PART 120—PURPOSE AND DEFINITIONS Authority: 22 U.S.C. 2651a, 2752, 2753, 2776, 2778, 2779, 2779a, 2785, 2794, 2797; E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp., p. 223. Source: 87 FR 16411, Mar. 23, 2022, unless otherwise noted. Subpart A—General Information § 120.1 General authorities. (a) Authority and delegation. et seq. (b) Authorized officials. (2) The Deputy Assistant Secretary of State for Defense Trade Controls supervises the Directorate of Defense Trade Controls, which is comprised of the following offices: (i) The Office of Defense Trade Controls Licensing and the Director, Office of Defense Trade Controls Licensing, which have responsibilities related to licensing or other approvals of defense trade, including references under this part and parts 123, 124, 125, 126, 129, and 130 of this subchapter. (ii) The Office of Defense Trade Controls Compliance and the Director, Office of Defense Trade Controls Compliance, which have responsibilities related to violations of law or regulation and compliance therewith, including references contained in parts 122, 126, 127, 128, and 130 of this subchapter, and those portions under this part and part 129 of this subchapter pertaining to registration. (iii) The Office of Defense Trade Controls Policy and the Director, Office of Defense Trade Controls Policy, which have responsibilities related to the general policies of defense trade, including references under this part and part 126 of this subchapter, and the commodity jurisdiction procedure under this part. § 120.2 Designation of defense articles and defense services. The Arms Export Control Act (22 U.S.C. 2778(a) and 2794(7)) provides that the President shall designate the articles and services deemed to be defense articles and defense services for purposes of import or export controls. The President has delegated to the Secretary of State the authority to control the export and temporary import of defense articles and services. The items designated by the Secretary of State for purposes of export and temporary import control constitute the U.S. Munitions List (USML) specified in part 121 of this subchapter. Defense articles on the USML specified in part 121 of this subchapter that are also subject to permanent import control by the Attorney General on the U.S. Munitions Import List enumerated in 27 CFR part 447 are subject to temporary import controls administered by the Secretary of State. Designations of defense articles and defense services on the USML in part 121 of this subchapter are made by the Department of State with the concurrence of the Department of Defense. The scope of the USML shall be changed only by amendments made pursuant to section 38 of the Arms Export Control Act (22 U.S.C. 2778). For a designation or determination on whether a particular item is enumerated on the USML, see § 120.3 Policy on designating or determining defense articles and services on the U.S. Munitions List. (a) For purposes of this subchapter, a specific article or service may be designated a defense article (see § 120.31) or defense service (see § 120.32) if it: (1) Meets the criteria of a defense article or defense service on the U.S. Munitions List (USML) (part 121 of this subchapter); or (2) Provides the equivalent performance capabilities of a defense article on the USML. (b) For purposes of this subchapter, a specific article or service shall be determined in the future as a defense article or defense service if it provides a critical military or intelligence advantage such that it warrants control under this subchapter. Note 1 to paragraphs (a) and (b): An article or service determined in the future pursuant to this subchapter as a defense article or defense service, but not currently on the USML, will be placed in Category XXI of § 121.1 of this subchapter until the appropriate category of the USML has been amended to provide the necessary entry. (c) A specific article or service is not a defense article or defense service for purposes of this subchapter if it: (1) Is determined to be under the jurisdiction of another department or agency of the U.S. Government (see § 120.5) pursuant to a commodity jurisdiction determination (see § 120.4) unless superseded by changes to the USML or by a subsequent commodity jurisdiction determination; or (2) Meets one of the criteria of § 120.41(b) when the article is used in or with a defense article and specially designed is used as a control criteria. Note 2 to § 120.3: The intended use of the article or service after its export ( i.e., § 120.4 Commodity jurisdiction. (a) The commodity jurisdiction procedure is used with the U.S. Government if doubt exists as to whether an article or service is covered by the U.S. Munitions List (USML). It may also be used for consideration of a redesignation of an article or service currently covered by the USML. The Department must provide notice to Congress at least 30 days before any item is removed from the USML. (b) The procedure for submitting a Commodity Jurisdiction Determination Request to the Directorate of Defense Trade Controls is set forth in § 120.12. § 120.5 Relation to regulations of other agencies. (a) The Department of Justice, the U.S. Munitions Import List (USMIL), and permanent imports. (b) The Department of Commerce and the Export Administration Regulations Export of items subject to the Export Administration Regulations by authority of the Department of Commerce. (2) Export of items subject to the EAR by authority of the Department of State. see see see (c) Nuclear related controls; Department of Energy and the Nuclear Regulatory Commission. (2) The transfer of materials, including special nuclear materials, nuclear parts of nuclear weapons, or other, non-nuclear parts of nuclear weapons systems involving Restricted Data or of assistance involving any person directly or indirectly engaging in the production or use thereof is prohibited except as authorized by the AEA. The transfer of Restricted Data or such assistance is prohibited except as authorized by the AEA. The technical data or defense services relating to nuclear weapons, nuclear weapons systems or related defense purposes (and such data or services relating to applications of atomic energy for peaceful purposes, or related research and development) may constitute Restricted Data or such assistance, subject to the foregoing prohibition. (3) A license for the export of a defense article, technical data, or the furnishing of a defense service relating to defense articles referred to in Category VI(e) or Category XX(b)(1) of § 121.1 of this subchapter will not be granted unless the defense article, technical data, or defense service comes within the scope of an existing Agreement for Cooperation for Mutual Defense Purposes concluded pursuant to the AEA with the government of the country to which the defense article, technical data, or defense service is to be exported. Licenses may be granted in the absence of such an agreement only: (i) If the proposed export involves an article which is identical to that in use in an unclassified civilian nuclear power plant; (ii) If the proposed export has no relationship to naval nuclear propulsion; and (iii) If it is not for use in a naval propulsion plant. § 120.6 U.S. criminal statutes. For purposes of this subchapter, the phrase U.S. criminal statutes (a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778); (b) Section 1760 of the Export Control Reform Act of 2018 (50 U.S.C. 4819) or section 11 of the Export Administration Act of 1979 (50 U.S.C. 4610); (c) Section 793, 794, or 798 of title 18, United States Code (relating to espionage involving defense or classified information) or section 2332d, 2339A, 2339B, 2339C, or 2339D of such title (relating to financial transactions with the government of a country designated as a country supporting international terrorism, providing material support to terrorists or terrorist organizations, financing of terrorism, or receiving military-type training from a foreign terrorist organization); (d) Section 16 of the Trading with the Enemy Act (50 U.S.C. 4315); (e) Section 206 of the International Emergency Economic Powers Act (relating to foreign assets controls; 50 U.S.C. 1705); (f) Section 30A of the Securities Exchange Act of 1934 (15 U.S.C. 78dd-1) or section 104 of the Foreign Corrupt Practices Act (15 U.S.C. 78dd-2 or 78dd-3); (g) Chapter 105 of title 18, United States Code (relating to sabotage); (h) Section 4(b) of the Internal Security Act of 1950 (relating to communication of classified information; 50 U.S.C. 783(a)); (i) Sections 57, 92, 101, 104, 222, 224, 225, or 226 of the Atomic Energy Act of 1954 (42 U.S.C. 2077, 2122, 2131, 2134, 2272, 2274, 2275, and 2276); (j) Section 601 of the National Security Act of 1947 (relating to intelligence identities protection; 50 U.S.C. 421); (k) Section 371 of title 18, United States Code (when it involves conspiracy to violate any of the statutes listed in this section); (l) Sections 3, 4, 5, and 6 of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 sections 6903-6906, relating to missile systems designed to destroy aircraft (18 U.S.C. 2332g), prohibitions governing atomic weapons (42 U.S.C. 2122), radiological dispersal services (18 U.S.C. 2332h), and variola virus (18 U.S.C. 175c); (m) Sections 2779 and 2780 of title 22, United States Code (relating to fees of military sales agents and other payments, and transactions with countries supporting acts of international terrorism); (n) Section 542 of title 18, United States Code (relating to the entry of goods by means of false statements), where the underlying offense involves a defense article, including technical data, or violations related to the Arms Export Control Act (AECA) or International Traffic in Arms Regulations (ITAR) in this subchapter; (o) Section 545 of title 18, United States Code (relating to smuggling goods into the United States), where the underlying offense involves a defense article, including technical data, or violations related to the AECA or ITAR; (p) Section 554 of title 18, United States Code (relating to smuggling goods from the United States), where the underlying offense involves a defense article, including technical data, or violations related to the AECA or ITAR; and (q) Section 1001 of title 18, United States Code (relating to false statements or entries generally), Section 1831 of title 18, United States Code (relating to economic espionage), and Section 1832 of title 18, United States Code (relating to theft of trade secrets) where the underlying offense involves a defense article, including technical data, or violations related to the AECA or ITAR. § 120.7 Relations to other provisions of law. (a) The provisions in this subchapter are in addition to, and are not in lieu of, any other provisions of law or regulations. The sale of firearms in the United States, for example, remains subject to the provisions of the Gun Control Act of 1968 and regulations administered by the Department of Justice. The performance of defense services on behalf of foreign governments by retired military personnel continues to require consent pursuant to part 3a of this title. Persons who intend to export defense articles or furnish defense services should not assume that satisfying the requirements of this subchapter relieves one of other requirements of law. (b) All determinations, authorizations, licenses, approvals of contracts and agreements, and other action issued, authorized, undertaken, or entered into by the Department of State pursuant to section 414 of the Mutual Security Act of 1954, as amended, or under the previous provisions of this subchapter, continue in full force and effect until or unless modified, revoked, or superseded by the Department of State. §§ 120.8-120.9 [Reserved] Subpart B—General Policies and Processes § 120.10 Introduction to the U.S. Munitions List. (a) The U.S. Munitions List. Federal Register. (b) Composition of U.S. Munitions List categories. (c) Significant Military Equipment paragraphs in the USML. (d) Missile Technology Control Regime (MTCR) designation. § 120.11 Order of review. (a) Control. (1) Enumerated in a category; or (2) Described in a catch-all paragraph that incorporates specially designed as a control parameter. In order to classify an item on the USML, begin with a review of the general characteristics of the item. This should guide you to the appropriate category, whereupon you should attempt to match the particular characteristics and functions of the article to a specific entry within that category. (b) Specially designed. (2) An item described in multiple entries should be categorized according to an enumerated entry rather than a specially designed catch-all paragraph. (c) Integration of controlled items. (d) Other controls. § 120.12 Commodity jurisdiction determination requests. (a) Upon electronic submission of a Commodity Jurisdiction Determination Form (Form DS-4076), the Directorate of Defense Trade Controls (DDTC) shall provide a determination of whether a particular article or service is covered by the U.S. Munitions List in part 121 of this subchapter. The determination, consistent with §§ 120.2, 120.3, and 120.4, entails consultation among the Departments of State, Defense, Commerce, and other U.S. Government agencies and industry in appropriate cases. State, Defense, and Commerce will resolve commodity jurisdiction determination disputes in accordance with established procedures. State shall notify Defense and Commerce, and other U.S. Government agencies as appropriate, of the initiation and conclusion of each case. (b) A determination that an article or service meets the criteria of a defense article or defense service, or provides the equivalent performance capabilities of a defense article on the U.S. Munitions List, is made on a case-by-case basis, taking into account: (1) The form and fit of the article; (2) The function and performance capability of the article; and (3) Other applicant-provided information, to include a history of the product's design, development, and use, as well as specifications and any other relevant data as described in brochures and other related documents. (c) A determination that an article or service has a critical military or intelligence advantage such that it warrants control under Category XXI of § 121.1 of this subchapter is made, on a case-by-case basis, taking into account: (1) The function and performance capability of the article; and (2) The nature of controls imposed by other nations on such items (including the Wassenaar Arrangement and other multilateral controls). (d) DDTC will provide a preliminary response within 10 working days of receipt of a complete request for commodity jurisdiction determination. If after 45 days DDTC has not provided a final commodity jurisdiction determination, the applicant may request in writing to the Director, Office of Defense Trade Controls Policy that this determination be given expedited processing. (e) A person may appeal a commodity jurisdiction determination by submitting a written request for reconsideration to the Deputy Assistant Secretary of State for Defense Trade Controls. The Deputy Assistant Secretary's determination of the appeal will be provided, in writing, within 30 days of receipt of the appeal. If desired, an appeal of the Deputy Assistant Secretary's decision can then be made to the Assistant Secretary of State for Political-Military Affairs. (f) Registration with DDTC as described in part 122 of this subchapter is not required prior to submission of a commodity jurisdiction determination request. § 120.13 Registration. (a) Any person who engages in the United States in the business of manufacturing or exporting or temporarily importing defense articles, or furnishing defense services, is required to register with the Directorate of Defense Trade Controls as set forth in part 122 of this subchapter. For the purpose of this subchapter, engaging in such a business requires only one occasion of manufacturing or exporting or temporarily importing a defense article or furnishing a defense service. A manufacturer who does not engage in exporting must nevertheless register. (b) Any U.S. person; foreign person located in the United States; or foreign person located outside the United States that is owned or controlled by a U.S. person, who engages in brokering activities is required to register with the Directorate of Defense Trade Controls as set forth in part 129 of this subchapter. (c) The registration requirements as set forth in parts 122 and 129 of this subchapter include limited exemptions. [87 FR 16411, Mar. 23, 2022, as amended at 88 FR 12213, Jan. 27, 2023] § 120.14 Licenses and related authorizations. (a) Export, reexport, retransfer, or temporary import, of defense articles. (b) Furnishing defense services. (c) Brokering activities. § 120.15 Exemptions. (a) Persons otherwise required to register with the Directorate of Defense Trade Controls in accordance with this subchapter must do so prior to utilization of an exemption. (b) Exemptions provided in this subchapter may not be utilized for transactions in which the exporter, any party to the export, any source or manufacturer, broker or other participant in the brokering activities, is generally ineligible as set forth in § 120.16, unless prior written authorization has been granted by the Directorate of Defense Trade Controls. (c) Exemptions provided in this subchapter do not apply with respect to defense articles or defense services originating in or for export to any proscribed countries, areas, or persons identified in § 126.1 of this subchapter, except as provided in § 126.1. (d) Each exemption provided in this subchapter is subject to limitation as described in the section or paragraph of this subchapter in which the exemption is prescribed. (e) Any person engaging in any export, reexport, transfer, or retransfer of a defense article or defense service pursuant to an exemption must maintain records of each such export, reexport, transfer, or retransfer. The records shall, to the extent applicable to the transaction and consistent with the requirements of § 123.22 of this subchapter, include the following information: A description of the defense article, including technical data, or defense service; the name and address of the end-user and other available contact information (e.g., telephone number and electronic mail address); the name of the natural person responsible for the transaction; the stated end-use of the defense article or defense service; the date of the transaction; the Electronic Export Information (EEI) Internal Transaction Number (ITN); and the method of transmission. The person using or acting in reliance upon the exemption shall also comply with any additional recordkeeping requirements enumerated in the text of the regulations concerning such exemption (e.g., requirements specific to the Defense Trade Cooperation Treaties in §§ 126.16 and 126.17 of this subchapter). (f) To claim an exemption for the export of technical data under the provisions of this subchapter (e.g., §§ 125.4 and 125.5 of this subchapter), the exporter must certify that the proposed export is covered by a relevant section of this subchapter, to include the paragraph and applicable subordinate paragraph. Certifications consist of clearly marking the package or letter containing the technical data “22 CFR [insert ITAR exemption] applicable.” This certification must be made in written form and retained in the exporter's files for a period of 5 years. For exports that are oral, visual, or electronic the exporter must also complete a written certification and retain it for a period of 5 years. § 120.16 Eligibility for approvals. (a) A U.S. person may receive a license or other approval pursuant to this subchapter. A foreign person may not receive such a license or other approval, except as follows: (1) A foreign governmental entity in the U.S. may receive a license or other approval; (2) A foreign person may receive a reexport or retransfer approval; or (3) A foreign person may receive an approval for brokering activities. (b) A request for a license or other approval by a U.S. person or by a person referred to in paragraphs (a)(1) and (3) of this section will be considered only if the applicant has registered with the Directorate of Defense Trade Controls pursuant to part 122 or 129 of this subchapter, as appropriate. (c) Persons who have been convicted of violating the U.S. criminal statutes enumerated in § 120.6, who have been debarred pursuant to part 127 or 128 of this subchapter, who are subject to indictment or are otherwise charged (e.g., charged by criminal information in lieu of indictment) with violating the U.S. criminal statutes enumerated in § 120.6, who are ineligible to contract with or to receive a license or other form of authorization to import defense articles or defense services from any agency of the U.S. Government, who are ineligible to receive an export license or other approval from any other agency of the U.S. Government, or who are subject to a publicly announced Department of State policy of denial, suspension, or revocation under § 120.18(a), are generally ineligible to be involved in activities regulated under this subchapter. § 120.17 End-use monitoring. (a) Pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2785) and related delegations of authority, the Department of State is required to establish a monitoring program in order to improve accountability with respect to defense articles and defense services, sold, leased, or exported under Department of State licenses or other approvals under section 38 of the Arms Export Control Act and this subchapter. (b) All exports of defense articles, technical data, services, and brokering activities made pursuant to this subchapter are subject to end-use monitoring by the Department of State through the Blue Lantern program. § 120.18 Denial, revocation, suspension, or amendment of licenses and other approvals. (a) Policy. (1) The Department of State deems such action to be in furtherance of world peace, the national security or the foreign policy of the United States, or is otherwise advisable; or (2) The Department of State believes that 22 U.S.C. 2778, any regulation contained in this subchapter, or the terms of any U.S. Government export authorization (including the terms of a manufacturing license or technical assistance agreement, or export authorization granted pursuant to the Export Administration Regulations in 15 CFR parts 730 through 774) has been violated by any party to the export or other person having significant interest in the transaction; or (3) An applicant is the subject of a criminal complaint, other criminal charge (e.g., an information), or indictment for a violation of any of the U.S. criminal statutes enumerated in § 120.6; or (4) An applicant or any party to the export or the agreement has been convicted of violating any of the U.S. criminal statutes enumerated in § 120.6; or (5) An applicant is ineligible to contract with, or to receive a license or other authorization to import defense articles or defense services from, any agency of the U.S. Government; or (6) An applicant, any party to the export or agreement, any source or manufacturer of the defense article or defense service or any person who has a significant interest in the transaction has been debarred, suspended, or otherwise is ineligible to receive an export license or other authorization from any agency of the U.S. Government (e.g., pursuant to an order denying export privileges issued by the Department of Commerce under 15 CFR part 766 or by the Department of State under part 127 or 128 of this subchapter); or (7) An applicant has failed to include any of the information or documentation expressly required to support a license application, exemption, or other request for approval under this subchapter, or as required in the instructions in the applicable Department of State form or has failed to provide notice or information as required under this subchapter; or (8) An applicant is subject to sanctions under other relevant U.S. laws (e.g., the Missile Technology Controls title of the National Defense Authorization Act for FY 1991 (Pub. L. 101-510); the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (Pub. L. 102-182); or the Iran-Iraq Arms Non-Proliferation Act of 1992 (Pub. L. 102-484)); or (9) Any person involved in the transaction has been the subject of an unfavorable finding of an end-use monitoring check as described in § 120.17. (b) Notification. (c) Reconsideration. (d) Reconsideration of certain applications. § 120.19 Violations and penalties. (a) Part 127 of this subchapter specifies conduct that constitutes a violation of the Arms Export Control Act (AECA) and/or the International Traffic in Arms Regulations in this subchapter and the sanctions that may be imposed for such violations. (b) The Department strongly encourages the disclosure of information to the Directorate of Defense Trade Controls by persons that believe they may have violated any export control provision of the AECA, or any regulation in this subchapter, order, license, or other authorization issued under the authority of the AECA. § 120.20 Administrative procedures. The Arms Export Control Act (AECA) authorizes the President to control the import and export of defense articles and services in furtherance of world peace and the security and foreign policy of the United States. Pursuant to delegated authorities, the Secretary of State is authorized to make decisions on whether license applications or other written requests for approval shall be granted, or whether exemptions may be used. The Secretary of State is also authorized to revoke, suspend, or amend licenses or other written approvals whenever such action is deemed to be advisable. The administration of the AECA is a foreign affairs function encompassed within the meaning of the military and foreign affairs exclusion of the Administrative Procedure Act and is thereby expressly exempt from various provisions of that Act. Because the exercising of the foreign affairs function, including the decisions required to implement the AECA, is highly discretionary, it is excluded from review under the Administrative Procedure Act. § 120.21 Disclosure of information. (a) Freedom of information. (b) Determinations required by law. (c) Information required under part 130 of this subchapter. (d) National interest determinations. (1) Furnishing information to foreign governments for law enforcement or regulatory purposes; and (2) Furnishing information to foreign governments and other agencies of the U.S. Government in the context of multilateral or bilateral export regimes (e.g., the Missile Technology Control Regime, the Australia Group, and Wassenaar Arrangement). § 120.22 Advisory opinions and related authorizations. (a) Preliminary authorization determinations. (b) Related authorizations. (c) Interpretations of the International Traffic in Arms Regulations in this subchapter. § 120.23 Organizations and arrangements. (a) North Atlantic Treaty Organization. (b) Major non-NATO ally. et seq. et seq. (2) The following countries have been designated as major non-NATO allies: Argentina, Australia, Bahrain, Brazil, Colombia, Egypt, Israel, Japan, Jordan, Kenya, Kuwait, Morocco, New Zealand, Pakistan, the Philippines, Qatar, the Republic of Korea, Thailand, and Tunisia. Taiwan shall be treated as though it were designated a major non-NATO ally. (c) Wassenaar Arrangement. (2) The term Wassenaar Munitions List (WAML) refers to the list of military items for which all participants have agreed to maintain national export controls. (d) Missile Technology Control Regime Regime. (2) MTCR Annex. (3) List of all items on the MTCR Annex. (e) Defense Trade Cooperation Treaty between the United States and Australia. (f) Australia Implementing Arrangement. (g) Defense Trade Cooperation Treaty between the United States and the United Kingdom. (h) United Kingdom Implementing Arrangement. [87 FR 16411, Mar. 23, 2022, as amended at 90 FR 29722, July 7, 2025] §§ 120.24-120.29 [Reserved] Subpart C—Definitions § 120.30 Directorate of Defense Trade Controls. Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State, Washington, DC 20522-0112. § 120.31 Defense article. (a) Defense article (1) Technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in § 121.1 of this subchapter; and (2) Forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles. (b) It does not include basic marketing information on function or purpose or general system descriptions. (c) The policy described in § 120.3 is applicable to designations of additional items. § 120.32 Defense service. (a) Defense service (1) The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles; (2) The furnishing to foreign persons of any technical data controlled under this subchapter, whether in the United States or abroad; or (3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice. (b) [Reserved] § 120.33 Technical data. (a) Technical data (1) Information, other than software as defined in § 120.40(g), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions, or documentation; (2) Classified information relating to defense articles and defense services on the U.S. Munitions List and 600-series items controlled by the Commerce Control List; (3) Information covered by an invention secrecy order; or (4) Software (see § 120.40(g)) directly related to defense articles. (b) The definition in paragraph (a) of this section does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain as defined in § 120.34 or telemetry data as defined in note 3 to Category XV(f) of § 121.1 of this subchapter. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles. § 120.34 Public domain. (a) Public domain (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., (8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if: (i) The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity; or (ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable. (b) [Reserved] § 120.35 [Reserved] § 120.36 Significant military equipment. (a) Significant military equipment (b) Significant military equipment includes: (1) Items in § 121.1 of this subchapter that are preceded by an asterisk; and (2) All classified articles enumerated in § 121.1 of this subchapter. § 120.37 Major defense equipment. Major defense equipment, § 120.38 Classified. Classified § 120.39 Foreign defense article or defense service. Foreign defense article or defense service § 120.40 Compositional terms. (a) Commodity (b) An end-item (c) A component (1) A major component (2) A minor component (d) Accessories and attachments (e) A part (f) Firmware (g) Software (h) A system Note 1 to paragraph (h): The industrial standards established by the International Council on Systems Engineering (INCOSE), National Aeronautics and Space Administration (NASA), and International Organization for Standardization (ISO) provide examples for when commodities and software operate together to perform a function as a system. (i) Equipment [87 FR 16411, Mar. 23, 2022, as amended at 88 FR 12213, Feb. 27, 2023] § 120.41 Specially designed. (a) Except for commodities or software described in paragraph (b) of this section, a commodity or software is specially designed if it: (1) As a result of development, has properties peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics, or functions described in the relevant U.S. Munitions List (USML) paragraph in § 121.1 of this subchapter; or Note 1 to paragraph (a)(1): An example of a commodity that as a result of development has properties peculiarly responsible for achieving or exceeding the controlled performance levels, functions, or characteristics in a USML category would be a swimmer delivery vehicle specially designed to dock with a submarine to provide submerged transport for swimmers or divers from submarines. (2) Is a part, component, accessory, attachment, or software for use in or with a defense article. (b) For purposes of this subchapter, a part, component, accessory, attachment, or software is not specially designed if it: (1) Is subject to the EAR pursuant to a commodity jurisdiction determination; (2) Is, regardless of form or fit, a fastener (e.g., screws, bolts, nuts, nut plates, studs, inserts, clips, rivets, pins), washer, spacer, insulator, grommet, bushing, spring, wire, or solder; (3) Has the same function, performance capabilities, and the same or equivalent form and fit as a commodity or software used in or with a commodity that: (i) Is or was in production ( i.e., (ii) Is not enumerated on the USML; (4) Was or is being developed with knowledge that it is or would be for use in or with both defense articles enumerated on the USML and also commodities not on the USML; or (5) Was or is being developed as a general purpose commodity or software, i.e., Note 2 to paragraph (b): For a defense article not to be specially designed on the basis of paragraph (b)(4) or (5) of this section, documents contemporaneous with its development, in their totality, must establish the elements of paragraph (b)(4) or (5). Such documents may include concept design information, marketing plans, declarations in patent applications, or contracts. Absent such documents, the commodity may not be excluded from being specially designed by either paragraph (b)(4) or (5). Note 3 to paragraph (b): For the purpose of paragraphs (b)(4) and (5) of this section, “knowledge” includes not only the positive knowledge a circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence. Such awareness is inferred from evidence of the conscious disregard of facts known to a person and is also inferred from a person's willful avoidance of facts. § 120.42 Form, fit, function, performance capability, equivalent, enumerated, and catch-all control. (a) Form. (b) Fit. (c) Function. (d) Performance capability. (e) Equivalent. (f) Enumerated. (g) Catch-all control. § 120.43 Development, production, and related terms; Basic and applied research. (a) Development (b)(1) Production i.e., (2) Commodities in production that are subsequently subject to development activities, such as those that would result in enhancements or improvements only in the reliability or maintainability of the commodity (e.g., an increased mean time between failure), including those pertaining to quality improvements, cost reductions, or feature enhancements, remain in production. However, any new models or versions of such commodities developed from such efforts that change the basic performance or capability of the commodity are in development until and unless they enter into production. (c) Design methodology i.e., (d) Engineering analysis (e) Manufacturing know-how (f) Build-to-print i.e. (g) Build/design-to-specification (h) Basic research (i) Applied research § 120.44 [Reserved] § 120.45 Maintenance levels. (a) Organizational-level maintenance (b) Intermediate-level maintenance (c) Depot-level maintenance §§ 120.46-120.49 [Reserved] § 120.50 Export. (a) Export, (1) An actual shipment or transmission out of the United States, including the sending or taking of a defense article out of the United States in any manner; (2) Releasing or otherwise transferring technical data to a foreign person in the United States (a deemed export); (3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to this subchapter by a U.S. person to a foreign person; (4) Releasing or otherwise transferring a defense article to an embassy or to any of its agencies or subdivisions, such as a diplomatic mission or consulate, in the United States; (5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad; or (6) The release of previously encrypted technical data as described in § 120.56(a)(3) and (4). (b) Any release in the United States of technical data to a foreign person is deemed to be an export to all countries in which the foreign person has held or holds citizenship or holds permanent residency. § 120.51 Reexport. (a) Reexport, (1) An actual shipment or transmission of a defense article from one foreign country to another foreign country, including the sending or taking of a defense article to or from such countries in any manner; (2) Releasing or otherwise transferring technical data to a foreign person who is a citizen or permanent resident of a country other than the foreign country where the release or transfer takes place (a deemed reexport); or (3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to this subchapter between foreign persons. (b) Any release outside the United States of technical data to a foreign person is deemed to be a reexport to all countries in which the foreign person has held or holds citizenship or holds permanent residency. § 120.52 Retransfer. (a) Retransfer, (1) A change in end-use or end-user, or a temporary transfer to a third party, of a defense article within the same foreign country; or (2) A release of technical data to a foreign person who is a citizen or permanent resident of the country where the release or transfer takes place. (b) [Reserved] § 120.53 Temporary import. (a) Temporary import, (1) To be returned to the country from which it was shipped or taken; or (2) Any defense article that is in transit to another foreign destination. (b) Temporary import includes withdrawal of a defense article from a customs bonded warehouse or foreign trade zone for the purpose of returning it to the country of origin or country from which it was shipped or for shipment to another foreign destination. (c) Permanent imports are regulated by the Attorney General under the direction of the Department of Justice's Bureau of Alcohol, Tobacco, Firearms, and Explosives (see 27 CFR parts 447, 478, 479, and 555). § 120.54 Activities that are not exports, reexports, retransfers, or temporary imports. Link to an amendment published at 91 FR 55460, Aug. 28, 2026. (a) The following activities are not exports, reexports, retransfers, or temporary imports: (1) Launching a spacecraft, launch vehicle, payload, or other item into space; (2) Transmitting or otherwise transferring technical data to a U.S. person in the United States from a person in the United States; (3) Transmitting or otherwise transferring within the same foreign country technical data between or among only U.S. persons, so long as the transmission or transfer does not result in a release to a foreign person or transfer to a person prohibited from receiving the technical data; (4) Shipping, moving, or transferring defense articles between or among the United States as defined in § 120.60; (5) Sending, taking, or storing technical data that is: (i) Unclassified; (ii) Secured using end-to-end encryption; (iii) Secured using cryptographic modules (hardware or software) compliant with the Federal Information Processing Standards Publication 140-2 (FIPS 140-2) or its successors, supplemented by software implementation, cryptographic key management and other procedures and controls that are in accordance with guidance provided in current U.S. National Institute for Standards and Technology (NIST) publications, or by other cryptographic means that provide security strength that is at least comparable to the minimum 128 bits of security strength achieved by the Advanced Encryption Standard (AES-128); and (iv) Not intentionally sent to a person in or stored in a country proscribed in § 126.1 of this subchapter; and Note 1 to paragraph ( a iv Data in-transit via the internet is not deemed to be stored in a country it transits. (v) Not sent from a country proscribed in § 126.1 of this subchapter; (6) The taking of a defense article subject to the reexport or retransfer requirements of this subchapter on a deployment or training exercise outside a previously approved country, provided: (i) There is no change in end-use or end-user with respect to the defense article; (ii) The defense article is transported by and remains in the possession of the previously authorized armed forces of a foreign government or United Nations military personnel; and (iii) The defense article is not being exported from or temporarily imported into the United States; and (7) The transfer of a foreign defense article previously imported into the United States that has since been exported from the United States pursuant to a license or other approval under this subchapter, provided: (i) The foreign defense article was not modified, enhanced, upgraded, or otherwise altered or improved in a manner that changed the basic performance of the item prior to its return to the country from which it was imported or a third country; (ii) A U.S.-origin defense article was not incorporated into the foreign defense article; and (iii) The defense article is not being exported from or temporarily imported into the United States. (b)(1) For purposes of this section, end-to-end encryption is defined as: (i) The provision of cryptographic protection of data, such that the data is not in an unencrypted form, between an originator (or the originator's in-country security boundary) and an intended recipient (or the recipient's in-country security boundary); and (ii) The means of decryption are not provided to any third party. (2) The originator and the intended recipient may be the same person. The intended recipient must be the originator, a U.S. person in the United States, or a person otherwise authorized to receive the technical data, such as by a license or other approval pursuant to this subchapter. (c) The ability to access technical data in encrypted form that satisfies the criteria set forth in paragraph (a)(5) of this section does not constitute the release or export of such technical data. [87 FR 16411, Mar. 23, 2022, as amended at 89 FR 66214, Aug. 15, 2024; 90 FR 29723, July 7, 2025] § 120.55 Access information. Access information § 120.56 Release. (a) Release. (1) Visual or other inspection by foreign persons of a defense article that reveals technical data to a foreign person; (2) Oral or written exchanges with foreign persons of technical data in the United States or abroad; (3) The use of access information to cause or enable a foreign person, including yourself, to access, view, or possess unencrypted technical data; or (4) The use of access information to cause technical data outside of the United States to be in unencrypted form. (b) Provision of access information. § 120.57 Authorization types. (a) License (b) Other approval (c) Exemption (d) Manufacturing license agreement (1) The export of technical data or defense articles or the performance of a defense service; or (2) The use by the foreign person of technical data or defense articles previously exported by the U.S. person. (e) Technical assistance agreement (f) Distribution agreement § 120.58 Subject to the Export Administration Regulations (EAR). Items subject to the EAR § 120.59 [Reserved] § 120.60 United States. United States, § 120.61 Person. Person § 120.62 U.S. person. U.S. person § 120.63 Foreign person. Foreign person § 120.64 Regular employee. (a) Regular employee (1) An individual permanently and directly employed by the company; or (2) An individual in a long term contractual relationship with the company where the individual works at the company's facilities, works under the company's direction and control, works full time and exclusively for the company, and executes nondisclosure certifications for the company, and where the staffing agency that has seconded the individual has no role in the work the individual performs (other than providing that individual for that work) and the staffing agency would not have access to any controlled technology (other than where specifically authorized by a license). (b) [Reserved] § 120.65 Foreign ownership and foreign control. (a) Foreign ownership (b) Foreign control § 120.66 Affiliate. (a) Affiliate (b) For purposes of this section, “control” means having the authority or ability to establish or direct the general policies or day-to-day operations of the firm. Control is rebuttably presumed to exist where there is ownership of 25 percent or more of the outstanding voting securities if no other person controls an equal or larger percentage. § 120.67 Empowered official. (a) Empowered official (1) Is directly employed by the applicant or a subsidiary in a position having authority for policy or management within the applicant organization; and (2) Is legally empowered in writing by the applicant to sign license applications or other requests for approval on behalf of the applicant; and (3) Understands the provisions and requirements of the various export control statutes and regulations, and the criminal liability, civil liability, and administrative penalties for violating the Arms Export Control Act and the International Traffic in Arms Regulations in this subchapter; and (4) Has the independent authority to: (i) Inquire into any aspect of a proposed export, temporary import, or brokering activity by the applicant; (ii) Verify the legality of the transaction and the accuracy of the information to be submitted; and (iii) Refuse to sign any license application or other request for approval without prejudice or other adverse recourse. (b) For the purposes of a broker who is a foreign person, the empowered official may be a foreign person who otherwise meets the criteria for an empowered official in paragraph (a) of this section. § 120.68 Party to the export. (a) Party to the export (1) The chief executive officer, president, vice-presidents, other senior officers and officials (e.g., comptroller, treasurer, general counsel), and any member of the board of directors of the applicant; (2) The freight forwarders or designated exporting agent of the applicant; and (3) Any consignee or end-user of any item to be exported. (b) [Reserved] § 120.69 Port Directors. Port Directors