PART 120-PURPOSE, BACKGROUND

Sec. 120.1

AND DEFINITIONS

General.

(a) Purpose. Section 38 of the Arms Export Control Act (22 U.S.C. 2778) authorizes the President to control the export and import of defense articles and defense services. It is the purpose of this subchapter to implement this authority. The statutory authority of the President to promulgate regulations with respect to exports of defense articles and defense services was delegated to the Secretary of State by Executive Order 11958, as amended (42 FR 4311). By virtue of delegations of authority by the Secretary of State,

§ 120.11) other than governments are not eligible. U.S. persons who have been convicted of violating the U.S. criminal statutes enumerated in § 120.24, or who have been debarred pursuant to Part 127 of this subchapter, are also generally ineligible (see § 127.6(c)). Applications for licenses or requests for other approvals will generally be considered only if the applicant has registered with the Office of Munitions Control pursuant to Part 122 of this subchapter. All applications and requests for approval must be signed by a responsible official who has been empowered by the registrant to sign such documents.

[49 FR 47684, Dec. 6, 1984; 50 FR 12787, Apr. 1, 1985, as amended at 53 FR 11496, Apr. 7, 1988]

§ 120.2 Designation of defense articles and defense services.

The Arms Export Control Act also provides (22 U.S.C. 2778(a) and 2794(7)) that the President shall designate which articles shall be deemed to be defense articles and defense services for purposes of this subchapter. The items so designated constitute the United States Munitions List, and are specified in Part 121 of this subchapter. Such designations are made by the Department of State with the concurrence of the Department of Defense.

§ 120.3 Policy on designating defense articles and services.

Designations of defense articles and defense services are based primarily on whether an article or service is deemed to be inherently military in character. Whether it has a predominantly mili

tary application is taken into account. The fact that an article or service may be used for both military and civilian purposes does not in and of itself determine whether it is subject to the export controls of this subchapter. (Narrow exceptions to this general policy exist with respect to exports of certain spare parts and components in Categories V(d); VIII (e) and (g); XI(e); XII(c); and XVI(b).) The intended use of the article or service after its export (i.e., for a military or civilian purpose) is also not relevant in determining whether the export is subject to the controls of this subchapter.

§ 120.4 Relation to Department of Commerce regulations.

If an article or service is placed on the United States Munitions List, its export is regulated exclusively by the Department of State. Exports which are not subject to the controls of this subchapter are generally under the regulatory jurisdiction of the Department of Commerce pursuant to the Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 through 2420) and the implementing Export Administration Regulations (15 CFR Parts 368 through 399).

§ 120.5 Commodity jurisdiction procedure.

The Office of Munitions Control will provide, upon written request, a determination on whether a particular article is included on the United States Munitions List. Such requests should be accompained by five copies of the letter requesting a determination and any brochures or other documentation or specifications relating to the article. A "commodity jurisdiction" procedure is used if a doubt exists within the U.S. Government on whether an article is on the Munitions List. The procedure entails consultations among the Departments of State, Commerce and Defense.

DEFINITIONS

§ 120.6 General.

The definitions contained in this part (listed alphabetically) apply to the use of the defined terms throughout this subchapter unless a different

meaning is specified. See also §§ 130.2 through 130.8 for definitions applicable to Part 130.

§ 120.7 Defense articles.

"Defense article" means any item designated in § 121.1. This term includes models, mockups, and other such items which reveal technical data directly relating to items designated in § 121.1.

§ 120.8 Defense services.

Defense service means:

(a) The furnishing of assistance, including training, to foreign persons in the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification, or reconstruction of defense articles, whether in the United States or abroad; or

(b) The furnishing to foreign persons of any technical data, whether in the United States or abroad.

§ 120.9 District director of customs.

"District director of customs" means the district directors of customs at customs headquarters ports (other than the port of New York City, New York); the regional commissioners of customs, the deputy and assistant regional commissioners of customs for customs region II at the port of New York, New York; and port directors at customs ports not designated as headquarters ports.

§ 120.10 Export.

"Export" means, for purposes of this subchapter:

(a) Sending or taking defense articles out of the United States in any

manner; or

(b) Transferring registration or control to a foreign person of any aircraft, vessel, on or satellite the United States Munitions List, whether in the United States or abroad; or

(c) Sending or taking technical data outside of the United States in any manner except by mere travel outside of the United States by a person whose personal knowledge includes technical data; or

(d) Disclosing or transferring technical data to a foreign person, whether in the United States or abroad; or

(e) The performance of a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad. A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export for purposes of this subchapter. Most of the requirements of this subchapter relate only to exports, as defined above. However, for certain limited purposes, the controls of this subchapter apply to sales and other transfers of defense articles and defense services (see, e.g., § 126.1) of this subchapter.

[49 FR 47684, Dec. 6, 1984; 49 FR 48536, Dec. 13, 1984, as amended at 53 FR 11496, Apr. 7, 1988]

§ 120.11 Foreign person.

"Foreign person" means any person (§ 120.16) who is not a citizen or national of the United States unless that person has been lawfully admitted for permanent residence in the United States under the Immigration and Naturalization Act (8 U.S.C. 1101, section 101(a)20, 60 Stat. 163) (i.e., individuals referred to as "immigrant aliens" under previous laws and regulations). It includes foreign corporations (i.e., corporations that are not incorporated in the United States), international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g., diplomatic missions).

§ 120.12 Intransit shipment.

"Intransit shipment" means a temporary import into the United States of a defense article.

[49 FR 47684, Dec. 6, 1984; 49 FR 48536, Dec. 13, 1984]

§ 120.13 License.

"License" means a document bearing the word "license" which when issued by the Director, Office of Munitions Control, or his authorized designee, permits the export or intransit shipment of a specific defense article, defense service, or technical data.

§ 120.14 Manufacturing license agreement.

An agreement (e.g., contract) whereby a U.S. person grants a foreign person an authorization or a license to manufacture defense articles abroad and which involves or contemplates (a) the export of technical data (as defined in § 120.21) or defense articles or the performance of defense services, or (b) the use by the foreign person of technical data or defense articles previously exported by the U.S. person.

§ 120.15 Office of Munitions Control.

"Office of Munitions Control" means the Office of Munitions Control, Bureau of Politico-Military Affairs, Department of State, Washington, D.C. 20520.

§ 120.16 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 (§ 120.11) or U.S. person (§ 120.23), then it refers to both.

§ 120.17 Presiding official.

"Presiding official" means a person authorized to conduct hearings in administrative proceedings.

§ 120.18 Public domain.

"Public domain" means information which is published and which is generally accessible or available to the public:

(a) Through sales at newsstands and bookstores;

(b) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;

(c) Through second class mailing privileges granted by the U.S. Government; or,

(d) At libraries open to the public.

§ 120.19 Significant military equipment.

(a) "Significant military equipment" means articles, as identified in paragraph (b) of this section, for which special export controls are warranted

because of their capacity for substantial military utility or capability.

(b) Articles designated as significant military equipment under the criterion specified in paragraph (a) of this section include all classified articles and the articles enumerated in § 121.1 in Categories I (a) and (c) (in quantity); II (a) and (b); III(a) (excluding ammunition for firearms in Category (I)) and (d); IV (a), (b), (d), (e), (f) and (g); V (a) (in quantity) and (b); VI (a), (b) (inclusive only of turrets and gun mounts, missile systems, and special weapons systems) and (e); VII (a), (b), (c), (e), (f) and (g); VIII (a), (b)(1), (c), (d), (g), (h), and (i). GEMS as defined in (i), and inertial systems as defined in (j); XI (a)(1), (b)(1), (c); XII (a) and (b); XIV (a), (b), (c) and (d); XVI; XVII; and XX (a) and (b).

(c) Items in § 121.1 which are preceded by an asterisk are "significant military equipment.'

(d) Section 47(6) of the Arms Export Control Act (22 U.S.C. 2794(6) note) provides a definition of "major defense equipment" and refers to certain significant combat equipment on the U.S. Munitions List. The terms "significant military equipment" and "significant combat equipment" are considered to be equivalent for purposes of that section of the Arms Export Control Act and this subchapter.

[49 FR 47684, Dec. 6, 1984, as amended at 53 FR 11496, Apr. 7, 1988]

§ 120.20 Technical assistance agreement.

An agreement (e.g., contract) for the performance of defense services or the disclosure of technical data, as opposed to an agreement granting a right or license to manufacture defense articles.

§ 120.21 Technical data.

"Technical data" means, for purposes of this subchapter:

(a) Classified information relating to defense articles and defense services; (b) Information covered by an invention secrecy order;

(c) Information which is directly related to the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification, or reconstruction of defense articles.

This includes, for example, information in the form of blueprints, drawings, photographs, plans, instructions, computer software and documentation. This also includes information which advances the state of the art of articles on the U.S. Munitions List. This does not include information concerning general scientific, mathematical or engineering principles.

§ 120.22 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, and any territory over which the United States exercises any powers of administration, legislation, and jurisdiction.

§ 120.23 U.S. Person.

natural

"U.S. Person" means a person (as defined in § 120.16 of this part) who is a citizen or national of the United States, or has been lawfully admitted to the United States for permanent residence (and maintains such a residence) under the Immigration and Nationality Act (8 U.S.C. 1101(a), 101(a), 60 Stat. 163). It also means any corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated or organized 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 § 120.11 of this part. [53 FR 11496, Apr. 7, 1988]

§ 120.24 U.S. criminal statutes.

For purposes of this subchapter, the phrase "U.S. criminal statutes” means: (a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778);

(b) Section 11 of the Export Administration Act of 1979 (50 U.S.C. App. 2410);

(c) Sections 793, 794, or 798 of Title 18, United States Code (relating to espionage involving defense or classified information);

(d) Section 16 of the Trading with the Enemy Act (50 U.S.C. App. 16);

(e) Section 206 of the International Emergency Economic Powers Act (relating to foreign assets controls; 50 U.S.C. App. 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);

(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(b));

(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 603(b) or (c) of the Comprehensive Anti-Apartheid Act of 1986 (22 U.S.C. 5113(b) and (c)); and

(1) Section 371 of Title 18, United States Code (when it involves conspiracy to violate any of the above statutes).

[53 FR 11496, Apr. 7, 1988]

(7) Authority to Export Defense Articles and Defense Services sold under the Foreign Military Sales program (Form DSP-94).

(b) Department of Commerce:

(1) International Import Certificate (Form ITA-645P/ATF-4522/DSP-53). (2) Shipper's export declaration (Form No. 7525-V).

(c) Department of Defense:

Offer and acceptance (DD Form 1513).

[49 FR 47684, Dec. 6, 1984; 50 FR 12787, Apr. 1, 1985. Redesignated at 53 FR 11496, Apr. 7, 1988]