Proposed Rule2022-27156
International Traffic in Arms Regulations: Amendment to the Definition of Activities That Are Not Exports, Reexports, Retransfers, or Temporary Imports
Primary source
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Published
December 16, 2022
Issuing agencies
State Department
Abstract
The Department of State proposes to add two new entries to the International Traffic in Arms Regulations (ITAR) to expand the definition of "activities that are not exports, reexports, retransfers, or temporary imports." First, subject to certain conditions, the taking of defense articles outside a previously approved country by the armed forces of a foreign government or United Nations personnel on a deployment or training exercise is not an export, reexport, retransfer, or temporary import. Second, a foreign defense article that enters the United States, either permanently or temporarily, and that is subsequently exported from the United States pursuant to a license or other approval under this subchapter, is not subject to the reexport and retransfer requirements of this subchapter, provided it has not been modified, enhanced, upgraded, or otherwise altered or improved or had a U.S.-origin defense article integrated into it.
Full Text
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<title>Federal Register, Volume 87 Issue 241 (Friday, December 16, 2022)</title>
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[Federal Register Volume 87, Number 241 (Friday, December 16, 2022)]
[Proposed Rules]
[Pages 77046-77047]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27156]
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DEPARTMENT OF STATE
22 CFR Part 120
[Public Notice: 11801]
RIN 1400-AF26
International Traffic in Arms Regulations: Amendment to the
Definition of Activities That Are Not Exports, Reexports, Retransfers,
or Temporary Imports
AGENCY: Department of State.
ACTION: Proposed rule.
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SUMMARY: The Department of State proposes to add two new entries to the
International Traffic in Arms Regulations (ITAR) to expand the
definition of ``activities that are not exports, reexports,
retransfers, or temporary imports.'' First, subject to certain
conditions, the taking of defense articles outside a previously
approved country by the armed forces of a foreign government or United
Nations personnel on a deployment or training exercise is not an
export, reexport, retransfer, or temporary import. Second, a foreign
defense article that enters the United States, either permanently or
temporarily, and that is subsequently exported from the United States
pursuant to a license or other approval under this subchapter, is not
subject to the reexport and retransfer requirements of this subchapter,
provided it has not been modified, enhanced, upgraded, or otherwise
altered or improved or had a U.S.-origin defense article integrated
into it.
DATES: Send comments on or before February 14, 2023.
ADDRESSES: Interested parties may submit comments by one of the
following methods:
[ssquf] Email: <a href="/cdn-cgi/l/email-protection#4d0909190e1d382f21242e0e2220202823393e0d3e392c3928632a223b"><span class="__cf_email__" data-cfemail="eaaeaebea9ba9f88868389a98587878f849e99aa999e8b9e8fc48d859c">[email protected]</span></a> with the subject line,
``ITAR Amendment--120.54 Additions.''
[ssquf] Internet: at <a href="http://www.regulations.gov">www.regulations.gov</a>, search for this notice,
Docket DOS-2022-0031.
Comments received after that date may be considered if feasible,
but consideration cannot be assured. Those submitting comments should
not include any personally identifying information they do not desire
to be made public or any information for which a claim of
confidentiality is asserted, because comments and/or transmittal emails
will be made available for public inspection and copying after the
close of the comment period via the Directorate of Defense Trade
Control website at <a href="http://www.pmddtc.state.gov">www.pmddtc.state.gov</a>. Parties who wish to comment
anonymously may submit comments via <a href="http://www.regulations.gov">www.regulations.gov</a>, leaving the
fields that would identify the commenter blank and including no
identifying information in the comment itself.
FOR FURTHER INFORMATION CONTACT: Dilan Wickrema, Office of Defense
Trade Controls Policy, U.S. Department of State, telephone (202) 634-
4981, or email <a href="/cdn-cgi/l/email-protection#7430302037370107001b191106271106021d17113407001500115a131b02"><span class="__cf_email__" data-cfemail="296d6d7d6a6a5c5a5d46444c5b7a4c5b5f404a4c695a5d485d4c074e465f">[email protected]</span></a>. ATTN: Regulatory Change,
ITAR 120.54 additions.
SUPPLEMENTARY INFORMATION: The Directorate of Defense Trade Controls
(DDTC), U.S. Department of State, administers the International Traffic
in Arms Regulations (ITAR) (22 CFR parts 120 through 130). The items
subject to the jurisdiction of the ITAR, i.e., defense articles and
defense services, are identified on the ITAR's U.S. Munitions List
(USML) (22 CFR 121.1). The ITAR imposes license requirements for
exports and reexports of controlled items.
On March 25, 2020, the Department added a new ITAR section (Sec.
120.54) to clarify and consolidate activities that do not require
authorization from the Department (84 FR 70887). This proposed rule
would add to ITAR Sec. 120.54 two activities that are not controlled
events (defined herein, and in the previous rule, to mean ``an export,
reexport, retransfer, or temporary import'') and therefore do not
require authorization from the Department. While previously not
specified in the ITAR, the Department's long-standing policy is that
these two proposed activities are not controlled events.
The first of the two new proposed additions to ITAR Sec. 120.54 is
a new paragraph (a)(6) making explicit that the taking of defense
articles outside a previously approved country by the armed forces of a
foreign government or United Nations personnel on a deployment or
training exercise is not a controlled event, provided there is no
change in end-use or end-user. The Department proposes this new
provision to ensure interoperability between and among the United
States and partner countries' armed forces when deployed and to provide
assurances to partner countries that have requested a clearer statement
of the long-standing Department policy articulated in this proposed
rule. This policy is noted in DDTC's ``Guidelines for Preparing
Agreements'' and this proposed provision would codify this long-
standing understanding in the ITAR.
The second addition to ITAR Sec. 120.54 would state in a new
paragraph (a)(7) that the transfer of a foreign defense
[[Page 77047]]
article originally imported into the United States that has since been
exported out of the United States, is not a controlled event, unless
certain enumerated circumstances have occurred.
The Department proposes this new provision to eliminate any
misperception that foreign defense articles which originally entered
the United States and have since been exported out of the United States
always will require Department authorization for subsequent transfers.
The Department assesses this proposed provision will address concerns
raised by partners and allies and avoid the need for unnecessary
requests for authorization on the part of domestic and foreign defense
companies.
Request for Comments: The Department welcomes public comment on any
of the proposed changes set forth in this rule. In particular, we
invite comments from foreign government end-users on the application of
these provisions.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is of the opinion that controlling the
import and export of defense articles and services is a foreign affairs
function of the United States government and rules implementing this
function are exempt from sections 553 (rulemaking) and 554
(adjudications) of the Administrative Procedure Act (APA), pursuant to
5 U.S.C. 553(a)(1). Notwithstanding the assertion of the foreign
affairs exemption, the Department is solicitating comment on this
proposed rule.
Regulatory Flexibility Act
Notwithstanding the Department's publication of this rulemaking as
a proposed rule, this rule is exempt from the notice-and-comment
rulemaking provisions of 5 U.S.C. 553 as a foreign affairs function.
Therefore, it does not require analysis under the Regulatory
Flexibility Act.
Unfunded Mandates Reform Act of 1995
This rulemaking does not involve a mandate that will result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any year and will
not significantly or uniquely affect small governments. Therefore, no
actions are deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Executive Orders 12372 and 13132
This rulemaking will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this proposed amendment does not
have sufficient federalism implications to require consultations or
warrant the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this rulemaking.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributed impacts, and equity). This
rule's scope does not impose additional regulatory requirements or
obligations; therefore, the Department believes costs associated with
this rule will be minimal. Although the Department cannot determine
based on available data how many fewer licenses will be submitted as a
result of this rule, the amendments to the definition of activities
that are not exports, reexports, retransfers, or temporary imports will
relieve licensing burdens for some exporters. This rule is consistent
with Executive Order 13563, which emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This rule has been designated a
``significant regulatory action,'' although not economically
significant, by the Office and Information and Regulatory Affairs under
Executive Order 12866.
Executive Order 12988
The Department of State has reviewed the proposed rulemaking in
light of Executive Order 12988 to eliminate ambiguity, minimize
litigation, establish clear legal standards, and reduce burden.
Executive Order 13175
The Department of State determined that this proposed rule will not
have tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not preempt tribal law.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rulemaking.
Paperwork Reduction Act
This proposed rule does not impose or revise any information
collections subject to 44 U.S.C. chapter 35.
List of Subjects in 22 CFR Part 120
Arms and munitions, Classified information, Exports.
For the reasons set forth above, the Department of State proposes
to amend title 22, chapter I, subchapter M, part 120 as follows:
PART 120--PURPOSE AND DEFINITIONS
0
1. The authority citation for part 120 continues to read as follows:
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.
0
2. Amend Sec. 120.54 by adding paragraphs (a)(6) and (7) to read as
follows:
Sec. 120.54 Activities that are not exports, reexports, retransfers,
or temporary imports.
(a) * * *
(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) the defense article is transported by and remains in the
possession of the armed forces of a foreign government or United
Nations personnel; and
(ii) there is no change in end-use or end-user with respect to the
subject defense article.
(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; and
(ii) a U.S.-origin defense article was not incorporated into the
foreign defense article.
* * * * *
Bonnie Jenkins,
Under Secretary, Arms Control and International Security, Department of
State.
[FR Doc. 2022-27156 Filed 12-15-22; 8:45 am]
BILLING CODE 4710-25-P
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