22 CFR Part 120 (ITAR — Purpose and Definitions)

22 CFR Part 120 is the opening part of the International Traffic in Arms Regulations (ITAR), the US regulations administered by the Department of State’s Directorate of Defense Trade Controls (DDTC) that control the export and temporary import of defense articles and defense services. Part 120 contains no list of controlled items. What it contains is the statement of ITAR’s authority and purpose and, in Subpart C, the definitions that every other ITAR part is read against — which is why an export-control determination at a research institution almost always begins here rather than in the US Munitions List.

How Part 120 is organised

• Subpart A — General Information. Authority and delegation, designation of defense articles and services, the policy for designating them, commodity jurisdiction, and the relationship to other agencies’ regulations.
• Subpart B — General Policies and Processes. Introduction to and order of review of the US Munitions List, registration, licensing, end-use monitoring, and denial or revocation of approvals.
• Subpart C — Definitions. The controlling vocabulary of ITAR, at 22 CFR 120.30 and following.

The statutory chain is set out in 22 CFR 120.1: section 38 of the Arms Export Control Act (22 U.S.C. 2778) authorises the President to control the export and import of defense articles and defense services; that authority is delegated to the Secretary of State by Executive Order 13637; and the Secretary delegates administration to the Deputy Assistant Secretary of State for Defense Trade Controls, who supervises DDTC.

The definitions that decide research cases

Five definitions in Subpart C carry nearly all of the weight in a university determination.

Defense article (22 CFR 120.31)

Any item or technical data designated in 22 CFR 121.1, including technical data recorded or stored in any physical form, and models or mockups that reveal technical data directly relating to designated items. It expressly does not include basic marketing information on function or purpose, or general system descriptions.

Defense service (22 CFR 120.32)

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, as well as the furnishing to foreign persons of controlled technical data.

Technical data (22 CFR 120.33)

Information, other than software, required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles — blueprints, drawings, photographs, plans, instructions, documentation — plus classified information relating to USML and 600-series items, information covered by an invention secrecy order, and software directly related to defense articles. Critically, it excludes information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities, and information in the public domain as defined at 22 CFR 120.34.

US person and foreign person (22 CFR 120.62 and 120.63)

A US person is a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or a protected individual as defined by 8 U.S.C. 1324b(a)(3); it also covers entities incorporated to do business in the United States and governmental entities at any level. A foreign person is anyone who is not. The test turns on immigration status, not on institutional appointment, funding source, or how long someone has worked in the lab — a point that catches institutions out repeatedly, because a long-serving postdoc on a non-immigrant visa is a foreign person for ITAR purposes.

Export (22 CFR 120.50)

Export is defined much more broadly than shipping. It includes an actual shipment or transmission out of the United States, but also “releasing or otherwise transferring technical data to a foreign person in the United States (a deemed export)”, transferring registration or control of certain aircraft, vessels or satellites to a foreign person, releasing a defense article to a foreign embassy or consulate in the United States, and performing a defense service on behalf of or for the benefit of a foreign person whether in the US or abroad. Paragraph (b) adds the reach test: any release in the United States of technical data to a foreign person is deemed an export to all countries in which that person has held or holds citizenship or permanent residency.

The fundamental research carve-out

For universities, the single most consequential paragraph in Part 120 is 22 CFR 120.34(a)(8). Information is in the public domain — and therefore outside the technical data definition — where it is published and generally accessible to the public “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 as basic and applied research where the results are ordinarily published and shared broadly, as distinguished from research whose results are restricted for proprietary reasons or by specific US Government access and dissemination controls.

The regulation then names the two things that destroy the exclusion. University research will not be considered fundamental research if:

• the university or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity; or
• the research is funded by the US Government and specific access and dissemination controls protecting the resulting information apply.

This is why a single publication-approval clause negotiated into an award or NDA can move an entire project inside ITAR. The other public-domain routes in 120.34(a) — newsstand and bookstore sales, unrestricted subscriptions, libraries open to the public, patents available at any patent office, unlimited distribution at a public conference in the United States, and public release after approval by the cognizant US Government department or agency — matter less day to day, but the conference route is worth knowing because it requires unlimited distribution at a meeting generally accessible to the public.

What Part 120 is not

• It is not the US Munitions List. The USML — the categorised list of articles and services actually controlled — is 22 CFR Part 121. Part 120 supplies the vocabulary Part 121’s categories are read against. 22 CFR 120.10 and 120.11 explain how USML categories are composed and the order in which an item should be reviewed against them.
• It is not the dual-use regime. The Export Administration Regulations (15 CFR Parts 730-774), administered by the Commerce Department’s Bureau of Industry and Security, have their own definitions at 15 CFR Part 772. A term defined in 22 CFR Part 120 does not carry the same meaning under the EAR merely because the same English word appears in both.
• It does not settle jurisdiction. Where genuine doubt exists whether an article or service is covered by the USML, 22 CFR 120.4 provides the commodity jurisdiction procedure, submitted to DDTC under 22 CFR 120.12. 22 CFR 120.3 also records a point that surprises people: the intended use of an article after export — military or civilian — is not by itself a factor in whether ITAR controls apply.

Frequently Asked Questions

What does 22 CFR Part 120 cover?

It states ITAR’s statutory authority and purpose and supplies the definitions used throughout ITAR (22 CFR Parts 120-130). It does not list controlled items — that is Part 121, the US Munitions List.

What is a “deemed export” under ITAR?

Under 22 CFR 120.50(a)(2), releasing or otherwise transferring technical data to a foreign person inside the United States is itself an export. No shipment leaves the country. Under 120.50(b) the release is deemed an export to every country in which that foreign person has held or holds citizenship or permanent residency.

Who counts as a “US person” for ITAR?

Under 22 CFR 120.62, a lawful permanent resident under 8 U.S.C. 1101(a)(20) or a protected individual under 8 U.S.C. 1324b(a)(3), plus entities incorporated to do business in the United States and governmental entities. Employment by a US university does not make an individual a US person.

Does the fundamental research exclusion protect university work?

It can, but conditionally. Under 22 CFR 120.34(a)(8), results of fundamental research at accredited US institutions that are ordinarily published and shared broadly fall within the public domain and so outside “technical data.” The exclusion is lost if the institution or its researchers accept restrictions on publication, or if the work is US Government funded with specific access and dissemination controls applied.

How is ITAR different from the EAR?

ITAR is administered by the State Department (DDTC) and controls defense articles and services on the USML. The EAR is administered by the Commerce Department (BIS) and controls dual-use items on the Commerce Control List. They have separate definitions — Part 120 for ITAR, 15 CFR Part 772 for the EAR — and a commodity jurisdiction request under 22 CFR 120.4 is the formal route for resolving which applies.

References

• 22 CFR Part 120 (Purpose and Definitions), current edition, eCFR — in particular 120.1, 120.2, 120.3, 120.4, 120.10, 120.11, 120.31, 120.32, 120.33, 120.34, 120.50, 120.62, 120.63
• Arms Export Control Act, section 38 (22 U.S.C. 2778); Executive Order 13637
• 22 CFR Part 121 (US Munitions List); 15 CFR Part 772 (EAR definitions)