[Federal Register Volume 74, Number 225 (Tuesday, November 24, 2009)]
[Proposed Rules]
[Pages 61292-61294]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28181]


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DEPARTMENT OF STATE

22 CFR Part 125

[Public Notice 6338]
RIN 1400-AC59


Amendment to the International Traffic in Arms Regulations: 
Section 125.4(b)(9) Export Exemption for Technical Data

AGENCY: Department of State.

ACTION: Proposed rule.

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[[Page 61293]]

SUMMARY: The Department of State is proposing to amend the 
International Traffic in Arms Regulations (ITAR) regarding an exemption 
for technical data, to clarify that the exemption covers technical 
data, regardless of media or format, sent or taken by a U.S. person who 
is an employee of a U.S. corporation or a U.S. Government agency to a 
U.S. person employed by that U.S. corporation or to a U.S. Government 
agency outside the United States.

DATES: The Department of State will accept comments on this proposed 
rule until January 25, 2010.

ADDRESSES: Interested parties may submit comments within 60 days of the 
date of the publication by any of the following methods:
     E-mail: DDTCResponseTeam@state.gov with an appropriate 
subject line.
     Mail: Department of State, Directorate of Defense Trade 
Controls, Office of Defense Trade Controls Policy, Attn: Regulatory 
Change, Section 125.4, SA-1, 12th Floor, Washington, DC 20522-0112.
     Persons with access to the Internet may also view this 
notice by going to the U.S. Government regulations.gov Web site at 
http://regulations.gov/index.cfm.

FOR FURTHER INFORMATION CONTACT: Director Charles Shotwell, Office of 
Defense Trade Controls Policy, Department of State, Telephone (202) 
663-2792 or Fax (202) 261-8199; E-mail DDTCResponseTeam@state.gov. 
Attn: Regulatory Change, Section 125.4.

SUPPLEMENTARY INFORMATION: The proposed export exemption at 22 CFR 
125.4(b)(9) is amended to allow technical data, including classified 
information, and regardless of media or format, sent or taken by a U.S. 
person who is an employee of a U.S. corporation or a U.S. Government 
agency to a U.S. person employed by that U.S. corporation or to a U.S. 
Government agency outside the United States under certain specified 
circumstances reflected in 22 CFR 125.4(b)(9)(i) through (iii). This 
amendment will add after the word ``information'' the words ``and 
regardless of media or format.'' Also, the words ``sent by a U.S. 
corporation to a U.S. person employed by that corporation overseas or 
to a U.S. Government agency'' has been replaced by ``sent or taken by a 
U.S. person who is an employee of a U.S. corporation or a U.S. 
Government agency to a U.S. person employed by that corporation or to a 
U.S. Government agency outside the United States.'' Thus, the exemption 
will explicitly allow hand carrying technical data by a U.S. person 
employed by a U.S. corporation or a U.S. Government agency to a U.S. 
person employed by that U.S. corporation or to a U.S. Government agency 
outside the United States as long as certain criteria in Sec.  
125.4(b)(9) and 125.4(b)(9)(i) through (iii) are met. The word 
``overseas'' will be replaced by ``outside the United States'' at Sec.  
125.4(b)(9), 125.4(b)(9)(i), 125.4(b)(9)(ii), and 125.4(b)(9)(iii). 
Also, Sec.  125.4(b)(9)(iii) will be amended to add the words ``or 
taken'' after the word ``sent.'' As stated in section 22 CFR 125.4(a), 
this exemption does not apply to exports to proscribed destinations 
under 22 CFR 126.1.

Regulatory Analysis and Notices

Administrative Procedure Act

    This proposed amendment involves a foreign affairs function of the 
United States and, therefore, is not subject to the procedures 
contained in 5 U.S.C. 553 and 554.

Regulatory Flexibility Act

    Since this proposed amendment involves a foreign affairs function 
of the United States, it does not require analysis under the Regulatory 
Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This proposed amendment 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 were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed amendment has been found not to be a major rule 
within the meaning of the Small Business Regulatory Enforcement 
Fairness Act of 1996.

Executive Orders 12372 and 13132

    This proposed amendment 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 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 amendment.

Executive Order 12866

    This proposed amendment is exempt from review under Executive Order 
12866 but has been reviewed internally by the Department of State to 
ensure consistency with the purposes thereof.

Executive Order 12988

    The proposed Department of State has reviewed the proposed 
regulations in light of sections 3(a) and 3(b)(2) of Executive Order 
12988 to eliminate ambiguity, minimize litigation, establish clear 
legal standards, and reduce burden.

Paperwork Reduction Act

    This proposed rule does not impose any new reporting or 
recordkeeping requirements subject to the Paperwork Reduction Act, 44 
U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 125

    Arms and munitions, Classified information, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, part 125 is proposed to be amended as follows:

PART 125--LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED 
DEFENSE ARTICLES

    1. The authority citation for part 125 continues to read as 
follows:

    Authority: Secs. 2 and 38, Public Law 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 
22 U.S.C. 2651a.

    2. Section 125.4 is amended by revising paragraph (b)(9) to read as 
follows:


Sec.  125.4  Exemptions of general applicability.

* * * * *
    (b) * * *
    (9) Technical data, including classified information, and 
regardless of media or format, sent or taken by a U.S. person who is an 
employee of a U.S. corporation or a U.S. Government agency to a U.S. 
person employed by that U.S. corporation or to a U.S. Government agency 
outside the United States. This exemption is subject to the limitations 
of Sec.  125.1(b) of this subchapter and may be used if:
    (i) The technical data is to be used outside the United States 
solely by U.S. persons;

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    (ii) If the U.S. person outside the United States is an employee of 
the U.S. Government or is directly employed by the U.S. corporation and 
not by a foreign subsidiary; and
    (iii) The classified information is sent or taken outside the 
United States in accordance with the requirements of the Department of 
Defense National Industrial Security Program Operating Manual (unless 
such requirements are in direct conflict with guidance provided by the 
Directorate of Defense Trade Controls, in which case the latter 
guidance must be followed).
* * * * *

    Dated: November 9, 2009.
Ellen O. Tauscher,
Under Secretary, Arms Control and International Security, Department of 
State.
[FR Doc. E9-28181 Filed 11-23-09; 8:45 am]
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