[Federal Register Volume 78, Number 20 (Wednesday, January 30, 2013)]
[Proposed Rules]
[Pages 6269-6272]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01825]
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Parts 121, 123, 124, 125, and 129
[Public Notice 8166]
RIN 1400-AD18
Amendment to the International Traffic in Arms Regulations:
Revision of U.S. Munitions List Category XVI
AGENCY: Department of State.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: As part of the President's Export Control Reform effort, the
Department of State proposes to amend the International Traffic in Arms
Regulations (ITAR) to revise Category XVI (nuclear weapons related
articles) of the U.S. Munitions List (USML). The revisions contained in
this rule are part of the Department of State's retrospective plan
under E.O. 13563 completed on August 17, 2011. The Department of
State's full plan can be accessed at http://www.state.gov/documents/organization/181028.pdf.
DATES: The Department of State will accept comments on this proposed
rule until March 18, 2013.
ADDRESSES: Interested parties may submit comments within 45 days of the
date of publication by one of the following methods:
Email: DDTCResponseTeam@state.gov with the subject line,
``ITAR Amendment--Category XVI.''
Internet: At www.regulations.gov, search for this notice
by using this rule's RIN (1400-AD18).
Comments received after that date will 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 information for which a claim of confidentiality
is asserted because those 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 Controls Web site
at www.pmddtc.state.gov. Parties who wish to comment anonymously may do
so by submitting their comments via www.regulations.gov, leaving the
fields that would identify the commenter blank and including no
identifying information in the comment itself. Comments submitted via
www.regulations.gov are immediately available for public inspection.
FOR FURTHER INFORMATION CONTACT: Ms. Candace M. J. Goforth, Director,
Office
[[Page 6270]]
of Defense Trade Controls Policy, U.S. Department of State, telephone
(202) 663-2792, or email DDTCResponseTeam@state.gov. ATTN: Regulatory
Change, USML Category XVI.
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 120-130). The items subject to
the jurisdiction of the ITAR, i.e., ``defense articles,'' are
identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1).
With few exceptions, items not subject to the export control
jurisdiction of the ITAR are subject to the jurisdiction of the Export
Administration Regulations (``EAR,'' 15 CFR parts 730-774, which
includes the Commerce Control List (CCL) in Supplement No. 1 to part
774), administered by the Bureau of Industry and Security (BIS), U.S.
Department of Commerce. Both the ITAR and the EAR impose license
requirements on exports and reexports. Items not subject to the ITAR or
to the exclusive licensing jurisdiction of any other agency of the U.S.
government, such as the Department of Energy, are subject to the EAR.
Export Control Reform Update
The Departments of State and Commerce described in their respective
Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the
Administration's plan to make the USML and the CCL positive, tiered,
and aligned so that eventually they can be combined into a single
control list (see ``Commerce Control List: Revising Descriptions of
Items and Foreign Availability,'' 75 FR 76664 (December 9, 2010) and
``Revisions to the United States Munitions List,'' 75 FR 76935
(December 10, 2010)). The notices also called for the establishment of
jurisdictional ``bright lines'' between items controlled by the
Department of State and items other departments, primarily the
Department of Commerce, control. This notice seeks to draw a
jurisdictional bright line, but largely with respect to items that are
now subject to the jurisdiction of the Department of Energy.
Revision of Category XVI
This proposed rule removes most of the articles enumerated in USML
Category XVI (nuclear weapons related articles). The provisions of 22
CFR parts 120-130 do not apply to all equipment, technical data, or
services currently described in Category XVI to the extent that exports
of most such equipment, technical data, or services are under the
control of the Department of Energy pursuant to the Atomic Energy Act
of 1954, as amended, and the Nuclear Non-Proliferation Act of 1978, as
amended, or is a government transfer authorized pursuant to these Acts.
The only articles now covered under Category XVI that would remain
subject to USML control are modeling or simulation tools that model or
simulate the environments generated by nuclear detonations or the
effects of these environments on systems, subsystems, components,
structures, or humans, and technical data and defense services directly
related to those defense articles. In addition, nuclear radiation
detection and measurement devices currently controlled in paragraph (c)
would become subject to the jurisdiction of the Department of Commerce
under already existing Export Control Classification Number (ECCN)
1A004.c.2 or 2A291.e.
Conforming changes are made to ITAR parts 123, 124, 125, and 129 to
remove reference to USML Category XVI. In addition, Supplement No. 1 to
Part 126 will be revised to remove the following entries: (1) Nuclear
weapons strategic delivery systems and all components, parts,
accessories, and attachments specifically designed for such systems and
associated equipment; (2) defense articles and services specific to
design and testing of nuclear weapons; and (3) nuclear radiation
measuring devices manufactured to military specifications.
Request for Comments
As the U.S. Government works through the proposed revisions to the
USML, some solutions have been adopted that were determined to be the
best of available options. With the thought that multiple perspectives
would be beneficial to the USML revision process, the public is asked
to provide specific examples of nuclear-related items whose
jurisdiction would be in doubt based on this revision. In particular,
the Department seeks comments on whether the proposed paragraph (b) is
appropriately captured in USML Category XVI or if there is a more
suitable control within the USML or CCL.
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). Although the
Department is of the opinion that this rule is exempt from the
rulemaking provisions of the APA, the Department is publishing this
rule with a 45-day provision for public comment and without prejudice
to its determination that controlling the import and export of defense
services is a foreign affairs function. As noted above, and also
without prejudice to the Department position that this rulemaking is
not subject to the APA, the Department previously published a related
Advance Notice of Proposed Rulemaking (RIN 1400-AC78) on December 10,
2010 (75 FR 76935), and accepted comments for 60 days.
Regulatory Flexibility Act
Since the Department is of the opinion that this proposed rule is
exempt from the provisions of 5 U.S.C. 553, there is no requirement for
an analysis under the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This proposed 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 proposed 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 proposed 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 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
[[Page 6271]]
activities do not apply to this proposed 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. These rules have been designated ``significant regulatory
actions,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, this proposed rule has been
reviewed by the Office of Management and Budget (OMB).
Executive Order 12988
The Department of State has reviewed the proposed 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 proposed
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 proposed rulemaking.
Paperwork Reduction Act
Notwithstanding any other provision of law, no person is required
to respond to, nor is subject to a penalty for failure to comply with,
a collection of information, subject to the requirements of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless
that collection of information displays a currently valid OMB control
number. This proposed rule would affect the following approved
collections: (1) Statement of Registration, DS-2032, OMB No. 1405-0002;
(2) Application/License for Permanent Export of Unclassified Defense
Articles and Related Unclassified Technical Data, DSP-5, OMB No. 1405-
0003; (3) Application/License for Temporary Import of Unclassified
Defense Articles, DSP-61, OMB No. 1405-0013; (4) Nontransfer and Use
Certificate, DSP-83, OMB No. 1405-0021; (5) Application/License for
Permanent/Temporary Export or Temporary Import of Classified Defense
Articles and Classified Technical Data, DSP-85, OMB No. 1405-0022; (6)
Application/License for Temporary Export of Unclassified Defense
Articles, DSP-73, OMB No. 1405-0023; (7) Statement of Political
Contributions, Fees, or Commissions in Connection with the Sale of
Defense Articles or Services, OMB No. 1405-0025; (8) Authority to
Export Defense Articles and Services Sold Under the Foreign Military
Sales (FMS) Program, DSP-94, OMB No. 1405-0051; (9) Application for
Amendment to License for Export or Import of Classified or Unclassified
Defense Articles and Related Technical Data, DSP-6, -62, -74, -119, OMB
No. 1405-0092; (10) Request for Approval of Manufacturing License
Agreements, Technical Assistance Agreements, and Other Agreements, DSP-
5, OMB No. 1405-0093; (11) Maintenance of Records by Registrants, OMB
No. 1405-0111; (12) Annual Brokering Report, DS-4142, OMB No. 1405-
0141; (13) Brokering Prior Approval (License), DS-4143, OMB No. 1405-
0142; (14) Projected Sale of Major Weapons in Support of Section
25(a)(1) of the Arms Export Control Act, DS-4048, OMB No. 1405-0156;
(15) Export Declaration of Defense Technical Data or Services, DS-4071,
OMB No. 1405-0157; (16) Request for Commodity Jurisdiction
Determination, DS-4076, OMB No. 1405-0163; (17) Request to Change End-
User, End-Use, and/or Destination of Hardware, DS-6004, OMB No. 1405-
0173; (18) Request for Advisory Opinion, DS-6001, OMB No. 1405-0174;
(19) Voluntary Disclosure, OMB No. 1405-0179; and (20) Technology
Security/Clearance Plans, Screening Records, and Non-Disclosure
Agreements Pursuant to 22 CFR 126.18, OMB No. 1405-0195. The Department
of State believes there will be minimal changes to these collections.
The Department of State believes the combined effect of all rules to be
published moving commodities from the USML to the EAR as part of the
Administration's Export Control Reform would decrease the number of
license applications by approximately 30,000 annually. The Department
of State is looking for comments on the potential reduction in burden.
List of Subjects in Part 121, 123, 124, 125, and 129
Arms and munitions, Exports.
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, parts 121, 123, 124, 125, and 129 are proposed to be
amended as follows:
PART 121--THE UNITED STATES MUNITIONS LIST
0
1. The authority citation for part 121 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); E.O. 11958, 42 FR 4311; 3 CFR, 1977
Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920.
0
2. Section 121.1 is amended by revising U.S. Munitions List Category
XVI to read as follows:
Sec. 121.1 General. The United States Munitions List.
* * * * *
Category XVI--Nuclear Weapons Related Articles
(a) [Reserved]
(b) Modeling or simulation tools that model or simulate the
environments generated by nuclear detonations or the effects of these
environments on systems, subsystems, components, structures, or humans.
(c) [Reserved]
(d) [Reserved]
(e) Technical data (see Sec. 120.10 of this subchapter) and
defense services (see Sec. 120.9 of this subchapter) directly related
to the defense articles enumerated in paragraph (b) of this category.
(See Sec. 123.20 of this subchapter for nuclear related controls and
Sec. 125.4 of this subchapter for exemptions.)
PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES
0
3. 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
4. Section 123.20 is amended by revising paragraph (a) to read as
follows:
Sec. 123.20 Nuclear related controls.
(a) The provisions of this subchapter do not apply to equipment,
technical data, or services in Category VI and Category XX of Sec.
121.1 of this subchapter to the extent that the export of such
equipment, technical data, or services is controlled by the Department
of Energy pursuant to the Atomic Energy Act of 1954, as amended, and
the Nuclear Non-Proliferation Act of 1978, as amended, or is a
government transfer authorized pursuant to these Acts, or is controlled
by the Department of Commerce pursuant to the Export Administration
Regulations.
* * * * *
[[Page 6272]]
PART 124--AGREEMENTS, OFF-SHORE PROCUREMENT, AND OTHER DEFENSE
SERVICES
0
5. The authority citation for part 124 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); 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; Pub.
L. 111-266.
0
6. Section 124.2 is amended by revising introductory paragraph (c),
removing paragraphs (c)(5)(iii), (c)(5)(ix), and (c)(5)(xi),
redesignating paragraphs (c)(5)(iv), (c)(5)(v), (c)(5)(vi),
(c)(5)(vii), (c)(5)(viii), (c)(5)(x), (c)(5)(xii), and (c)(5)(xiii) as
(c)(5)(iii), (c)(5)(iv), (c)(5)(v), (c)(5)(vi), (c)(5)(vii),
(c)(5)(viii), (c)(5)(ix), and (c)(5)(x), respectively, and then
revising redesignated paragraphs (c)(5)(iv), (c)(5)(vii), and
(c)(5)(x), to read as follows:
Sec. 124.2 Exemptions for training and military service.
* * * * *
(c) In addition to the basic maintenance training exemption
provided in paragraph (a) of this section and the basic maintenance
information exemption in Sec. 125.4(b)(5) of this subchapter, no
technical assistance agreement is required for maintenance training or
the performance of maintenance, including the export of supporting
unclassified technical data, to NATO countries, Australia, Japan, and
Sweden when the following criteria can be met:
* * * * *
(5) * * *
* * * * *
(iv) Gas turbine engine hot section components covered by USML
Category XIX(f)(2);
* * * * *
(vii) Chemical agents listed in USML Category XIV(a), biological
agents listed in USML Category XIV(b), and equipment listed in USML
Category XIV(f)(1)(i) for dissemination of the chemical and biological
agents listed in USML Categories XIV(a) and (b);
* * * * *
(x) Articles covered by USML Categories XVII and XXI.
* * * * *
PART 125--LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED
DEFENSE ARTICLES
0
7. The authority citation for part 125 continues to read as follows:
Authority: Secs. 2 and 38, Pub. L. 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.
0
8. Section 125.1 is amended by revising paragraph (e) to read as
follows:
* * * * *
Sec. 125.1 Exports subject to this part.
(e) The provisions of this subchapter do not apply to technical
data related to articles in Category VI(e) and Category XX(b) of Sec.
121.1 of this subchapter, to the extent that the export of such data is
controlled by the Department of Energy pursuant to the Atomic Energy
Act of 1954, as amended, and the Nuclear Non-Proliferation Act of 1978,
as amended.
PART 129--REGISTRATION AND LICENSING OF BROKERS
0
9. The authority citation for part 129 continues to read as follows:
Authority: Sec. 38, Pub. L. 104-164, 110 Stat. 1437, (22 U.S.C.
2778).
0
10. Section 129.7 is amended by removing and reserving paragraphs
(a)(1)(ii) and (a)(1)(iii), as follows:
Sec. 129.7 Prior approval (license).
(a) * * *
(1) * * *
(ii) [Reserved]
(iii) [Reserved]
* * * * *
Dated: January 22, 2013.
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security,
Department of State.
[FR Doc. 2013-01825 Filed 1-29-13; 8:45 am]
BILLING CODE 4710-25-P