[Federal Register Volume 77, Number 250 (Monday, December 31, 2012)]
[Rules and Regulations]
[Pages 76864-76865]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31217]


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DEPARTMENT OF STATE

22 CFR Parts 120 and 126

[Public Notice 8135]
RIN 1400-AD26


Amendment to the International Traffic in Arms Regulations: 
Afghanistan and Change to Policy on Prohibited Exports

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State is amending the International Traffic 
in Arms Regulations (ITAR) to list Afghanistan as a major non-NATO 
ally, and to make available the use of two additional defense export 
license exemptions for proscribed destinations.

DATES: Effective Date: This rule is effective December 31, 2012.

FOR FURTHER INFORMATION CONTACT: Ms. Candace M. J. Goforth, Director, 
Office of Defense Trade Controls Policy, U.S. Department of State, 
telephone (202) 663-2792, or email DDTCResponseTeam@state.gov. ATTN: 
Regulatory Change, Afghanistan and 126.1.

SUPPLEMENTARY INFORMATION: On July 6, 2012, President Obama exercised 
his authority under section 517 of the Foreign Assistance Act of 1961 
(FAA) to designate the Islamic Republic of Afghanistan as a major non-
NATO ally (MNNA) for purposes of the FAA and the Arms Export Control 
Act. This final rule amends ITAR Sec.  120.32, which lists major non-
NATO allies, to account for this designation. Section 126.1 is amended 
to except the exemptions at ITAR Sec. Sec.  126.4 and 126.6 from the 
prohibitions therein and the text is further amended to clarify the 
requirements therein. Additionally, Sec.  126.1(g) is amended to 
clarify references to United Nations Security Council resolutions.

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. Since the 
Department is of the opinion that this rule is exempt from 5 U.S.C. 
553, it is the view of the Department that the provisions of section 
553(d) do not apply to this rulemaking. Therefore, this rule is 
effective upon publication. The Department also finds that, given the 
national security issues surrounding U.S. policy towards Afghanistan, 
notice and public procedure on this rule would be impracticable, 
unnecessary, or contrary to the public interest; for the same reason, 
the rule will be effective immediately.

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This rulemaking 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 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 rulemaking 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 13563 and 12866 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). These 
Executive Orders stress the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated ``significant regulatory 
actions,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, this rule has been reviewed by the 
Office of Management and Budget (OMB).

Executive Order 12988

    The Department of State has reviewed this rulemaking 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.

Executive Order 13175

    The Department of State has determined that this rulemaking 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 requirement of Executive Order 13175 does 
not apply to this rulemaking.

Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping 
requirements

[[Page 76865]]

subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Parts 120 and 126

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, parts 120 and 126 are amended as follows:

PART 120--PURPOSE AND DEFINITIONS

0
1. The authority citation for part 120 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. 2794; E.O. 11958, 42 FR 4311; 
E.O. 13284, 68 FR 4075; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a; 
Pub. L. 105-261, 112 Stat. 1920; Pub. L. 111-266.


0
2. Section 120.32 is revised to read as follows:


Sec.  120.32  Major non-NATO ally.

    Major non-NATO ally, as defined in section 644(q) of the Foreign 
Assistance Act of 1961 (22 U.S.C. 2403(q)), means a country that is 
designated in accordance with section 517 of the Foreign Assistance Act 
of 1961 (22 U.S.C. 2321(k)) as a major non-NATO ally for purposes of 
the Foreign Assistance Act of 1961 and the Arms Export Control Act (22 
U.S.C. 2151 et seq. and 22 U.S.C. 2751 et seq.). The following 
countries are designated as major non-NATO allies: Afghanistan (see 
Sec.  126.1(g) of this subchapter), Argentina, Australia, Bahrain, 
Egypt, Israel, Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan, 
the Philippines, Thailand, and Republic of Korea. Taiwan shall be 
treated as though it were designated a major non-NATO ally.

PART 126--GENERAL POLICIES AND PROVISIONS

0
3. The authority citation for part 126 continues 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.


0
4. Section 126.1 is amended by revising paragraphs (a) and (g) to read 
as follows:


Sec.  126.1  Prohibited exports, imports, and sales to or from certain 
countries.

    (a) General. It is the policy of the United States to deny licenses 
and other approvals for exports and imports of defense articles and 
defense services destined for or originating in certain countries. This 
policy applies to Belarus, Cuba, Eritrea, Iran, North Korea, Syria, and 
Venezuela. This policy also applies to countries with respect to which 
the United States maintains an arms embargo (e.g., Burma, China, and 
the Republic of the Sudan) or whenever an export would not otherwise be 
in furtherance of world peace and the security and foreign policy of 
the United States. Information regarding certain other embargoes 
appears elsewhere in this section. Comprehensive arms embargoes are 
normally the subject of a State Department notice published in the 
Federal Register. The exemptions provided in this subchapter, except 
Sec. Sec.  123.17, 126.4, and 126.6 of this subchapter or when the 
recipient is a U.S. Government department or agency, do not apply with 
respect to defense articles or defense services originating in or for 
export to any proscribed countries, areas, or persons identified in 
this section.
* * * * *
    (g) Afghanistan. It is the policy of the United States to deny 
licenses or other approvals for exports and imports of defense articles 
and defense services, destined for or originating in Afghanistan, 
except that a license or other approval may be issued, on a case-by-
case basis, for the Government of Afghanistan or coalition forces. In 
addition, the names of individuals, groups, undertakings, and entities 
subject to arms embargoes, due to their affiliation with the Taliban, 
Al-Qaida, or those associated with them, are published in lists 
maintained by the United Nations Security Council's Sanctions 
Committees (established pursuant to United Nations Security Council 
resolutions (UNSCR) 1267, 1988, and 1989).
* * * * *

    Dated: December 18, 2012.
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security, 
Department of State.
[FR Doc. 2012-31217 Filed 12-28-12; 8:45 am]
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