PART 120-PURPOSE AND DEFINITIONS
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR 1977 Comp. p. 79; 22 U.S.C. 2658.
(b) Authorized Officials. All authorities conferred upon the Director of the Office of Defense Trade Controls by this subchapter may be exercised at any time by the Under Secretary of State for International Security Affairs, the Assistant Secretary of State for Politico-Military Affairs, or the Deputy Assistant Secretary of State for Politico-Military Affairs responsible for supervising the Office of Defense Trade Controls unless the Legal Adviser or the Assistant Legal Adviser for Politico-Military Affairs of the Department of State determines that any specific exercise of this authority under this subsection may be inappropriate.
(c) Eligibility. Only U.S. persons (as defined in § 120.15) and foreign
governmental entities in the United States may be granted licenses or other approvals (other than retransfer approvals sought pursuant to this subchapter). Foreign persons (as defined in § 120.16) other than governments are not eligible. U.S. persons who have been convicted of violating the criminal statutes enumerated in § 120.27, who have been debarred pursuant to part 127 or 128 of this subchapter, who are the subject of an indictment involving the criminal statutes enumerated in § 120.27, 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 export licenses (or other forms of authorization to export) from any agency of the U.S. Government, who are subject to Department of State Suspension/Revocation under § 126.7 (a)(1)-(a)(7) of this subchapter, or who are ineligible under § 127.6(c) of this subchapter are generally ineligible. Applications for licenses or other approvals will be considered only if the applicant has registered with the Office of Defense Trade Controls pursuant to part 122 of this subchapter. All applications and requests for approval must be signed by a U.S. person who has been empowered by the registrant to sign such documents.
(d) The exemptions provided in this subchapter do not apply to transactions in which the exporter or any party to the export (as defined in § 126.7(e) of this subchapter) is generally ineligible as set forth above in paragraph (c) of this section, unless an exception has been granted pursuant to § 126.7(c) of this subchapter.
(a) Is specifically designed, developed, configured, adapted, or modified for a military application, and
(i) Does not have predominant civil applications, and
(ii) Does not have performance equivalent (defined by form, fit and function) to those of an article or service used for civil applications; or
(b) Is specifically designed, developed, configured, adapted, or modified for a military application, and has significant military or intelligence applicability such that control under this subchapter is necessary.
The intended use of the article or service after its export (i.e., for a military or civilian purpose) is not relevant in determining whether the article or service is subject to the controls of this subchapter. Any item covered by the U.S. Munitions List must be within the categories of the U.S. Munitions List. The scope of the U.S. Munitions List shall be changed only by amendments made pursuant to section 38 of the Arms Export Control Act (22 U.S.C. 2778).
(b) Registration with the Office of Defense Trade Controls as defined in part 122 of this subchapter is not required prior to submission of a commodity jurisdiction request. If it is determined that the commodity is a defense article or service covered by the U.S. Munitions List, registration is required for exporters, manufacturers, and furnishers of defense articles and defense services (see part 122 of this subchapter).
(c) Requests shall identify the article or service, and include a history of the product’s design, development and use. Brochures, specifications and any other documentation related to the article or service shall be submitted in seven collated sets.
(d)(1) A determination that an article or service does not have predominant civil applications shall be made by the Department of State, in accordance with this subchapter, on a case-by-case basis, taking into account:
(i) The number, variety and predominance of civil applications;
(ii) The nature, function and capability of the civil applications; and
(iii) The nature, function and capability of the military applications.
(2) A determination that an article does not have the performance equivalent, defined by form, fit and function, to those used for civil applications shall be made by the Department of State, in accordance with this subchapter, on a case-by-case basis, taking into account:
(i) The nature, function, and capability of the article;
(ii) Whether the components used in the defense article are identical to those components originally developed for civil use.
Note: The form of the item is its defined configuration, including the geometrically measured configuration, density, and weight or other visual parameters which uniquely characterize the item, component or assembly. For software, form denotes language, language level and media. The fit of the item is its ability to physically interface or interconnect with or become an integral part of another item. The function of the item is the action or actions it is designed to perform.
(3) A determination that an article has significant military or intelligence applications such that it is necessary to control its export as a defense article shall be made, in accordance with this subchapter, on a case-by-case basis, taking into account: (i) The nature, function, and capability of the article;
(ii) The nature of controls imposed by other nations on such items (including COCOM and other multilateral controls), and
(iii) That items described on the COCOM Industrial List shall not be designated defense articles or defense services unless the failure to control such items on the U.S. Munitions List would jeopardize significant national security or foreign policy interests.
(e) The Office of Defense Trade Controls will provide a preliminary response within 10 working days of receipt of a complete request for commodity jurisdiction. If after 45 days the Office of Defense Trade Controls has not provided a final commodity jurisdiction determination, the applicant may request in writing to the Director, Center for Defense Trade that this determination be given expedited processing.
(f) State, Defense and Commerce will resolve commodity jurisdiction disputes in accordance with established procedures. State shall notify Defense and Commerce of the initiation and conclusion of each case.
(g) A person may appeal a commodity jurisdiction determination by submitting a written request for reconsideration to the Director of the Center for Defense Trade. The Center for Defense Trade will provide a written response of the Director’s determination within 30 days of receipt of the appeal. If desired, an appeal of the Director’s decision can then be made directly to the Assistant Secretary for Politico-Military Affairs.
(b) Significant military equipment includes:
(1) Items in § 121.1 of this subchapter which are preceded by an asterisk; and
(2) All classified articles enumerated in § 121.1 of this subchapter.
(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; or
(2) The furnishing to foreign persons of any technical data controlled under this subchapter (see § 120.10), whether in the United States or abroad.
(1) Information, other than software as defined in § 120.10(d), 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 and documentation.
(2) Classified information relating to defense articles and defense services;
(3) Information covered by an invention secrecy order;
(4) Software as defined in § 121.8(f) of this subchapter directly related to defense articles;
(5) This definition 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 § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
(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);
(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.
(1) Sending or taking a defense article out 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
(2) Transferring registration, control or ownership to a foreign person of any aircraft, vessel, or satellite covered by the U.S. Munitions List, whether in the United States or abroad; or
(3) Disclosing (including oral or visual disclosure) or transferring in the United States any defense article to an embassy, any agency or subdivision of a foreign government (e.g., diplomatic missions); or
(4) Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad; or
(5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad.
(6) A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export for purposes of this subchapter. However, for certain limited purposes (see § 126.1 of this subchapter), the controls of this subchapter may apply to any sale, transfer or proposal to sell or transfer defense articles or defense services.
(a) The export of technical data (as defined in § 120.10) or defense articles or the performance of a defense service; or
(b) The use by the foreign person of technical data or defense articles previously exported by the U.S. person. (See part 124 of this subchapter).
(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; and
(4) Has the independent authority to:
(i) Enquire into any aspect of a proposed export or temporary import by the applicant, and
(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.
(1) Section 38 of the Arms Export Control Act (22 U.S.C. 2778);
(2) Section 11 of the Export Administration Act of 1979 (50 U.S.C. App. 2410);
(3) Sections 793, 794, or 798 of title 18, United States Code (relating to espionage involving defense or classified information);
(4) Section 16 of the Trading with the Enemy Act (50 U.S.C. App. 16);
(5) Section 206 of the International Emergency Economic Powers Act (relating to foreign assets controls; 50 U.S.C. 1705);
(6) 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);
(7) Chapter 105 of title 18, United States Code (relating to sabotage);
(8) Section 4(b) of the Internal Security Act of 1950 (relating to communication of classified information; 50 U.S.C. 783(b));
(9) 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);
(10) Section 601 of the National Security Act of 1947 (relating to intelligence identities protection; 50 U.S.C. 421);
(11) Section 603(b) or (c) of the Comprehensive Anti-Apartheid Act of 1986 (22 U.S.C. 5113(b) and (c)); and
(12) Section 371 of title 18, United States Code (when it involves conspiracy to violate any of the above statutes).
(a) Department of State, Bureau of Politico-Military Affairs, Office of Defense Trade Controls, Washington, DC. 20522-0602.
(1) Application/License for permanent export of unclassified defense articles and related technical data (Form DSP-5).
(2) Application for registration (Form DSP-9).
(3) Application/License for temporary import of unclassified defense articles (Form DSP-61).
(4) Application/License for temporary export of unclassified defense articles (Form DSP-73).
(5) Non-transfer and use certificate (Form DSP-83).
(6) Application/License for permanent/temporary export or temporary import of classified defense articles and related classified technical data (Form DSP-85).
(7) Authority to Export Defense Articles and Defense Services sold under the Foreign Military Sales program (Form DSP-94).
(b) Department of Commerce, Bureau of Export Administration:
(1) International Import Certificate (Form BXA-645P/ATF-4522/DSP-53).
(2) Shipper’s Export Declaration (Form No. 7525-V).
(3) Department of Defense, Defense Security Assistance Agency: Letter of Offer and Acceptance (DD Form 1513).
(b) The term MTCR Annex means the Guidelines and Equipment and Technology Annex of the MTCR, and any amendments thereto;
(c) List of all items on the MTCR Annex. Section 71(a) of the Arms Export Control Act (22 U.S.C. § 2797) refers to the establishment as part of the U.S. Munitions List of a list of all items on the MTCR Annex, the export of which is not controlled under section 6(l) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(l)), as amended. In accordance with this provision, the list of MTCR Annex items shall constitute all items on the U.S. Munitions List in § 121.16 of this subchapter.
Authority: Sec. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR 1977 Comp. p. 79; 22 U.S.C. 2658. Enumeration of Articles
(b) Significant military equipment: An asterisk precedes certain defense articles in the following list. The asterisk means that the article is deemed to be "significant military equipment" to the extent specified in § 120.19. The asterisk is placed as a convenience to help identify such articles.
(c) Certain items in the following list are placed in brackets. The brackets mean that the item is (1) scheduled to be moved to the licensing jurisdiction of the Department of Commerce upon establishment of a foreign policy control or (2) in the case of spacecraft and related equipment, the item is under review by an interagency space technical working group. The interagency review will result in a recommendation as to whether an item should be moved to the jurisdiction of the Department of Commerce or to USML category XV which was established for this purpose.
(d) Missile Technology Control Regime Annex (MTCR). Certain defense articles and services are identified in § 121.16 as being on the list of MTCR Annex items on the United States Munitions List. These are articles as specified in § 120.29 of this subchapter and appear on the list at § 121.16.
*(a) Nonautomatic, semi-automatic and fully automatic firearms to caliber .50 inclusive, and all components and parts for such firearms. (See § 121.9 and §§ 123.16-123.19 of this subchapter.)
(b) Riflescopes manufactured to military specifications, and specifically designed or modified components therefor; firearm silencers and suppressors, including flash suppressors.
*(c) Insurgency-counterinsurgency type firearms or other weapons having a special military application (e.g. close assault weapons systems) regardless of caliber and all components and parts therefor.
(d) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (c) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
*(a) Guns over caliber .50, howitzers, mortars, and recoilless rifles.
*(b) Military flamethrowers and projectors.
(c) Components, parts, accessories and attachments for the articles in paragraphs (a) and (b) of this category, including but not limited to mounts and carriages for these articles.
(d) Technical data (as defined in 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (c) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
(b) Components, parts, accessories, and attachments for articles in paragraph (a) of this category, including but not limited to cartridge cases, powder bags, bullets, jackets, cores, shells (excluding shotgun shells), projectiles, boosters, fuzes and components therefor, primers, and other detonating devices for such ammunition. (See § 121.6.)
(c) Ammunition belting and linking machines.
*(d) Ammunition manufacturing machines and ammunition loading machines (except handloading ones).
(e) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (d) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
*(a) Rockets (including but not limited to meteorological and other sounding rockets), bombs, grenades, torpedoes, depth charges, land and naval mines, as well as launchers for such defense articles, and demolition blocks and blasting caps. (See § 121.11.)
*(b) Launch vehicles and missile and anti-missile systems including but not limited to guided, tactical and strategic missiles, launchers, and systems.
(c) Apparatus, devices, and materials for the handling, control, activation, monitoring, detection, protection, discharge, or detonation of the articles in paragraphs (a) and (b) of this category. (See § 121.5.)
*(d) Missile and space launch vehicle powerplants.
*(e) Military explosive excavating devices.
*(f) Ablative materials fabricated or semi-fabricated from advanced composites (e.g., silica, graphite, carbon, carbon/carbon, and boron filaments) for the articles in this category that are derived directly from or specifically developed or modified for defense articles.
*(g) Non/nuclear warheads for rockets and guided missiles.
(h) All specifically designed or modified components, parts, accessories, attachments, and associated equipment for the articles in this category.
(i) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (h) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
*(a) Military explosives. (See § 121.12.)
*(b) Military fuel thickeners. (See § 121.13.)
(c) Propellants for the articles in Categories III and IV of this section. (See § 121.14.)
(d) Military pyrotechnics, except pyrotechnic materials having dual military and commercial use.
(e) All compounds specifically formulated for the articles in this category.
(f) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (e) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
*(a) Warships, amphibious warfare vessels, landing craft, mine warfare vessels, patrol vessels, auxiliary vessels and service craft, experimental types of naval ships and any vessels specifically designed or modified for military purposes. (See § 121.15.)
*(b) Turrets and gun mounts, arresting gear, special weapons systems, protective systems, submarine storage batteries, catapults and other components, parts, attachments, and accessories specifically designed or modified for combatant vessels.
(c) Mine sweeping equipment, components, parts, attachments and accessories specifically designed or modified therefor.
(d) Harbor entrance detection devices, (magnetic, pressure, and acoustic ones) and controls and components therefor.
*(e) Naval nuclear propulsion plants, their land prototypes, and special facilities for their construction, support, and maintenance. This includes any machinery, device, component, or equipment specifically developed, designed or modified for use in such plants or facilities. (See § 123.21 of this subchapter)
(f) All specifically designed or modified components, parts, accessories, attachments, and associated equipment for the articles in this category.
(g) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8) directly related to the defense articles enumerated in paragraphs (a) through (f) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
*(a) Military type armed or armored vehicles, military railway trains, and vehicles specifically designed or modified to accommodate mountings for arms or other specialized military equipment or fitted with such items.
*(b) Military tanks, combat engineer vehicles, bridge launching vehicles, half-tracks and gun carriers.
*(c) Self-propelled guns and howitzers.
(d) Military trucks, trailers, hoists, and skids specifically designed, modified, or equipped to mount or carry weapons of Categories I, II and IV or for carrying and handling the articles in paragraph (a) of Categories III and IV.
*(e) Military recovery vehicles.
*(f) Amphibious vehicles. (See § 121.4)
*(g) Engines specifically designed or modified for the vehicles in paragraphs (a), (b), (c), and (f) of this category.
(h) All specifically designed or modified components and parts, accessories, attachments, and associated equipment for the articles in this category, including but not limited to military bridging and deep water fording kits.
(i) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (h) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
*(a) Aircraft, including but not limited to helicopters, non-expansive balloons, drones, and lighter-than-air aircraft, which are specifically designed, modified, or equipped for military purposes. This includes but is not limited to the following military purposes: Gunnery, bombing, rocket or missile launching, electronic and other surveillance, reconnaissance, refueling, aerial mapping, military liaison, cargo carrying or dropping, personnel dropping, airborne warning and control, and military training. (See § 121.3.)
*(b) Military aircraft engines, except reciprocating engines, [and spacecraft engines] specifically designed or modified for the aircraft in paragraph (a) of this category.
*(c) Cartridge-actuated devices utilized in emergency escape of personnel and airborne equipment (including but not limited to airborne refueling equipment) specifically designed or modified for use with the aircraft, [spacecraft] and engines of the types in paragraphs (a), (b), [and (h)] of this category.
(d) Launching and recovery equipment for the articles in paragraph (a) [and (i)] of this category, if the equipment is specifically designed or modified for military use [or for use with spacecraft]. Fixed land-based arresting gear is not included in this category.
*(e) Inertial navigation systems, aided or hybrid inertial navigation systems, Inertial Measurement Units (IMUs), and Attitude and Heading Reference Systems (AHRS) specifically designed, modified, or configured for military use and all specifically designed components, parts and accessories. For other inertial reference systems and related components refer to Category XII(d).
*(f) Developmental aircraft and components thereof which have a significant military applicability, excluding such aircraft and components that have been certified by the Federal Aviation Administration and determined through the commodity jurisdiction procedure specified in § 120.4 of this subchapter, to be subject to the export control jurisdiction of the Department of Commerce for purposes of section 17(c) of the Export Administration Act, as amended.
*(g) Ground effect machines (GEMS) specifically designed or modified for military use, including but not limited to surface effect machines and other air cushion vehicles, and all components, parts, and accessories, attachments, and associated equipment specifically designed or modified for use with such machines.
(h) * Spacecraft, including manned and unmanned, active and passive satellites (except those listed in Category XV).
[(i) Power supplies and energy sources specially designed or modified for spacecraft in paragraph (h).]
(j) Components, parts, accessories, attachments, and associated equipment (including ground support equipment) specifically designed or modified for the articles in paragraphs (a) through (i) of this category, excluding aircraft tires and propellors used with reciprocating engines.
(k) Technical Data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (j) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
[(l) Non-military aircraft inertial navigation systems, except those systems or components that are standard equipment in civil aircraft, including spare parts and spare units to be used exclusively for the maintenance of inertial navigation equipment incorporated in civil aircraft and that are certified by the Federal Aviation Administration (FAA) as being an integral part of such aircraft.]
[(m) Technical data for the design, development, production or manufacture of inertial navigation equipment or its related parts, components or subsystems which are standard equipment in civil aircraft and which are certified by the Federal Aviation Administration as being an integral part of such aircraft. FAA certified inertial navigation systems and all other technical data associated with such systems is under the licensing jurisdiction of the Department of Commerce.]
(a) Military training equipment including but not limited to attack trainers, radar target trainers, radar target generators, gunnery training devices, antisubmarine warfare trainers, target equipment, armament training units, operational flight trainers, air combat training systems, radar trainers, navigation trainers, and simulation devices related to defense articles.
(b) Components, parts, accessories, attachments, and associated equipment specifically designed or modified for the articles in paragraph (a) of this category.
(c) Technical Data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) and (b) of this category. (See § 125.4 for exemptions.).
(a) Body armor specifically designed, modified or equipped for military use; articles, including but not limited to clothing, designed, modified or equipped to protect against or reduce detection by radar, infrared (IR) or other sensors; military helmets equipped with communications hardware, optical sights, slewing devices or mechanisms to protect against thermal flash or lasers, excluding standard military helmets.
(b) Partial pressure suits and liquid oxygen converters used in aircraft in Category VIII(a).
(c) Protective apparel and equipment specifically designed or modified for use with the articles in paragraphs (a) through (d) in Category XIV.
(d) Components, parts, accessories, attachments, and associated equipment specifically designed or modified for use with the articles in paragraphs (a), (b), and (c) of this category.
(e) Technical Data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (d) of this category. (See § 125.4 of this subchapter for exemptions.)
(a) Electronic equipment not included in Category XII of the U.S. Munitions List which is specifically designed, modified or configured for military application. This equipment includes but is not limited to:
*(1) Underwater sound equipment to include active and passive detection, identification, tracking, and weapons control equipment.
*(2) Underwater acoustic active and passive countermeasures and counter-countermeasures.
(3) Radar systems, with capabilities such as:
*(i) Search,
*(ii) Acquisition,
*(iii) Tracking,
*(iv) Moving target indication,
*(v) Imaging radar systems,
(vi) Any ground air traffic control radar which is specifically designed or modified for military application.
*(4) Electronic combat equipment, such as:
(i) Active and passive countermeasures,
(ii) Active and passive counter-countermeasures, and
(iii) Radios (including transceivers) specifically designed or modified to interfere with other communication devices or transmissions.
*(5) Command, control and communications systems to include radios (transceivers), navigation, and identification equipment.
(6) Computers specifically designed or developed for military application and any computer specifically modified for use with any defense article in any category of the U.S. Munitions List.
(7) Any experimental or developmental electronic equipment specifically designed or modified for military application or specifically designed or modified for use with a military system.
*(b) Electronic systems or equipment specifically designed, modified, or configured for intelligence, security, or military purposes for use in search, reconnaissance, collection, monitoring, direction-finding, display, analysis and production of information from the electromagnetic spectrum and electronic systems or equipment designed or modified to counteract electronic surveillance or monitoring. A system meeting this definition is controlled under this subchapter even in instances where any individual pieces of equipment constituting the system may be subject to the controls of another U.S. Government agency. Such systems or equipment described above include, but are not limited to, those:
(1) Designed or modified to use cryptographic techniques to generate the spreading code for spread spectrum or hopping code for frequency agility. This does not include fixed code techniques for spread spectrum.
(2) Designed or modified using burst techniques (e.g., time compression techniques) for intelligence, security or military purposes.
(3) Designed or modified for the purpose of information security to suppress the compromising emanations of information-bearing signals. This covers TEMPEST suppression technology and equipment meeting or designed to meet government TEMPEST standards. This definition is not intended to include equipment designed to meet Federal Communications Commission (FCC) commercial electro-magnetic interference standards or equipment designed for health and safety.
[(c) Space electronics:
*(1) Electronic equipment specifically designed or modified for spacecraft and spaceflight, and
(2) Electronic equipment specifically designed or modified for use with non-military communications satellites.
(3) Components, parts, accessories, attachments, and associated equipment specifically designed or modified for use with the equipment in subparagraphs (1) and (2).]
(d) Components, parts, accessories, attachments, and associated equipment specifically designed or modified for use with the equipment in paragraphs (a) and (b) of this category, except for such items as are in normal commercial use.
(e) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (d) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
*(a) Fire control systems; gun and missile tracking and guidance systems; gun range, position, height finders, spotting instruments and laying equipment; aiming devices (electronic, optic, and acoustic); bomb sights, bombing computers, military television sighting and viewing units, and periscopes for the articles of this section.
*(b) Lasers specifically designed, modified or configured for military application including those used in military communication devices, target designators and range finders, target detection systems, and directed energy weapons.
*(c) Infrared focal plane array detectors specifically designed, modified or configured for military use; image intensification and other night sighting equipment or systems specifically designed, modified, or configured for military use; second generation and above military image intensification tubes (defined below) specifically designed, developed, modified, or configured for military use, and, infrared, visible, and ultraviolet devices specifically designed, developed, modified, or configured for military application.
Note: Special Definition. For purposes of this subparagraph, second and third generation image intensifier tubes are defined as having:
A peak response within the 0.4 to 1.05 micron wavelength range and incorporating a microchannel plate for electron image amplification having a hole pitch (center-to-center spacing) of less than 25 microns, and having either:
(a) An S-20, S-25 or multialkali photocathode; or
(b) A semiconductor photocathode;
*(d) Inertial platforms and sensors for weapons or weapon systems; guidance, control and stabilization systems except for those systems covered in category VIII; astro-compasses and star trackers and military and [non-military] accelerometers and gyros. For aircraft inertial reference systems and related components refer to Category VIII.
[(e) Non-military second generation and above image intensification tubes, non-military infrared focal plane arrays, and image intensification tubes identified in paragraph (c) of this section when a part of a commercial system (i.e. those systems originally designed for commercial use). This does not include military systems comprised of non-military specification components.]
(f) Components, parts, accessories, attachments and associated equipment specifically designed or modified for the articles in paragraphs (a), (b), (c) and (d) of this category, except for such items as are in normal commercial use.
(g) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8) directly related to the defense articles enumerated in paragraphs (a) through (f) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to manufacture and production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
(a) Cameras [including space cameras] and specialized processing equipment therefor, photointerpretation, stereoscopic plotting, and photogrammetry equipment which are specifically designed or modified for military purposes, and components specifically designed or modified therefor;
(b) Information Security Systems and equipment, cryptographic devices, software, and components specifically designed or modified therefor, including:
(1) Cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components or software with the capability of maintaining secrecy or confidentiality of information or information systems, except cryptographic equipment and software as follows:
(i) Restricted to decryption functions specifically designed to allow the execution of copy protected software, provided the decryption functions are not user-accessible.
(ii) Specially designed, developed or modified for use in machines for banking or money transactions, and restricted to use only in such transactions. Machines for banking or money transactions include automatic teller machines, self-service statement printers, point of sale terminals or equipment for the encryption of interbanking transactions.
(iii) Employing only analog techniques to provide the cryptographic processing that ensures information security in the following applications:
(A) Fixed (defined below) band scrambling not exceeding 8 bands and in which the transpositions change not more frequently than once every second;
(B) Fixed (defined below) band scrambling exceeding 8 bands and in which the transpositions change not more frequently than once every ten seconds;
(C) Fixed (defined below) frequency inversion and in which the transpositions change not more frequently than once every second;
(D) Facsimile equipment;
(E) Restricted audience broadcast equipment;
(F) Civil television equipment.
Note: Special Definition. For purposes of this subparagraph, fixed means that the coding or compression algorithm cannot accept externally supplied parameters (e.g., cryptographic or key variables) and cannot be modified by the user.
(iv) Personalized smart cards using cryptography restricted for use only in equipment or systems exempted from the controls of the USML.
(v) Limited to access control, such as automatic teller machines, self-service statement printers or point of sale terminals, which protects password or personal identification numbers (PIN) or similar data to prevent unauthorized access to facilities but does not allow for encryption of files or text, except as directly related to the password of PIN protection.
(vi) Limited to data authentication which calculates a Message Authentication Code (MAC) or similar result to ensure no alteration of text has taken place, or to authenticate users, but does not allow for encryption of data, text or other media other than that needed for the authentication.
(vii) Restricted to fixed data compression or coding techniques.
(viii) Limited to receiving for radio broadcast, pay television or similar restricted audience television of the consumer type, without digital encryption and where digital decryption is limited to the video, audio or management functions.
(ix) Software designed or modified to protect against malicious computer damage, (e.g., viruses).
Note: A procedure has been established to facilitate the expeditious transfer to the Commodity Control List of mass market software products with encryption that meet specified criteria regarding encryption for the privacy of data and the associated key management. Requests to transfer commodity jurisdiction of mass market software products designed to meet the specified criteria may be submitted in accordance with the commodity jurisdiction provisions of § 120.4. Questions regarding the specified criteria or the commodity jurisdiction process should be addressed to the Office of Defense Trade Controls. All mass market software products with cryptography that were previously granted transfers of commodity jurisdiction will remain under Department of Commerce control. Mass market software governed by this note is software that is generally available to the public by being sold from stock at retail selling points, without restriction, by means of over the counter transactions, mail order transactions, or telephone call transactions; and designed for installation by the user without further substantial support by the supplier.
(2) Cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components or software which have the capability of generating spreading or hopping codes for spread spectrum systems or equipment.
(3) Cryptanalytic systems, equipment, assemblies, modules, integrated circuits, components or software.
(4) Systems, equipment, assemblies, modules, integrated circuits, components or software providing certified or certifiable multi-level security or user isolation exceeding class B2 of the Trusted Computer System Evaluation Criteria (TCSEC) and software to certify such systems, equipment or software.
(5) Ancillary equipment specifically designed or modified for paragraphs (b) (1), (2), (3), (4) and (5) of this category;
(c) Self-contained diving and underwater breathing apparatus as follows:
(1) Closed and semi-closed circuits (rebreathing) apparatus;
(2) Specially designed components for use in the conversion of open-circuit apparatus to military use; and
(3) Articles exclusively designed for military use with self-contained diving and underwater swimming apparatus.
(d) Carbon/carbon billets and preforms which are reinforced with continuous unidirectional tows, tapes, or woven cloths in three or more dimensional planes (i.e. 3D, 4D, etc.). This is exclusive of carbon/carbon billets and preforms where reinforcement in the third dimension is limited to interlocking of adjacent layers only, and carbon/carbon 3D, 4D, etc. end items which have not been specifically designed or modified for defense articles (e.g., brakes for commercial aircraft or high speed trains). Armor (e.g., organic, ceramic, metallic), and reactive armor which has been specifically designed or modified for defense articles. Structural materials including carbon/carbon and metal matrix composites, plate, forgings, castings, welding consumables and rolled and extruded shapes which have been specifically designed or modified for defense articles.
(e) Concealment and deception equipment, including but not limited to special paints, decoys, and simulators and components, parts and accessories specifically designed or modified therefor.
(f) Energy conversion devices for producing electrical energy from nuclear, thermal, or solar energy, or from chemical reaction which are specifically designed or modified for military application.
(g) Chemiluminescent compounds and solid state devices specifically designed or modified for military application.
(h) Devices embodying particle beam and electromagnetic pulse technology and associated components and subassemblies (e.g., ion beam current injectors, particle accelerators for neutral or charged particles, beam handling and projection equipment, beam steering, fire control, and pointing equipment, test and diagnostic instruments, and targets) which are specifically designed or modified for directed energy weapon applications.
(i) Metal embrittling agents.
*(j) Hardware and equipment, which has been specifically designed or modified for military applications, that is associated with the measurement or modification of system signatures for detection of defense articles. This includes but is not limited to signature measurement equipment; prediction techniques and codes; signature materials and treatments; and signature control design methodology.
(k) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) related to the defense articles listed in this category. (See § 125.4 of this subchapter for exemptions; see also § 123.21 of this subchapter). Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
*(a) Chemical agents, including but not limited to lung irritants, vesicants, lachrymators, tear gases (except tear gas formulations containing 1% or less CN or CS), sternutators and irritant smoke, and nerve gases and incapacitating agents. (See § 121.7.)
*(b) Biological agents.
*(c) Equipment for dissemination, detection, and identification of, and defense against, the articles in paragraphs (a) and (b) of this category.
*(d) Nuclear radiation detection and measuring devices, manufactured to military specification.
(e) Components, parts, accessories, attachments, and associated equipment specifically designed or modified for the articles in paragraphs (c) and (d) of this category.
(f) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) related to the defense articles enumerated in paragraphs (a) through (e) of this category. (See § 125.4 of this subchapter for exemptions; see also § 123.21 of this subchapter). Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
*(a) Spacecraft and associated hardware, including ground support equipment, specifically designed or modified for military use.
(b)(1) [Reserved]
(2) Communications satellites (excluding ground stations and their associated equipment and technical data not enumerated elsewhere in § 121.1 of this subchapter; for controls on such ground stations, see the Commerce Control List) with any of the following characteristics:
(i) Anti-jam capability. Antennas and/or antenna systems with ability to respond to incoming interference by adaptively reducing antenna gain in the direction of the interference.
(ii) Antennas:
(A). With aperture (overall dimension of the radiating portions of the antenna) greater than 30 feet; or
(B). With sidelobes less than or equal to -35dB; or
(C). Designed, modified, or configured to provide coverage area on the surface of the earth less than 200 nm in diameter, where "coverage area" is defined as that area on the surface of the earth that is illuminated by the main beam width of the antenna (which is the angular distance between half power points of the beam).
(iii) Designed, modified or configured for intersatellite data relay links that do not involve a ground relay terminal ("cross-links").
(iv) Spaceborne baseband processing equipment that uses any technique other than frequency translation which can be changed several times a day on a channel by channel basis among previously assigned fixed frequencies.
(v) Employing any of the cryptographic items controlled under Category XIII (b) of this subchapter.
(vi) Employing radiation-hardened devices controlled elsewhere in § 121.1 that are not "embedded in the satellite in such a way as to deny physical access. (Here "embedded" means that the device either cannot feasibly be removed from the satellite or be used for other purposes.)
(vii) Having propulsion systems which permit acceleration of the satellite on-orbit (i.e., after mission orbit injection) at rates greater than 0.1g.
(viii) Having attitude control and determination systems designed to provide spacecraft pointing determination and control better than 0.02 degrees azimuth and elevation.
(ix) Having orbit transfer engines ("kick-motors") which remain permanently with the spacecraft and are capable of being restarted after achievement of mission orbit and providing acceleration greater than 1g. (Orbit transfer engines which are not designed, built, and shipped as an integral part of the satellite are controlled under Category IV of this subchapter.)
(c) Global Positioning System (GPS) receiving equipment specifically designed, modified or configured for military use; or GPS receiving equipment with any of the following characteristics:
(1) Designed for encryption or decryption (e.g., Y-Code) of GPS precise positioning service (PPS) signals;
(2) Designed for producing navigation results above 60,000 feet altitude and at 1,000 knots velocity or greater;
(3) Specifically designed or modified for use with a null steering antenna or including a null steering antenna designed to reduce or avoid jamming signals;
(4) Designed or modified for use with unmanned air vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km.
Note: GPS receivers designed or modified for use with military unmanned air vehicle systems with less capability are considered to be specifically designed, modified or configured for military use and therefore covered under this subparagraph.
Any GPS equipment not meeting this definition is subject to the jurisdiction of the Department of Commerce (DOC). Manufacturers or exporters of equipment under DOC jurisdiction are advised that the U.S. Government does not assure the availability of the GPS P-Code for civil navigation. It is the policy of the Department of Defense (DOD) that GPS receivers using P-Code without clarification as to whether or not those receivers were designed or modified to use Y-Code will be presumed to be Y-Code capable and covered under this subparagraph. The DOD policy further requires that a notice be attached to all P-Code receivers presented for export. The notice must state the following: "ADVISORY NOTICE: This receiver uses the GPS P-Code signal, which by U.S. policy, may be switched off without notice."
(d) Components, parts, accessories, attachments, and associated equipment (including ground support equipment) specifically designed, modified or configure for the articles in paragraphs (a) through (c) of this category, as well as for any satellites under the export licensing jurisdiction of the Department of Commerce, except as noted below.
Explanatory Note
This language is not intended to preclude a license application of a complete satellite that is under the jurisdiction of the Department of Commerce from including in that license application any directly associated components, parts, accessories, attachments and associated equipment (including ground support equipment) unless such items are specifically identified for control in paragraph (a) or (b) of this category or any other category of § 121.1 of this subchapter. It is understood that spares, replacement parts, ground support and test equipment, payload adapter/interface hardware, etc. are typically provided as part of a satellite launch campaign; however, such items are only exempt from USML licensing when their intended use is directly related to supporting the Commerce-licensed satellite launch campaign. Once the satellite has been successfully launched, it is understood that such items remaining unlaunched will be returned to the United States.
(e) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (d) of this category. (See § 125.4 of this subchapter for exceptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME. In addition, detailed design, development, production or manufacturing data for all spacecraft systems and specifically designed or modified components thereof, regardless of which U.S. Government agency has jurisdiction for export of the hardware. (See § 125.4 of this subchapter for exceptions.) This restriction does not include that level of technical data (including marketing data) necessary and reasonable for a purchaser to have assurance that a U.S.-built item intended to operate in space has been designed, manufactured and tested in conformance with specified contract requirements (e.g., operational performance, reliability, lifetime, product quality, or delivery expectations) and data necessary to evaluate in-orbit anomalies and to operate and maintain associated ground equipment.
*(a) Any article, material, equipment, or device which is specifically designed or modified for use in the design, development, or fabrication of nuclear weapons or nuclear explosive devices. (See § 123.21 of this subchapter and Department of Commerce Export Regulations, 15 CFR part 778).
*(b) Any article, material, equipment, or device which is specifically designed or modified for use in the devising, carrying out, or evaluating of nuclear weapons tests or any other nuclear explosions, except such items as are in normal commercial use for other purposes.
(c) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (b) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
*(a) All articles, technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) relating thereto which are classified in the interests of national security and which are not otherwise enumerated in the U.S. Munitions List.
*(a) Submersible vessels, manned or unmanned, tethered or untethered, designed or modified for military purposes, or powered by nuclear propulsion plants.
*(b) Swimmer delivery vehicles designed or modified for military purposes.
(c) Equipment, components, parts, accessories, and attachments specifically designed or modified for any of the articles in paragraphs (a) and (b) of this category.
(d) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (c) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
(a) Any article not specifically enumerated in the other categories of the U.S. Munitions List which has substantial military applicability and which has been specifically designed or modified for military purposes. The decision on whether any article may be included in this category shall be made by the Directo of the Office of Defense Trade Controls.
(b) Technical data (as defined in § 120.21 of this subchapter) and defense services (as defined in § 120.8 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) of this category.
(a) Cargo aircraft bearing "C" designations and numbered C-45 through C-118 inclusive, C-121 through C-125 inclusive, and C-131, using reciprocating engines only.
(b) Trainer aircraft bearing "T" designations and using reciprocating engines or turboprop engines with less than 600 horsepower (s.h.p.)
(c) Utility aircraft bearing "U" designations and using reciprocating engines only.
(d) All liaison aircraft bearing an "L" designation.
(e) All observation aircraft bearing "O" designations and using reciprocating engines.
(a) Lung irritants:
(1) Diphenylcyanoarsine (DC).
(2) Fluorine (but not fluorene).
(3) Trichloronitro methane (chloropicrin PS).
(b) Vesicants:
(1) B-Chlorovinyldichloroarsine (Lewisite, L).
(2) Bis(dichloroethyl)sulphide (Mustard Gas, HD or H).
(3) Ethyldichloroarsine (ED).
(4) Methyldichloroarsine (MD).
(c) Lachrymators and tear gases:
(1) A-Bromobenzyl cyanide (BBC).
(2) Chloroacetophenone (CN).
(3) Dibromodimethyl ether.
(4) Dichlorodimethyl ether (ClCi).
(5) Ethyldibromoarsine.
(6) Phenylcarbylamine chloride.
(7) Tear gas solutions (CNB and CNS).
(8) Tear gas orthochlorobenzalmalononitrile (CS).
(d) Sternutators and irritant smokes:
(1) Diphenylamine chloroarsine (Adamsite, DM).
(2) Diphenylchloroarsine (BA).
(3) Liquid pepper.
(e) Nerve agents, gases and aerosols. These are toxic compounds which affect the nervous system, such as:
(1) Dimethylaminoethoxycyanophosphine oxide (GA).
(2) Methylisopropoxyfluorophosphine oxide (GB).
(3) Methylpinacolyloxyfluoriphosphine oxide (GD).
(f) Antiplant chemicals, such as: Butyl 2-chloro-4-fluorophenoxyacetate (LNF).
(b) A component is an item which is useful only when used in conjunction with an end-item. A major component includes any assembled element which forms a portion of an end-item without which the end-item is inoperable. (Example: Airframes, tail sections, transmissions, tank treads, hulls, etc.) A minor component includes any assembled element of a major component.
(c) Accessories and attachments are associated equipment for any component, end-item or system, and which are not necessary for their operation, but which enhance their usefulness or effectiveness. (Examples: Military riflescopes, special paints, etc.)
(d) 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 design use. (Examples: Rivets, wire, bolts, etc.)
(e) Firmware and any related unique support tools (such as computers, linkers, editors, test case generators, diagnostic checkers, library of functions and system test diagnostics) specifically designed for 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.
(f) 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 software only should, unless it is specifically enumerated in § 121.1 (e.g., XIII(b)), apply for a technical data license pursuant to part 125 of this subchapter.
(g) A system is a combination of end-items, components, parts, accessories, attachments, firmware or software, specifically designed, modified or adapted to operate together to perform a specialized military function.
(b) A firearm is a weapon not over .50 caliber which is designed to expel a projectile by the action of an explosive or which may be readily converted to do so.
(c) A rifle is a shoulder firearm which can discharge a bullet through a rifled barrel 16 inches or longer.
(d) A carbine is a lightweight shoulder firearm with a barrel under 16 inches in length.
(e) A pistol is a hand-operated firearm having a chamber integral with or permanently aligned with the bore.
(f) A revolver is a hand-operated firearm with a revolving cylinder containing chambers for individual cartridges.
(g) A submachine gun, "machine pistol" or "machine gun" is a firearm originally designed to fire, or capable of being fired, fully automatically by a single pull of the trigger.
(a) Electric squibs.
(b) No. 6 and No. 8 blasting caps, including electric ones.
(c) Delay electric blasting caps (including No. 6 and No. 8 millisecond ones).
(d) Seismograph electric blasting caps (including SSS, Static-Master, Vibrocap SR, and SEISMO SR).
(e) Oil well perforating devices.
(1) Spherical aluminium powder of particle size 60 micrometres or less
manufactured from material with an aluminum content of 99% or more;
(2) Metal fuels in particle sizes less than 60 micrometres whether spherical, atomized, spheroidal, flaked or ground, consisting of 99% or more of any of the following: Zirconium, boron, magnesium and alloys of these; beryllium; fine iron powder with average particle size of 3 micrometres or less produced by reduction of iron oxide with hydrogen;
(3) Any of the foregoing metals or alloys listed in (a) (1) and (2) of this section, whether or not encapsulated in aluminum, magnesium, zirconium or beryllium;
(4) Perchlorates, chlorates and chromates composited with powdered metal or other high energy fuel components;
(5) Nitroglycerin;
(6) Trinitrophenylmenthylnitramine (TETRYL);
(7) Trinitrotoluene (TNT);
(8) Nitroguanidine (NQ);
(9) With the exception of chlorinetrifluoride, compounds composed of fluorine and one or more of the following: other halogens, oxygen, nitrogen;
(10) Carboranes; decaborane; pentaborane and derivatives;
(11) Cyclotetramethylenetetranitramine (HMX); octahydro-1, 3,5,7-tetranitro-1,3,5,7-tetrazine; 1,3,5,7-tetranitro- 1,3,5,7-tetraza-cyclooctane; (octogen, octogene);
(12) Hexanitrostilbene (HNS);
(13) Diaminotrinitrobenzene (DATB);
(14) Triaminotrinitrobenzene (TATB);
(15) Triaminoguanidinenitrate (TAGN);
(16) Titanium subhydride of stiochiometry TiH sub 0.65-1.68;
(17) Dinitroglycoluril (DNGU, DINGU); tetranitroglycoluril TNGU, SORGUYL);
(18) Tetranitrobenzotriazolobenzotriazole (TACOT);
(19) Diaminohexanitrobiphenyl (DIPAM);
(20) Picrylaminodinitropyridine (PYX);
(21) 3-nitro-1,2,4-triazol-5-one (NTO or ONTA);
(22) Hydrazine in concentrations of 70% or more; hydrazine nitrate; hydrazine perchlorates; unsymmetrical dimethyl hydrazine; monomethyl hydrazine; symmetrical dimethyl hydrazine;
(23) Ammonium perchlorate;
(24) 2-(5-cyanotetrazolato) penta amminecobalt (III) perchlorate (CP);
(25) cis-bis (5-nitrotetrazolato) penta amminecobalt (III) perchlorate (or BNCP);
(26) 7-amino 4,6-dinitrobenzofurazane-1-oxide (ADNBF); amino dinitrobenzofuroxan;
(27) 5,7-diamino-4,6-dinitrobenzofurazane-1-oxide, (CL-14 or diaminodinitrobenzofuroxan);
(28) 2,4,6-trinitro-2,4,6-triaza-cyclo-hexanone (K-6 or keto-RDX);
(29) 2,4,6,8-tetranitro-2,4,6,8-tetraaza-bicyclo (3,3,0)-octanone-3(tetranitrosemiglycoluril, K-55, or keto-bicyclic HMX);
(30) 1,1,3-trinitroazetidine (TNAZ);
(31) 1,4,5,8-tetranitro-1,4,5,8-tetraazadecalin (TNAD);
(32) Hexanitrohexaazaisowurtzitane (CL-20 or HNIW; and clathrates of CL-20);
(33) Polynitrocubane with more than four nitro groups;
(34) Ammonium dinitramide (ADN or SR-12);
(35) Cyclotrimethylentrinitramine (RDX); cyclonite; T4; hexahydro-1,3,5-trinitro-1,3,5-triazine; 1,3,5-trinitro-1,3,5-triaza-cyclohexane; hexogen, hexogene;
(36) Hydroxylammonium nitrate (HAN); hydroxylammonium perchlorate (HAP);
(37) Pentaerythritol Tetranitrate (PETN);
(38) Hydroxy terminated Polybutadiene (HTPB) with a hydroxyl functionality of 2.28, a hydroxyl value of less than 0.77 meq/g, and a viscosity at 30 degrees C of less than 47 poise;
(b) "Additives" include the following:
(1) Glycidylazide Polymer (GAP) and its derivatives;
(2) Polycyanodifluoroaminoethyleneoxide (PCDE);
(3) Butanetrioltrinitrate (BTTN);
(4) Bis-2-fluoro-2,2-dinitroethylformal (FEFO);
(5) Catocene, N-butyl-ferrocene and other ferrocene derivatives;
(6) Bis(2, 2-dinitropropyl) formal and acetal;
(7) Energetic monomers, plasticisers and polymers containing nitro, azido, nitrate, nitraza or difluroamino groups;
(8) 1,2,3-Tris [1,2-bis(difluoroamino)ethoxy] propane; Tris vinoxy propane adduct, (TVOPA);
(9) Bisazidomethyloxetane (BAMO) and its polymers;
(10) Nitratomethylmethyloxetane (NMMO) Azidomethylmethyloxetane (AMMO);
(11) Tetraethylenepentamine- acrylonitrile (TEPAN); cyanoethylated polyamine and its salts;
(12) Tetraethylenepentamineacryloni-trileglycidol (TEPANOL); cyanoethylated polyamine adducted with glycidol and its salts;
(13) Polyfunctional aziridine amides with isophthalic, trimesic (BITA or butylene imine trimesamide isoyanuric), or trimethyladipic backbone structures and 2-methyl or 2-ethyl substitutions on the aziridine ring;
(14) Basic copper salicylate; lead salicylate;
(15) Lead beta resorcylate;
(16) Lead stannate, lead maleate, lead citrate;
(17) Tris-1-(2-methyl)aziridinyl phosphine oxide (MAPO) and its derivatives;
(18) Organo-metallic coupling agents, specifically:
(i) Neopentyl (diallyl) oxy, tri [dioctyl] phosphato titanate or titanium IV, 2,2[bis 2-propenolatomethyl, butanolato or tris [dioctyl] phosphato-O], or LICA 12;
(ii) Titanium IV, [(2-propenolato-1)methyl, N-propanolatomethyl] butanolato-1; or tris(dioctyl)pyrophosphato, or KR3538;
(iii) Titanium IV, [(2-propenolato-1)methyl, N-propanolatomethyl] butanolato-1; or tris(dioyctyl) phosphate;
(19) FPF-1 (poly-[2,2,3,3,4,4-hexafluoro pentane-1,5-diolformal]);
(20) FPF-3 (poly-[2,4,4,5,5,6,6-heptafluoro-2- trifluoromethyl-3-oxaheptane-1,7-diolformal]);
(21) Polyglycidylnitrate (PGN);
(22) Lead-copper chelates of beta-resorcylate and/or salicylates;
(23) Triphenyl bismuth (TPB);
(24) bis-2-hydroxyethylglycolamide (BHEGA);
(25) Superfine iron oxide with a specific surface area greater than 250 m sup 2 /g and an average particle size of 0.0003 micrometres or less;
(c) "Precursors" include the following:
(1) 1,2,4-trihydroxybutane (1,2,4-butanetriol);
(2) 1,3,5-trichlorobenzene;
(3) Bischloromethyloxetane (BCMO);
(4) Low (less than 10,000) molecular weight, alcohol-functionalised, poly(ephichlorohydrin); poly(ephichlorhydrindiol); diol and triol;
(5) Propyleneimide, 2-methylaziridine;
(6) 1,3,5,7,-tetraacetyl-1,3,5,7-tetraaza-cyclooctane (TAT);
(7) Dinitroazetidine-t-butyl salt;
(8) Hexabenzylhexaazaisowurtzitane (HBIW);
(9) Tetraacetyldi- benzyl- hexaazaiso- wurtzitane (TAIW);
(10) 1,4,5,8-tetraazadecaline.
(d) Stabilisers include the following;
(1) N-Methyl-p-nitroaniline;
(2) Protech.
(e) Any substance or mixture meeting the following performance requirements:
(1) Any explosive with a detonation velocity greater than 8,700 m/s or a detonation pressure greater than 340 kilobars;
(2) Other organic high explosives yielding detonation pressures of 250 kilobars or greater that will remain stable at temperatures of 523 K (250 degrees C) or higher for periods of 5 minutes or longer;
(3) Any other UN Class 1.1 solid propellant with a theoretical specific impulse (under standard conditions) greater than 250 seconds for non-metallized, or greater than 270 seconds for aluminized compositions;
(4) Any UN Class 1.3 solid propellant with a theoretical specific impulse greater than 230 seconds for non-halogenized, 250 seconds for non-metallized and 266 seconds for metallized compositions;
(5) Any other explosive, propellant or pyrotechnic that can sustain a steady-state burning rate greater than 38mm (1.5 in) per second under standard conditions of 68.9 bar (1,000 PSI) pressure and 294K (21 degrees C);
(6) Any other gun propellants having a force constant greater than 1,200 kJ/kg;
(7) Elastomer modified cast double based propellants (EMCDB) with extensibility at maximum stress greater than 5% at 233 K or (-40 degrees C).
(f) Liquid oxidizers, as follows:
(1) Enriched nitric acid (inhibited red fuming nitric acid (IRFNA));
(2) Oxyfluoride.
(a) Propellant powders, including smokeless shotgun powder.
(b) Hydrazine (including Monomethyl hydrazine and symmetrical dimethyl hydrazine, but excluding hydrazine hydrate).
(c) Unsymmetrical dimethyl hydrazine.
(d) Hydrogen peroxide of over 85 percent concentration.
(e) Nitroguanidine or picrite.
(f) Nitrocellulose with nitrogen content of over 12.20 percent.
(g) Nitrogen tetroxide (nitrogen dioxide, dinitrogen tetroxide).
(h) Other solid propellant compositions, including but not limited to, the following:
(1) Single base (nitrocellulose).
(2) Double base (nitrocellulose, nitroglycerin).
(3) Triple base (nitrocellulose, nitroglycerin, nitroguanidine).
(4) Composite of nitroglycerin, ammonium perchlorate, potassium perchlorate, nitronium perchlorate, guanidine (guanidinium) perchlorate, nitrogen tetroxide, ammonium nitrite or nitrocellulose with plastics, metal fuels, or rubbers added; and compounds composed only of fluorine and halogens, oxygen, or nitrogen.
(5) Special purpose high energy solid military fuels with a chemical base.
(i) Other liquid propellant compositions, including but not limited to, the following:
(1) Monopropellants (hydrazine, hydrazine nitrate, and water).
(2) Bipropellants (hydrazine, fuming nitric acid HNO(3)).
(3) Special purpose chemical base high energy liquid military fuels and oxidizers.
(a) Combatant vessels.
(1) Warships (including nuclear-powered versions):
(i) Aircraft carriers.
(ii) Battleships.
(iii) Cruisers.
(iv) Destroyers.
(v) Frigates.
(vi) Submarines.
(2) Other Combatants.
(i) Patrol Combatants (e.g., including but not limited to PHM).
(ii) Amphibious Aircraft/Landing Craft Carriers.
(iii) Amphibious Materiel/Landing Craft Carriers.
(iv) Amphibious Command Ships.
(v) Mine Warfare Ships.
(vi) Coast Guard Cutters (i.e. WHEC’s and WMEC’s).
(b) Auxiliaries.
(1) Combat Logistics Support.
(i) Underway Replenishment Ships.
(ii) Surface Vessel and Submarine Tender/Repair Ships.
(2) Support Ships.
(i) Submarine Rescue Ships.
(ii) Other Auxiliaries (e.g., including but not limited to: AGDS, AGF, AGM, AGOR, AGOS, AGS, AH, AP, ARC, ARL, AVB, AVM, AVT).
(c) Combatant Craft.
(1) Patrol Craft.
(i) Coastal Patrol Combatants.
(ii) River, Roadstead Craft (including swimmer delivery craft).
(iii) Coast Guard Patrol Craft.
(2) Amphibious Warfare Craft.
(i) Landing Craft (e.g., including but not limited to: LCAC, LCM, LCPL, LCU, LWT, SLWT).
(ii) Special Warfare Craft (e.g., including but not limited to: LSSC, MSSC, SDV, SWCL, SWCM).
(3) Mine Warfare Craft.
(i) Mine Countermeasures Craft (e.g., including but not limited to: MCT, MSB).
(d) Support and Service Vessels.
(1) Miscellaneous (e.g., including but not limited to: APL, DSRV, DSV, IX, WIX, NR, YFRT, YHLC, YP, YR, YRB, YRDH, YRDM, YRR, YSD).
Complete rocket systems (including ballistic missile systems, space launch vehicles, and sounding rockets (see § 121.1, Cat. IV(a) and (b)) and unmanned air vehicle systems (including cruise missile systems see § 121.1, Cat. VIII (a), target drones and reconnaisance drones (see § 121.1, Cat. VIII (a)) capable of delivering at least a 500 kg payload to a range of at least 300 km.
Complete subsystems usable in the systems in Item 1 as follows:
(a) Individual rocket stages (see § 121.1, Cat. IV(h));
(b) Reentry vehicles (see § 121.1, Cat. IV(g)), and equipment designed or modified therefor, as follows, except as provided in Note (1) below for those designed for non-weapon payloads;
(1) Heat shields and components thereof fabricated of ceramic or ablative materials (see § 121.1, Cat. IV(f));
(2) Heat sinks and components thereof fabricated of light-weight, high heat capacity materials;
(3) Electronic equipment specially designed for reentry vehicles (see § 121.1, Cat. XI(a)(7));
(c) Solid or liquid propellant rocket engines, having a total impulse capacity of 1.1 x 10 N-sec (2.5 x 10 lb-sec) or greater (see § 121.1, Cat. IV, (h)).
(d) "Guidance sets" capable of achieving system accuracy of 3.33 percent or less of the range (e.g., a CEP of 1 j,. or less at a range of 300 km), except as provided in Note (1) below for those designed for missiles with a range under 300 km or manned aircraft (see § 121.1, Cat. XII(d));
(e) Thrust vector control sub-systems, except as provided in Note (1) below for those designed for rocket systems that do not exceed the range/payload capability of Item 1 (see § 121.1, Cat. IV);
(f) Warhead safing, arming, fuzing, and firing mechanisms, except as provided in Note (1) below for those designed for systems other than those in Item 1 (see § 121.1, Cat. IV(h)).
(1) The exceptions in (b), (d), (e), and (f) above may be treated as Category II if the subsystem is exported subject to end use statements and quantity limits appropriate for the excepted end use stated above.
(2) CEP (circle of equal probability) is a measure of accuracy, and defined as the radius of the circle centered at the target, at a specific range, in which 50 percent of the payloads impact.
(3) A "guidance set" integrates the process of measuring and computing a vehicle’s position and velocity (i.e. navigation) with that of computing and sending commands to the vehicle’s flight control systems to correct the trajectory.
(4) Examples of methods of achieving thrust vector control which are covered by (e) include:
(i) Flexible nozzle;
(ii) Fluid or secondary gas injection;
(iii) Movable engine or nozzle;
(iv) Deflection of exhaust gas stream (jet vanes or probes); or
(v) Use of thrust tabs.
Propulsion components and equipment usable in the systems in Item 1, as follows:
(a) Lightweight turbojet and turbofan engines (including) turbocompound engines) that are small and fuel efficient (see § 121.1, both Cat. IV(h) and VIII(b));
(b) Ramjet/Scramjet/pulse jet/combined cycle engines, including devices to regulate combustion, and specially designed components therefor (see § 121.1, both Cat. IV(h) and Cat. VIII(b));
(c) Rocket motor cases, "interior lining", "insulation" and nozzles therefor (see § 121.1, Cat. IV(h) and Cat. V(c));
(d) Staging mechanisms, separation mechanisms, and interstages therefor (see § 121.1, Cat. IV(c) and (h));
(e) Liquid and slurry propellant (including oxidizers) control systems, and specially designed components therefor, designed or modified to operate in vibration environments of more than 100 g RMS between 20 Hz and,000 Hz (see § 121.1, Cat. IV(c) and (h));
(f) Hybrid rocket motors and specially designed components therefor (see § 121.1, Cat. IV(h)).
(1) Item 3(a) engines may be exported as part of a manned aircraft or in quantities appropriate for replacement parts for manned aircraft.
(2) In Item 3(C), "interior lining" suited for the bond interface between the solid propellant and the case or insulating liner is usually a liquid polymer based dispersion of refractory or insulating materials, e.g., carbon filled HTPB or other polymer with added curing agents to be sprayed or screeded over a case interior (see § 121.1, Cat. V(c)).
(3) In Item 3(c), "insulation" intended to be applied to the components of a rocket motor, i.e., the case, nozzle inlets, case closures, includes cured or semi-cured compounded rubber sheet stock containing an insulating or refractory material. It may also be incorporated as stress relief boots or flaps.
(4) The only servo valves and pumps covered in (e) above, are the following:
(i) Servo valves designed for flow rates of 24 liters per minute or greater, at an absolute pressure of 7,000 kPa (1,000 psi) or greater, that have an actuator response time of less than 100 msec;
(ii) Pumps, for liquid propellants, with shaft speeds equal to or greater than 8,000 RPM or with discharge pressures equal to or greater than 7,000 kPa (1,000 psi).
(5) Item 3(e) systems and components may be exports as part of a satellite.
Propellants and constituent chemicals for propellants as follows: (see § 121.1, Cat. V(c) and § 121.12 and § 121.14).
(a) Propulsive substances:
(1) Hydrazine with a concentration of more than 70 percent and its derivatives including monomethylhydrazine (MMH) (see § 121.12(a)(22));
(2) Unsymmetric dimethylhydrazine (UDHM) (see § 121.12(a)(22));
(3) Ammonium perchlorate (see § 121.12(a)(23));
(4) Spherical aluminum powder with particle of uniform diameter of less than 500 x 10-m (500 micrometer) and an aluminum content of 97 percent or greater (see § 121.12(a)(1));
(5) Metal fuels in particle sizes less than 500 x 10-m (500 Microns), whether spherical, atomized, spheroidal, flaked or ground, consisting of 97 percent or more of any of the following: zirconium, beryllium, boron, magnesium, zinc, and alloys of these (see § 121.12(a)(2));
(6) Nitro-amines (cyclotetramethylene-tetranitramene (HMX) (see § 121.12(a)(11)), cyclotrimethylene-trinitramine (RDX)) (see 121.12(a)(35));
(7) Perchlorates, chlorates or chromates mixed with powdered metals or other high energy fuel components (see § 121.12(a)(4);
(8) Carboranes, decaboranes, pentaboranes and derivatives thereof (see § 121.12(a)(10);
(9) Liquid oxidizers, as follows:
(i) Nitrogen dioxide/dinitrogen tetroxide (see § 121.14.(g));
(ii) Inhibited Red Fuming Nitric Acid (IRFNA) (see § 121.12(f)(1);
(iii) Compounds composed of flourine and one or more of other halogens, oxygen or nitrogen (see § 121.12(a)(9).
(b) Polymeric substances:
(2) Hydroxy-terminated polybutadiene (HTPB) (see § 121.12(a)(38);
(3) Glycidyl azide polymer (GAP) (see § 121.12(b)(1)).
(c) Other high energy density propellants such as, Boron Slurry, having an energy density of 40 x 10 joules/kg or greater (see § 121.12(a)(3)).
(d) Other propellant additives and agents:
(1) Bonding agents as follows:
(i) tris(1-(2-methyl)aziridinyl phosphine oxide (MAPO) (see § 121.12(b)(17));
(ii) trimesol-1(2-ethyl)aziridine (HX-868, BITA) (see § 121.12(b)(13));
(iii) "Tepanol" (HX-878), reaction product of tetraethylenepentamine, acrylonitrile and glycidol (see § 121.12.(b)(11));
(iv) "Tepan" (HX-879), Reaction product of tet enepentamine and acrylonitrile (see § 121.12(b)(11));
(v) Polyfunctional aziridene amides with isophthalic, trimesic, isocyanuric, or trimethyladipic backbone also having a 2-methyl or 2-ethyl aziridine group (HX-752, HX-872 and HX-877). (see § 121.12(b)(13)).
(2) Curing agents and catalysts as follows:
(i) Triphenyl bismuth (TPB) (see § 121.12(b)(23));
(3) Burning rate modifiers as follows:
(i) Catocene (see § 121.12(b)(5));
(ii) N-butyl-ferrocene (see § 121.12(b)(5));
(iii) Other ferrocene derivatives (see § 121.12(b)).
(4) Nitrate esters and nitrato plasticizers as follows:
(i) 1,2,4-butanetriol trinitrate (BTTN) (see § 121.12(b)(3));
(5) Stabilizers as follows:
(i) N-methyl-p-nitroaniline (see § 121.12(d)(1)).
Structural materials usable in the systems in Item 1, as follows:
(a) Composite structures, laminates, and manufactures thereof, including resin impregnated fibre prepregs and metal coated fibre preforms therefor, specially designed for use in the systems in Item 1 and the subsystems in Item 2 made either with organix matrix or metal matrix utilizing fibrous or filamentary reinforcements having a specific tensile strength greater than 7.62 x 10 4 m (3 x 10 6 inches) and a specific modules greater than 3.18 x 10 6 m (1.25 x 10 8 inches), (see § 121.1, Category IV (f), and Category XIII (d));
(b) Resaturated pyrolized (i.e. carbon-carbon) materials designed for rocket systems, (see § 121.1 Category IV (f));
(c) Fine grain recrystallized bulk graphites (with a bulk density of at least 1.72 g/cc measured at 15 degrees C), pyrolytic, or fibrous reinforced graphites useable for rocket nozzles and reentry vehicle nose tips (see § 121.1, Category IV (f) and Category XIII;
(d) Ceramic composites materials (dielectric constant less than 6 at frequencies from 100 Hz to 10,000 MHz) for use in missile radomes, and bulk machinable silicon-carbide reinforced unfired ceramic useable for nose tips (see § 121.1, Category IV (f));
Instrumentation, navigation and direction finding equipment and systems, and associated production and test equipment as follows; and specially designed components and software therefor:
(a) Integrated flight instrument systems, which include gyrostabilizers or automatic pilots and integration software therefor; designed or modified for use in the systems in Item 1 (See § 121.1, Category XII(d));
(b) Gyro-astro compasses and other devices which derive position or orientation by means of automatically tracking celestrial bodies or satellites (see § 121.1, Category XV(d));
(c) Accelerometers with a threshold of 0.05 g or less, or a linearity error within 0.25 percent of full scale output, or both, which are designed for use in inertial navigation systems or in guidance systems of all types (see § 121.1, Category VIII(e) and Category XII (d));
(d) All types of gyros usable in the systems in Item 1, with a rated drift rate stability of less than 0.5 degree (1 sigma or rms) per hour in a 1 q environment (see § 121.1, Category VIII(e) and Category XII(d));
(e) Continuous output accelerometers or gyros of any type, specified to function at acceleration levels greater than 100 g (see § 121.1, Category XII(d));
(f) Inertial or other equipment using accelerometers described by subitems (c) and (e) above, and systems incorporating such equipment, and specially designed integration software therefor (see § 121.1, Category VIII (e) and Category XII(d));
(1) Items (a) through (f) may be exported as part of a manned aircraft or satellite or in quantities appropriate for replacement parts for manned aircraft.
(2) In subitem (d):
(i) Drift rate is defined as the time rate of output deviation from the desired output. It consists of random and systematic components and is expressed as an equivalent angular displacement per unit time with respect to inertial space.
(ii) Stability is defined as standard deviation (1 sigma) of the variation of a particular parameter from its calibrated value measured under stable temperature conditions. This can be expressed as a function of time.
Flight control systems and "technology" as follows; designed or modified for the systems in Item 1.
(a) Hydraulic, mechanical, electro-optical, or electro-mechanical flight control systems (including fly-by-wire systems), (see § 121.1, Category IV (h));
(b) Attitude control equipment, (see § 121.1, Category IV, (c) and (h));
(c) Design technology for integration of air vehicle fuselage, propulsion system and lifting control surfaces to optimize aerodynamic performance throughout the flight regime of an unmanned air vehicle, (see § 121.1, Category VIII (k));
(d) Design technology for integration of the flight control, guidance, and propulsion data into a flight management system for optimization of rocket system trajectory, (see § 121.1, Category IV (i)).
Avionics equipment, "technology" and components as follows; designed or modified for use in the systems in Item 1, and specially designed software therefor:
(a) Radar and laser radar systems, including altimeters (see § 121.1, Category XI(a)(3));
(b) Passive sensors for determining bearings to specific electromagnetic sources (direction finding equipment) or terrain characteristics (see § 121.1, Category XI(b) and (d));
(c) Global Positioning System (GPS) or similar satellite receivers;
(1) Capable of providing navigation information under the following operational conditions:
(i) At speeds in excess of 515 m/sec (1,000 nautical miles/hours); and
(ii) At altitudes in excess of 18 km (60,000 feet), (see § 121.1, Category XV(d)(2); or
(2) Designed or modified for use with unmanned air vehicles covered by Item 1 (see § 121.1, Category XV(d)(4)).
(d) Electronic assemblies and components specifically designed for military use and operation at temperatures in excess of 125 degrees C, (see § 121.1, Category XI(a)(7)).
(e) Design technology for protection of avionics and electrical subsystems against electromagnetic pulse (EMP) and electromagnetic interference (EMI) hazards from external sources, as follows, (see § 121.1, Category XI (b)).
(1) Design technology for shielding systems;
(2) Design technology for the configuration of hardened electrical circuits and subsystems;
(3) Determination of hardening criteria for the above.
(1) Item 11 equipment may be exported as part of a manned aircraft or satellite or in quantities appropriate for replacement parts for manned aircraft.
(2) Examples of equipment included in this Item:
(i) Terrain contour mapping equipment;
(ii) Scene mapping and correlation (both digital and analog) equipment;
(iii) Doppler navigation radar equipment;
(iv) Passive interferometer equipment;
(v) Imaging sensor equipment (both active and passive);
(3) In subitem (a), laser radar systems embody specialized transmission, scanning, receiving and signal processing techniques for utilization of lasers for echo ranging, direction finding and discrimination of targets by location, radial speed and body reflection characteristics.
Launch support equipment, facilities and software for the systems in Item 1, as follows:
(a) Apparatus and devices designed or modified for the handling, control, activation and launching of the systems in Item 1, (see § 121.1, Category IV(c));
(b) Vehicles designed or modified for the transport, handling, control, activation and launching of the systems in Item 1, (see § 121.1, Category VII(d));
(c) Telemetering and telecontrol equipment usable for unmanned air vehicles or rocket systems, (see § 121.1, Category XI(a));
(d) Precision tracking systems:
(1) Tracking systems which use a translb nv installed on the rocket system or unmanned air vehicle in conjunction with either surface or airborne references or navigation satellite systems to provide real-time measurements of in-flight position and velocity, (see § 121.1, Category XI(a));
(2) Range instrumention radars including associated optical/infrared trackers and the specially designed software therefor with all of the following capabilities (see § 121.1, Category XI(a)(3)):
(i) angular resolution better than 3 milli-radians (0.5 mils);
(ii) range of 30 km or greater with a range resolution better than 10 meters RMS;
(iii) velocity resolution better than 3 meters per second.
(3) Software which processes post-flight, recorded data, enabling determination of vehicle position throughout its flight path (see § 121.1, Category IV(i)).
(a) Rated for continuous operation at temperature from below minus 45 degrees C to above plus 55 degrees C; or
(b) Designed as ruggedized or "radiation hardened".
Item 13 equipment may be exported as part of a manned aircraft or satellite or in quantities appropriate for replacement parts for manned aircraft.
Analog-to-digital converters, usable in the system in Item 1, having either of the following characteristics:
(a) Designed to meet military specifications for ruggedized equipment (see § 121.1, Category XI(d)); or,
(b) Designed or modified for military use (see § 121.1, Category XI(d)); and being one of the following types:
(1) Analog-to-digital converter "microcircuits," which are "radiation hardened" or have all of the following characteristics:
(i) Having a resolution of 8 bits or more;
(ii) Rated for operation in the temperature range from below minus 54 degrees C to above plus 125 degrees C; and
(iii) Hermetically sealed.
(2) Electrical input type analog-to-digital converter printed circuit boards or modules, with all of the following characteristics:
(i) Having a resolution of 8 bits or more;
(ii) Rated for operation in the temperature range from below minus 45 degrees C to above plus 55 degrees C; and
(iii) Incorporated "microcircuits" listed in (1), above.
Specially designed software, or specially designed software with related specially designed hybrid (combined analog/digital) computers, for modeling, simulation, or design integration of the systems in Item 1 and Item 2 (see § 121.1, Category IV(i) and Category XI(a)(6)).
Materials, devices, and specially designed software for reduced observables such as radar reflectivity, ultraviolet/infrared signatures on acoustic signatures (i.e. stealth technology), for applications usable for the systems in Item 1 or Item 2 (see § 121.1, Category XIII (e) and (k)), for example:
(a) Structural material and coatings specially designed for reduced radar reflectivity;
(b) Coatings, including paints, specially designed for reduced or tailored reflectivity or emissivity in the microwave, infrared or ultraviolet spectra, except when specially used for thermal control of satellites.
(c) Specially designed software or databases for analysis of signature reduction.
(d) Specially designed radar cross section measurement systems (see § 121.1, Category XI(a)(3)).
Devices for use in protecting rocket systems and unmanned air vehicles against nuclear effects (e.g. Electromagnetic Pulse (EMP), X-rays, combined blast and thermal effects), and usable for the systems in Item 1, as follows (see § 121.1, Category IV (c) and (h)):
(a) "Radiation Hardened" "microcircuits" and detectors (see § 121.1, Category XI(c)(3) Note: This commodity has been formally proposed for movement to category XV(e)(2) in the near future).
(b) Radomes designed to withstand a combined thermal shock greater than 1000 cal/sq cm accompanied by a peak over pressure of greater than 50 kPa (7 pounds per square inch) (see § 121.1, Category IV(h)).
A detector is defined as a mechanical, electrical, optical or chemical device that automatically identifies and records, or registers a stimulus such as an environmental change in pressure or temperature, an electrical or electromagnetic signal or radiation from a radioactive material. The following pages were removed from the final itar for replacement by DTC’s updated version section 6(l) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(l)), as amended. In accordance with this provision, the list of MTCR Annex items shall constitute all items on the U.S. Munitions List in § 121.16.
Authority: Secs. 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); E.O. 11958, 42 FR 4311, 1977 Comp. p. 79; 22 U.S.C. 2658.
(b) Exemptions. Registration is not required for:
(1) Officers and employees of the United States Government acting in an official capacity.
(2) Persons whose pertinent business activity is confined to the production of unclassified technical data only.
(3) Persons all of whose manufacturing and export activities are licensed under the Atomic Energy Act of 1954, as amended.
(4) Persons who engage only in the fabrication of articles for experimental or scientific purpose, including research and development.
(c) Purpose. Registration is primarily a means to provide the U.S. Government with necessary information on who is involved in certain manufacturing and exporting activities. Registration does not confer any export rights or privileges. It is generally a precondition to the issuance of any license or other approval under this subchapter.
(b) Transmittal letter. A letter of transmittal, signed by an authorized senior officer of the intended registrant, shall accompany each Registration Statement.
(1) The letter shall state whether the intended registrant, chief executive officer, president, vice-presidents, other senior officers or officials (e.g. comptroller, treasurer, general counsel) or any member of the board of directors:
(i) Has ever been indicted for or convicted of violating any of the U.S. criminal statutes enumerated in § 120.27 of this subchapter; or
(ii) Is ineligible to contract with, or to receive a license or other approval to import defense articles or defense services from, or to receive an export license or other approval from, any agency of the U.S. Government.
(2) The letter shall also declare whether the intended registrant is owned or controlled by foreign persons (as defined in § 120.16 of this subchapter). If the intended registrant is owned or controlled by foreign persons, the letter shall also state whether the intended registrant is incorporated or otherwise authorized to engage in business in the United States.
(c) Definition. For purposes of this section, ownership means that more than 50 percent of the outstanding voting securities of the firm are owned by one or more foreign persons. Control means that 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. Control is presumed to exist where foreign persons own 25 percent or more of the outstanding voting securities if no U.S. persons control an equal or larger percentage. The standards for control specified in 22 CFR 60.2(c) also provide guidance in determining whether control in fact exists.
(b) Lapse in registration. A registrant who fails to renew a registration and, after an intervening period, seeks to register again must pay registration fees for any part of such intervening period during which the registrant engaged in the business of manufacturing or exporting defense articles or defense services. (c) Refund of fee. Fees paid in advance for future years of a multiple year registration will be refunded upon request if the registrant ceases to engage in the manufacture or export of defense articles and defense services. A request for a refund must be submitted to the Office of Defense Trade Controls prior to the beginning of any year for which a refund is claimed.
(1) Any of the persons referred to in § 122.2(b) are indicted for or convicted of violating any of the U.S. criminal statutes enumerated in § 120.27 of this subchapter, or become ineligible to contract with, or to receive a license or other approval to export or temporarily import defense articles or defense services from any agency of the U.S. government; or
(2) There is a material change in the information contained in the Registration Statement, including a change in the senior officers; the establishment, acquisition or divestment of a subsidiary or foreign affiliate; a merger; a change of location; or the dealing in an additional category of defense articles or defense services.
(b) A registrant must notify the Office of Defense Trade Controls by registered mail at least 60 days in advance of any intended sale or transfer to a foreign person of ownership or control of the registrant or any entity thereof. Such notice does not relieve the registrant from obtaining the approval required under this subchapter for the export of defense articles or defense services to a foreign person, including the approval required prior to disclosing technical data. Such notice provides the Office of Defense Trade Controls with the information necessary to determine whether the authority of section 38(g)(6) of the Arms Export Control Act regarding licenses or other approvals for certain sales or transfers of articles or data should be invoked (see §§ 120.10 and 126.1(e) of this subchapter).
(c) The new entity formed when a registrant merges with another company or acquires, or is acquired by, another company or a subsidiary or division of another company shall advise the Office of Defense Trade Controls of the following:
(1) The new firm name and all previous firm names being disclosed;
(2) The registration number that will survive and those that are to be discontinued (if any);
(3) The license numbers of all approvals on which unshipped balances will be shipped under the surviving registration number, since any license not the subject of notification will be considered invalid; and
(4) Amendments to agreements approved by the Office of Defense Trade Controls to change the name of a party to those agreements. The registrant must, within 60 days of this notification, provide to the Office of Defense Trade Controls a signed copy of an amendment to each agreement signed by the new U.S. entity, the former U.S. licensor and the foreign licensee. Any agreements not so amended will be considered invalid.
(d) Prior approval by the Office of Defense Trade Controls is required for any amendment making a substantive change.
(b) Records maintained under this section shall be available at all times for inspection and copying by the Director, Office of Defense Trade Controls or a person designated by the Director (the Director of the Diplomatic Security Service or a person designated by the Director of the Diplomatic Security Service or another designee), or the Commissioner of the U.S. Customs Service or a person designated by the Commissioner.
Authority: Secs. 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); E.O. 11958, 42 FR 4311, 3 CFR 1977 Comp. 79; 22 U.S.C. 2658.
(1) Applications for licenses for permanent export must be made on Form DSP-5 (unclassified);
(2) Applications for licenses for temporary export must be made on Form DSP-73 (unclassified);
(3) Applications for licenses for temporary import must be made on Form DSP-61 (unclassified); and
(4) Applications for the export or temporary import of classified defense articles or classified technical data must be made on Form DSP-85. (b) Applications for Department of State export licenses must be confined to proposed exports of defense articles including technical data.
(c) As a condition to the issuance of a license or other approval, the Office of Defense Trade Controls may require all pertinent documentary information regarding the proposed transaction and proper completion of the application form as follows:
(1) Form DSP-5, DSP-61, DSP-73, and DSP-85 applications must have an entry in each block where space is provided for an entry. All requested information must be provided.
(2) Attachments and supporting technical data or brochures should be submitted in seven collated copies. Two copies of any freight forwarder lists must be submitted. If the request is limited to renewal of a previous license or for the export of spare parts, only two sets of any attachment (including freight forwarder lists) and one copy of the previous license should be submitted.
(3) A certification letter signed by an empowered official must accompany all application submissions (see § 126.13 of this subchapter).
(4) An application for a license under this part for the permanent export of defense articles sold commercially must be accompanied by a copy of a purchase order, letter of intent or other appropriate documentation. In cases involving the U.S. Foreign Military Sales program, three copies of the relevant Department of Defense Form 1513 are required, unless the procedures of § 126.4(c) or § 126.6 of this subchapter are followed.
(5) Form DSP-83, duly executed, must accompany all license applications for the permanent export of significant military equipment, including classified hardware or classified technical data (see §§ 123.10 and 125.3 of this subchapter).
(6) A statement concerning the payment of political contributions, fees and commissions must accompany a permanent export application if the export involves defense articles or defense services valued in an amount of $ 500,000 or more and is being sold commercially to or for the use of the armed forces of a foreign country or international organization (see part 130 of this subchapter).
(d) Provisions for furnishing the type of defense services described in § 120.9(a) of this subchapter are contained in part 124 of this subchapter. Provisions for the export or temporary import of technical data and classified defense articles are contained in part 125 of this subchapter.
(e) A request for a license for the export of unclassified technical data (DSP-5) related to a classified defense article should specify any classified technical data or material that subsequently will be required for export in the event of a sale.
(1) Temporary imports of unclassified defense articles that are to be returned directly to the country from which they were shipped to the United States;
(2) Temporary imports of unclassified defense articles in transit to a third country;
(b) A bond may be required as appropriate (see part 125 of this subchapter for license requirements for technical data and classified defense articles.)
(1) Is serviced (e.g., inspection, testing, calibration or repair, including overhaul, reconditioning and one-to-one replacement of any defective articles, parts or components, but excluding any modification, enhancement, upgrade or other form of alteration or improvement that changes the basic performance of the article), and is subsequently returned to the country from which it was imported. Shipment may be made by the U.S. importer or a foreign government representative of the country from which the goods were imported; or
(2) Is to be enhanced, upgraded or incorporated into another article which has already been authorized by the Office of Defense Trade Controls for permanent export; or
(3) Is imported for the purpose of exhibition, demonstration or marketing in the United States and is subsequently returned to the country from which it was imported; or
(4) Has been rejected for permanent import by the Department of the Treasury and is being returned to the country from which it was shipped; or
(5) Is approved for such import under the U.S. Foreign Military Sales (FMS) program pursuant to an executed U.S. Department of Defense Letter of Offer and Acceptance (DD Form 1513).
Note: These Exceptions do not apply to shipments that transit the U.S. to or from Canada (see § 123.19 and § 126.5 of this subchapter for exceptions).
(b) District Directors of Customs shall permit the temporary import (but not the subsequent export) without a license of unclassified defense articles that are to be incorporated into another article, or modified, enhanced, upgraded, altered, improved or serviced in any other manner that changes the basic performance or productivity of the article prior to being returned to the country from which they were shipped or prior to being shipped to a third country. A DSP-5 is required for the reexport of such unclassified defense articles after incorporation into another article, modification, enhancement, upgrading, alteration or improvement.
(c) Requirements. To use an exemption under § 123.4 (a) or (b), the following criteria must be met:
(1) The importer must meet the eligibility requirements set forth in § 120.1(b) of this subchapter;
(2) At the time of export, the ultimate consignee named on the Shipper’s Export Declaration (SED) must be the same as the foreign consignee or end-user of record named at the time of import; and
(3) As stated in § 126.1 of this subchapter, the temporary import must not be from or on behalf of a proscribed country listed in that section unless an exception has been granted in accordance with § 126.3 of this subchapter.
(d) Procedures. To the satisfaction of the District Director of Customs, the importer and exporter must comply with the following procedures:
(1) At the time of temporary import-
(i) File and annotate the applicable U.S. Customs document (e.g., Form CF 3461, 7512, 7501, 7523 or 3311) to read: "This shipment is being imported in accordance with and under the authority of 22 CFR 123.4(a) (identify subsection)," and
(ii) Include, on the invoice or other appropriate documentation, a complete list and description of the defense article(s) being imported, including quantity and U.S. dollar value; and
(2) At the time of export, file with the District Director of Customs at the port of exit a Shipper’s Export Declaration (Department of Commerce Form 7525-V) and include on the SED or as an attachment the following information:
(i) the U.S. Customs entry document number or a copy of the U.S. Customs documentation under which the article was imported;
(ii) the following statement: "22 CFR (identify section) and 22 CFR 120.1(b) applicable."
(b) Requirements. Defense articles authorized for temporary export under this section may be shipped only from a port in the United States where a District Director of Customs is available, or from a U.S. Post Office (see 39 CFR part 20), as appropriate. The license for temporary export must be presented to the District Director of Customs who, upon verification, will endorse the exit column on the reverse side of the license. In some instances of the temporary export of technical data (e.g postal shipments), self-endorsement will be necessary (see § 123.22(d)). The endorsed license for temporary export is to be retained by the licensee. In the case of a military aircraft or vessel exported under its own power, the endorsed license must be carried on board such vessel or aircraft as evidence that it has been duly authorized by the Department of State to leave the United States temporarily.
(c) Upon the return to the United States of defense articles covered by a license for temporary export, the license will be endorsed in the entry column by the District Director of Customs. This procedure shall be followed for all exits and entries made during the period for which the license is valid. The licensee must send the license to the Office of Defense Trade Controls immediately upon expiration or after the final return of the defense articles approved for export, whichever occurs first.
(b) The registration in a foreign country of any aircraft, vessel or satellite covered by the U.S. Munitions List which is not registered in the United States but which is located in the United States constitutes an export. A license or written approval from the Office of Defense Trade Controls is therefore required. Such transactions may also require the prior approval of the Maritime Administration, the Federal Aviation Administration or other agencies of the U.S. Government.
(b) The exporter shall incorporate the following statement as an integral part of the bill of lading, and the invoice whenever defense articles on the U.S. Munitions List are to be exported:
These commodities are authorized by the U.S. Government for export only to [country of ultimate destination] for use by [end-user]. They may not be transferred, transshipped on a non-continuous voyage, or otherwise be disposed of in any other country, either in their original form or after being incorporated into other end-items, without the prior written approval of the U.S. Department of State."
(c) A U.S. person or a foreign person requesting approval for the reexport or retransfer, or change in end-use, of a defense article shall submit a written request which shall be subject to all the documentation required for a permanent export license (see § 123.1) and shall contain the following:
(1) The license number under which the defense article was previously authorized for export from the United States;
(2) A precise description, quantity and value of the defense article;
(3) A description of the new end-use; and
(4) Identification of the new end-user.
(d) The written approval of the Office of Defense Trade Controls must be obtained before reselling, transferring, transshipping on a non-continuous voyage, or disposing of a defense article in any country other than the country of ultimate destination, or anyone other than the authorized end-user, as stated on the Shipper’s Export Declaration in cases where an exemption is claimed under this subchapter.
(e) Reexports or retransfers of U.S.-origin components incorporated into a foreign defense article to a government of a NATO country, or the governments of Australia or Japan, are authorized without the prior written approval of the Office of Defense Trade Controls, provided:
(1) The U.S.-origin components were previously authorized for export from the United States, either by a license or an exemption;
(2) The U.S.-origin components are not significant military equipment, the items are not major defense equipment sold under a contract in the amount of $ 14,000,000 ($ 14 million) or more; the articles are not defense articles or defense services sold under a contract in the amount of $ 50,000,000 ($ 50 million) or more; and are not identified in part 121 of this subchapter as Missile Technology Control Regime (MTCR) items; and
(3) The person reexporting the defense article must provide written notification to the Office of Defense Trade Controls of the retransfer not later than 30 days following the reexport. The notification must state the articles being reexported and the recipient government.
(4) In certain cases, the Director, Office of Defense Trade Controls, may place retransfer restrictions on a license prohibiting use of this exemption.
(b) The Office of Defense Trade Controls may also require a DSP-83 for the export of any other defense articles or defense services.
(c) When a DSP-83 is required for an export of any defense article or defense service to a non-governmental foreign end-user, the Office of Defense Trade Controls may require as a condition of issuing the license that the appropriate authority of the government of the country of ultimate destination also execute the certificate.
Under penalty according to Federal law, the undersigned certifies and warrants that all the information in this document is true and correct, and that the equipment listed below is being shipped from (U.S. port of exit) via (foreign country) to (U.S. port of entry), which is the final destination in the United States. Description of Equipment __________ Quantity: __________ Equipment: __________ Value: __________ Signed:
Endorsement: Customs Inspector. __________ Port of Exit __________ Date: __________ Signed:
Endorsement: Customs Inspector. __________ Port of Entry: __________ Date:
(b) Exports. The Office of Defense Trade Controls may require the IC/DV procedure on proposed exports of defense articles to non-government entities in those countries participating in IC/DV procedures. In such cases, U.S. exporters must submit both an export license application (the completed Form DSP-5) and the original Import Certificate, which must be provided and authenticated by the government of the importing country. This document verifies that the foreign importer complied with the import regulations of the government of the importing country and that the importer declared the intention not to divert, transship or reexport the material described therein without the prior approval of that government. After delivery of the commodities to the foreign consignee, the Department of State may also require U.S. exporters to furnish Delivery Verification documentation from the government of the importing country. This documentation verifies that the delivery was in accordance with the terms of the approved export license. Both the Import Certificate and the Delivery Verification must be furnished to the U.S. exporter by the foreign importer.
(c) Triangular transactions. When a transaction involves three or more countries that have adopted the IC/DV procedure, the governments of these countries may stamp a triangular symbol on the Import Certificate. This symbol is usually placed on the Import Certificate when the applicant for the Import Certificate (the importer) states either (1) that there is uncertainty whether the items covered by the Import Certificate will be imported into the country issuing the Import Certificate; (2) that he or she knows that the items will not be imported into the country issuing the Import Certificate; or (3) that, if the items are to be imported into the country issuing the Import Certificate, they will subsequently be reexported to another destination. All parties, including the ultimate consignee in the country of ultimate destination, must be shown on the completed Import Certificate.
(b) The following exports are exempt from the licensing requirements of this subchapter.
(1) District Directors of Customs shall permit the export without a license of defense articles being exported in furtherance of an approved manufacturing license agreement, technical assistance agreement or distribution agreement provided that:
(i) The defense articles to be exported support the activity and must be identified by item, quantity and value in the agreement; and
(ii) Any provisos or limitations placed on the authorized agreement are adhered to; and
(iii) The exporter certifies on the Shipper’s Export Declaration that the export is exempt from the licensing requirements of this subchapter. This is done by writing, "22 CFR 123.16(b)(1) and AG [identify agreement number] applicable and
(iv) The total value of all shipments does not exceed the value authorized in the agreement.
(v) In the case of distribution agreements, export must be made directly to the approved foreign distributor.
(2) District Directors of Customs shall permit the export of components or spare parts (for exemptions for firearms and ammunition see § 123.17) without a license when the total value does not exceed $ 500 in a single transaction and:
(i) The components or spare parts are being exported to support a defense article previously authorized for export; and
(ii) The spare parts or components are not going to a distributor, but to a previously approved end-user of the defense articles; and
(iii) The spare parts or components are not to be used to enhance the capability of the defense article;
(iv) exporters shall not split orders so as not to exceed the dollar value of this exemption;
(v) the exporter may not make more than 24 shipments per calender year to the previously authorized end user;
(vi) The exporter must certify on the Shipper’s Export Declaration that the export is exempt from the licensing requirements of this subchapter. This is done by writing 22 CFR 123.16(b)(2) applicable.
(3) District Directors of Customs shall permit the export without a license, of packing cases specially designed to carry defense articles.
(4) District Directors of Customs shall permit the export without a license, of unclassified models or mock-ups of defense articles, provided that such models or mock-ups are nonoperable and do not reveal any technical data in excess of that which is exempted from the licensing requirements of § 125.4(b) of this subchapter and do not contain components covered by the U.S. Munitions List (see § 120.6(b) of this subchapter). Some models or mockups built to scale or constructed of original materials can reveal technical data. U.S. persons who avail themselves of this exemption must provide a written certification to the District Director of Customs that these conditions are met. This exemption does not imply that the Office of Defense Trade Controls will approve the export of any defense articles for which models or mocks-ups have been exported pursuant to this exemption.
(5) District Directors of Customs shall permit the temporary export without a license of unclassified defense articles to any public exhibition, trade show, air show or related event if that article has previously been licensed for a public exhibition, trade show, air show or related event and the license is still valid. U.S. persons who avail themselves of this exemption must provide a written certification to the District Director of Customs that these conditions are met.
(6) For exemptions for firearms and ammunition for personal use refer to § 123.17.
(7) For exemptions for firearms for personal use of members of the U.S. Armed Forces and civilian employees see § 123.18.
(8) For exports to Canada refer to § 126.5 of this subchapter.
(9) District Directors of Customs shall permit the temporary export without a license by a U.S. person of any unclassified component, part, tool or test equipment to a subsidiary, affiliate or facility owned or controlled by the U.S. person (see § 122.2(c) of this subchapter) if the component, part, tool or test equipment is to be used for manufacture, assembly, testing, production, or modification provided:
(i) The U.S. person is registered with the Office of Defense Trade Controls and complies with all requirements set forth in part 122 of this subchapter;
(ii) No defense article exported under this exemption may be sold or transferred without the appropriate license or other approval from the Office of Defense Trade Controls.
(b) District Directors of Customs shall permit the export without a license of nonautomatic firearms covered by Category I(a) of § 121.1 of this subchapter if they were manufactured in or before 1898, or are replicas of such firearms.
(c) District Directors of Customs shall permit U.S. persons to export temporarily from the United States without a license not more than three nonautomatic firearms in Category I(a) of § 121.1 of this subchapter and not more than 1,000 cartridges therefor, provided that:
(1) A declaration by the U.S. person and an inspection by a customs officer is made;
(2) The firearms and accompanying ammunition must be with the U.S. person’s baggage or effects, whether accompanied or unaccompanied (but not mailed); and
(3) They must be for that person’s exclusive use and not for reexport or other transfer of ownership. The foregoing exemption is not applicable to a crew-member of a vessel or aircraft unless the crew-member declares the firearms to a Customs officer upon each departure from the United States, and declares that it is his or her intention to return the article(s) on each return to the United States. It is also not applicable to the personnel referred to in § 123.18.
(d) District Directors of Customs shall permit a foreign person to export without a license such firearms in Category I(a) of § 121.1 of this subchapter and ammunition therefor as the foreign person brought into the United States under the provisions of 27 CFR 178.115(d). (The latter provision specifically excludes from the definition of importation the bringing into the United States of firearms and ammunition by certain foreign persons for specified purposes).
(e) District Directors of Customs shall permit U.S. persons to export without a license ammunition for nonautomatic firearms referred to in paragraph (a) of this section if the quantity does not exceed 1,000 cartridges (or rounds) in any shipment. The ammunition must also be for personal use and not for resale or other transfer of ownership. The foregoing exemption is also not applicable to the personnel referred to in § 123.18.
(a) Firearms. District Directors of Customs shall permit nonautomatic firearms in Category I(a) of § 121.1 of this subchapter and parts therefor to be exported, except by mail, from the United States without a license if:
(1) They are consigned to servicemen’s clubs abroad for uniformed members of the U.S. Armed Forces; or,
(2) In the case of a uniformed member of the U.S. Armed Forces or a civilian employee of the Department of Defense, they are for personal use and not for resale or other transfer of ownership, and if the firearms are accompanied by a written authorization from the commanding officer concerned; or
(3) In the case of other U.S. Government employees, they are for personal use and not for resale or other transfer of ownership, and the Chief of the U.S. Diplomatic Mission or his designee in the country of destination has approved in writing to Department of State the import of the specific types and quantities of firearms into that country. The exporter shall provide a copy of this written statement to the District Director of Customs.
(b) Ammunition. District Directors of Customs shall permit not more than 1,000 cartridges (or rounds) of ammunition for the firearms referred to in paragraph (a) of this section to be exported (but not mailed) from the United States without a license when the firearms are on the person of the owner or with his baggage or effects, whether accompanied or unaccompanied (but not mailed).
(b) A license for the export of any machinery, device, component, equipment, or technical data relating to equipment referred to in Category VI(e) will not be granted unless the proposed export comes within the scope of an existing Agreement for Cooperation for Mutual Defense Purposes concluded pursuant to the Atomic Energy Act of 1954, as amended, with the government of the country to which the article is to be exported. Licenses may be granted in the absence of such an agreement only (1) if the proposed export involves an article which is identical to that in use in an unclassified civilian nuclear power plant, (2) if the proposed export has no relationship to naval nuclear propulsion, and (3) if it is not for use in a naval propulsion plant.
(b) Unused, expired, expended, suspended, or revoked licenses must be returned immediately to the Department of State.
(b) Before shipping any defense article, the exporter must also file a Shipper’s Export Declaration with the District Director of Customs at the port of exit (unless otherwise exempt from filing a Shipper’s Export Declaration). The District Director of Customs at the port of exit must authenticate the Shipper’s Export Declaration, and endorse the license to show the shipments actually made. The District Director of Customs will return a copy of each authenticated Shipper’s Export Declaration to the Office of Defense Trade Controls.
(c) Except for the export of unclassified technical data, an exporter must file a Shipper’s Export Declaration with District Directors of Customs or Postmasters in those cases in which no export license is required because of an exemption under this subchapter. The exporter must certify that the export is exempt from the licensing requirements of this subchapter by writing 22 CFR (identify section) and 22 CFR 120.1(b) applicable on the Shipper’s Export Declaration, and by identifying the section under which an exemption is claimed. A copy of each such declaration must be mailed immediately by the exporter to the Office of Defense Trade Controls.
(d) A Shipper’s Export Declaration is not required for exports of unclassified technical data. Exporters shall notify the Office of Defense Trade Controls of the initial export of the data by either returning the license after self endorsement or by sending a letter to the Office of Defense Trade Controls. The letter shall provide the method, date, license number and airway bill number (if applicable) of the shipment. The letter must be signed by an empowered official of the company and provided to the Office of Defense Trade Controls within thirty days of the initial export. Additionally, similar notification must be provided to the Office of Defense Trade Controls for any subsequent exports.
(e) If a license for the export of unclassified defense articles, including technical data, is used but not endorsed by U.S. Customs or a Postmaster for whatever reason (e.g., electronic transmission, unavailability of Customs officer or Postmaster, etc.), the person exporting the article must self-endorse the license, showing when and how the export took place. Every license shall also be returned by the exporter to the Office of Defense Trade Controls when the total value or quantity authorized has been shipped or when the date of expiration is reached, whichever occurs first.
(b) The following types of amendments to a license that will be considered: Addition of U.S. freight forwarder or U.S. consignor; change due to an obvious typographical error; change in source of commodity; and change of foreign intermediate consignee if that party is only transporting the equipment and will not process (e.g., integrate, modify) the equipment. For changes in U.S. dollar value see § 123.23.
(c) The following types of amendments to a license will not be approved: Additional quantity, changes in commodity, country of ultimate destination, end-use or end-user, foreign consignee and/or extension of duration. The foreign intermediate consignee may only be amended if that party is acting as freight forwarder and the export does not involve technical data. A new license is required for these changes. Any new license submission must reflect only the unshipped balance of quantity and dollar value.
Authority: Sec. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR 1977 Comp. p. 79; 22 U.S.C. 2658.
(b) Classified Articles. Copies of approved agreements involving the release of classified defense articles will be forwarded by the Office of Defense Trade Controls to the Defense Investigative Service of the Department of Defense.
(c) Amendments. Changes to the scope of approved agreements, including modifications, upgrades, or extensions must be submitted for approval. The amendments may not enter into force until approved by the Office of Defense Trade Controls.
(d) Minor Amendments. Amendments which only alter delivery or performance schedules, or other minor administrative amendments which do not affect in any manner the duration of the agreement or the clauses or information which must be included in such agreements because of the requirements of this part, do not have to be submitted for approval. One copy of all such minor amendments must be submitted to the Office of Defense Trade Controls within thirty days after they are concluded.
(b) Services performed as a member of the regular military forces of a foreign nation by U.S. persons who have been drafted into such forces are not deemed to be defense services for purposes of § 120.9 of this subchapter.
(b) Classified technical data. The export of classified information in furtherance of an approved manufacturing license or technical assistance agreement which provides for the transmittal of classified information does not require further approval from the Office of Defense Trade Controls when:
(1) The United States party certifies to the Department of Defense transmittal authority that the classified information does not exceed the technical or product limitations in the agreement; and
(2) The U.S. party complies with the requirements of the Department of Defense Industrial Security Manual concerning the transmission of classified information and any other requirements of cognizant U.S. departments or agencies.
(1) The agreement must describe the defense article to be manufactured and all defense articles to be exported, including any test and support equipment or advanced materials. They should be described by military nomenclature, contract number, National Stock Number, nameplate data, or other specific information. Supporting technical data or brochures should be submitted in seven copies. Only defense articles listed in the agreement will be eligible for export under the exemption in § 123.16(b)(1) of this subchapter.
(2) The agreement must specifically describe the assistance and technical data, including the design and manufacturing know-how involved, to be furnished and any manufacturing rights to be granted;
(3) The agreement must specify its duration; and
(4) The agreement must specifically identify the countries or areas in which manufacturing, production, processing, sale or other form of transfer is to be licensed.
(1) "This agreement shall not enter into force, and shall not be amended or extended, without the prior written approval of the Department of State of the U.S. Government."
(2) "This agreement is subject to all United States laws and regulations relating to exports and to all administrative acts of the U.S. Government pursuant to such laws and regulations."
(3) "The parties to this agreement agree that the obligations contained in this agreement shall not affect the performance of any obligations created by prior contracts or subcontracts which the parties may have individually or collectively with the U.S. Government."
(4) "No liability will be incurred by or attributed to the U.S. Government in connection with any possible infringement of privately owned patent or proprietary rights, either domestic or foreign, by reason of the U.S. Government’s approval of this agreement."
(5) "The technical data or defense service exported from the United States in furtherance of this agreement and any defense article which may be produced or manufactured from such technical data or defense service may not be transferred to a person in a third country or to a national of a third country except as specifically authorized in this agreement unless the prior written approval of the Department of State has been obtained."
(6) "All provisions in this agreement which refer to the United States Government and the Department of State will remain binding on the parties after the termination of the agreement."
(1) "No export, sale, transfer, or other disposition of the licensed article is authorized to any country outside the territory wherein manufacture or sale is herein licensed without the prior written approval of the U.S. Government unless otherwise exempted by the U.S. Government. Sales or other transfers of the licensed article shall be limited to governments of countries wherein manufacture or sale is hereby licensed and to private entities seeking to procure the licensed article pursuant to a contract with any such government unless the prior written approval of the U.S. Government is obtained."
(2) "It is agreed that sales by licensee or its sub-licensees under contracts made through the U.S. Government will not include either charges for patent rights in which the U.S. Government holds a royalty-free license, or charges for data which the U.S. Government has a right to use and disclose to others, which are in the public domain, or which the U.S. Government has acquired or is entitled to acquire without restrictions upon their use and disclosure to others."
(3) "If the U.S. Government is obligated or becomes obligated to pay to the licensor royalties, fees, or other charges for the use of technical data or patents which are involved in the manufacture, use, or sale of any licensed article, any royalties, fees or other charges in connection with purchases of such licensed article from licensee or its sub-licensees with funds derived through the U.S. Government may not exceed the total amount the U.S. Government would have been obligated to pay the licensor directly."
(4) "If the U.S. Government has made financial or other contributions to the design and development of any licensed article, any charges for technical assistance or know-how relating to the item in connection with purchases of such articles from licensee or sub-licensees with funds derived through the U.S. Government must be proportionately reduced to reflect the U.S. Government contributions, and subject to the provisions of paragraphs (a) (2) and (3) of this section, no other royalties, or fees or other charges may be assessed against U.S. Government funded purchases of such articles. However, charges may be made for reasonable reproduction, handling, mailing, or similar administrative costs incident to the furnishing of such data."
(5) "The parties to this agreement agree that an annual report of sales or other transfers pursuant to this agreement of the licensed articles, by quantity, type, U.S. dollar value, and purchaser or recipient, shall be provided by (applicant or licensee) to the Department of State." This clause must specify which party is obligated to provide the annual report. Such reports may be submitted either directly by the licensee or indirectly through the licensor, and may cover calendar or fiscal years. Reports shall be deemed proprietary information by the Department of State and will not be disclosed to unauthorized persons. See § 126.10(b) of this subchapter.
(6) (Licensee) agrees to incorporate the following statement as an integral provision of a contract, invoice or other appropriate document whenever the licensed articles are sold or otherwise transferred:
These commodities are authorized for export by the U.S. Government only to (country of ultimate destination or approved sales territory). They may not be resold, diverted, transferred, transshipped, or otherwise be disposed of in any other country, either in their original form or after being incorporated through an intermediate process into other end-items, without the prior written approval of the U.S. Department of State.
(b) Special clause for agreements relating to significant military equipment. With respect to an agreement for the production of significant military equipment, the following additional provisions must be included in the agreement:
(1) "A completed nontransfer and use certificate (DSP-83) must be executed by the foreign end-user and submitted to the Department of State of the United States before any transfer may take place."
(2) "The prior written approval of the U.S. Government must be obtained before entering into a commitment for the transfer of the licensed article by sale or otherwise to any person or government outside of the approved sales territory."
(1) A statement giving the applicant’s Defense Trade Controls registration number.
(2) A statement identifying the licensee and the scope of the agreement.
(3) A statement identifying the U.S. Government contract under which the equipment or technical data was generated, improved, or developed and supplied to the U.S. Government, and whether the equipment or technical data was derived from any bid or other proposal to the U.S. Government.
(4) A statement giving the military security classification of the equipment or technical data.
(5) A statement identifying any patent application which discloses any of the subject matter of the equipment or technical data covered by an invention secrecy order issued by the U.S. Patent and Trademark Office.
(6) A statement of the actual or estimated value of the agreement, including the estimated value of all defense articles to be exported in furtherance of the agreement or amendments thereto. If the value is $ 500,000 or more, an additional statement must be made regarding the payment of political contributions, fees or commissions, pursuant to part 130 of this subchapter.
(7) A statement indicating whether any foreign military sales credits or loan guarantees are or will be involved in financing the agreement.
(8) The agreement must describe any classified information involved and identify, from Department of Defense form DD254, the address and telephone number of the U.S. Government office that classified the information.
(9) For agreements that may require the export of classified information, the Defense Investigative Service cognizant security offices that have responsibility for the facilities of the U.S. parties to the agreement shall be identified. The facility security clearance codes of the U.S. parties shall also be provided.
(b) The following statements must be made in the letter of transmittal:
(1) "If the agreement is approved by the Department of State, such approval will not be construed by (the applicant) as passing on the legality of the agreement from the standpoint of antitrust laws or other applicable statutes, nor will (the applicant) construe the Department’s approval as constituting either approval or disapproval of any of the business terms or conditions between the parties to the agreement."
(2) "The (applicant) will not permit the proposed agreement to enter into force until it has been approved by the Department of State."
(3) "The (applicant) will furnish the Department of State with one copy of the signed agreement (or amendment) within 30 days from the date that the agreement is concluded and will inform the Department of its termination not less than 30 days prior to expiration and provide information on the continuation of any foreign rights or the flow of technical data to the foreign party. If a decision is made not to conclude the proposed agreement, the applicant will so inform the Department within 60 days."
(4) "If this agreement grants any rights to sub-license, it will be amended to require that all sub-licensing arrangements incorporate all the provisions of the basic agreement that refer to the U.S. Government and the Department of State (i.e., 22 CFR 124.9 and 124.10)."
(a) The contract or purchase order for offshore procurement limits delivery of the defense articles to be produced only to the person in the United States or to an agency of the U.S. Government; and
(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-to-print basis (build-to-print means producing an end-item (i.e., system, subsystem or component) from technical drawings and specifications (which contain no process or know-how information) without the need for additional technical assistance). Release of supporting documentation (e.g., acceptance criteria, object code software for numerically controlled machines) is permissible. Build-to-print does not include the release of any information which discloses design methodology, engineering analysis, detailed process information or manufacturing know-how); and
(c) The contract or purchase order between the person in the United States and the foreign person:
(1) Limits the use of the technical data to the manufacture of the defense articles required by the contract or purchase order only; and
(2) Prohibits the disclosure of the data to any other person except subcontractors within the same country; and
(3) Prohibits the acquisition of any rights in the data by any foreign person; and
(4) Provides that any subcontracts between foreign persons in the approved country for manufacture of equipment for delivery pursuant to the contract or purchase order contain all the limitations of this paragraph (c); and
(5) Requires the foreign person, including subcontractors, to destroy or return to the person in the United States all of the technical data exported pursuant to the contract or purchase order upon fulfillment of their terms; and
(6) Requires delivery of the defense articles manufactured abroad only to the person in the United States or to an agency of the U.S. Government; and
(d) The person in the United States provides the Office of Defense Trade Controls with a copy of each contract, purchase order or subcontract for offshore procurement at the time it is accepted. Each such contract, purchase order or subcontract must clearly identify the article to be produced and must identify the license number or exemption under which the technical data was exported; and
(e) Licenses issued pursuant to this section must be renewed upon their expiration if offshore procurement is to extend beyond the period of validity of the license. If the technical data involved in an offshore procurement arrangement is otherwise exempt from the licensing requirements pursuant to § 126.4 or § 126.5 of this subchapter, the DSP-5 referred to in the first sentence of this section is not required. However, the exporter must comply with the other requirements of this section. The exemptions under § 125.4 of this subchapter may not be used to establish offshore procurement arrangements.
(b) Required Information. Proposed warehousing and distribution agreements (and amendments thereto) shall be submitted to the Office of Defense Trade Controls for approval. The following information must be included in all such agreements:
(1) A description of the defense articles involved including test and support equipment covered by the U.S. Munitions List. This shall include when applicable the military nomenclature, the Federal stock number, nameplate data, and any control numbers under which the defense articles were developed or procured by the U.S. Government. Only those defense articles specifically listed in the agreement will be eligible for export under the exemption in § 123.16(b)(1) of this subchapter.
(2) A detailed statement of the terms and conditions under which the defense articles will be exported and distributed;
(3) The duration of the proposed agreement;
(4) Specific identification of the country or countries that comprise the distribution territory. Distribution must be specifically limited to the governments of such countries or to private entities seeking to procure defense articles pursuant to a contract with a government within the distribution territory or to other eligible entities as specified by the Office of Defense Trade Controls. Consequently, any deviation from this condition must be fully explained and justified. A nontransfer and use certificate (DSP-83) will be required to the same extent required in licensing agreements under § 124.9(b).
(c) Required statements. The following statements must be included in all warehousing and distribution agreements:
(1) "This agreement shall not enter into force, and may not be amended or extended, without the prior written approval of the Department of State of U.S. Government."
(2) "This agreement is subject to all United States laws and regulations related to exports and to all administrative acts of the United States Government pursuant to such laws and regulations.
(3) "The parties to this agreement agree that the obligations contained in this agreement shall not affect the performance of any obligations created by prior contracts or subcontracts which the parties may have individually or collectively with the U.S. Government."
(4) "No liability will be incurred by or attributed to the U.S. Government in connection with any possible infringement of privately owned patent or proprietary rights, either domestic or foreign by reason of the U.S. Government’s approval of this agreement."
(5) "No export, sale, transfer, or other disposition of the defense articles covered by this agreement is authorized to any country outside the distribution territory without the prior written approval of the Office of Defense Trade Controls of the U.S. Department of State."
(6) "The parties to this agreement agree that an annual report of sales or other transfers pursuant to this agreement of the licensed articles, by quantity, type, U.S. dollar value, and purchaser or recipient shall be provided by (applicant or licensee) to the Department of State." This clause must specify which party is obligated to provide the annual report. Such reports may be submitted either directly by the licensee or indirectly through the licensor, and may cover calendar or fiscal years. Reports shall be deemed proprietary information by the Department of State and will not be disclosed to unauthorized persons. (See § 126.10(b) of this subchapter.)
(7) (Licensee) agrees to incorporate the following statement as an integral provision of a contract, invoice or other appropriate document whenever the articles covered by this agreement are sold or otherwise transferred:
These commodities are authorized for export by the U.S. Government only to (country of ultimate destination or approved sales territory). They may not be resold, diverted, transferred, transshipped, or otherwise be disposed of in any other country, either in their original form or after being incorporated through an intermediate process into other end-items, without the prior written approval of the U.S. Department of State.
(8) "All provisions in this agreement which refer to the United States Government and the Department of State will remain binding on the parties after the termination of the agreement."
(9) Additional clause. Unless the articles covered by the agreement are in fact intended to be distributed to private persons or entities (e.g., sporting firearms for commercial resale, cryptographic devices and software for financial and business applications), the following clause must be included in all warehousing and distribution agreements: "Sales or other transfers of the licensed article shall be limited to governments of the countries in the distribution territory and to private entities seeking to procure the licensed article pursuant to a contract with a government within the distribution territory, unless the prior written approval of the U.S. Department of State is obtained."
(d) Special clauses for agreements relating to significant military equipment. With respect to agreements for the warehousing and distribution of significant military equipment, the following additional provisions must be included in the agreement:
(1) A completed nontransfer and use certificate (DSP-83) must be executed by the foreign end-user and submitted to the U.S. Department of State before any transfer may take place.
(2) The prior written approval of the U.S. Department of State must be obtained before entering into a commitment for the transfer of the licensed article by sale or otherwise to any person or government outside the approved distribution territory.
(e) Transmittal Letters. Requests for approval of warehousing and distribution agreements with foreign persons must be made by letter. The original letter and seven copies of the letter and seven copies of the proposed agreement shall be submitted to the Office of Defense Trade Controls. The letter shall contain:
(1) A statement giving the applicant’s Defense Trade Controls registration number.
(2) A statement identifying the foreign party to the agreement.
(3) A statement identifying the defense articles to be distributed under the agreement.
(4) A statement identifying any U.S. Government contract under which the equipment may have been generated, improved, developed or supplied to the U.S. Government, and whether the equipment was derived from any bid or other proposal to the U.S. Government.
(5) A statement that no classified defense articles or classified technical data are involved.
(6) A statement identifying any patent application which discloses any of the subject matter of the equipment or related technical data covered by an invention secrecy order issued by the U.S. Patent and Trademark Office.
(f) Required clauses. The following statements must be made in the letter of transmittal:
(1) "If the agreement is approved by the Department of State, such approval will not be construed by (applicant) as passing on the legality of the agreement from the standpoint of antitrust laws or other applicable statutes, nor will (the applicant) construe the Department’s approval as constituting either approval or disapproval of any of the business terms or conditions between the parties to the agreement."
(2) "The (applicant) will not permit the proposed agreement to enter into force until it has been approved by the Department of State."
(3) "(Applicant) will furnish the Department of State with one copy of the signed agreement (or amendment thereto) within 30 days from the date that the agreement is concluded, and will inform the Department of its termination not less than 30 days prior to expiration. If a decision is made not to conclude the proposed agreement, (applicant) will so inform the Department within 60 days."
Authority: Sections 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); E.O. 11958, 42 FR 4311, 3 CFR, 1977 Comp. p.79; 22 U.S.C. 2658.
(b) A license for the export of technical data and the exemptions in § 125.4 may not be used for foreign production purposes or for technical assistance unless the approval of the Office of Defense Trade Controls has been obtained. Such approval is generally provided only pursuant to the procedures specified in part 124 of this subchapter.
(c) Technical data authorized for export may not be reexported, transferred or diverted from the country of ultimate end-use or from the authorized foreign end-user (as designated in the license or approval for export) or disclosed to a national of another country without the prior written approval of the Office of Defense Trade Controls.
(d) The controls of this part apply to the exports referred to in paragraph (a) of this section regardless of whether the person who intends to export the technical data produces or manufactures defense articles if the technical data is determined by the Office of Defense Trade Controls to be subject to the controls of this subchapter.
(e) The provisions of this subchapter do not apply to technical data related to articles in Category VI(e) and Category XVI. The export of such data is controlled by the Department of Energy and the Nuclear Regulatory Commission pursuant to the Atomic Energy Act of 1954, as amended, and the Nuclear Non-Proliferation Act of 1978.
(b) Patents. A license issued by the Office of Defense Trade Controls is required for the export of technical data whenever the data exceeds that which is used to support a domestic filing of a patent application or to support a foreign filing of a patent application whenever no domestic application has been filed. Requests for the filing of patent applications in a foreign country, and requests for the filing of amendments, modifications or supplements to such patents, should follow the regulations of the U.S. Patent and Trademark Office in accordance with 37 CFR part 5. The export of technical data to support the filing and processing of patent applications in foreign countries is subject to regulations issued by the U.S. Patent and Trademark Office pursuant to 35 U.S.C. 184.
(c) Disclosures. Unless otherwise expressly exempted in this subchapter, a license is required for the oral, visual or documentary disclosure of technical data by U.S. persons to foreign persons. A license is required regardless of the manner in which the technical data is transmitted (e.g., in person, by telephone, correspondence, electronic means, etc.). A license is required for such disclosures by U.S. persons in connection with visits to foreign diplomatic missions and consular offices.
(b) Classified technical data which is approved by the Office of Defense Trade Controls either for export or reexport after a temporary import will be transferred or disclosed only in accordance with the requirements in the Department of Defense Industrial Security Manual. Any other requirements imposed by cognizant U.S. departments and agencies must also be satisfied.
(c) The approval of the Office of Defense Trade Controls must be obtained for the export of technical data by a U.S. person to a foreign person in the U.S. or in a foreign country unless the proposed export is exempt under the provisions of this subchapter.
(d) All communications relating to a patent application covered by an invention secrecy order are to be addressed to the U.S. Patent and Trademark Office (see 37 CFR 5.11).
(b) The following exports are exempt from the licensing requirements of this subchapter.
(1) Technical data, including classified information, to be disclosed pursuant to an official written request or directive from the U.S. Department of Defense;
(2) Technical data, including classified information, in furtherance of a manufacturing license or technical assistance agreement approved by the Department of State under part 124 of this subchapter and which meet the requirements of § 124.3 of this subchapter;
(3) Technical data, including classified information, in furtherance of a contract between the exporter and an agency of the U.S. Government, if the contract provides for the export of the data and such data does not disclose the details of design, development, production, or manufacture of any defense article;
(4) Copies of technical data, including classified information, previously authorized for export to the same recipient. Revised copies of such technical data are also exempt if they pertain to the identical defense article, and if the revisions are solely editorial and do not add to the content of technology previously exported or authorized for export to the same recipient;
(5) Technical data, including classified information, in the form of basic operations, maintenance, and training information relating to a defense article lawfully exported or authorized for export to the same recipient. Intermediate or depot-level repair and maintenance information may be exported only under a license or agreement approved specifically for that purpose;
(6) Technical data, including classified information, related to firearms not in excess of caliber .50 and ammunition for such weapons, except detailed design, development, production or manufacturing information;
(7) Technical data, including classified information, being returned to the original source of import;
(8) Technical data directly related to classified information which has been previously exported or authorized for export in accordance with this part to the same recipient, and which does not disclose the details of the design, development, production, or manufacture of any defense article;
(9) Technical data, including classified information, sent by a U.S. corporation to a U.S. person employed by that corporation overseas or to a U.S. Government agency. This exemption is subject to the limitations of § 125.1(b) and may be used only if:
(i) The technical data is to be used overseas solely by U.S. persons;
(ii) If the U.S. person overseas is an employee of the U.S. Government or is directly employed by the U.S. corporation and not by a foreign subsidiary; and
(iii) The classified information is sent overseas in accordance with the requirements of the Department of Defense Industrial Security Manual.
(10) Disclosures of unclassified technical data in the U.S. by U.S. institutions of higher learning to foreign persons who are their bona fide and full time regular employees. This exemption is available only if:
(i) The employee’s permanent abode throughout the period of employment is in the United States;
(ii) The employee is not a national of a country to which exports are prohibited pursuant to § 126.1 of this subchapter; and
(iii) The institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Office of Defense Trade Controls;
(11) Technical data, including classified information, for which the exporter, pursuant to an arrangement with the Department of Defense, Department of Energy or NASA which requires such exports, has been granted an exemption in writing from the licensing provisions of this part by the Office of Defense Trade Controls. Such an exemption will normally be granted only if the arrangement directly implements an international agreement to which the United States is a party and if multiple exports are contemplated. The Office of Defense Trade Controls, in consultation with the relevant U.S. Government agencies, will determine whether the interests of the United States Government are best served by expediting exports under an arrangement through an exemption (see also paragraph (b)(3) of this section for a related exemption);
(12) Technical data which is specifically exempt under part 126 of this subchapter; or
(13) Technical data approved for public release (i.e., unlimited distribution) by the cognizant U.S. Government department or agency or Directorate for Freedom of Information and Security Review. This exemption is applicable to information approved by the cognizant U.S. Government department or agency for public release in any form. It does not require that the information be published in order to qualify for the exemption.
(b) The approval of the Office of Defense Trade Controls is not required for the disclosure of oral and visual classified information to a foreign person during the course of a plant visit approved by the appropriate U.S. Government agency if (1) the requirements of the Defense Industrial Security Manual have been met, (2) the classified information is directly related to that which was approved by the U.S. Government agency, (3) it does not exceed that for which approval was obtained, and (4) it does not disclose the details of the design, development, production or manufacture of any defense articles.
(c) A license is not required for the disclosure to a foreign person of unclassified technical data during the course of a plant visit (either classified or unclassified) approved by the Office of Defense Trade Controls or a cognizant U.S. Government agency provided the technical data does not contain information in excess of that approved for disclosure. This exemption does not apply to technical data which could be used for design, development, production or manufacture of a defense article.
(b) If a District Director of Customs or Postmaster is unavailable at the time of export, or if the export is via oral, visual, or electronic means, the exporter must also complete a written certification as indicated in paragraph (a) of this section.
(b) An application for the export of classified technical data or other classified defense articles must be accompanied by seven copies of the data and a completed Form DSP-83 (see § 123.10 of this subchapter). Only one copy of the data or descriptive literature must be provided if a renewal of the license is requested. All classified materials accompanying an application must be transmitted to the Office of Defense Trade Controls in accordance with the requirements of the Defense Industrial Security Manual (Department of Defense Manual Number 5220.22-M).
(b) If a license for the export of unclassified technical data is used but not endorsed by U.S. Customs or a Postmaster for whatever reason (e.g., electronic transmission, unavailability of Customs officer or Postmaster, etc.), the person exporting the data must self-endorse the license, showing when and how the export took place. Every license must be returned to the Office of Defense Trade Controls when the total value authorized has been shipped or when the date of expiration has been reached, whichever occurs first.
Authority: Secs. 2, 38, 40, 42, and 71, Arms Export Control Act, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, and 2791, and 2797); E.O. 11958, 42 FR 4311, E.O. 11322, 32 FR 119; 22 U.S.C. 2658.
(b) Shipments. A defense article licensed for export under this subchapter may not be shipped on a vessel, aircraft or other means of conveyance which is owned or operated by, or leased to or from, any of the proscribed countries or areas.
(c) South Africa. South Africa is subject to an arms embargo and thus to the policy specified in paragraph (a) of this section. Exceptions may be made to this policy only if the Assistant Secretary for Politico-Military Affairs determines that:
(1) The item is not covered by United Nations Security Council Resolution 418 of November 4, 1977; and
(2) The item is to be exported solely for commercial purposes and not for use by the armed forces, police, or other security forces of South Africa or for any other similar purpose.
(d) Terrorism. Exports to countries which the Secretary of State has determined to have repeatedly provided support for acts of international terrorism are contrary to the foreign policy of the United States and are thus subject to the policy specified in paragraph (a) of this section and the requirements of section 40 of the Arms Export Control Act (22 U.S.C. 2780) and the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986 (22 U.S.C. 4801, note). The countries in this category are: Cuba, Iran, Iraq, Libya, North Korea and Syria. The same countries are identified pursuant to section 6(j) of the Export Administration Act, as amended (50 U.S.C. App. 2405(j)).
(e) Proposed sales. No sale or transfer and no proposal to sell or transfer any defense articles, defense services or technical data subject to this subchapter may be made to any country referred to in this section (including the embassies or consulates of such a country), or to any person acting on its behalf, whether in the United States or abroad, without first obtaining a license or written approval of the Office of Defense Trade Controls. However, in accordance with paragraph (a) of this section, it is the policy of the Department of State to deny licenses and approvals in such cases. Any person who knows or has reason to know of such a proposed or actual sale, or transfer, of such articles, services or data must immediately inform the Office of Defense Trade Controls.
Note: Special definition. For purposes of this section, defense articles exported abroad for incorporation into a foreign launch vehicle or for use on a foreign launch vehicle or satellite that is to be launched from a foreign country shall be considered a permanent export.
(b) This section does not authorize any department or agency of the U.S. Government to make any export which is otherwise prohibited by virtue of other administrative provisions or by any statute.
(c) A license is not required for the temporary import, or temporary or permanent export, of any classified or unclassified defense articles, including technical data or the performance of a defense service, for end-use by a U.S. Government Agency in a foreign country under the following circumstances:
(1) The export or temporary import is pursuant to a contract with, or written direction by, an agency of the U.S. Government; and
(2) The end-user in the foreign country is a U.S. Government agency or facility, and the defense articles or technical data will not be transferred to any foreign person; and
(3) The urgency of the U.S. Government requirement is such that the appropriate export license or U.S. Government Bill of Lading could not have been obtained in a timely manner.
(d) A Shipper’s Export Declaration (SED), required under § 123.22(c) of this subchapter, and a written statement by the exporter certifying that these requirements have been met must be presented at the time of export to the appropriate District Director of Customs or Department of Defense transmittal authority. A copy of the SED and the written certification statement shall be provided to the Office of Defense Trade Controls immediately following the export.
(b) Exceptions. The exemptions of this section do not apply to the following articles and related technical data:
(1) Fully automatic firearms in Category I(a) which are not for end-use by the Federal Government, or a Provincial or Municipal Government of Canada;
(2) Nuclear weapons strategic delivery systems and all components, parts, accessories, attachments specifically designed for such systems and associated equipment;
(3) Nuclear weapon design and test equipment listed in Category XVI;
(4) Naval nuclear propulsion equipment listed in Category VI(e);
(5) Aircraft listed in Category VIII(a);
(6) Submersible and oceanographic vessels and related articles listed in Category XX (a) through (d).
(7) Technical data for use by a foreign national other than a Canadian.
(8) Unclassified technical data directly related to a classified defense article.
(c) Related requirements. The foregoing exemption from obtaining an export license does not exempt an exporter from complying with the requirements set forth in § 123.15 of this subchapter or from filing the Shipper’s Export Declaration required by § 123.22 of this subchapter.
(d) Part 124 agreements. The requirements of part 124 of this subchapter must be complied with in the situations contemplated in that part. For example, the exemptions of this section may not be used for the provision of defense services except pursuant to an approved manufacturing license agreement or technical assistance agreement.
(1)(i) The article or technical data to be exported was sold, leased, or loaned by the Department of Defense to a foreign country or international organization pursuant to the Arms Export Control Act or the Foreign Assistance Act of 1961, as amended, and
(ii) The article or technical data was delivered to representatives of such a country or organization in the United States; and
(iii) The article or technical data is to be exported from the United States on a military aircraft or naval vessel of that government or organization or via the Defense Transportation Service (DTS).
(b) Foreign military aircraft and naval vessels. A license is not required for the entry into the United States of military aircraft or naval vessels of any foreign state if no overhaul, repair, or modification of the aircraft or naval vessel is to be performed. However, Department of State approval for overflight (pursuant to the 49 U.S.C. 1508) and naval visits must be obtained from the Bureau of Politico-Military Affairs, Office of International Security Operations.
(c) Procedures for the Foreign Military Sales Program. (1) District Directors of Customs are authorized to permit the export and temporary import of classified and unclassified defense articles, defense services and technical data without a license if the articles or technical data were sold, leased or loaned by the U.S. Department of Defense to foreign governments or international organizations under the Foreign Military Sales (FMS) program of the Arms Export Control Act. This procedure may be used only if a proposed export is:
(i) Pursuant to an executed U.S. Department of Defense Letter of Offer and Acceptance (DD Form 1513); and
(ii) Accompanied by a properly executed DSP-94, or in the case of a classified shipment, an approved Letter of Offer and Acceptance; and
(iii) Made by the relevant foreign diplomatic mission of the purchasing country or its authorized freight forwarder, provided that the freight forwarder is registered with the Office of Defense Trade Controls pursuant to part 122 of this subchapter, and, if classified defense articles or technical data are involved, has the requisite U.S. Government security clearance and a transportation plan has been approved as in § 126.6(a)(1), above and the defense articles or technical data are shipped in compliance with the Department of Defense Industrial Security Manual.
(2) Filing and documents.
(i) The original copy of completed Form DSP-94, together with one copy of the corresponding authenticated DD Form 1513 and a Shipper’s Export Declaration, must be filed with the District Director of Customs at the port of exit prior to actual shipment. An executed DD Form 1513 is one which has been signed by:
(A) an authorized Department of Defense representative and countersigned by the Comptroller, Defense Security Assistance Agency (DSAA); and
(B) by an authorized representative of the foreign government.
(ii) SED or Outbound Manifest. The Shipper’s Export Declaration or, if authorized, the outbound manifest, must be annotated as follows:
This shipment is being exported under the authority of Department of State Form DSP-94. It covers FMS Case (case identification), expiration date __________. 22 CFR 126.6 applicable. The U.S. Government point of contact is __________, telephone number __________.
(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 Act, as amended) 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 an indictment for a violation of any of the U.S. criminal statutes enumerated in § 120.27 of this subchapter; 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 § 120.27 of this subchapter; 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 debarment by the Department of Commerce under 15 CFR part 388 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 or other request for approval under this subchapter or as required in the instructions in the applicable Department of State form; 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 Non-Proliferation Act of 1992 (Pub. L. 102-484)).
(b) Notification. The Office of Defense Trade Controls will notify applicants or licensees or other appropriate United States 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 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 Office 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 thirty 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.
(e) Special definition. For purposes of this section, the term 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.
(1) Sale of significant military equipment: Prior approval requirement. The approval of the Office of Defense Trade Controls is required before a U.S. person may make a proposal or presentation designed to constitute a basis for a decision on the part of any foreign person to purchase significant military equipment on the U.S. Munitions List whenever all the following conditions are met:
(i) The value of the significant military equipment to be sold is $ 14,000,000 or more; and
(ii) The equipment is intended for use by the armed forces of any foreign country other than a member of the North Atlantic Treaty Organization, Australia, New Zealand, or Japan; and
(iii) The sale would involve the export from the United States of any defense article or the furnishing abroad of any defense service including technical data; and
(iv) The identical significant military equipment has not been previously licensed for permanent export or approved for sale under the Foreign Military Sales Program of the Department of Defense, to any foreign country.
(2) Sale of significant military equipment: Prior notification requirement. The Office Defense Trade Controls must be notified in writing at least thirty days in advance of any proposal or presentation concerning the sale of significant military equipment whenever the conditions specified in paragraphs (a)(1) (i) through (iii) of this section are met and the identical equipment has been previously licensed for permanent export or approved for sale under the FMS Program to any foreign country.
(3) Manufacture abroad of significant military equipment: Prior approval requirement. The approval of the Office of Defense Trade Controls is required before a U.S. person may make a proposal or presentation designed to constitute a basis for a decision on the part of any foreign person to enter into any manufacturing license agreement or technical assistance agreement for the production or assembly of significant military equipment, regardless of dollar value, in any foreign country, whenever:
(i) The equipment is intended for use by the armed forces of any foreign country; and
(ii) The agreement would involve the export from the United States of any defense article or the furnishing abroad of any defense service including technical data.
(b) Definition of proposal or presentation. The terms proposal or presentation (designed to constitute a basis for a decision to purchase and to enter into any agreement) mean the communication of information in sufficient detail that the person communicating that information knows or should know that it would permit an intended purchaser to decide either to acquire the particular equipment in question or to enter into the manufacturing license agreement or technical assistance agreement. For example, a presentation which describes the equipment’s performance characteristics, price, and probable availability for delivery would require prior notification or approval, as appropriate, where the conditions specified in paragraph (a) of this section are met. By contrast, the following would not require prior notification or approval: Advertising or other reporting in a publication of general circulation; preliminary discussions to ascertain market potential; or merely calling attention to the fact that a company manufactures a particular item of significant military equipment.
(c) Satisfaction of requirements. (1) The requirement of this section for prior approval is met by any of the following:
(i) A written statement from the Office of Defense Trade Controls approving the proposed sale or agreement or approving the making of a proposal or presentation.
(ii) A license issued under § 125.2 or § 125.3 of this subchapter for the export of technical data relating to the proposed sale or agreement to the country concerned.
(iii) A temporary export license issued under § 123.5 of this subchapter relating to the proposed sale or agreement for a demonstration to the armed forces of the country of export.
(iv) With respect to manufacturing license agreements or technical assistance agreements, the application for export licenses pursuant to the two preceding subparagraphs must state that they are related to possible agreements of this kind.
(2) The requirement of this section for prior notification is met by informing the Office of Defense Trade Controls by letter at least 30 days before making the proposal or presentation. The letter must comply with the procedures set forth in paragraph (d) of this section and must identify the relevant license, approval, or FMS case by which the identical equipment had previously been authorized for permanent export or sale. The Office of Defense Trade Controls will provide written acknowledgement of such prior notification to confirm compliance with this requirement and the commencement of the 30-day notification period.
(d) Procedures. Unless a license has been obtained pursuant to § 126.8(c)(1) (ii) or (iii), a request for prior approval to make a proposal or presentation with respect to significant military equipment, or a 30-day prior notification regarding the sale of such equipment, must be made by letter to the Office of Defense Trade Controls. The letter must outline in detail the intended transaction, including usage of the equipment involved and the country (or countries) involved. Seven copies of the letter should be provided as well as seven copies of suitable descriptive information concerning the equipment.
(e) Statement to accompany licensing requests. (1) Every application for an export license or other approval to implement a sale or agreement which meets the criteria specified in paragraph (a) of this section must be accompanied by a statement from the applicant which either:
(i) Refers to a specific notification made or approval previously granted with respect to the transaction; or
(ii) Certifies that no proposal or presentation requiring prior notification or approval has been made.
(2) The Department of State may require a similar statement from the Foreign Military Sales contractor concerned in any case where the United States Government receives a request for a letter of offer for a sale which meets the criteria specified in paragraph (a) of this section.
(f) Penalties. In addition to other remedies and penalties prescribed by law or this subchapter, a failure to satisfy the prior approval or prior notification requirements of this section may be considered to be a reason for disapproval of a license, agreement or sale under the FMS program.
(g) License for technical data. Nothing in this section constitutes or is to be construed as an exemption from the licensing requirement for the export of technical data that is embodied in any proposal or presentation made to any foreign persons.
(b) Determinations required by law. Section 38 of the Arms Export Control Act (22 U.S.C. 2778) provides that certain information required by the Department of State in connection with the licensing process may generally not be disclosed to the public unless certain determinations relating to the national interest are made in accordance with the procedures specified by that provision. Determinations required by section 38(e) shall be made by the Assistant Secretary of State for Politico-Military Affairs.
(c) Information required under part 130. Part 130 of this subchapter contains specific provisions on the disclosure of information described in that part.
(d) National Interest Determinations. In accordance with section 38(e) of the Arms Export Control Act (22 U.S.C. 2778(e)), 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 CoCoM).
(1) The applicant or the chief executive officer, president, vice-presidents, other senior officers or officials (e.g., comptroller, treasurer, general counsel) or any member of the board of directors is the subject of an indictment for or has been convicted of violating any of the U.S. criminal statutes enumerated in § 120.27 of this subchapter since the effective date of the Arms Export Control Act, Public Law 94-329, 90 Stat. 729 (June 30, 1976);
(2) The applicant or the chief executive officer, president, vice-presidents, other senior officers or officials (e.g., comptroller, treasurer, general counsel) or any member of the board of directors is ineligible to contract with, or to receive a license or other approval to import defense articles or defense services from, or to receive an export license or other approval from, any agency of the U.S. Government;
(3) To the best of the applicant’s knowledge, any party to the export as defined in § 126.7(e) has been convicted of violating any of the U.S. criminal statutes enumerated in § 120.27 of this subchapter since the effective date of the Arms Export Control Act, Public Law 94-329, 90 Stat. 729 (June 30, 1976), or is ineligible to contract with, or to receive a license or other approval to import defense articles or defense services from, or to receive an export license or other approval from any agency of the U.S. government; and
(4) The natural person signing the application, notification or other request for approval (including the statement required by this subsection) is a citizen or national of the United States, has been lawfully admitted to the United States for permanent residence (and maintains such a residence) under the Immigration and Nationality Act, as amended (8 U.S.C. 1101(a), section 101(a)20, 60 Stat. 163), or is an official of a foreign government entity in the United States.
(b) In addition, all applications for licenses must include, on the application or an addendum sheet, the complete names and addresses of all U.S. consignors and freight forwarders, and all foreign consignees and foreign intermediate consignees involved in the transaction. If there are multiple consignors, consignees or freight forwarders, and all the required information cannot be included on the application form, an addendum sheet and seven copies containing this information must be provided. The addendum sheet must be marked at the top as follows: "Attachment to Department of State License From (insert DSP-5, 61, 73, or 85, as appropriate) for Export of (insert commodity) valued at (insert U.S. dollar amount) to (insert country of ultimate destination)." The Office of Defense Trade Controls will impress one copy of the addendum sheet with the Department of State seal and return it to the applicant with each license. The sealed addendum sheet must remain attached to the license as an integral part thereof. District Directors of Customs and Department of Defense transmittal authorities will permit only those U.S. consignors or freight forwarders listed on the license or sealed addendum sheet to make shipments under the license, and only to those foreign consignees named on the documents. Applicants should list all freight forwarders who may be involved with shipments under the license to ensure that the list is complete and to avoid the need for amendments to the list after the license has been approved. If there are unusual or extraordinary circumstances that preclude the specific identification of all the U.S. consignors and freight forwarders and all foreign consignees, the applicant must provide a letter of explanation with each application.
(c) In cases when foreign nationals are employed at or assigned to security-cleared facilities, provision by the applicant of a Technology Control Plan (available from the Defense Investigative Service) will facilitate processing.
Authority: Secs. 2, 38 and 42, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2791); E.O. 11958, 42 FR 4311, 22 U.S.C. 401; 22 U.S.C. 2658.
(1) To export or attempt to export from the United States any defense article or technical data or to furnish any defense service for which a license or written approval is required by this subchapter without first obtaining the required license or written approval from the Office of Defense Trade Controls;
(2) To import or attempt to import any defense article whenever a license is required by this subchapter without first obtaining the required license or written approval from the Office of Defense Trade Controls;
(3) To conspire to export, import, reexport or cause to be exported, imported or reexported, any defense article or to furnish any defense service for which a license or written approval is required by this subchapter without first obtaining the required license or written approval from the Office of Defense Trade Controls; or
(4) To violate any of the terms or conditions of licenses or approvals granted pursuant to this subchapter.
(b) Any person who is granted a license or other approval under this subchapter is responsible for the acts of employees, agents, and all authorized persons to whom possession of the licensed defense article or technical data has been entrusted regarding the operation, use, possession, transportation, and handling of such defense article or technical data abroad. All persons abroad subject to U.S. jurisdiction who obtain temporary custody of a defense article exported from the United States or produced under an agreement described in part 124 of this subchapter, and irrespective of the number of intermediate transfers, are bound by the regulations of this subchapter in the same manner and to the same extent as the original owner or transferer.
(c) A person with knowledge that another person is then ineligible pursuant to §§ 120.1(c) of this subchapter or 126.7 of this chapter, is then subject to an order of debarment, or interim suspension, may not, directly or indirectly, in any manner or capacity, without prior disclosure of the facts to, and written authorization from, the Office of Defense Trade Controls:
(1) Apply for, obtain, or use any export control document as defined in § 127.2(b) for such debarred, suspended, or ineligible person; or
(2) Order, buy, receive, use, sell, deliver, store, dispose of, forward, transport, finance, or otherwise service or participate in any transaction which may involve any defense article or the furnishing of any defense service for which a license or approval is required by this subchapter for export, where such debarred, suspended, or ineligible person may obtain any benefit therefrom or have any direct or indirect interest therein.
(d) No person may willfully cause, or aid, abet, counsel, demand, induce, procure or permit the commission of any act prohibited by, or the omission of any act required by 22 U.S.C. 2778, 22 U.S.C. 2779, or any regulation, license, approval, or order issued thereunder.
(b) For the purpose of this section, export or temporary import control documents include the following:
(1) An application for a permanent export or a temporary import license and supporting documents.
(2) Shipper’s Export Declaration.
(3) Invoice.
(4) Declaration of destination.
(5) Delivery verification.
(6) Application for temporary export.
(7) Application for registration.
(8) Purchase order.
(9) Foreign import certificate.
(10) Bill-of-lading.
(11) Airway bill.
(12) Nontransfer and use certificate.
(13) Any other document used in the regulation or control of a defense article, defense service or technical data for which a license or approval is required by this subchapter.
(a) Violates any provision of section 38 or section 39 of the Arms Export Control Act (22 U.S.C. 2778 and 2779), or any undertaking specifically required by part 124 of this subchapter; or
(b) In a registration, license application or report required by section 38 or section 39 of the Arms Export Control Act (22 U.S.C. 2278 and 2779) or by any rule or regulation issued under either section, makes any untrue statement of a material fact or omits a material fact required to be stated therein or necessary to make the statements therein not misleading, shall, upon conviction, be subject to a fine or imprisonment, or both, as prescribed by 22 U.S.C. 2778(c).
(b) U.S. Customs Service officers have the authority to investigate, detain or seize any export or attempted export of defense articles or technical data contrary to this subchapter.
(c) Upon the presentation to a Customs Officer of a license or written approval authorizing the export of any defense article, the customs officer may require the production of other relevant documents and information relating to the proposed export. This includes an invoice, order, packing list, shipping document, correspondence, instructions, and the documents otherwise required by the U.S. Customs Service.
(b) Similarly, an attempt to violate any of the conditions under which a temporary export or temporary import license was issued pursuant to this subchapter or to violate the requirements of § 123.2 of this subchapter also constitutes an offense punishable under section 401 of Title 22 of the United States Code, and such article, together with any vessel, vehicle or aircraft involved in any such attempt is subject to seizure, forfeiture, and disposition as provided in section 401 of title 22 of the United States Code.
(b) Grounds.
(1) The basis for a statutory debarment, as described in paragraph (c) of this section, is any conviction for violating the Arms Export Control Act (see § 127.3 of this subchapter) or any conspiracy to violate the Arms Export Control Act.
(2) The basis for administrative debarment, described in part 128 of this subchapter, is any violation of 22 U.S.C. 2778 or any rule or regulation issued thereunder when such a violation is of such a character as to provide a reasonable basis for the Office of Defense Trade Controls to believe that the violator cannot be relied upon to comply with the statute or these rules or regulations in the future, and when such violation is established in accordance with part 128 of this subchapter.
(c) Statutory Debarment. Section 38(g)(4) of the Arms Export Control Act prohibits the issuance of licenses to persons who have been convicted of violating the U.S. criminal statutes enumerated in § 120.27 of this subchapter. Discretionary authority to issue licenses is provided, but only if certain statutory requirements are met. It is the policy of the Department of State not to consider applications for licenses or requests for approvals involving any person who has been convicted of violating the Arms Export Control Act or convicted of conspiracy to violate that Act for a three year period following conviction. Such individuals shall be notified in writing that they are debarred pursuant to this policy. A list of persons who have been convicted of such offenses and debarred for this reason shall be published periodically in the Federal Register. Debarment in such cases is based solely upon the outcome of a criminal proceeding, conducted by a court of the United States, that established guilt beyond a reasonable doubt in accordance with due process. The procedures of part 128 of this subchapter are not applicable in such cases.
(d) Appeals. Any person who is ineligible pursuant to paragraph (c) of this section may appeal to the Under Secretary of State for International Security Affairs for reconsideration of the ineligibility determination. The procedures specified in § 128.13 of this subchapter are applicable in such appeals.
(b) A motion or petition to vacate or modify an interim suspension order may be filed at any time with the Under Secretary of State for International Security Affairs. After a final decision is reached, the Director of the Office of Defense Trade Controls will issue an appropriate order disposing of the motion or petition and will promptly inform the respondent accordingly.
(b) The Office of Defense Trade Controls may make:
(1) The payment of a civil penalty under this section or
(2) The completion of any administrative action pursuant to this part 127 or 128 of this subchapter a prior condition for the issuance, restoration, or continuing validity of any export license or other approval.
(b) Policy. An exception to the policy of the Department of State to deny applications for licenses or other approvals that involve persons described in paragraph (a) of this section shall not be considered unless there are extraordinary circumstances surrounding the conviction or ineligibility to export, and only if the applicant demonstrates, to the satisfaction of the Bureau of Politico-Military Affairs, that the applicant has taken appropriate steps to mitigate any law enforcement and other legitimate concerns, and to deal with the causes that resulted in the conviction, ineligibility, or debarment. Any person described in paragraph (a) of this section who wishes to request consideration of any application must explain, in a letter to the Director, Office of Defense Trade Controls, the reasons why the application should be considered. If the Bureau of Politico-Military Affairs concludes that the application and written explanation have sufficient merit, it shall consult with the Office of the Legal Adviser and the Department of the Treasury regarding law enforcement concerns, and may also request the views of other departments, including the Department of Justice. If the Office of Defense Trade Controls does grant the license or other approval, subsequent applications from the same person need not repeat the information previously provided but should instead refer to the favorable decision.
(c) Debarred persons. Persons debarred pursuant to § 127.6(c) (statutory debarment) may not utilize the procedures provided by this section while the debarment is in force. Such persons may utilize only the procedures provided by § 127.7(d) of this part.
(b) Limitations. (1) The provisions of this section apply only when information is provided to the Office of Defense Trade Controls for its review in determining whether to take administrative action under part 128 of this subchapter concerning violation(s) of the export control provisions of the Arms Export Control Act and these regulations.
(2) The provisions of this section apply only when information is received by the Office of Defense Trade Controls for review prior to such time that either the Department of State or any other agency, bureau or department of the United States Government obtains knowledge of either the same or substantially similar information from another source and commenced an investigation or inquiry that involves that information, and that is intended to determine whether the Arms Export Control Act or these regulations, or any other license, order or other authorization issued under the Arms Export Control Act has been violated.
(3) It is possible that the activity in question-despite voluntary disclosure-might merit penalties, administrative actions, sanctions, or referrals to the Department of Justice for consideration as to whether criminal prosecution is warranted. In the latter case, the Office of Defense Trade Controls will notify the Department of Justice of the voluntary nature of the disclosure although the Department of Justice is not required to give that fact any weight. The Office of Defense Trade Controls has the sole discretion to consider whether "voluntary disclosure," in context with other relevant information in a particular case, should be a mitigating factor in determining what, if any, administrative action will be imposed. Some of the mitigating factors the Office of Defense Trade Controls may consider are:
(i) Whether the transaction would have been authorized had proper application been made;
(ii) Why the violation(s) occurred;
(iii) The degree of cooperation with the ensuing investigation;
(iv) Whether the person or firm has instituted or improved an internal compliance program to reduce the likelihood of future violation(s);
(v) Whether the person making the disclosure did so with the full knowledge and authorization of the firm’s senior management. (If not, then a firm will not be deemed to have made a disclosure as covered in this section.)
(4) The provisions of this section do not, nor should they be relied on, to create, confer, or grant any rights, benefits, privileges, or protection enforceable at law or in equity by any person, business, or entity in any civil, criminal, administrative, or other matter.
(c) Notification. (1) Any person or firm wanting to disclose information that constitutes a voluntary self-disclosure should, in the manner outlined below, initially notify the Office of Defense Trade Controls as soon as possible after violation(s) are discovered and then conduct a thorough review of all export-related transactions where violation(s) are suspected.
(2) Notification of violation(s) must be in writing and should include the following information:
(i) A precise description of the nature and extent of the violation(s) (e.g., an unauthorized shipment, doing business with a party denied U.S. export privileges, etc.);
(ii) The exact circumstances surrounding the violation(s) (a thorough explanation of why, when, where, and how the violation(s) occurred);
(iii) The complete identities and addresses of all individuals and organizations, whether foreign or domestic, involved in the activities giving rise to the violation(s);
(iv) Export license numbers, if applicable;
(v) U.S. Munitions List category and subcategory, product descriptions, quantities, and characteristics of the commodities or technical data involved;
(vi) A description of any corrective actions already undertaken;
(vii) The name and address of the person(s) making the disclosure and a point of contact, if different, should further information be needed.
(3) Factors to be considered include, for example, whether the violation(s) were intentional or inadvertent; the degree to which the person or firm responsible for the violation(s) making the disclosure was familiar with the laws and regulations; and whether the violator was the subject of prior administrative or criminal action under the AECA. In addition to immediately providing written notification, persons, firms, companies and organizations are strongly urged to conduct a thorough review of all export-related transactions where possible violation(s) are suspected.
(d) Documentation. (1) The written disclosure should be accompanied by copies of those documents that substantiate it. Where appropriate, the documentation should include, but is not limited to:
(i) Licensing documents (e.g., license applications, export licenses and end-user statements);
(ii) Shipping documents (e.g., shipper’s export declarations, airway bills and bills of lading);
(iii) Any other relevant documents must be retained by the person making the disclosure until the Office of Defense Trade Controls requests them or until a final decision on the disclosed information has been made.
(e) Certification. A certification must be submitted stating that all of the representations made in connection with the voluntary self-disclosure are true and correct to the best of that person’s knowledge and belief. Certifications made by a firm, corporation or any other organization should be executed by someone with the authority to do so.
(f) Oral presentations. It is generally not necessary to augment the written presentation with an oral presentation. However, if the person making the disclosure believes a meeting is desirable, a request for one should be included with the written presentation.
(g) Voluntary disclosures should be sent to:
Compliance Analysis Division, PM/DTC, SA-6, room 200, Office of Defense Trade Controls, Bureau of Politico-Military Affairs, U.S. Department of State, Washington, DC 20522-0602.
Authority: Secs. 2, 38, 40, 42, and 71, Arms Export Control Act. 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); E.O. 11958, 42 FR 4311: 22 U.S.C. 2658; E.O. 12291, 46 FR 1981.
(b) Service. A charging letter is served upon a respondent:
(1) If the respondent is a resident of the United States, when it is mailed postage prepaid in a wrapper addressed to the respondent at his or her last known address; or when left with the respondent or the agent or employee of the respondent; or when left at the respondent’s dwelling with some person of suitable age and discretion then residing herein; or
(2) If the respondent is a non-resident of the United States, when served upon the respondent by any of the foregoing means. If such methods of service are not practicable or appropriate, the charging letter may be tendered for service on the respondent to an official of the government of the country wherein the respondent resides, provided that there is an agreement or understanding between the United States Government and the government of the country wherein the respondent resident permitting this action.
(b) Petition to set aside defaults. Upon showing good cause, any respondent
against whom a default order has been issued may apply to set aside the default
and vacate the order entered thereon. The petition shall be submitted in
duplicate to the Assistant Secretary for Politico-Military Affairs, U.S.
Department of State, 2201 C Street, NW., Washington, DC 20520. The Director will
refer the petition to the Presiding Official for consideration and a
recommendation. The Presiding Official will consider the application and may
order a hearing and require the respondent to submit further evidence in
support of his or her petition.
within 30 days after service.
(b) Contents of answer. An answer must be responsive to the charging letter.
It must fully set forth the nature of the respondent’s defense or defenses. In
the answer, the respondent must admit or deny specifically each separate
allegation of the charging letter, unless the respondent is without knowledge,
in which case the respondent’s answer shall so state and the statement shall
operate as a denial. Failure to deny or controvert any particular allegation
will be deemed an admission thereof. The answer may set forth such additional or
new matter as the respondent believes supports a defense or claim of mitigation.
Any defense or partial defense not specifically set forth in an answer shall be
deemed waived. Evidence offered thereon by the respondent at a hearing may be
refused except upon good cause being shown. If the respondent does not demand an
oral hearing, he or she shall transmit, within 7 days after the service of his
or her answer, original or photocopies of all correspondence, papers, records,
affidavits, and other documentary or written evidence having any bearing upon or
connection with the matters in issue. If any such materials are in language
other than English, translations into English shall be submitted at the same
time.
(c) Submission of answer. The answer, written demand for oral hearing (if
any) and supporting evidence required by § 128.5(b) shall be in duplicate and
mailed or delivered to the Office of EAR Administration Proceedings, United
States Department of Commerce, room 3810, 14th Street and Constitution Avenue,
NW., Washington, DC 20230. A copy shall be simultaneously mailed or delivered to
the Director, Office of Munitions Control, Department of State, Washington, DC
20520.
(b) Discovery by the Office of Munitions Control. The Office of Munitions
Control or the Presiding Official may request from the respondent admissions of
facts, answers to interrogatories, the production of books, records, or other
relevant evidence, so long as the request is relevant and material, reasonable
in scope, and not unduly burdensome.
(c) Subpoenas. At the request of any party, the Presiding Official may issue
subpoenas, returnable before him, requiring the attendance of witnesses and the
production of books, records, and other documentary or physical evidence
determined by the Presiding Official to be relevant and material to the
proceedings, reasonable in scope, and not unduly burdensome.
(d) Enforcement of discovery rights. If the Office of Munitions Control fails
to provide the respondent with information in its possession which is not
otherwi
available and which is necessary to the respondent’s defense, the
Presiding Official may dismiss the charges on her or his own motion or on a
motion of the respondent. If the respondent fails to respond with reasonable
diligence to the requests for discovery by the Office of Munitions Control or
the Presiding Official, on her or his own motion or motion of the Office of
Munitions Control, and upon such notice to the respondent as the Presiding
Official may direct, may strike respondent’s answer and declare the respondent
in default, or make any other ruling which the Presiding Official deems
necessary and just under the circumstances. If a third party fails to respond to
the request for information, the Presiding Official shall consider whether the
evidence sought is necessary to a fair hearing, and if it is so necessary that a
fair hearing may not be held without it, the Presiding Official shall dismiss
the charges.
(b) If a conference is impracticable, the Presiding Official may request the
parties to correspond with him or her to achieve the purposes of a conference.
The Presiding Official shall prepare a summary of action taken as in the case of
a conference.
(b) The Presiding Official may administer oaths and affirmations. Respondent
may be represented by counsel. Unless otherwise agreed by the parties and the
Presiding Official, the proceeding will be taken by a reporter or by magnetic
recording, transcribed, and filed with the Presiding Official. Respondent may
examine the transcript and may obtain a copy upon payment of proper costs.
(b) The Presiding Official, after considering the record, will prepare a
written report. The report will include findings of fact, findings of law, a
finding whether a law or regulation has been violated, and the Presiding
Official’s recommendations. It shall be transmitted to the Assistant Secretary
for Politico-Military Affairs, Department of State.
(b) Cases may also be settled prior to service of a charging letter. In such
an event, a proposed charging letter shall be prepared, and a consent agreement
and order shall be submitted for the approval and signature of the Assistant
Secretary for Politico-Military Affairs, and no action by the Presiding Official
shall be required. Cases which are settled may not be reopened or appealed.
(b) Grounds and conditions for appeal. The respondent may appeal from the
debarment or from the imposition of a civil penalty (except the imposition of
civil penalties pursuant to a consent order pursuant to § 128.11) upon the
ground: (1) That the findings of a violation are not supported by any
substantial evidence; (2) that a prejudicial error of law was committed: or (3)
that the provisions of the order are arbitrary, capricious, or an abuse of
discretion. The appeal must specify upon which of these grounds the appeal is
based and must indicate from which provisions of the order the appeal is taken.
An appeal from an order issued upon default will not be entertained if the
respondent has failed to seek relief as provided in § 128.4(b).
(c) Matters considered on appeal. An appeal will be considered upon the basis
of the assembled record. This record consists of (but is not limited to) the
charging letter, the respondent’s answer, the transcript or magnetic recording
of the hearing before the Presiding Official, the report of the Presiding
Official, the order of the Assistant Secretary for Politico-Military Affairs,
and any other relevant documents involved in the proceedings before the
Presiding Official. The Under Secretary for Security Assistance, Science and
Technology may direct a rehearing and reopening before the Presiding Official if
he or she finds that the record is insufficient or that new evidence is relevant
and material to the issues and was not known and was not available to the
respondent at the time of the original hearings.
(d) Effect of appeals. The taking of an appeal will not stay the operation of
any order.
(e) Preparation of appeals.-(1) General requirements. An appeal shall be in
letter form. The appeal and accompanying material should be filed in duplicate,
unless otherwise indicated, and a copy simultaneously mailed or delivered to the
Director, Office of Munitions Control, Department of State, Washington, DC
20520.
(2) Oral presentation. The Under Secretary for Security Assistance, Science
and Technology may grant the appellant an opportunity for oral argument and will
set the time and place for oral argument and will notify the parties, ordinarily
at least 10 days before the date set.
(f) Decisions. All appeals will be considered and decided within a reasonable
time after they are filed. An appeal may be granted or denied in whole or in
part, or dismissed at the request of the appellant. The decision of the Under
Secretary for Security Assistance, Science and Technology will be final.
(b) Hearing-(1) Objections upon notice. Any person affected by an application
upon notice to revoke probation, within the time specified in the notice, may
file objections with the Presiding Official.
(2) Objections to order without notice. Any person adversely affected by an
order revoking probation, without notice may request that the order be set aside
by filing his objections thereto with the Presiding Official. The request will
not stay the effective date of the order or revocation.
(3) Requirements for filing objections. Objections filed with the Presiding
Official must be submitted in writing and in duplicate. A copy must be
simultaneously submitted to the Office of Munitions Control. Denials and
admissions, as well as any mitigating circumstances, which the person affected
intends to present must be set forth in or accompany the letter of objection and
must be supported by evidence. A request for an oral hearing may be made at the
time of filing objections.
(4) Determination. The application and objections thereto will be referred to
the Presiding Official. An oral hearing, if requested, will be conducted at an
early convenient date, unless the objections filed raise no issues of material
fact to be determined. The Presiding Official will report the facts and make a
recommendation to the Assistant Secretary for Politico-Military Affairs, who
will determine whether the application should be granted or denied and will
issue an appropriate order. A copy of the order and of the Presiding Official’s
report will be furnished to any person affected thereby.
(c) Effect of revocation on other actions. The revocation of a probationary
period will not preclude any other action concerning a further violation, even
where revocation is based on the further violation.
Authority: Sec. 39, Arms Export Control Act, 90 Stat. 767 (22 U.S.C. 2779);
E.O. 11958, 42 FR 4311, 3 CFR, 1977 Comp. p.79; 22 U.S.C. 2658.
(1) To or at the direction of any person, irrespective of nationality,
whether or not employed by or affiliated with an applicant, a supplier or a
vendor; and
(2) For the solicitation or promotion or otherwise to secure the conclusion
of a sale of defense articles or defense services to or for the use of the armed
forces of a foreign country or international organization.
(b) The term fee or commission does not include:
(1) A political contribution or a payment excluded by § 130.6 from the
definition of political contribution:
(2) A normal salary (excluding contingent compensation) established at an
annual rate and paid to a regular employee of an applicant, supplier or vendor;
(3) General advertising or promotional expenses not directed to any
particular sale or purchaser; or
(4) Payments made, or offered or agreed to be made, solely for the purchase
by an applicant, supplier or vendor of specific goods or technical,
operational or advisory services, which payments are not
disproportionate in amount with the value of the specific goods or services
actually furnished.
(a) To or for the benefit of, or at the direction of, any foreign candidate,
committee, political party, political faction, or government or governmental
subdivision, or any individual elected, appointed or otherwise designated as an
employee or officer thereof; and
(b) For the solicitation or promotion or otherwise to secure the conclusion
of a sale of defense articles or defense services to or for the use of the armed
forces of a foreign country or international organization. Taxes, customs
duties, license fees, and other charges required to be paid by applicable law or
regulation are not regarded as political contributions.
(1) A sale requiring a license or approval from the Office of Defense Trade
Controls under this subchapter; or
(2) A sale pursuant to a contract with the Department of Defense under
section 22 of the Arms Export Control Act (22 U.S.C. 2762).
(i) Political contributions in an aggregate amount of $ 5,000 or more, or
(ii) Fees or commissions in an aggregate amount of $ 100,000 or more.
If so, applicant must furnish to the Office of Defense Trade Controls the
information specified in § 130.10. The furnishing of such information or an
explanation satisfactory to the Director of the Office of Defense Trade Controls
as to why all the information cannot be furnished at that time is a condition
precedent to the granting of the relevant license or approval.
(2) The requirements of this paragraph do not apply in the case of an
application with respect to a sale for which all the information specified in §
130.10 which is required by this section to be reported shall already have been
furnished.
(b) Each supplier must inform the Office of Defense Trade Controls as to
whether the supplier or its vendors have paid, or offered or agreed to pay, in
respect of any sale:
(1) Political contributions in an aggregate amount of $ 5,000 or more, or
(2) Fees or commissions in an aggregate amount of $ 100,000 or more.
If so, supplier must furnish to the Office of Defense Trade Controls the
information specified in § 130.10. The information required to be furnished
pursuant to this paragraph must be so furnished no later than 30 days after the
contract award to such supplier, or such earlier date as may be specified by the
Department of Defense. For purposes of this paragraph, a contract award includes
a purchase order, exercise of an option, or other procurement action requiring a
supplier to furnish defense articles or defense services to the Department of
Defense for the purposes of section 22 of the Arms Export Control Act (22 U.S.C.
2762).
(c) In determining whether an applicant or its vendors, or a supplier or its
vendors, as the case may be, have paid, or offered or agreed to pay, political
contributions in an aggregate amount of $ 5,000 or more in respect of any sale
so as to require a report under this section, there must be included in the
computation of such aggregate amount any political contributions in respect of
the sale which are paid by or on behalf of, or at the direction of, any person
to whom the applicant, supplier or vendor has paid, or offered or agreed to pay,
a fee or commission in respect of the sale. Any such political contributions are
deemed for purposes of this part to be political contributions by the applicant,
supplier or vendor who paid or offered or agreed to pay the fee or commission.
(d) Any applicant or supplier which has informed the Office of Defense Trade
Controls under this section that neither it nor its vendors have paid, or
offered or agreed to pay, political contributions or fees or commissions in an
aggregate amount requiring the information specified in § 130.10 to be
furnished, must subsequently furnish such information within 30 days after
learning that it or its vendors had paid, or offered or agreed to pay, political
contributions or fees or commissions in respect of a sale in an aggregate amount
which, if known to applicant or supplier at the time of its previous
communication with the Office of Defense Trade Controls, would have required the
furnishing of information under § 130.10 at that time. Any report furnished
under this paragraph must, in addition to the information specified in § 130.10,
include a detailed statement of the reasons why applicant or supplier did not
furnish the information at the time specified in paragraph (a) or paragraph (b)
of this section, as applicable.
(1) The total contract price of the sale to the foreign purchaser;
(2) The name, nationality, address and principal place of business of the
applicant or supplier, as the case may be, and, if applicable, the employer and
title;
(3) The name, nationality, address and principal place of business, and if
applicable, employer and title of each foreign purchaser, including the ultimate
end-user involved in the sale;
(4) Except as provided in paragraph (c) of this section, a statement setting
forth with respect to such sale:
(i) The amount of each political contribution paid, or offered or agreed to
be paid, or the amount of each fee or commission paid, or offered or agreed to
be paid;
(ii) The date or dates on which each reported amount was paid, or offered or
agreed to be paid;
(iii) The recipient of each such amount paid, or intended recipient if not
yet paid;
(iv) The person who paid, or offered or agreed to pay such amount; and
(v) The aggregate amounts of political contributions and of fees or
commission, respectively, which shall have been reported.
(b) In responding to paragraph (a)(4) of this section, the statement must:
(1) With respect to each payment reported, state whether such payment was in
cash or in kind. If in kind, it must include a description and valuation
thereof. Where precise amounts are not available because a payment has not yet
been made, an estimate of the amount offered or agreed to be paid must be
provided;
(2) With respect to each recipient, state:
(i) Its name;
(ii) Its nationality;
(iii) Its address and principal place of business;
(iv) Its employer and title; and
(v) Its relationship, if any, to applicant, supplier, or vendor, and to any
foreign purchaser or end-user.
(c) In submitting a report required by § 130.9, the detailed information
specified in paragraph (a)(4) and (b) of this section need not be included if
the payments do not exceed:
(1) $ 2,500 in the case of political contributions; and
(2) $ 50,000 in the case of fees or commissions.
In lieu of reporting detailed information with respect to such payments, the
aggregate amount thereof must be reported, identified as miscellaneous political
contributions or miscellaneous fees or commissions, as the case may be.
(d) Every person required to furnish the information specified in paragraphs
(a) and (b) of this section must respond fully to each subdivision of those
paragraphs and, where the correct response is none or not applicable," must so
state.
(1) Any political contributions aggregating $ 2,500 or more or fees or
commissions aggregating $ 50,000 or more not previously reported or paid, or
offered or agreed to be paid by applicant or supplier or any vendor;
(2) Subsequent developments cause the information initially reported to be no
longer accurate or complete (as in the case where a payment actually made is
substantially different in amount from a previously reported estimate of an
amount offered or agreed to be paid); or
(3) Additional details are requested by the Office of Defense Trade Controls
with respect to any miscellaneous payments reported under § 130.10(c).
(b) Supplementary reports must be sent to the Office of Defense Trade
Controls within 30 days after the payment, offer or agreement reported therein
or, when requested by the Office of Defense Trade Controls, within 30 days after
such request, and must include:
(1) Any information specified in § 130.10 required or requested to be
reported and which was not previously reported; and
(2) The Defense Trade Control license number, if any, and the Department or
Defense contract number, if any, related to the sale.
(b) Any vendor which has been requested by an applicant or supplier to
furnish an initial statement under paragraph (a) of this section must, except as
provided in paragraph (c) of this section, furnish such statement in a timely
manner and not later than 20 days after receipt of such request.
(c) If the vendor believes that furnishing information to an applicant or
supplier in a requested statement would unreasonably risk injury to the vendor’s
commercial interests, the vendor may furnish in lieu of the statement an
abbreviated statement disclosing only the aggregate amount of all political
contributions and the aggregate amount of all fees or commissions which have
been paid, or offered or agreed to be paid, or offered or agreed to be paid, by
the vendor with respect to the sale. Any abbreviated statement furnished to an
applicant or supplier under this paragraph must be accompanied by a
certification that the requested information has been reported by the vendor
directly to the Office of Defense Trade Controls. The vendor must simultaneously
report fully to the Office of Defense Trade Controls all information which the
vendor would otherwise have been required to report to the applicant or supplier
under this section. Each such report must clearly identify the sale with respect
to which the reported information pertains.
(d)(1) If upon the 25th day after the date of its request to vendor, an
applicant or supplier has not received from the vendor the initial statement
required by paragraph (a) of this section, the applicant or supplier must submit
to the Office of Defense Trade Controls a signed statement attesting to:
(i) The manner and extent of applicant’s or supplier’s attempt to obtain from
the vendor the initial statement required under paragraph (a) of this section;
(ii) Vendor’s failure to comply with this section; and
(iii) The amount of time which has elapsed between the date of applicant’s or
supplier’s request and the date of the signed statement;
(2) The failure of a vendor to comply with this section does not relieve any
applicant or supplier otherwise required by § 130.9 to submit a report to the
Office of Defense Trade Controls from submitting such a report.
(a) Every applicant or supplier, and each vendor thereof;
(1) In order to determine whether it is obliged under § 130.9 or § 130.12 to
furnish information specified in § 130.10 with respect to a sale; and
(2) Prior to furnishing such information, must obtain from each person, if
any, to whom it has paid, or offered or agreed to pay, a fee or commission in
respect of such sale, a timely statement containing a full disclosure by such a
person of all political contributions paid, or offered or agreed to be paid, by
it or on its behalf, or at its direction, in respect of such sale. Such
disclosure must include responses to all the information required to enable the
applicant, supplier or vendor, as the case may be, to comply fully with §§
130.9, 130.10, and 130.12.
(b) In obtaining information under paragraph (a) of this section, the
applicant, supplier or vendor, as the case may be, must also require each person
to whom a fee or commission is paid, or offered or agreed to be paid, to furnish
from time to time such reports of its political contributions as may be
necessary to enable the applicant, supplier or vendor, as the case may be,
to comply fully with §§ 130.9, 130.10, 130.11, and 130.12.
(c) The applicant supplier or vendor, as the case may be, must include any
political contributions paid, or offered or agreed to be paid, by or on behalf
of, or at the direction of, any person to whom it has paid, or offered or agreed
to pay a fee or commission in determining whether applicant, supplier or vendor
is required by §§ 130.9, 130.11, and 130.12 to furnish information specified in
§ 130.10.
(b) For purposes of this section, confidential business information means
commercial or financial information which by law is entitled to protection from
disclosure. (See, e.g., 5 U.S.C. 552(b) (3) and (4); 18 U.S.C. 1905; 22 U.S.C.
2778(e); Rule 26(c)(7), Federal Rules of Civil Procedure.)
(b) All confidential business information provided pursuant to this part
shall be protected against disclosure to the extent provided by law.
(c) Nothing in this section shall preclude the
furnishing of information to foreign governments for law enforcement
or regulatory purposes under international arrangements between the
United States and any foreign government.
§ 128.5 -- Answer and Demand for oral hearing.
(a) When to answer. The respondent is required to answer the charging letter
§ 128.6 -- Discovery.
(a) Discovery by the respondent. The respondent, through the Presiding
Official, may request from the Office of Munitions Control any relevant
information, not privileged, that may be necessary or helpful in preparing a
defense. The Office of Munitions Control any relevant information, not
privileged, that may be necessary or helpful in preparing a defense. The Office
of Munitions Control may supply summaries in place of original documents and may
withhold information from discovery if necessary to comply with any statute,
executive order or regulation requiring that the information not be disclosed.
The respondent may request the Presiding Officer to request any relevant
information, books, records, or other evidence, from any other person or
government agency so long as the request is reasonable in scope and not unduly
burdensome.
§ 128.7 -- Prehearing conference.
(a) The Presiding Official may, upon his own motion or upon motion of any
party, request the parties or their counsel to a prehearing conference to
consider (1) simplification of issues; (2) the necessity or desirability of
amendments to pleadings; (3) obtaining stipulations of fact and of documents to
avoid unnecessary proof; or (4) such other matter as may expedite the
disposition of the proceeding. The Presiding Official will prepare a summary of
the action agreed upon or taken at the conference, and will incorporate therein
any written stipulations or agreements made by the parties. The conference
proceedings may be recorded magnetically or taken by a reporter and transcribed,
and filed with the Presiding Official.
§ 128.8 -- Hearings.
(a) A respondent who had not filed a timely written answer is not entitled to
a hearing, and the case may be considered by the Presiding Official as provided
in § 128.4(a). If any answer is filed, but no oral hearing demanded, the
Presiding Official may proceed to consider the case upon the written pleadings
and evidence available. The Presiding Official may provide for the making of the
record in such manner as the Presiding Official deems appropriate. If respondent
answers and demands an oral hearing, the Presiding Official, upon due notice,
shall set the case for hearing, unless a respondent has raised in his answer no
issues of material fact to be determined. If respondent fails to appear at a
scheduled hearing, the hearing nevertheless may proceed in respondent’s absence.
The respondent’s failure to appear will not affect the validity of the hearing
or any proceedings or action thereafter.
§ 128.9 -- Proceedings before and report of Presiding Official.
(a) The Presiding Official may conform any part of the proceedings before him
or her to the Federal Rules of Civil Procedure. The record may be made available
in any other administrative or other proceeding involving the same respondent.
§ 128.10 -- Disposition of proceedings.
Where the evidence is not sufficient to support the charges, the Director,
Office of Munitions Control or the Presiding Official will dismiss the charges.
Where the Presiding Official finds that a violation has been committed, the
Presiding Official’s recommendation shall be advisory only. The Assistant
Secretary for Politico-Military Affairs will review the record, consider the
report of the Presiding Official, and make an appropriate disposition of the
case. The Director may issue an order debarring the respondent from
participating in the export of defense articles or technical data or the
furnishing of defense services as provided in § 127.6 of this subchapter, impose
a civil penalty as provided in § 127.9 of this subchapter or take such other
action as the presiding Official deems appropriate. Any debarment order will be
effective for the period of time specified therein and may contain such
additional terms and conditions as are deemed appropriate. A copy of the order
together with a copy of the Presiding Official’s report will be served upon the
respondent.
§ 128.11 -- Consent agreements.
(a) The Office of Munitions Control and the respondent may, by agreement,
submit to the Presiding Official a proposal for the issuance of a consent order.
The Presiding Official will review the facts of the case and the proposal and
may conduct conferences with the parties and may require the presentation of
evidence in the case. If the Presiding Official does not approve the proposal,
the Presiding Official will notify the parties and the case will proceed as
though no consent proposal had been made. If the proposal is approved, the
Presiding Official will report the facts of the case along with recommendations
to the Assistant Secretary for Politico-Military Affairs. If the Director does
not approve the proposal, the case will proceed as though no consent proposal
has been made. If the Director approves the proposal, an appropriate order may
be issued.
§ 128.12 -- Rehearings.
The Presiding Official may grant a rehearing or reopen a proceeding at any
time for the purpose of hearing any relevant and material evidence which was not
known or obtainable at the time of the original hearing. A report for rehearing
or reopening must contain a summary of such evidence, and must explain the
reasons why it could not have been presented at the original hearing. The
Presiding Official will inform the parties of any further hearing, and will
conduct such hearing and submit a report and recommendations in the same manner
as provided for the original proceeding (described in § 128.10).
§ 128.13 -- Appeals.
(a) Filing of appeals. An appeal must be in writing, and be addressed to and
filed with the Under Secretary of State for Security Assistance, Science and
Technology, Department of State, Washington, DC 20520. An appeal from a final
order denying export privileges or imposing civil penalties must be filed within
30 days after receipt of a copy of the order. If the Under Secretary cannot for
any reason act on the appeal, he or she may designate another Department of
State official to receive and act on the appeal.
§ 128.14 -- Confidentiality of proceedings.
Proceedings under this part are confidential. The documents referred to in §
128.17 are not, however, deemed to be confidential Reports of the Presiding
Official and copies of transcripts or recordings of hearings will be available
to parties and, to the extent of their own testimony, to witnesses. All records
are available to any U.S. Government agency showing a proper interest therein.
§ 128.15 -- Orders containing probationary periods.
(a) Revocation of probationary periods. A debarment or interim suspension
order may set a probationary period during which the order may be held in
abeyance for all or part of the debarment or suspension period, subject to the
conditions stated therein. The Director, Office of Munitions Control, may apply,
without notice to any person to be affected thereby, to the Presiding Official
for an order revoking probation when it appears that the conditions of the
probation have been breached. The facts in support of the application will be
presented to the Presiding Official, who will report thereon and make a
recommendation to the Assistant Secretary for Politico-Military Affairs. The
latter will make a determination whether to revoke probation and will issue an
appropriate order.
§ 128.16 -- Extension of time.
The Presiding Official, for good cause shown, may extend the time within
which to prepare and submit an answer to a charging letter or to perform any
other act required by this part 128.
§ 128.17 -- Availability of orders.
All charging letters, debarment orders, orders imposing civil penalties,
probationary periods, and interim suspension orders are available for public
inspection in the Public Reading Room of the Department of State.
PART 129-[RESERVED]
PART 130-POLITICAL CONTRIBUTIONS, FEES AND COMMISSIONS
130.1 Purpose.
130.2 Applicant.
130.3 Armed forces.
130.4 Defense articles and defense services.
130.5 Fee or commission.
130.6 Political contribution.
130.7 Supplier.
130.8 Vendor.
130.9 Obligation to furnish information to the Office of Defense Trade Controls.
130.10 Information to be furnished by applicant or supplier to the Office of
Defense Trade Controls.
130.11 Supplementary reports.
130.12 Information to be furnished by vendor to applicant or supplier.
130.13 Information to be furnished to applicant, supplier or vendor by a
recipient of a fee or commission.
130.14 Recordkeeping.
130.15 Confidential business information.
130.16 Other reporting requirements.
130.17 Utilization of and access to reports and records.
§ 130.1 -- Purpose.
Section 39(a) of the Arms Export Control Act (22 U.S.C. 2779) provides that
the Secretary of State shall prescribe regulations with respect to reporting on
certain payments relating to sales of defense articles and defense services.
The provisions of this part implement that requirement. Definitions which apply
to this part are contained in §§ 130.2 through 130.8.
§ 130.2 -- Applicant.
Applicant means any person who applies to the Office of Defense Trade
Controls for any license or approval required under this subchapter for the
export of defense articles or defense services valued in an amount of $ 500,000
or more which are being sold commercially to or for the use of the armed forces
of a foreign country or international organization. This term also includes a
person to whom the required license or approval has been given.
§ 130.3 -- Armed forces.
Armed forces means the army, navy, marine, air force, or coast guard, as well
as the national guard and national police, of a foreign country. This term also
includes any military unit or military personnel organized under or assigned to
an international organization.
§ 130.4 -- Defense articles and defense services.
Defense articles and defense services have the meaning given those terms in
paragraphs (3), (4) and (7) of section 47 of the Arms Export Control Act (22
U.S.C. 2794 (3), (4), and (7)). When used with reference to commercial sales,
the definitions in §§ 120.6 and 120.9 of this subchapter apply.
§ 130.5 -- Fee or commission.
(a) Fee or commission means, except as provided in paragraph (b) of this
section, any loan, gift, donation or other payment of $ 1,000 or more made, or
offered or agreed to be made directly or indirectly, whether in cash or in kind,
and whether or not pursuant to a written contract, which is:
§ 130.6 -- Political contribution.
Political contribution means any loan, gift, donation or other payment of $
1,000 or more made, or offered or agreed to be made, directly or indirectly,
whether in cash or in kind, which is:
§ 130.7 -- Supplier.
Supplier means any person who enters into a contract with the Department of
Defense for the sale of defense articles or defense services valued in an amount
of $ 500,000 or more under section 22 of the Arms Export Control Act (22 U.S.C.
2762).
§ 130.8 -- Vendor.
Vendor means any distributor or manufacturer who, directly or indirectly,
furnishes to an applicant or supplier defense articles valued in an amount of $
500,000 or more which are end-items or major components as defined in § 121.8 of
this subchapter. It also means any person who, directly or indirectly, furnishes
to an applicant or supplier defense articles or services valued in an amount of
$ 500,000 or more when such articles or services are to be delivered (or
incorporated in defense articles or defense services to be delivered) to or for
the use of the armed forces of a foreign country or international organization
under:
§ 130.9 -- Obligation to furnish information to the Office of Defense Trade
Controls.
(a)(1) Each applicant must inform the Office of Defense Trade Controls as to
whether applicant or its vendors have paid, or offered or agreed to pay, in
respect of any sale for which a license or approval is requested:
§ 130.10 -- Information to be furnished by applicant or supplier to the Office
of Defense Trade Controls.
(a) Every person required under § 130.9 to furnish information specified in
this section in respect to any sale must furnish to the Office of Defense Trade
Controls:
§ 130.11 -- Supplementary reports.
(a) Every applicant or supplier who is required under § 130.9 to furnish the
information specified in § 130.10 must submit a supplementary report in
connection with each sale in respect of which applicant or supplier has
previously been required to furnish information if:
§ 130.12 -- Information to be furnished by vendor to applicant or supplier.
(a) In order to determine whether it is obliged under § 130.9 to furnish the
information specified in § 130.10 with respect to a sale, every applicant or
supplier must obtain from each vendor, from or through whom the applicant
acquired defense articles or defense services forming the whole or a part of the
sale, a full disclosure by the vendor of all political contributions or fees or
commission paid, by vendor with respect to such sale. Such disclosure must
include responses to all the information pertaining to vendor required to enable
applicant or supplier, as the case may be, to comply fully with §§ 130.9 and
130.10. If so required, they must include the information furnished by each
vendor in providing the information specified.
§ 130.13 -- Information to be furnished to applicant, supplier or vendor by a
recipient of a fee or commission.
§ 130.14 -- Recordkeeping.
Each applicant, supplier and vendor must maintain a record of any information
it was required to furnish or obtain under this part and all records upon which
its reports are based for a period of not less than five years following the
date of the report to which they pertain.
§ 130.15 -- Confidential business information.
(a) Any person who is required to furnish information under this part may
identify any information furnished hereunder which the person considers to be
confidential business information. No person, including any applicant or
supplier, shall publish, divulge, disclose, or make known in any manner, any
information so identified by a vendor or other person unless authorized by law
or regulation.
§ 130.16 -- Other reporting requirements.
The submission of reports under this part does not relieve any person of any
requirements to furnish information to any federal, state, or municipal agency,
department or other instrumentality as required by law, regulation or
contract.
§ 130.17 -- Utilization of and access to reports and records.
(a) All information reported and records maintained under this part will be
made available, upon request for utilization by standing committees of the
Congress and subcommittees thereof, and by United States Government agencies, in
accordance with section 39(d) of the Arms Export Control Act (22 U.S.C.
2779(d)), and reports based upon such information will be submitted to Congress
in accordance with sections 36(a)(8) and 36(b)(1) of that Act (22 U.S.C. 2776
(a)(8) and (b)(1)).
This Document
This HTML document was formatted by scripts and macros.
Doubtless some went astray or we missed something.
If you find a typographic or formatting error, please let us know at Info@GMTsw.com.
Copyright © 1998, 1999 Glassey-McNeil Technologies -
All rights reserved