S.C. 2651a; 22 

U.S.C. 2779a; 22 U.S.C. 2780; E.O. 13637, 78 

FR 16129; Pub. L. 114–74, 129 Stat. 584. 

§ 127.1 [Amended] 

■ 37. In § 127.1, in paragraph (d) 

introductory text, remove the reference 

‘‘§ 120.1(c)(2)’’ everywhere it appears 

and add in its place ‘‘§ 120.16(c)’’. 

§ 127.11 [Amended] 

■ 38. In § 127.11, in paragraph (a), 

remove the reference ‘‘§ 120.27’’ and 

add in its place ‘‘§ 120.6’’. 

§ 127.12 [Amended] 

■ 39. In § 127.12: 

■ a. In paragraph (a), remove the phrase 

‘‘(see § 120.14 of this subchapter)’’; 

■ b. In paragraph (c)(1)(i), remove the 

reference ‘‘127.12(c)(2)’’ and add in its 

place ‘‘paragraph (c)(2)’’; 

■ c. In paragraph (c)(1)(ii), remove the 

references ‘‘§ 120.25’’ and 

‘‘§ 127.12(c)(2)’’ and add in their places 

‘‘§ 120.67’’ and ‘‘paragraph (c)(2),’’ 

respectively; and 

■ d. In paragraph (e), remove the phrase 

‘‘See § 120.25’’ and add in its place ‘‘see 

§ 120.67’’. 

PART 128—ADMINISTRATIVE 

PROCEDURES 

■ 40. The authority citation for part 128 

continues to read as follows: 

Authority: Sections. 2, 38, 40, 42, and 71, 

Arms Export Control Act. 90 Stat. 744 (22 

U.S.C. 2752, 2778, 2780, 2791, and 2797); 22 

U.S.C. 2651a; E.O. 12291, 46 FR 1981; E.O. 

13637, 78 FR 16129. 

■ 41. Section 128.1 is revised to read as 

follows: 

§ 128.1 Exclusion of functions from the 

Administrative Procedure Act. 

The Arms Export Control Act (AECA) 

authorizes the President to control the 

import and export of defense articles 

and services in furtherance of world 

peace and the security and foreign 

policy of the United States. Pursuant to 

delegated authorities, the Secretary of 

State is authorized to make decisions on 

whether license applications or other 

written requests for approval shall be 

granted, or whether exemptions may be 

used. The Secretary of State is also 

authorized to revoke, suspend, or 

amend licenses or other written 

approvals whenever such action is 

deemed to be advisable. The 

administration of the AECA is a foreign 

affairs function encompassed within the 

meaning of the military and foreign 

affairs exclusion of the Administrative 

Procedure Act and is thereby expressly 

exempt from various provisions of that 

Act. Because the exercising of the 

foreign affairs function, including the 

decisions required to implement the 

AECA, is highly discretionary, it is 

excluded from review under the 

Administrative Procedure Act. 

■ 42. Section 128.2 is revised to read as 

follows: 

§ 128.2 Administrative Law Judge. 

The Administrative Law Judge 

referred to in this part is an 

Administrative Law Judge appointed by 

the Department of State. The 

Administrative Law Judge is authorized 

to exercise the powers and perform the 

duties provided for in §§ 128.3 through 

128.16. 

PART 129—REGISTRATION AND 

LICENSING OF BROKERS 

■ 43. The authority citation for part 129 

continues to read as follows: 

Authority: Section 38, Pub. L. 104–164, 

110 Stat. 1437, (22 U.S.C. 2778); E.O. 13637, 

78 FR 16129. 

§ 129.2 [Amended] 

■ 44. In § 129.2: 


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■ a. In paragraph (a) introductory text, 

remove the phrase ‘‘see § 120.14’’ and 

add in its place ‘‘see § 120.61’’; 

■ b. In paragraph (a)(1), remove the 

phrase ‘‘see § 120.15’’ and add in its 

place ‘‘see § 120.62’’; 

■ c. In paragraph (a)(2), remove the 

phrase ‘‘see § 120.16’’ and add in its 

place ‘‘see § 120.63’’; 

■ d. In paragraph (b)(2)(iii), remove the 

phrase ‘‘see § 120.39’’ and add in its 

place ‘‘see § 120.64’’; 

■ e. In paragraph (b)(2)(v), remove the 

reference ‘‘§ 120.40’’ and add in its 

place ‘‘§ 120.66’’; and 

■ f. In paragraph (b)(2)(vi), remove ‘‘see 

§ 120.39’’ and ‘‘parts’’ and add in their 

places ‘‘see § 120.64’’ and ‘‘part,’’ 

respectively. 

§ 129.3 [Amended] 

■ 45. In § 129.3, in paragraph (d), 

remove the phrase ‘‘see § 120.40’’ and 

add in its place ‘‘see § 120.66’’. 

§ 129.4 [Amended] 

■ 46. In § 129.4, in paragraph (a)(1), 

remove the phrase ‘‘see § 120.44’’ and 

add in its place ‘‘see § 120.39’’. 

§ 129.5 [Amended] 

■ 47. In § 129.5: 

■ a. In paragraph (b), remove the phrase 

‘‘see § 120.44’’ and add in its place ‘‘see 

§ 120.39’’; and 

■ b. In paragraph (c)(2), remove the 

reference ‘‘§ 120.1(c)(2)’’ and add in its 

place ‘‘§ 120.16(c)’’. 

§ 129.6 [Amended] 

■ 48. In § 129.6, in paragraphs (a)(2)(i) 

and (iii), remove the reference 

‘‘§ 120.27’’ and add in its place 

‘‘§ 120.6’’. 

§ 129.8 [Amended] 

■ 49. In § 129.8: 

■ a. In paragraph (a), remove the phrase 

‘‘see § 120.40’’ and add in its place ‘‘see 

§ 120.66’’; 

■ b. In paragraph (c)(1)(i), remove the 

reference ‘‘§ 120.27’’ and add in its 

place ‘‘§ 120.6’’; 

■ c. In paragraph (c)(2), remove the 

phrase ‘‘see § 120.37’’ and add in its 

place ‘‘see § 120.65’’; and 

■ d. In paragraph (d)(1), remove 

‘‘§ 120.27’’ and ‘‘government’’ and add 

in their places ‘‘§ 120.6’’ and 

‘‘Government,’’ respectively. 

PART 130—POLITICAL 

CONTRIBUTIONS, FEES AND 

COMMISSIONS 

■ 50. The authority citation for part 130 

continues to read as follows: 

Authority: Sec. 39, Pub. L. 94–329, 90 

Stat. 767 (22 U.S.C. 2779); 22 U.S.C. 2651a; 

E.O. 13637, 78 FR 16129. 

§ 130.4 [Amended] 

■ 51. In § 130.4, remove the reference 

‘‘§§ 120.6 and 120.9’’ and add in its 

place ‘‘§§ 120.31 and 120.32’’. 

Bonnie D. Jenkins, 

Under Secretary for Arms Control and 

International Security, Department of State. 

[FR Doc. 2022–05629 Filed 3–22–22; 8:45 am] 

BILLING CODE 4710–25–P 

DEPARTMENT OF LABOR 

Occupational Safety and Health 

Administration 

29 CFR Part 1910 

[Docket No. OSHA–2020–0004] 

RIN 1218–AD36 

Occupational Exposure to COVID–19 in 

Healthcare Settings 

AGENCY: Occupational Safety and Health 

Administration (OSHA), Labor. 

ACTION: Notice of limited reopening of 

comment period; notice of informal 

hearing. 

SUMMARY: OSHA is partially reopening 

the comment period to allow for 

additional public comment on specific 

topics and is scheduling an informal 

public hearing on its interim final rule 

establishing an Emergency Temporary 

Standard (ETS), ‘‘Occupational 

Exposure to COVID–19.’’ The public 

hearing will begin on April 27, 2022. 

DATES: Comments: Written comments in 

response to OSHA’s limited reopening 

of the comment period must be 

submitted in Docket No. OSHA–2020– 

0004 on or before April 22, 2022. 

Informal public hearing: The hearing 

will begin on April 27, 2022, and will 

be held virtually. If necessary, the 

hearing will continue on subsequent 

days. Additional information on how to 

access the informal hearing will be 

posted when available at https://

www.osha.gov/coronavirus/healthcare/ 

rulemaking. To testify at the hearing, 

interested persons must electronically 

submit their Notice of Intention to 

Appear (NOITA) by April 6, 2022. 

ADDRESSES: 

Notices of Intention to Appear: 

Notices of intention to appear at the 

hearing (NOITA) must be submitted 

electronically at https://www.osha.gov/ 

coronavirus/healthcare/rulemaking. 

Follow the instructions online for 

making electronic submissions. See 

‘‘Notices of Intention to Appear’’ in the 

SUPPLEMENTARY INFORMATION section of 

this document for additional 

requirements for NOITAs. 

Written comments: You may submit 

comments and attachments, identified 

by Docket No. OSHA–2020–0004, 

electronically at www.regulations.gov, 

which is the Federal e-Rulemaking 

Portal. Follow the instructions online 

for making electronic submissions. After 

accessing ‘‘all documents and 

comments’’ in the docket (Docket No. 

OSHA–2020–0004), check the 

‘‘proposed rule’’ box in the column 

headed ‘‘Document Type,’’ find the 

document posted on the date of 

publication of this hearing notice, and 

click the ‘‘Comment Now’’ link. When 

uploading multiple attachments to 

www.regulations.gov, please number all 

of your attachments because 

www.regulations.gov will not 

automatically number the attachments. 

This will be very useful in identifying 

all attachments in the preamble. For 

example, Attachment 1—title of your 

document, Attachment 2—title of your 

document, Attachment 3—title of your 

document. For assistance with 

commenting and uploading documents, 

please see the Frequently Asked 

Questions on www.regulations.gov. 

Instructions: All submissions must 

include the agency’s name and the 

docket number for this rulemaking 

(Docket No. OSHA–2020–0004). All 

comments, including any personal 

information you provide, are placed in 

the public docket without change and 

may be made available online at 

www.regulations.gov. Therefore, OSHA 

cautions commenters about submitting 

information they do not want made 

available to the public, or submitting 

materials that contain personal 

information (either about themselves or 

others), such as Social Security 

Numbers and birthdates. 

Docket: To read or download 

comments and other materials 

submitted in the docket, or to view the 

hearing schedule and procedures when 

available, go to Docket No. OSHA– 

2020–0004 at www.regulations.gov. All 

comments and submissions are listed in 

the www.regulations.gov index; 

however, some information (e.g., 

copyrighted material) may not be 

publicly available to read or download 

through that website. All documents 

submitted to www.regulations.gov, 

including copyrighted material, are 

available for inspection through the 

OSHA Docket Office. Documents 

submitted to the docket by OSHA or 

stakeholders are assigned document 

identification numbers (Document ID) 

for easy identification and retrieval. The 

full Document ID is the docket number 

plus a unique four-digit code. OSHA is 

identifying supporting information in 

this rulemaking by author name and 


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