[Federal Register Volume 77, Number 85 (Wednesday, May 2, 2012)]
[Rules and Regulations]
[Pages 25865-25868]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10599]



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Rules and Regulations
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Federal Register / Vol. 77, No. 85 / Wednesday, May 2, 2012 / Rules 
and Regulations

[[Page 25865]]



DEPARTMENT OF STATE

22 CFR Parts 123 and 126

[Public Notice 7865]
RIN 1400-AC71


Amendment to the International Traffic in Arms Regulations: 
Exemption for Temporary Export of Chemical Agent Protective Gear

AGENCY: Department of State.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of State is amending the International Traffic 
in Arms Regulations (ITAR) to add an exemption for the temporary export 
of chemical agent protective gear for personal use. The exemption for 
body armor is amended to also cover helmets when they are included with 
the body armor. An exemption for firearms and ammunition is clarified 
by removing certain extraneous language that does not change the 
meaning of the exemption, and by standardizing the language among the 
exemptions in this section of the regulations. The registration 
requirement as it relates to certain exemptions is clarified. And an 
error in the authorities for part 126 of the ITAR is corrected.

DATES: Effective Date: This rule is effective June 1, 2012.

FOR FURTHER INFORMATION CONTACT: Ms. Candace M. J. Goforth, Acting 
Director, Office of Defense Trade Controls Policy, Department of State, 
telephone (202) 663-2792; email DDTCResponseTeam@state.gov. ATTN: 
Regulatory Change, ITAR Section 123.17.

SUPPLEMENTARY INFORMATION: In August 2009, the Department of State 
amended the ITAR to provide an exemption for the temporary export of 
body armor covered by 22 CFR 121.1, Category X(a)(1). Now, the 
Department is amending the ITAR to add an exemption for the temporary 
export of chemical agent protective gear covered by 22 CFR 121.1, 
Category XIV(f)(4). The exemption is available for U.S. persons for 
temporary exports to countries not subject to restrictions under ITAR 
Sec.  126.1, and to countries subject to restrictions under ITAR Sec.  
126.1 under specified conditions. In order to use the exemption, the 
chemical agent protective gear must be for the U.S. person's exclusive 
use and must be returned to the United States. The U.S. person may not 
reexport the protective gear to a foreign person or otherwise transfer 
ownership. The protective gear may not be exported to any country where 
the importation would be in violation of that country's laws.
    New Sec.  123.17(j) specifies that if the chemical agent protective 
gear is not returned to the United States with the individual that 
temporarily exported the gear, a detailed report of the incident must 
be submitted to the Office of Defense Trade Controls Compliance in 
accordance with the requirements of ITAR Sec.  127.12(c)(2). If the 
chemical agent protective gear is lost or stolen, the report should 
describe all attempts to locate the gear and explain the circumstances 
leading to its loss or theft. In the event the chemical agent 
protective gear is used and disposed of according to HAZMAT guidelines, 
the report should provide a disposal date and location details for the 
approved HAZMAT facility used, along with a receipt for disposal 
services. If a HAZMAT facility is not available, the report should 
describe the date, location, and method used to dispose of the 
protective gear. In the proposed rule, this disclosure provision was 
covered in paragraph (f) and applied only to the body armor and 
chemical agent protective gear provisions. In this final rule, we 
specify that, in addition to applying to the body armor and chemical 
agent protective gear exemptions, it also applies to the firearms 
exemption covered in paragraph (c).
    The change removes the requirement that assistance to the 
government of Iraq be ``humanitarian'' to more accurately match the 
language of United Nations Security Council restrictions, which do not 
limit assistance to humanitarian assistance.
    New Sec.  123.17(k) clarifies that individuals who are U.S. persons 
seeking to use the exemptions of Sec.  123.17 are not required to be 
registered with the Department of State (the registration requirement 
is described in ITAR part 122).
    Section (c)(3) is revised to remove what is in practice extraneous 
language. Subject to the requirements of (c)(1)-(3), the exemption 
applies to all eligible individuals (with the noted exceptions). Thus, 
while the text is revised, the meaning of (c)(3) is not changed.
    The authority citation for ITAR part 126 is corrected to include 
sections 7045 and 7046 of Public Law 112-74.
    This rule was first published as a proposed rule on March 23, 2011, 
soliciting public comment. The comment period ended May 23, 2011. Seven 
parties filed comments recommending changes. The Department's 
evaluation of the written comments and recommendations follows:
    Three commenting parties requested the elimination of the 
requirement for a U.S. Customs and Border Protection (CBP) inspection 
before export, citing logistical difficulties in certain instances (for 
example, departing on a U.S. military airplane from a U.S. military 
base). According to law and regulations, persons who claim this 
exemption must submit the articles for CBP inspection at departure, 
regardless of the type of aircraft used for departure from the United 
States. Therefore, the Department did not accept this recommendation.
    Three commenting parties requested clarification of the phrase, 
``affiliated with the U.S. Government,'' or recommended it be replaced 
with ``travelling in support of a U.S. Government contract.'' Because 
the first phrase includes those employed by the U.S. Government, and is 
meant to include those who are described by the second phrase, the 
Department has kept the first phrase and amended the regulation to 
include the second phrase.
    Two commenting parties recommended the option of separate shipment 
or mailing of armor or gear exported using this exemption, stating that 
carrying the armor or gear is burdensome. We acknowledge that carrying 
the armor or gear may present certain logistical difficulties, but 
because this exemption is intentionally of limited scope, we are not 
prepared to authorize separate shipment or mailing

[[Page 25866]]

as a mean of export at this time. Therefore, the Department did not 
accept this recommendation.
    Two commenting parties inquired into what type of documentation may 
be used to satisfy the exemption requirements for Iraq. As the rule is 
written, various forms of documentation may be presented to fulfill the 
exemption requirements, including the examples proffered by the 
commenting parties (contract with or letter from the U.S. Government).
    One commenting party recommended including specific mention of the 
C2 canister as covered by the chemical agent protective gear exemption. 
Upon reflection, the Department determined that the exemption would be 
more useful if it provided for coverage of a spare filter canister (of 
which the C2 canister is one variant). Therefore, the Department in 
effect accepted this recommendation, although it opted for use of the 
more generic term of ``filter canister'' rather than ``C2 canister.''
    One commenting party recommended the removal of the requirement to 
submit a report to the Office of Defense Trade Controls Compliance in 
accordance with the requirements of Sec.  127.12(c)(2) should the 
person temporarily exporting under this exemption not be able to return 
the exported items. The commenting party said it would be ``wrong'' to 
treat as a violation an instance where the impediment to return was the 
actual intended use and destruction of the body armor or chemical agent 
protective gear. The Department notes when an item authorized only for 
temporary export is not returned to the United States, by definition it 
is a violation. Section 127.12(c)(2) is the means by which such a 
violation is reported to the Department. The Department did not accept 
this recommendation.
    One commenting party recommended broadening this exemption for use 
by U.S. persons, as defined at ITAR Sec.  120.14. The Department 
clarifies that the exemption is for use by U.S. persons, as defined at 
ITAR Sec.  120.14.
    One commenting party recommended the removal of the requirement to 
file the export declaration through the Automated Export System (AES), 
with the explanation that AES is not available for individual use. The 
Department verified that AES is available for individual use. 
Therefore, the Department did not accept this recommendation.
    One commenting party recommended expanding the exemption to allow a 
U.S. person to export and distribute to employees the items covered by 
the exemption. While a company within the definition of ``U.S. person'' 
may claim the exemption for his employees, the individual employees 
must export the items and these items must be with the individual's 
baggage or effects, whether accompanied or unaccompanied (but not 
mailed).
    One commenting party recommended allowing the use of this exemption 
for temporary export to proscribed destinations listed in ITAR Sec.  
126.1, when the person using the exemption is travelling on official 
business in support of a U.S. government contract. The Department 
agreed with the rationale that this modification to the proposed rule 
would ``allow for the timely support of U.S. Government contracts in 
hazardous areas of foreign countries where such protective gear is 
required for personal safety.'' Therefore, the Department accepted this 
recommendation.
    One commenting party recommended eliminating the requirement in 
paragraph (f)(3) for the individual to declare to CBP his intention of 
returning the articles upon each return to the United States, stating 
that it is common practice for persons to safely store their gear 
overseas when returning home for short visits. The Department accepted 
this recommendation, and has revised paragraph (f)(3) to require the 
person to declare that it is his intention to return the articles ``at 
the end of tour, contract, or assignment for which the articles were 
temporarily exported.''
    One commenting party recommended providing the option of depositing 
the body armor or chemical agent protective gear with a U.S. Government 
depot and receiving a receipt in lieu of physical return of the 
articles to the United States, and another commenting party inquired 
whether this was permissible under the exemption. In order to avoid the 
requirement of obtaining a license from the Department for the export, 
the articles temporarily exported under this exemption must be 
physically returned to the United States. Therefore, the Department did 
not accept this recommendation.
    One commenting party recommended including helmets in the body 
armor exemption, noting that helmets are frequently added to a suit of 
armor, and that it ``makes good sense'' to include in the same 
exemption that covers items that protect a person's body an item that 
protects a person's head. The Department agreed with this 
recommendation, and has added helmets covered by 22 CFR 121.1, Category 
X(a)(6) to the exemption for the temporary export of body armor, when 
the helmet is included with the body armor. The exemption is not 
available for the helmet alone.
    Having thoroughly reviewed and evaluated the comments and the 
recommended changes, the Department has determined that it will, and 
hereby does, adopt the proposed rule, with changes noted and other 
edits, and promulgates it as a final rule.

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 Sec.  553 (Rulemaking) and Sec.  554 
(Adjudications) of the Administrative Procedure Act. Although the 
Department is of the opinion that this rule is exempt from the 
rulemaking provisions of the APA, the Department published this rule 
with a 60-day provision for public comment and without prejudice to its 
determination that restricting defense article exports is a foreign 
affairs function.

Regulatory Flexibility Act

    Since the Department is of the opinion that this rule is exempt 
from the rulemaking provisions of 5 U.S.C. 553, it does not require 
analysis under the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This 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.

Executive Order 13175

    The Department has determined that this rule will not have tribal 
implications, will not impose substantial direct compliance costs on 
Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
his rule.

Small Business Regulatory Enforcement Fairness Act of 1996

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

[[Page 25867]]

Executive Orders 12372 and 13132

    This 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

    The Department 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 governing the conduct of 
this function are exempt from the requirements of Executive Order 
12866. However, the Department has reviewed the rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
the Executive Order.

Executive Order 13563

    The Department of State has considered this rule in light of 
Executive Order 13563, dated January 18, 2011, and affirms that this 
regulation is consistent with the guidance therein.

Executive Order 12988

    The Department of State has reviewed this amendment 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 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 Parts 123 and 126

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, parts 123 and 126 are amended as follows:

PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES

0
1. The authority citation for part 123 continues to read as follows:

    Authority:  Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2753; E.O. 11958, 42 FR 
4311; 3 CFR, 1977 Comp. p.79; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. 
L. 105-261, 112 Stat. 1920; Sec. 1205(a), Pub. L. 107-228.


0
2. Section 123.17 is amended by revising the section heading, and 
paragraphs (c), (f), and (g), and adding paragraphs (h) through (k), to 
read as follows:


Sec.  123.17  Exports of firearms, ammunition, and personal protective 
gear.

* * * * *
    (c) Port Directors of U.S. Customs and Border Protection (CBP) 
shall permit U.S. persons to export temporarily from the United States 
without a license not more than three nonautomatic firearms in Category 
I(a) of Sec.  121.1 of this subchapter and not more than 1,000 
cartridges therefor, provided that:
    (1) The person declares the articles to a CBP officer upon each 
departure from the United States, presents the Internal Transaction 
Number from submission of the Electronic Export Information in the 
Automated Export System per Sec.  123.22 of this subchapter, and the 
articles are presented to the CBP officer for inspection;
    (2) The firearms and accompanying ammunition to be exported is with 
the individual's baggage or effects, whether accompanied or 
unaccompanied (but not mailed); and
    (3) The firearms and accompanying ammunition must be for that 
person's exclusive use and not for reexport or other transfer of 
ownership. The person must declare that it is his intention to return 
the article(s) on each return to the United States. The foregoing 
exemption is not applicable to the personnel referred to in Sec.  
123.18 of this subchapter.
* * * * *
    (f) Port Directors of U.S. Customs and Border Protection (CBP) 
shall permit U.S. persons to export temporarily from the United States 
without a license one set of body armor covered by U.S. Munitions List 
Category X(a)(1), which may include one helmet covered by U.S. 
Munitions List Category X(a)(6), or one set of chemical agent 
protective gear covered by U.S. Munitions List Category XIV(f)(4), 
which may include one additional filter canister, provided:
    (1) The person declares the articles to a CBP officer upon each 
departure from the United States, presents the Internal Transaction 
Number from submission of the Electronic Export Information in the 
Automated Export System (AES) per Sec.  123.22 of this subchapter, and 
the articles are presented to the CBP officer for inspection;
    (2) The body armor, which may include a helmet, or chemical agent 
protective gear, which may include one additional filter canister, to 
be exported is with the individual's baggage or effects, whether 
accompanied or unaccompanied (but not mailed); and
    (3) The body armor, which may include a helmet, or chemical agent 
protective gear, which may include one additional filter canister, to 
be exported is for that person's exclusive use and not for reexport or 
other transfer of ownership. The person must declare it is his 
intention to return the article(s) to the United States at the end of 
tour, contract, or assignment for which the articles were temporarily 
exported.
    (g) The license exemption set forth in paragraph (f) of this 
section is available for the temporary export of body armor or chemical 
agent protective gear for personal use to countries listed in Sec.  
126.1 of this subchapter provided:
    (1) The conditions in paragraph (f) of this section are met; and
    (2) The person is affiliated with the U.S. Government traveling on 
official business or is traveling in support of a U.S. Government 
contract. The person shall present documentation to this effect, along 
with the Internal Transaction Number for the AES submission, to the CBP 
officer.
    (h) The license exemption set forth in paragraph (f) of this 
section is available for the temporary export of body armor, which may 
include a helmet, or chemical agent protective gear, which may include 
one additional filter canister, for personal use to Iraq, provided the 
conditions in paragraph
    (f) are met, and the person is either affiliated with the U.S. 
Government traveling on official business or is traveling in support of 
a U.S. Government contract, or is traveling to Iraq under a direct 
authorization by the Government of Iraq and engaging in activities for, 
on behalf of, or at the request of, the Government of Iraq. The person 
shall present documentation to this effect, along with the Internal 
Transaction Number for the AES submission, to the CBP officer. 
Documentation regarding direct authorization from the Government of 
Iraq shall include an English translation.
    (i) The license exemption set forth in paragraph (f) of this 
section is available for the temporary export of body armor, which may 
include a helmet, or chemical agent protective gear, which may include 
one additional filter canister, for personal use to Afghanistan, 
provided the conditions in paragraph (f) are met.
    (j) If the articles temporarily exported pursuant to paragraphs (c) 
and (f)

[[Page 25868]]

through (i) of this section are not returned to the United States, a 
detailed report must be submitted to the Office of Defense Trade 
Controls Compliance in accordance with the requirements of Sec.  
127.12(c)(2) of this subchapter.
    (k) To use the exemptions in this section, individuals are not 
required to be registered with the Department of State (the 
registration requirement is described in part 122 of this subchapter). 
All other entities must be registered and eligible, as provided in 
Sec. Sec.  120.1(c) and (d) and part 122 of this subchapter.

PART 126--GENERAL POLICIES AND PROVISIONS

0
3. The authority citation for part 126 is revised to read as follows:

    Authority:  Secs. 2, 38, 40, 42, and 71, Pub. L. 90-629, 90 
Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); E.O. 11958, 
42 FR 4311; 3 CFR, 1977 Comp., p. 79; 22 U.S.C. 2651a; 22 U.S.C. 
287c; E.O. 12918, 59 FR 28205; 3 CFR, 1994 Comp., p. 899; Sec. 1225, 
Pub. L. 108-375; Sec. 7089, Pub. L. 111-117; Pub. L. 111-266; 
Section 7045, Pub. L. 112-74; Section 7046, Pub. L. 112-74.

    Dated: April 25, 2012.
 Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security, 
Department of State.
[FR Doc. 2012-10599 Filed 5-1-12; 8:45 am]
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