International Traffic in Arms Regulations
Code of Federal Regulations [EXERPTS] International Traffic in Arms Regulations Title 22 -- Foreign Relations; Chapter I -- Department of State Subchapter M -- International Traffic in Arms Regulations [Revised as of April 1, 1992] Part 120 Purpose, Background and Definitions Sec. 120.1 General. (a) Purpose. Section 38 of the Arms Export Control Act (22 U.S.C. 2778) authorizes the President to control the export and import of defense articles and defense services. It is the purpose of this subchapter to implement this authority. The statutory authority of the President to promulgate regulations with respect to exports of defense articles and defense services was delegated to the Secretary of State by Executive Order 11958, as amended (42 FR 4311). By virtue of delegations of authority by the Secretary of State, these regulations are primarily administered by the Director of the Office of Munitions Control, Bureau of Politico-Military Affairs, Department of State (35 FR 5422). (b) Eligibility. Licenses or other approvals (other than approvals obtained pursuant to Sec. 123.9 of this subchapter) may be granted only to U.S. persons (as defined in Sec. 120.23) and foreign governmental entities in the United States. Foreign persons (as defined in Sec. 120.11) other than governments are not eligible. U.S. persons who have been convicted of violating the U.S. criminal statutes enumerated in Sec. 120.24, or who have been debarred pursuant to part 127 of this subchapter, are also generally ineligible (see Sec. 127.6(c) of this subchapter). Applications for licenses or requests for other approvals will generally be considered only if the applicant has registered with the Office of Munitions Control pursuant to part 122 of this subchapter. All applications and requests for approval must be signed by a responsible official who is a U.S. person and who has been empowered by the registrant to sign such documents. SOURCE: [49 FR 47684, Dec. 6, 1984; 50 FR 12787, Apr. 1, 1985, as amended at 53 FR 11496, Apr. 7, 1988; 54 FR 42497, Oct. 17, 1989] AUTHORITY: Sec. 38, Arms Export Control Act, 90 Stat. 744 (22 U.S.C. 2778); E.O. 11958, 42 FR 4311; 22 U.S.C. 2658. Sec. 120.2 Designation of defense articles and defense services. The Arms Export Control Act also provides (22 U.S.C. 2778(a) and 2794(7)) that the President shall designate which articles shall be deemed to be defense articles and defense services for purposes of this subchapter. The items so designated constitute the United States Munitions List, and are specified in part 121 of this subchapter. Such designations are made by the Department of State with the concurrence of the Department of Defense. Sec. 120.3 Policy on designating defense articles and services. Designations of defense articles and defense services are based primarily on whether an article or service is deemed to be inherently military in character. Whether it has a predominantly military application is taken into account. The fact that an article or service may be used for both military and civilian purposes does not in and of itself determine whether it is subject to the export controls of this subchapter. (Narrow exceptions to this general policy exist with respect to exports of certain spare parts and components in Categories V(d); VIII (e) and (g); XI(e); XII(c); and XVI(b).) The intended use of the article or service after its export (i.e., for a military or civilian purpose) is also not relevant in determining whether the export is subject to the controls of this subchapter. Sec. 120.4 Relation to Department of Commerce regulations. If an article or service is placed on the United States Munitions List, its export is regulated exclusively by the Department of State. Exports which are not subject to the controls of this subchapter are generally under the regulatory jurisdiction of the Department of Commerce pursuant to the Export Administration Act of 1979, as amended (50 U.S.C. App. 2401 through 2420) and the implementing Export Administration Regulations (15 CFR parts 368 through 399). Sec. 120.5 Commodity jurisdiction procedure. The Office of Munitions Control will provide, upon written request, a determination on whether a particular article is included on the United States Munitions List. Such requests should be accompained by five copies of the letter requesting a determination and any brochures or other documentation or specifications relating to the article. A "commodity jurisdiction" procedure is used if a doubt exists within the U.S. Government on whether an article is on the Munitions List. The procedure entails consultations among the Departments of State, Commerce and Defense. Sec. 120.6 General. The definitions contained in this part (listed alphabetically) apply to the use of the defined terms throughout this subchapter unless a different meaning is specified. See also Sec.Sec. 130.2 through 130.8 for definitions applicable to Part 130. Sec. 120.7 Defense articles. Defense article means any item designated in Sec. 121.1. This term includes models, mockups, and other such items which reveal technical data directly relating to items designated in Sec. 121.1. Sec. 120.8 Defense services. Defense service means: (a) The furnishing of assistance, including training, to foreign persons in the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification, or reconstruction of defense articles, whether in the United States or abroad; or (b) The furnishing to foreign persons of any technical data, whether in the United States or abroad. ... Sec. 120.10 Export. Export means, for purposes of this subchapter: (a) Sending or taking defense articles out of the United States in any manner; or ... (c) Sending or taking technical data outside of the United States in any manner except by mere travel outside of the United States by a person whose personal knowledge includes technical data; or (d) Disclosing or transferring technical data to a foreign person, whether in the United States or abroad; or (e) The performance of a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad. ... Sec. 120.11 Foreign person. Foreign person means any person (Sec. 120.16) who is not a citizen or national of the United States unless that person has been lawfully admitted for permanent residence in the United States under the Immigration and Naturalization Act (8 U.S.C. 1101, section 101(a)20, 60 Stat. 163) (i.e., individuals referred to as "immigrant aliens" under previous laws and regulations). It includes foreign corporations (i.e., corporations that are not incorporated in the United States), international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g., diplomatic missions). ... Sec. 120.13 License. License means a document bearing the word "license" which when issued by the Director, Office of Munitions Control, or his authorized designee, permits the export or intransit shipment of a specific defense article, defense service, or technical data. Sec. 120.14 Manufacturing license agreement. An agreement (e.g., contract) whereby a U.S. person grants a foreign person an authorization or a license to manufacture defense articles abroad and which involves or contemplates (a) the export of technical data (as defined in Sec. 120.21) or defense articles or the performance of defense services, or (b) the use by the foreign person of technical data or defense articles previously exported by the U.S. person. Sec. 120.15 Office of Munitions Control. Office of Munitions Control means the Office of Munitions Control, Bureau of Politico-Military Affairs, Department of State, Washington, D.C. 20520. Sec. 120.16 Person. Person means a natural person as well as a corporation, business association, partnership, society, trust, or any other entity, organization or group, including governmental entities. If a provision in this subchapter does not refer exclusively to a foreign person (Sec. 120.11) or U.S. person (Sec. 120.23), then it refers to both. ... Sec. 120.18 Public domain. Public domain means information which is published and which is generally accessible or available to the public: (a) Through sales at newsstands and bookstores; (b) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information; (c) Through second class mailing privileges granted by the U.S. Government; or, (d) At libraries open to the public. Sec. 120.19 Significant military equipment. (a) Significant military equipment means articles, as identified in paragraph (b) of this section, for which special export controls are warranted because of their capacity for substantial military utility or capability. (b) Articles designated as significant military equipment under the criterion specified in paragraph (a) of this section include all classified articles and the articles enumerated in Sec. 121.1 in Categories I (a) and (c) (in quantity); II (a) and (b); III(a) (excluding ammunition for firearms in Category (I)) and (d); IV (a), (b), (d), (e), (f) and (g); V (a) (in quantity) and (b); VI (a), (b) ... and (e); VII (a), (b), (c), (e), (f) and (g); VIII (a), (b)(1), (c), (d), (g), (h), and (i). GEMS as defined in (i), and inertial systems as defined in (j); XI (a)(1), (b)(1), (c); XII (a) and (b); XIV (a), (b), (c) and (d); XVI; XVII; and XX (a) and (b). (c) Items in Sec. 121.1 which are preceded by an asterisk are "significant military equipment." (d) Section 47(6) of the Arms Export Control Act (22 U.S.C. 2794(6) note) provides a definition of "major defense equipment" and refers to certain significant combat equipment on the U.S. Munitions List. The terms "significant military equipment" and "significant combat equipment" are considered to be equivalent for purposes of that section of the Arms Export Control Act and this subchapter. Sec. 120.20 Technical assistance agreement. An agreement (e.g., contract) for the performance of defense services or the disclosure of technical data, as opposed to an agreement granting a right or license to manufacture defense articles. Sec. 120.21 Technical data. Technical data means, for purposes of this subchapter: (a) Classified information relating to defense articles and defense services; (b) Information covered by an invention secrecy order; (c) Information, in any form, which is directly related to the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification, or reconstruction of defense articles. This includes, for example, information in the form of blueprints, drawings, photographs, plans, instructions, computer software and documentation. This also includes information which advances the state of the art of articles on the U.S. Munitions List. This definition does not include information concerning general scientific, mathematical or engineering principles commonly taught in academia. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles. ... Sec. 120.24 U.S. criminal statutes. For purposes of this subchapter, the phrase U.S. criminal statutes means: (a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778); (b) Section 11 of the Export Administration Act of 1979 (50 U.S.C. App. 2410); (c) Sections 793, 794, or 798 of Title 18, United States Code (relating to espionage involving defense or classified information); (d) Section 16 of the Trading with the Enemy Act (50 U.S.C. App. 16); (e) Section 206 of the International Emergency Economic Powers Act (relating to foreign assets controls; 50 U.S.C. 1705); ... (l) Section 371 of Title 18, United States Code (when it involves conspiracy to violate any of the above statutes). ... Part 121 The United States Munitions List Enumeration of Articles Sec. 121.1 General. The United States Munitions List. (a) The following articles, services and related technical data are designated as defense articles and defense services pursuant to sections 38 and 47(7) of the Arms Export Control Act (22 U.S.C. 2778 and 2794(7)). Changes in designations will be published in the Federal Register. Information and clarifications on whether specific items are defense articles and services under this subchapter may appear periodically in the Defense Trade News published by the Center for Defense Trade. (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 Sec. 120.19. The asterisk is placed as a convenience to help identify such articles. ... Category XI--Military [and Space] Electronics (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: ... (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. ... (e) Technical data (as defined in Sec. 120.21) and defense services (as defined in Sec. 120.8) directly related to the defense articles enumerated in paragraphs (a) through (d) of this category. (See Sec. 125.4 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. ... Category XIII--Auxiliary Military Equipment ... (b) Information Security Systems and equipment, cryptographic devices, software, and components specifically designed or modified therefore, 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; ... (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. (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; ... Category XVII--Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated *(a) All articles, technical data (as defined in Sec. 120.21) and defense services (as defined in Sec. 120.8) relating thereto which are classified in the interests of national security and which are not otherwise enumerated in the U.S. Munitions List. ... Category XXI--Miscellaneous Articles (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 Director of the Office of Defense Trade Controls. (b) Technical data (as defined in Sec. 120.21) and defense services (as defined in Sec. 120.8) directly related to the defense articles enumerated in paragraphs (a) of this category. ... Sec. 121.2 Interpretations of the United States Munitions List. The following interpretations (listed alphabetically) explain and amplify the terms used in Sec. 121.1. These interpretations have the same force as if they were a part of the United States Munitions List category to which they refer. ... Sec. 121.8 End-items, components, accessories, attachments, parts, firmware, software and systems. (a) An "end-item" is an assembled article ready for its intended use. Only ammunition, fuel or another energy source is required to place it in an operating state. (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: 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 United States 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 Sec. 121.1, 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. ... Part 122 Registration of Manufacturers and Exporters Sec. 122.1 Registration requirements. (a) General. Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Office of Munitions Control. Manufacturers who do not engage in exporting must nevertheless register. (b) Exemptions. Registration is not required for: ... (2) Persons whose pertinent business activity is confined to the production of unclassified technical data only. ... (4) Persons who engage only in the fabrication of articles for experimental or scientific purposes, 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. Sec. 122.2 Submission of registration statement. (a) General. The Department of State Form DSP-9 (Registration Statement) and the transmittal letter required by paragraph (b) of this subsection must be submitted by an intended registrant with a payment by check or money order payable to the Department of State of one of the fees prescribed in Sec. 122.3(a) of this subchapter. The Registration Statement and transmittal letter must be signed by a senior officer who has been empowered by the intended registrant to sign such documents. The intended registrant shall also submit documentation that demonstrates that it is incorporated or otherwise authorized to do business in the United States. The Office of Munitions Control will return to sender any Registration Statement that is incomplete, or that is not accompanied by the required letter or payment of the proper registration fee. ... Sec. 122.5 Maintenance of records by registrants. (a) A person who is required to register must maintain records concerning the manufacture, acquisition and disposition of defense articles and the provision of defense services by the registrant. All such records must be maintained for a period of 6 years. The Director, Office of Munitions Control, may prescribe a longer or shorter period in individual cases. (b) Records maintained under this section shall be available at all times for inspection and copying by the Director, Office of Munitions Control 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. Part 123 Licenses for the Export of Defense Articles Sec. 123.1 Requirement for export licenses. (a) Any person who intends to export a defense article must obtain a license from the Office of Munitions Control prior to the export unless the export qualifies for an exemption under the provisions of this subchapter. (b) As a condition to the issuance of a license or other approval, the Office of Munitions Control may require all pertinent documentary information regarding the proposed transaction. (c) 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 purchaser 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 Sec. 126.4(c) or Sec. 126.6 are followed. . . . Sec. 123.2 Imports. No defense article may be imported into the United States unless (a) it was previously exported temporarily under a license issued by the Office of Munitions Control; or (b) it constitutes a temporary import/intransit shipment licensed under Sec. 123.3; or (c) its import is authorized by the Department of the Treasury (see 27 CFR parts 47, 178 and 179). ... Sec. 123.9 Country of ultimate destination. (a) The country designated as the country of ultimate destination on an application for an export license, or on a shipper's export declaration where an exemption is claimed under this subchapter, must be the country of ultimate end-use. The written approval of the Department of State must be obtained before reselling, diverting, transferring, transshipping, or disposing of a defense article in any country other than the country of ultimate destination as stated on the export license, or on the shipper's export declaration in cases where an exemption is claimed under this subchapter. Exporters must ascertain the specific end-user and end-use prior to submitting an application to the Office of Munitions Control or claiming an exemption under this subchapter. End-use must be confirmed and should not be assumed. ... Sec. 123.10 Non-transfer and use assurances and Congressional notification. (a) An application for a license (Form DSP-5) to export significant military equipment defined in Sec. 120.19 must be accompanied by a nontransfer and use certificate (Form DSP-83) at the time of submission to the Office of Munitions Control. This form is to be executed by the foreign consignee and foreign end-user. The certificate stipulates that, except as specifically authorized by prior written approval of the Department of State, the foreign consignee and foreign end-user will not reexport, resell or otherwise dispose of the significant military equipment enumerated in the application outside the country named as the location of the foreign end-use. ... Part 124 Manufacturing License Agreements, Technical Assistance Agreements, and Other Defense Services Sec. 124.1 Manufacturing license agreements and technical assistance agreements. (a) General. The approval of the Office of Munitions Control must be obtained before the defense services described in Sec. 120.8(a) of this subchapter may be furnished. In order to obtain such approval, the U.S. person must submit a proposed agreement with the foreign person concerned to the Office of Munitions Control. Such agreements are generally characterized as either "Manufacturing license agreements" or "technical assistance agreements" as defined in Sec. 120.14 and Sec. 120.20, and may not enter into force without the prior written approval of the Office of Munitions Control. Once approved, the defense services described in the agreements may generally be provided without further licensing in accordance with Sec. 124.3 and Sec. 125.4(b)(2). The requirements of this section apply whether or not technical data is to be disclosed or used in the performance of the defense services described in Sec. 120.8(a) (e.g., all the information relied upon by the U.S. person in performing the defense service is in the public domain or is otherwise exempt from the licensing requirements of this subchapter pursuant to Sec. 125.4). This requirement also applies to the training of foreign military forces, both regular and irregular, in the use of defense articles. Technical assistance agreements must be submitted in such cases. (In exceptional cases, the Office of Munitions Control, upon written request, will consider approving the provision of defense services described in Sec. 120.8(a) by granting a license under part 125. Also, see Sec. 126.8 for the requirements for prior approval of proposals relating to significant military equipment.) (b) Amendments. Proposed amendments, including extensions, to agreements subject to the requirements of this part must also be submitted for approval. The amendments may also not enter into force until approved by the Office of Munitions Control. 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 Munitions Control within thirty days after they are concluded. ... Sec. 124.3 Exports of technical data in furtherance of an agreement. (a) Unclassified technical data. District directors of customs or postal authorities may permit the export without a license of unclassified technical data if the export is in furtherance of a manufacturing license or technical assistance agreement which has been approved in writing by the Office of Munitions Control. The export is not authorized without a license if it exceeds the scope or limitations of the relevant agreement. The U.S. party to the agreement must certify that the export does not exceed the scope of the agreement and any limitations imposed pursuant to this part. The approval of the Office of Munitions Control must be obtained for the export of any unclassified technical data which may exceed the terms of the agreement. ... Sec. 124.13 Procurement by United States persons in foreign countries (offshore procurement). Notwithstanding the other provisions in part 124, the Office of Munitions Control may authorize by means of a license (DSP-5) the export of unclassified technical data to foreign persons for offshore procurement of defense articles, provided that: (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 does not disclose the details of the design, development, production or manufacture of defense articles; 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 duly qualified 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 Munitions Control 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 Sec. 126.4 or Sec. 126.5, 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. Sec. 124.14 Exports to warehouses or distribution points outside the United States. (a) General. Agreements (e.g., contracts) between U.S. persons and foreign persons for the warehousing and distribution of defense articles must be approved by the Office of Munitions Control before they enter into force. Such agreements will be limited to unclassified defense articles and must contain conditions for special distribution, end-use and reporting. Licenses for exports pursuant to such ageements must be obtained prior to exports of the defense articles (see Sec. 123.7). (b) Required information. Proposed warehousing and distribution agreements (and amendments thereto) shall be submitted to the Office of Munitions Control for approval. The following information must be included in all such agreements: (1) A precise description of the defense articles involved. 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. (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. 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 Sec. 124.10(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 Sates 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. Goverment'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 Munitions Control 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 Sec. 126.10(b)). (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." (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 Munitions Control. The letter shall contain: (1) A statement giving the applicant's Munitions Control 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) 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." PART 125 LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED DEFENSE ARTICLES Sec. 125.1 Exports subject to this part. (a) The export controls of this part apply to the export of technical data and the export of classified defense articles. Information which is in the "public domain" (see Sec. 120.18) is not subject to the controls of this subchapter. (b) A license for the export of technical data and the exemptions in Sec. 125.4 may not be used for foreign production purposes or for technical assistance unless the approval of the Department of State 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 diverted or transferred from the country of ultimate end-use (as designated in the license or approval for export) or disclosed to a national of another country without the prior written approval of the Department of State. (d) The export 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 Munitions Control 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. Sec. 125.2 Exports of unclassified technical data. (a) General. A license issued by the Department of State is required for the export of unclassified technical data unless the export is exempt from the licensing requirements of this subchapter. (b) Patents. A license issued by the Department of State 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. 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 to foreign nationals in connection with visits by U.S. persons to foreign countries, visits by foreign persons to the United States, or otherwise. A license is required regardless of the manner in which the technical data is transmitted (e.g., in person, by telephone, correspondence, electronic means, telex, etc.). A license is required for such disclosures in connection with visits by U.S. persons to foreign diplomatic missions and consular offices. ... Sec. 125.4 Exemptions of general applicability. (a) The following exemptions apply to exports of technical data for which no license or other approval is needed from the Office of Munitions Control. These exemptions, except for paragraph (b)(13) of this section, do not apply to exports to proscribed destinations under Sec. 126.1. Transmission of classified information must comply with the requirements of the Department of Defense Industrial Security Manual and the exporter must certify to the transmittal authority that the technical data does not exceed the technical limitation of the authorized export. A person who determines that an export is not subject to this subchapter should review the Department of Commerce regulations to ensure that the export is not subject to its export jurisdiction. (b) The following exports are exempt from the licensing requirements of this subchapter: ... (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 Sec. 124.3; ... (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 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. This exemption applies only to exports by the original exporter. Intermediate or depot-level repair and maintenance information may be exported only under a license or agreement approved specifically for that purpose; ... (7) Technical data, including classified information, being returned to the original source of import; ... (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 Sec. 125.1(b) and may be used only if (i) the technical data is to be used overseas solely by U.S. persons and (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; (10) Disclosures of technical data in the U.S. by U.S. institution 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 Sec. 126.1; 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 Munitions Control; ... (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. This exemption is applicable to information approved by the cognizant U.S. Government department or agency for public release in any form (e.g., publications, speeches, conference papers, movies, etc.). It does not require that the information be published in order to qualify for the exemption. ... Sec. 125.6 Certification requirements. To claim an exemption for the export of technical data under the provisions of Sec. 125.4 and Sec. 125.5, an exporter must certify that the proposed export is covered by a relevant paragraph of that section. This certification is not required if the technical data is only disclosed orally or visually. The certification referred to in this section consists of marking the package or letter containing the technical data: "22 CFR 125. (identify subsection) applicable" and identifying the specific paragraph under which the exemption is claimed. In the case of unclassified technical data, district directors of customs may require that the certification be made on a shipper's export declaration. Sec. 125.7 Exports of unclassified technical data. (a) General. Unless an export is exempt from the licensing requirements of this subchapter, an application for the permanent export of unclassified technical data must be made to the Office of Munitions Control on Form DSP-5. If the technical data is to be returned to the United States, Form DSP-73 should be used instead. In the case of a visit, sufficient details of the proposed discussions must be transmitted for an adequate appraisal of the data. Seven copies of the data or the details of the discussions must be provided. Only one copy must be provided if a renewal of the license is requested. (b) Patents. Requests for the filing of patent applications in a foreign country and requests for the filing of amendments, modifications or supplements to such patents must be directed to the U.S. Patent and Trademark Office in accordance with 37 CFR part 5. If an applicant complies with the regulations of that office, the approval of the Office of Munitions Control is required only in the circumstance described in Sec. 125.2(b). In such cases, an application must be submitted in accordance with the provisions of paragraph (a) of this section. ... Sec. 125.9 Filing of licenses for exports of unclassified technical data. Licenses for the export of unclassified technical data must be deposited with the appropriate district director of customs or postmaster at the time of shipment or mailing. The district director of customs or postmaster will endorse and transmit the licenses to the Office of Munitions Control in accordance with the instructions contained on the reverse side of the license. 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, the person exporting the data must self-endorse the license and return it promptly to the Office of Munitions Control. ... PART 126 Sec. 126.1 Prohibited exports and sales to certain countries. (a) General. It is the policy of the United States to deny licenses and other approvals with respect to defense articles and defense services destined for or originating in certain countries or areas. This policy also applies to exports to and imports from these countries or areas. This policy applies to Albania, Bulgaria, Cambodia, Cuba, Estonia, Latvia, Lithuania, North Korea, Outer Mongolia, Romania, the Soviet Union and Vietnam. This policy also applies to countries or areas with respect to which the United States maintains an arms embargo (e.g., Angola) or whenever an export would not otherwise be in furtherance of world peace and the security and foreign policy of the United States. The exemptions provided in the regulations in this subchapter, except Sec. 123.17 and Sec. 125.4(b)(13) of this subchapter, do not apply with respect to exports to or originating in any of such proscribed countries or areas. (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. ... (d) Terrorism. Exports to countries that 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). The countries in this category are Cuba, Iran, Iraq, Libya, Syria, and North Korea. These are the same countries 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 other written approval from the Office of Munitions Control. (See Sec. 120.10(f) of this subchapter), 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 inform the Office of Munitions Control. Sec. 126.2 Temporary suspension or modification of this subchapter. The Director, Office of Munitions Control, may order the temporary suspension or modification of any or all of the regulations of this subchapter in the interest of the security and foreign policy of the United States. ... Sec. 126.5 Canadian exemptions. (a) General. District directors of customs and postmasters may permit the export without a license of any unclassified defense article or any unclassified technical data to Canada for end-use in Canada or return to the United States, with the exception of the articles or technical data listed in paragraph (b) of this section. ... Sec. 126.7 Denial, revocation, suspension, or amendment of licenses and other approvals. (a) Policy. Licenses or approvals shall be denied or revoked whenever required by any statute of the United States (see Sec. 127.6 and Sec. 127.10 of this subchapter). Any application for an export license or other approval under this subchapter may be disapproved, and any license or other approval or exemption granted under this subchapter may be revoked, suspended, or amended without prior notice whenever: (1) The Department of State deems such action to be in furtherance of world peace, the national security or the foreign policy of the United States, or is otherwise advisable; or (2) The Department of State believes that 22 U.S.C. 2778, any regulation contained in this subchapter, or the terms of any U.S. government export authorization (including the terms of a manufacturing license or technical assistance agreement, or export authorization granted pursuant to the Export Administration Act, as amended) has been violated by any party to the export or other person having significant interest in the transaction; or . . . . Sec. 126.9 Advisory opinions. A U.S. person desiring information as to whether the Office of Munitions Control would be likely to grant a license or other approval for the export of particular defense articles or defense services to a particular country may use the Office of Munitions Control's informal "Advisory Opinions" procedure. These opinions are advisory only. They are not binding on the Department of State and are revocable. A request for an advisory opinion must be by letter. It must outline in detail the equipment, its usage, the security classification, if any, of the articles or related technical data, and the country or countries involved. An original and seven copies of the letter must be provided along with seven copies of suitable descriptive information concerning the defense article or defense service. If a request for an advisory opinion involves more than one country, the letter should address only those countries in the same geographic area. Sec. 126.10 Disclosure of information to the public. (a) General. Subchapter R of this title of CFR contains regulations on the availability to the public of information and records of the Department of State. The provisions of Subchapter R apply to such disclosures by the Office of Munitions Control. (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. Any determinations required by section 38(e) shall be made by the Under Secretary for Security Assistance, Science, and Technology. (c) Information required under part 130. Part 130 of this subchapter contains specific provisions on the disclosure of information described in that part. Sec. 126.12 Continuation in force. 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. ... PART 127 VIOLATIONS AND PENALTIES Sec. 127.1 Violations in general. (a) It is unlawful (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 Munitions Control (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 Department of State; or (3) to violate any of the terms or conditions of licenses or approvals granted pursuant to this subchapter. ... (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. .... Sec. 127.3 Penalties for violations. Any person who willfully: (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. 2778 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 fine or imprisonment, or both, as prescribed by 22 U.S.C. 2778(c). Sec. 127.4 Authority of U.S. Customs Service officers. (a) U.S. Customs Service officers may take appropriate action to ensure observance of this subchapter as to the export or the attempted export of any defense article or technical data, including the inspection of loading or unloading of any vessel, vehicle, or aircraft. This applies whether the export is authorized by license or by written approval issued under this subchapter. (b) 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. Sec. 127.5 Seizure and forfeiture in attempts at illegal exports. (a) An attempt to export from the United States any defense articles in violation of the provisions of this subchapter constitutes an offense punishable under section 401 of Title 22 of the United States Code. Whenever it is known or there is probable cause to believe that any defense article is intended to be or is being or has been exported or removed from the United States in violation of law, such article and any vessel, vehicle or aircraft involved in such attempt is subject to seizure, forfeiture and disposition as provided in section 401 of Title 22 of the United States Code. ... Sec. 127.9 Civil penalty. (a) The Assistant Secretary for Politico-Military Affairs, Department of State is authorized to impose a civil penalty in an amount not to exceed that authorized by 50 U.S.C. App. 2410(c) for each violation of 22 U.S.C. 2778, or any regulation, order, license or approval issued thereunder. This civil penalty may be either in addition to, or in lieu of, any other liability or penalty which may be imposed. (b) The Office of Munitions Control may make (1) the payment of a civil penalty under this section or (2) the completion of any administrative action pursuant to part 127 or 128 of this subchapter a prior condition for the issuance, restoration, or continuing validity of any export license or other approval. ...
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Communications Law and Policy
Jerry Kang and Alan Butler