Rule2023-07408
International Traffic in Arms Regulations: Expansion of Defense Articles and Defense Services Eligible for Transfer Under the Canadian and Treaty Exemptions
Primary source
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Published
April 12, 2023
Effective
May 12, 2023
Issuing agencies
State Department
Abstract
The Department of State is amending the International Traffic in Arms Regulations (ITAR) to expand the types of defense articles that may be exported and defense services that may be furnished pursuant to the Treaty between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation, the Treaty between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation, and the Canadian exemptions of the ITAR. The Department of State is also making clarifying amendments and conforming updates.
Full Text
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<title>Federal Register, Volume 88 Issue 70 (Wednesday, April 12, 2023)</title>
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[Federal Register Volume 88, Number 70 (Wednesday, April 12, 2023)]
[Rules and Regulations]
[Pages 21910-21912]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07408]
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DEPARTMENT OF STATE
22 CFR Part 126
[Public Notice: 11862]
RIN 1400-AF55
International Traffic in Arms Regulations: Expansion of Defense
Articles and Defense Services Eligible for Transfer Under the Canadian
and Treaty Exemptions
AGENCY: Department of State.
ACTION: Final rule and conforming revisions.
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SUMMARY: The Department of State is amending the International Traffic
in Arms Regulations (ITAR) to expand the types of defense articles that
may be exported and defense services that may be furnished pursuant to
the Treaty between the Government of the United States of America and
the Government of Australia Concerning Defense Trade Cooperation, the
Treaty between the Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern Ireland
Concerning Defense Trade Cooperation, and the Canadian exemptions of
the ITAR. The Department of State is also making clarifying amendments
and conforming updates.
DATES: The rule is effective on May 12, 2023.
FOR FURTHER INFORMATION CONTACT: Mr. Dilan Wickrema, Office of Defense
Trade Controls Policy, Department of State, telephone (202) 634-4981;
email <a href="/cdn-cgi/l/email-protection#d29696869191a7a1a6bdbfb7a081b7a0a4bbb1b792a1a6b3a6b7fcb5bda4"><span class="__cf_email__" data-cfemail="2e6a6a7a6d6d5b5d5a41434b5c7d4b5c58474d4b6e5d5a4f5a4b00494158">[email protected]</span></a> ATTN: Regulatory Change, ITAR
Supplement No.1 to part 126 Amendments.
SUPPLEMENTARY INFORMATION: The rules (Public Notice 7828, 77 FR 16591 &
Public Notice 8270, 78 FR 21523), published on March 21, 2012 and April
11, 2013, respectively, amended the ITAR to implement the Treaty
between the Government of the United States of America and the
Government of Australia Concerning Defense Trade Cooperation (referred
to herein as ``the Australia DTC Treaty'') (Treaty Doc. 110-10) and the
Treaty between the Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern Ireland
Concerning Defense Trade Cooperation (referred to herein as ``the UK
DTC Treaty'') (Treaty Doc. 110-7) (together referred to herein as ``the
Treaty exemptions''), and identified via Supplement No. 1 to part 126
the defense articles that may not be exported, and defense services
that may not be furnished, through the use of the Treaty exemptions
(ITAR Sec. Sec. 126.16 and 126.17) and the Canadian exemptions (ITAR
Sec. 126.5).
The Department of State is now amending Supplement No. 1 to part
126 to expand the types of defense articles that may be exported, and
defense services that may be furnished, pursuant to the Treaty
exemptions and Canadian exemptions. The Department of State is
implementing this amendment after a series of routine consultations
with its interagency and international counterparts. This amendment is
intended to ensure the Treaty exemptions and the Canadian exemptions
continue to enhance operational capabilities, interoperability, and
cooperation between the armed forces of the United States and its
allies and partners. While future rulemaking will address other areas
of the chart, this final rule implements four specific changes to
Supplement No. 1 to part 126.
First, this final rule amends the 25th entry, identified as USML
Category IV which previously excluded ``[d]efense articles and services
specific to torpedoes,'' to exclude only ``defense articles and
services specific to the warhead or the sonar, guidance, and control
section of torpedoes.'' Second, this final rule amends the 105th entry,
identified as USML Category XX(c), which previously excluded
``[d]efense articles and services specific to submarine combat control
systems,'' to remove mounting racks and cabinets from that entry.
Third, this final rule amends the 60th entry, the 66th entry, and
explanatory Note 9 to remove specific Underwater Acoustic Decoy
Countermeasures (ADC) from Supplement No. 1 and clarify the note.
Fourth, this final rule amends the 28th and 29th entries regarding USML
Category IV(i) manufacturing know-how and the 67th-70th entries
regarding USML Category XII night vision. The USML Category IV(i)
technical data entries are amended to reflect the fact that USML
Category IV(h) was previously updated (79 FR 34) to describe the
specific subassemblies of other USML Category IV defense articles that
remain ITAR-controlled. Similarly, the night vision entries are updated
to reflect the fact that first generation image intensification tubes
are not subject to the ITAR, some items previously controlled in
paragraph (c) of Category XII moved to paragraph (e) in a prior
rulemaking (81 FR 70340), and to clarify that the technical data and
defense services entry only applies to paragraph (f) of Category XII.
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 that 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).
Regulatory Flexibility Act
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 it
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, is determined that this 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
[[Page 21911]]
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 Supplement No.
1 will relieve licensing burdens for some exporters. Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
Because this rule pertains to specific bilateral and multilateral
relationships, this rule is not a ``significant regulatory action'' as
the rule ``pertain[s]'' to a ``military or foreign affairs function of
the United States'' under section 3(d)(2) of Executive Order 12866.
Executive Order 12988
The Department of State reviewed this 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 rulemaking will not
have tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not preempt tribal law.
Accordingly, Executive Order 13175 does not apply to this rulemaking.
Paperwork Reduction Act
This final rule does not impose or revise any new information
collections subject to 44 U.S.C. chapter 35.
List of Subjects in Part 126
Arms and munitions, Exports.
For the reasons set forth above, the Department of State amends 22
CFR part 126 as follows:
PART 126--GENERAL POLICIES AND PROVISIONS
0
1. The authority citation for part 126 continues to read as follows:
Authority: 22 U.S.C. 287c, 2651a, 2752, 2753, 2776, 2778, 2779,
2779a, 2780, 2791, 2797; Sec. 1225, Pub. L. 108-375, 118 Stat. 2091;
Sec. 7045, Pub. L. 112-74, 125 Stat. 1232; Sec. 1250A, Pub. L 116-
92, 133 Stat. 1665; Sec. 205, Pub. L. 116-94, 133 Stat. 3052; E.O.
13637, 78 FR 16129, 3 CFR, 2013 Comp., p. 223.
0
2. Amend Supplement No. 1 to part 126 by revising:
0
a. The seven entries for USML Category IV;
0
b. The six entries for USML Category XI;
0
c. The five entries for USML Category XII;
0
d. The entry for USML Category XX(c); and
0
e. Note 9.
The revisions read as follows:
Supplement No. 1 to Part 126
* * * * *
----------------------------------------------------------------------------------------------------------------
(CA) Sec. (AS) Sec. (UK) Sec.
USML category Exclusion 126.5 126.16 126.17
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* * * * * * *
IV............................ Defense articles and services X X X
specific to man-portable air
defense systems (MANPADS). See
Note 6.
IV............................ Defense articles and services .............. .............. X
specific to rockets, designed
or modified for non-military
applications that do not have a
range of 300 km (i.e., not
controlled on the MTCR Annex).
IV............................ Defense articles and services .............. X X
specific to the warhead or the
sonar, guidance, and control
section of torpedoes.
IV............................ Defense articles and services X X X
specific to anti-personnel
landmines. See Note 15.
IV............................ Defense articles and services X X X
specific to cluster munitions.
IV(i)......................... Software source code directly .............. X X
related to defense articles
described in USML Category
IV(a), (b), (c), or (g). See
Note 4.
IV(i)......................... Manufacturing know-how directly X X X
related to defense articles
described in USML Category
IV(a), (b), (d), (g), or (h).
See Note 5.
* * * * * * *
XI(a), (c), (d)............... Defense articles and services .............. X X
specific to countermeasures and
counter- countermeasures, other
than Underwater Acoustic Decoy
Countermeasures (ADC) Mk2 Mods
1 through 7. See Note 9.
XI(a)......................... High Frequency and Phased Array .............. X
Microwave Radar systems, with
capabilities such as search,
acquisition, tracking, moving
target indication, and imaging
radar systems. See Note 16.
XI(a), (c), and (d)........... Defense articles and services .............. X X
specific to naval technology
and systems relating to
acoustic spectrum control and
awareness. See Note 10.
XI(a), (c), and (d)........... Defense articles and services .............. X X
specific to USML Category XI(b)
(e.g., communications security
(COMSEC) and TEMPEST).
XI(d)......................... Software source code related to .............. X X
USML Category XI(a). See Note 4.
XI(d)......................... Manufacturing know-how related X X X
to USML Category XI(a)(3) or
XI(a)(4), and specially
designed components therefor.
See Note 5.
* * * * * * *
XII........................... Defense articles and services .............. X X
specific to countermeasures and
counter- countermeasures, other
than Underwater Acoustic Decoy
Countermeasures (ADC) Mk 2 Mods
1 through 7. See Note 9.
[[Page 21912]]
XII........................... Defense articles and services X
specific to USML Category
XII(c) articles, except:.
--2nd-generation image
intensification tubes,.
--2nd-generation image
intensification night sighting
equipment, and.
--end-items in paragraph (c) and
components in paragraphs (e)(4)
through (7) of USML Category
XII, and the following
technical data directly related
thereto:.
--technical data limited to
basic operations, maintenance,
and training information as
authorized under the exemption
in Sec. 125.4(b)(5) of this
subchapter for export directly
to a Canadian Government entity
(i.e., federal, provincial,
territorial, or municipal)
consistent with Sec. 126.5,
other exclusions, and the
provisions of this subchapter.
XII(f)........................ Technical data and defense X X X
services directly related to
night vision commodities beyond
basic operations, maintenance,
and training information,
unless pursuant to a written
solicitation or contract issued
or awarded by the U.S.
Department of Defense for an
end-use identified in paragraph
(e)(1), (2), or (4) of Sec.
126.16 or Sec. 126.17 of this
subchapter.
XII(f)........................ Manufacturing know-how directly X X X
related to any of the
following:
--defense articles described in
USML Category XII(d), and.
--specially designed parts and
components therefor..
See Note 5......................
XII(f)........................ Software source code directly .............. X X
related to defense articles
described in USML Category
XII(a), (b), (c), or (d). See
Note 4.
* * * * *
XX(c)......................... Defense articles and services .............. X X
specific to submarine combat
control systems other than
mounting racks and cabinets.
* * * * * * *
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* * * * *
Note 9: Examples of countermeasures and counter-countermeasures
related to defense articles not exportable under the AS or UK.
Treaty exemptions are:
(a) IR countermeasures;
(b) Classified techniques and capabilities;
(c) Exports for precision radio frequency (RF) location that
directly or indirectly supports fire control and is used for situation
awareness, target identification, target acquisition, and weapons
targeting and radio direction finding capabilities. Precision RF
location is defined as root mean square (RMS) angle of arrival accuracy
of less than five degrees (5[deg] RMS) and RF emitter location of less
than ten percent (10%) range error;
(d) Providing the capability to reprogram; and
(e) Acoustics (including underwater), active and passive
countermeasures, and counter-countermeasures other than the Underwater
Acoustic Decoy Countermeasures (ADC) Mk 2 Mods 1 through 7.
* * * * *
Bonnie Jenkins,
Under Secretary, Arms Control and International Security, Department of
State.
[FR Doc. 2023-07408 Filed 4-11-23; 8:45 am]
BILLING CODE 4710-25-P
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