22 CFR §§ 120-130 are promulgated and implemented by the Directorate of Defense Trade Controls (“DDTC”) in the Department of State (“DoS”) and regulate defense articles (as defined in §120.6), significant military equipment (as defined in §120.7), major defense equipment (as defined in §120.8), defense services (as defined in §120.9), and technical data and software (as defined in §120.10).
ITAR Decision Tree
- If an United States Military List (USML) article is incorporated into a larger article, then the larger article becomes controlled under ITAR.
- ITAR is article based: NO article on the USML can be exported without a license or exemption.
- Arms Embargo: NO article on the USML may be exported under a license or license exemption to countries proscribed in 22 CFR § 126.1.
- Additional restrictions apply to other countries, whenever an export would not otherwise be in furtherance of world peace and the security and foreign policy of the United States – as proscribed further in 22 CFR § 126.1 .
Policy on Designating and Determining Defense Articles and Services (22 CFR § 120.3)
(a) A specific article or service may be designated a defense article (see § 120.6) or defense service (see § 120.9) if it:
(1) Meets the criteria of a defense article or defense service on the U.S. Munitions List; or
(2) Provides the equivalent performance capabilities of a defense article on the U.S. Munitions List.
(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 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 U.S. Munitions List, will be placed in U.S. Munitions List Category XXI until the appropriate U.S. Munitions List category 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§120.5 of this subchapter) pursuant to a commodity jurisdiction determination ( see §120.4 of this subchapter) unless superseded by changes to the U.S. Munitions List or by a subsequent commodity jurisdiction determination; or
(2) Meets one of the criteria of §120.41(b) of this subchapter when the article is used in or with a defense article and specially designed is used as a control criteria ( see §120.41 of this subchapter).
Defense Article (22 CFR § 120.6)
Any item or technical data designated in §121.1 of this subchapter. The policy described in §120.3 is applicable to designations of additional items. This term includes 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. It also includes 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. It does not include basic marketing information on function or purpose or general system descriptions.
Significant Military Equipment (22 CFR § 120.7)
(a) Significant military equipment means articles for which special export controls are warranted because of their capacity for substantial military utility or capability.
(b) Significant military equipment includes:
(1) Items in § 121.1 of this subchapter which are preceded by an asterisk; and
(2) All classified articles enumerated in § 121.1 of this subchapter.
Major Defense Equipment (22 CFR § 120.8)
Pursuant to section 47(6) of the Arms Export Control Act (22 U.S.C. 2794(6) note), major defense equipment means any item of significant military equipment (as defined in § 120.7) on the U.S. Munitions List having a nonrecurring research and development cost of more than $ 50,000,000 or a total production cost of more than $ 200,000,000.
Defense Service (22 CFR § 120.9)
(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 (see §120.10), 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. (See also §124.1.)
Technical Data (22 CFR § 120.10)
(a) for purposes of this subchapter:
(1) Information, other than software as defined in §120.10(a)(4), 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 §120.45(f)) 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 §120.11 of this subchapter or telemetry data as defined in note 3 to Category XV(f) of part 121 of this subchapter. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
“ Export ” as defined in §120.17
(a)Except as set forth in §126.16 or §126.17, export means:
(1) An actual shipment or transmission out of the U.S., including the sending or taking of a defense article out of the U.S. in any manner;
(2) Releasing or otherwise transferring technical data to a foreign person in the U.S. (a “deemed export”);
(3) Transferring registration, control or ownership of any aircraft, vessel, or satellite subject to the ITAR 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 U.S.; of a foreign government (e.g., diplomatic missions); or
(5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the U.S. or abroad;
(6) A launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export for purposes of this subchapter. However, for certain limited purposes (see § 126.1 of this subchapter), the controls of this subchapter may apply to any sale, transfer or proposal to sell or transfer defense articles or defense services.
(b) Any release in the U.S. 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 permanent residency.
“ Reexport ” as defined in §120.19
(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”)
(3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to the ITAR between foreign persons.
“ Release ” as defined in §120.50
(a) Technical data is released through:
(1) Visual or other inspection by foreign persons of a defense article that reveals technical data to a foreign person; or
(2) Oral or written exchanges with foreign persons of technical data in the U.S. or abroad.
“ Retransfer ” as defined in §120.51
A change in end use or end user of a defense article within the same foreign country.
United States Munitions List (USML) 22 CFR § 121
Regulated items are identified on the USML in the following categories:
- Category I-Firearms, Close Assault Weapons, and Combat Shotguns
- Category II-Guns and Armament
- Category III-Ammunition/Ordnance
- Category IV-Launch Vehicles, Guided Missiles, Ballistic Missiles, Rockets, Torpedoes, Bombs, and Mines
- Category V-Explosives and Energetic Materials, Propellants, Incendiary Agents, and Their Constituents
- Category VI-Surface Vessels of War and Special Naval Equipment
- Category VII-Ground Vehicles
- Category VIII-Aircraft and Related Articles
- Category IX-Military Training Equipment and Training
- Category X-Personal Protective Equipment
- Category XI-Military Electronics
- Category XII-Fire Control, Range Finder, Optical and Guidance and Control Equipment
- Category XIII-Materials and Miscellaneous Articles
- Category XIV-Toxicological Agents, Including Chemical Agents, Biological Agents, and Associated Equipment
- Category XV-Spacecraft and Related Articles
- Category XVI-Nuclear Weapons Related Items
- Category XVII-Classified Articles, Technical Data and Defense Services Not Otherwise Enumerated
- Category XVIII-Directed Energy Weapons
- Category XIX-Gas Turbine Engines and Associated Equipment
- Category XX-Submersible Vessels and Related Articles
- Category XXI-Articles, Technical Data, and Defense Services Not Otherwise Enumerated