[Federal Register Volume 79, Number 28 (Tuesday, February 11, 2014)]
[Rules and Regulations]
[Pages 8082-8089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-02293]
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Parts 120, 122, 126, 127, 128, and 130
RINs 1400-AD49, 1400-AC37, and 1400-AC81
[Public Notice: 8620]
Amendment to the International Traffic in Arms Regulations:
Changes to Authorized Officials and the UK Defense Trade Treaty
Exemption; Correction of Errors in Lebanon Policy and Violations; and
Adoption of Recent Amendments as Final
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of State is amending the International Traffic
in Arms Regulations (ITAR) to remove the managing director as an
authorized official, update the marking and reporting requirements for
the UK defense treaty exemption, correct a typographical error in the
paragraph on export policy regarding Lebanon, and correct an error of
syntactical arrangement in a section of the regulations regarding
violations. The Department is also adopting as a final rule certain
sections of the ITAR that were published in an interim final rule.
DATES: Effective Date: This rule is effective February 11, 2014.
FOR FURTHER INFORMATION CONTACT: Mr. C. Edward Peartree, Director,
Office of Defense Trade Controls Policy, U.S. Department of State,
telephone (202) 663-2792, or email [email protected]. ATTN:
Regulatory Change, Removing Managing Director, Other Changes.
SUPPLEMENTARY INFORMATION: The Department is removing ``Managing
Director of Defense Trade Controls'' as an authorized official from
ITAR Sec. 120.1(b)(1) because it is no longer a position within the
Department. Various sections of the ITAR are amended as a result. In
each of these instances, another authorized official as identified in
ITAR Sec. 120.1(b) replaces the managing director.
The Department is updating the text of the licensing exemption
created pursuant to the Treaty Between the Government of the United
States of America and the Government of the United Kingdom Concerning
Defense Trade Cooperation (the ``UK defense trade treaty exemption''),
at ITAR Sec. 126.17, so that it is a clearer representation of treaty
requirements and is also consistent with ITAR Sec. 126.16 (the
Australia defense trade treaty exemption). Most of the updates
[[Page 8083]]
are formatting and textual edits. However, the Department notes in
particular changes to: 1) The text for marking requirements (paragraph
(j)) to make it clear that items should be marked ``prior to'' export,
and to bring the classification level reading in line with treaty
requirements; and 2) the indicated method of notification (paragraph
(o)) to remove inclusion of Form DS-4048 from the process.
The Department is correcting a typographical error in ITAR Sec.
126.1(t), regarding the export policy on Lebanon. In the preamble to
the rule providing that policy (see 76 FR 47990, RIN 1400-AC81), the
exceptions to the arms embargo were correctly identified as ``not
apply[ing] to arms and related materiel for the United Nations Interim
Force in Lebanon or as authorized by the Government of Lebanon.'' In
the regulation itself, ``or'' was mistakenly replaced with ``and.''
This error is corrected in this rule.
Finally, the Department is correcting an error of syntactical
arrangement in ITAR Sec. 127.1(d)(2). This rule clarifies that
ineligible parties may not engage in transactions subject to the ITAR;
the current construction specifies that such parties may not engage in
any transactions regarding defense articles. This section was
previously published as an interim final rule at 78 FR 52680 on August
26, 2013 (RIN 1400-AC37); with the identified changes, the Department
is adopting it as a final rule.
The Department is also adopting as a final rule other portions of
RIN 1400-AC37, as follows: (1) ITAR Sec. 120.1(a) and (b), with
changes regarding authorized officials, as described earlier in this
section; (2) ITAR Sec. 120.1(c) and (d), without any changes: (3) ITAR
Sec. 120.20, with changes regarding authorized officials, as described
earlier in this section; (4) ITAR Sec. 126.1(a), (b), (e)(1), (e)(2),
and note to paragraph (e), without any changes; (5) all sections of
parts 127 and 128, except for ITAR Sec. 127.1(d)(2), which is changed
regarding syntactical arrangement, as described earlier in this
section, and for ITAR Sec. 128.15(a), which is changed regarding
authorized officials, as described earlier in this section. The
Department did not receive public comments on these sections of the
ITAR during the comment period of the interim 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 sections 553 (rulemaking) and 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 portions of
this rule as proposed and interim final rules identified as 1400-AC37,
with 60- and 45-day provisions for public comment, respectively, and
without prejudice to its determination that controlling the import and
export of defense articles and services is a foreign affairs function.
Regulatory Flexibility Act
Since the Department is of the opinion that this 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 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
The Department does not believe this rulemaking is a major rule
within the definition of 5 U.S.C. Sec. 804. It will not have an annual
effect on the economy of $100,000,000 or more, nor will it result in a
major increase in costs or prices for consumers, individual industries,
federal, state, or local government agencies, or geographic regions, or
have significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and foreign markets.
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 12866 and 13563 direct agencies to assess 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 not been designated a ``significant regulatory action''
under section 3(f) of Executive Order 12866.
Executive Order 12988
The Department of State 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 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, the requirements of Executive Order 13175 do not apply to
this rulemaking.
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
22 CFR Part 120
Arms and munitions, Classified information, Exports.
22 CFR Part 122
Arms and munitions, Exports, Reporting and recordkeeping
requirements.
22 CFR Part 126
Arms and munitions, Exports.
22 CFR Part 127
Arms and munitions, Crime, Exports, Penalties, Seizures and
forfeitures.
[[Page 8084]]
22 CFR Part 128
Administrative practice and procedure, Arms and munitions, Exports.
22 CFR Part 130
Arms and munitions, Campaign funds, Confidential business
information, Exports, Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, parts 120, 122, 126, 127, 128, and 130 are amended; and
the amendments to 22 CFR 120.1(a) and (b), 120.20, and all amendments
to 22 CFR parts 127 and 128 except for Sec. Sec. 127.1(d)(2) and
128.15(a), in the interim rule published at 78 FR 52680 on August 26,
2013, are adopted as final with changes, as follows:
PART 120--PURPOSE AND DEFINITIONS
0
1. The authority citation for part 120 continues to read as follows:
Authority: Sections 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; 22 U.S.C. 2651a; Pub.
L. 105-261, 112 Stat. 1920; Pub. L. 111-266; Section 1261, Pub. L.
112-239; E.O. 13637, 78 FR 16129.
0
2. Section 120.1 is amended by revising paragraphs (a) and (b) to read
as follows:
Sec. 120.1 General authorities, receipt of licenses, and
ineligibility.
(a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778), as
amended, authorizes the President to control the export and import of
defense articles and defense services. The statutory authority of the
President to promulgate regulations with respect to exports of defense
articles and defense services is delegated to the Secretary of State by
Executive Order 13637. This subchapter implements that authority, as
well as other relevant authorities in the Arms Export Control Act (22
U.S.C. 2751 et seq.). By virtue of delegations of authority by the
Secretary of State, these regulations are primarily administered by the
Deputy Assistant Secretary of State for Defense Trade Controls, Bureau
of Political-Military Affairs.
(b)(1) Authorized officials. All authorities administered by the
Deputy Assistant Secretary of State for Defense Trade Controls pursuant
to this subchapter may be exercised at any time by the Under Secretary
of State for Arms Control and International Security or the Assistant
Secretary of State for Political-Military Affairs.
(2) The Deputy Assistant Secretary of State for Defense Trade
Controls supervises the Directorate of Defense Trade Controls, which is
comprised of the following offices:
(i) The Office of Defense Trade Controls Licensing and the
Director, Office of Defense Trade Controls Licensing, which have
responsibilities related to licensing or other approvals of defense
trade, including references under parts 120, 123, 124, 125, 126, 129,
and 130 of this subchapter.
(ii) The Office of Defense Trade Controls Compliance and the
Director, Office of Defense Trade Controls Compliance, which have
responsibilities related to violations of law or regulation and
compliance therewith, including references contained in parts 122, 126,
127, 128, and 130 of this subchapter, and that portion under part 129
of this subchapter pertaining to registration.
(iii) The Office of Defense Trade Controls Policy and the Director,
Office of Defense Trade Controls Policy, which have responsibilities
related to the general policies of defense trade, including references
under parts 120 and 126 of this subchapter, and the commodity
jurisdiction procedure under part 120 of this subchapter.
* * * * *
0
3. Section 120.4 is amended by revising paragraph (g), to read as
follows:
Sec. 120.4 Commodity jurisdiction.
* * * * *
(g) A person may appeal a commodity jurisdiction determination by
submitting a written request for reconsideration to the Deputy
Assistant Secretary of State for Defense Trade Controls. The Deputy
Assistant Secretary's determination of the appeal will be provided, in
writing, within 30 days of receipt of the appeal. If desired, an appeal
of the Deputy Assistant Secretary's decision can then be made to the
Assistant Secretary for Political-Military Affairs.
0
4. Section 120.20 is revised to read as follows:
Sec. 120.20 License or other approval.
License means a document bearing the word ``license'' issued by the
Deputy Assistant Secretary of State for Defense Trade Controls, or his
authorized designee, that permits the export, temporary import, or
brokering of a specific defense article or defense service controlled
by this subchapter.
Other approval means a document issued by the Deputy Assistant
Secretary of State for Defense Trade Controls, or his authorized
designee, that approves an activity regulated by this subchapter (e.g.,
approvals for brokering activities or retransfer authorizations), or
the use of an exemption to the license requirements as described in
this subchapter.
PART 122--REGISTRATION OF MANUFACTURERS AND EXPORTERS
0
5. The authority citation for part 122 continues to read as follows:
Authority: Sections 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
0
6. Section 122.5 is amended by revising paragraph (a), to read as
follows:
Sec. 122.5 Maintenance of records by registrants.
(a) A person who is required to register must maintain records
concerning the manufacture, acquisition and disposition (to include
copies of all documentation on exports using exemptions and
applications and licenses and their related documentation), of defense
articles; of technical data; the provision of defense services;
brokering activities; and information on political contributions, fees,
or commissions furnished or obtained, as required by part 130 of this
subchapter. Records in an electronic format must be maintained using a
process or system capable of reproducing all records on paper. Such
records when displayed on a viewer, monitor, or reproduced on paper,
must exhibit a high degree of legibility and readability. (For the
purpose of this section, ``legible'' and ``legibility'' mean the
quality of a letter or numeral that enables the observer to identify it
positively and quickly to the exclusion of all other letters or
numerals. ``Readable'' and ``readability'' means the quality of a group
of letters or numerals being recognized as complete words or numbers.)
This information must be stored in such a manner that none of it may be
altered once it is initially recorded without recording all changes,
who made them, and when they were made. For processes or systems based
on the storage of digital images, the process or system must afford
accessibility to all digital images in the records being maintained.
All records subject to this section must be maintained for a period of
five years from the expiration of the license or other approval, to
include exports using an exemption (see Sec. 123.26 of this
subchapter); or, from the date of the transaction (e.g., expired
licenses or other approvals relevant to the export transaction using an
exemption). The Deputy Assistant Secretary of State for
[[Page 8085]]
Defense Trade Controls and the Director of the Office of Defense Trade
Controls Licensing may prescribe a longer or shorter period in
individual cases.
* * * * *
PART 126--GENERAL POLICIES AND PROVISIONS
0
7. 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); 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; Sections 7045 and 7046, Pub. L. 112-74; E.O. 13637, 78 FR
16129.
0
8. Section 126.1 is amended by revising paragraph (t) to read as
follows:
Sec. 126.1 Prohibited exports, imports, and sales to or from certain
countries.
* * * * *
(t) Lebanon. It is the policy of the United States to deny licenses
or other approvals for exports or imports of defense articles and
defense services destined for or originating in Lebanon, except that a
license or other approval may be issued, on a case-by-case basis, for
the United Nations Interim Force in Lebanon (UNIFIL) or as authorized
by the Government of Lebanon.
* * * * *
0
9. Section 126.2 is revised to read as follows:
Sec. 126.2 Temporary suspension or modification of this subchapter.
The Deputy Assistant Secretary for Defense Trade Controls may order
the temporary suspension or modification of any or all of the
regulations of this subchapter in the interest of the security and
foreign policy of the United States.
0
10. Section 126.3 is revised to read as follows:
Sec. 126.3 Exceptions.
In a case of exceptional or undue hardship, or when it is otherwise
in the interest of the United States Government, the Deputy Assistant
Secretary of State for Defense Trade Controls may make an exception to
the provisions of this subchapter.
0
11. Section 126.14 is amended by revising paragraph (b) introductory
text, to read as follows:
Sec. 126.14 Special comprehensive export authorizations for NATO,
Australia, Japan, and Sweden.
* * * * *
(b) Provisions and requirements for comprehensive authorizations.
Requests for the special comprehensive authorizations set forth in
paragraph (a) of this section should be by letter addressed to the
Directorate of Defense Trade Controls. With regard to a commercial
major program or project authorization, or technical data supporting a
teaming arrangement, merger, joint venture or acquisition, registered
U.S. exporters may consult the Deputy Assistant Secretary of State for
Defense Trade Controls about eligibility for and obtaining available
comprehensive authorizations set forth in paragraph (a) of this section
or pursuant to Sec. 126.9(b) of this subchapter.
* * * * *
0
12. Section 126.17 is amended by revising paragraphs (a)(1)(iv),
(a)(2), (a)(3)(i), (a)(4) introductory text, (a)(4)(iii), (b)(2),
(d)(1), (d)(2), paragraph (e) introductory text, (f)(1), (f)(2),
(g)(1), (g)(2), (g)(4), (g)(5), (h)(2) through (h)(4), (h)(6) through
(h)(8), (i)(1) through (i)(4), (j)(1), (j)(2), (j)(3)(i), (j)(3)(ii),
(j)(5), (k)(1)(i)(A), (k)(1)(i)(C), (k)(1)(ii)(B), (l)(1) introductory
text, (l)(2)(iii), (l)(2)(iv), (m), (n)(4), (o)(1) introductory text,
(o)(1)(iii), and (o)(2) to read as follows:
Sec. 126.17 Exemption pursuant to the Defense Trade Cooperation
Treaty between the United States and the United Kingdom.
(a) * * *
(1) * * *
(iv) Intermediate consignee means, for purposes of this section, an
approved entity or person who receives, but does not have access to,
defense articles, including technical data, for the sole purpose of
effecting onward movement to members of the Approved Community (see
paragraph (k) of this section).
(2) Persons or entities exporting or transferring defense articles
or defense services are exempt from the otherwise applicable licensing
requirements if such persons or entities comply with the regulations
set forth in this section. Except as provided in Supplement No. 1 to
part 126 of this subchapter, Port Directors of U.S. Customs and Border
Protection and postmasters shall permit the permanent and temporary
export without a license from members of the United States Community to
members of the United Kingdom Community (see paragraph (d) of this
section regarding the identification of members of the United Kingdom
Community) of defense articles and defense services not listed in
Supplement No. 1 to part 126 of this subchapter, for the end-uses
specifically identified pursuant to paragraphs (e) and (f) of this
section. The purpose of this section is to specify the requirements to
export, transfer, reexport, retransfer, or otherwise dispose of a
defense article or defense service pursuant to the Defense Trade
Cooperation Treaty between the United States and the United Kingdom.
All persons must continue to comply with statutory and regulatory
requirements outside of this subchapter concerning the import of
defense articles and defense services or the possession or transfer of
defense articles, including, but not limited to, regulations issued by
the Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27 CFR
parts 447, 478, and 479, which are unaffected by the Defense Trade
Cooperation Treaty between the United States and the United Kingdom and
continue to apply fully to defense articles and defense services
subject to either of the aforementioned treaties and the exemptions
contained in this section.
(3) * * *
(i) The exporter must be registered with the Directorate of Defense
Trade Controls (DDTC) and must be eligible, according to the
requirements and prohibitions of the Arms Export Control Act, this
subchapter, and other provisions of United States law, to obtain an
export license (or other forms of authorization to export) from any
agency of the U.S. Government without restriction (see paragraphs (b)
and (c) of this section for specific requirements);
* * * * *
(4) Transfers. In order for a member of the Approved Community
(i.e., the United States Community and United Kingdom Community) to
transfer a defense article or defense service under the Defense Trade
Cooperation Treaty within the Approved Community, all of the following
conditions must be met:
* * * * *
(iii) The transfer is required for an end-use specified in the
Defense Trade Cooperation Treaty between the United States and the
United Kingdom and mutually agreed to by the Government of the United
States and the Government of the United Kingdom pursuant to the terms
of the Defense Trade Cooperation Treaty between the United States and
the United Kingdom and the United Kingdom Implementing Arrangement (see
paragraphs (e) and (f) of this section regarding authorized end-uses);
* * * * *
(b) * * *
(2) Non-governmental U.S. persons registered with DDTC and
eligible, according to the requirements and prohibitions of the Arms
Export Control Act, this subchapter, and other provisions of United
States law, to obtain an export license (or other form
[[Page 8086]]
of authorization to export) from any agency of the U.S. Government
without restriction, including their employees acting in their official
capacity with, as appropriate, a security clearance and a need-to-know.
* * * * *
(d) * * *
(1) Her Majesty's Government entities and facilities identified as
members of the Approved Community through the DDTC Web site at the time
of a transaction under this section; and
(2) The non-governmental United Kingdom entities and facilities
identified as members of the Approved Community through the DDTC Web
site (www.pmddtc.state.gov) at the time of a transaction under this
section; non-governmental United Kingdom entities and facilities that
become ineligible for such membership will be removed from the United
Kingdom Community.
(e) Authorized End-uses. The following end-uses, subject to
paragraph (f) of this section, are specified in the Defense Trade
Cooperation Treaty between the United States and the United Kingdom:
* * * * *
(f) * * *
(1) Operations, programs, and projects that can be publicly
identified will be posted on the DDTC Web site;
(2) Operations, programs, and projects that cannot be publicly
identified will be confirmed in written correspondence from DDTC; or
* * * * *
(g) * * *
(1) An exporter authorized pursuant to paragraph (b)(2) of this
section may market a defense article to members of the United Kingdom
Community if that exporter has been licensed by DDTC to export (as
defined by Sec. 120.17 of this subchapter) the identical type of
defense article to any foreign person and end-use of the article is for
an end-use identified in paragraph (e) of this section.
(2) The export of any defense article specific to the existence of
(e.g., reveals the existence of or details of) anti-tamper measures
made at U.S. Government direction always requires prior written
approval from DDTC.
* * * * *
(4) U.S.-origin defense articles specific to developmental systems
that have not obtained written Milestone B approval from the U.S.
Department of Defense milestone approval authority are not eligible for
export unless such export is pursuant to a written solicitation or
contract issued or awarded by the U.S. Department of Defense for an
end-use identified pursuant to paragraph (e)(1), (2), or (4) of this
section.
(5) Defense articles excluded by paragraph (g) of this section or
Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI
(a)(3) electronically scanned array radar excluded by Note 2) that are
embedded in a larger system that is eligible to ship under this section
(e.g., a ship, an aircraft) must separately comply with any
restrictions placed on that embedded defense article under this
subchapter. The exporter must obtain a license or other authorization
from DDTC for the export of such embedded defense articles (for
example, USML Category XI (a)(3) electronically scanned array radar
systems that are exempt from this section that are incorporated in an
aircraft that is eligible to ship under this section continue to
require separate authorization from DDTC for their export, transfer,
reexport, or retransfer).
* * * * *
(h) * * *
(2) Any transfer or other provision of a defense article or defense
service for an end-use that is not authorized by the exemption provided
by this section is prohibited without a license or the prior written
approval of DDTC (see paragraphs (e) and (f) of this section regarding
authorized end-uses).
(3) Any retransfer or reexport, or other provision of a defense
article or defense service by a member of the United Kingdom Community
to a foreign person that is not a member of the United Kingdom
Community, or to a U.S. person that is not a member of the United
States Community, is prohibited without a license or the prior written
approval of DDTC (see paragraph (d) of this section for specific
information on the identification of the United Kingdom Community).
(4) Any change in the use of a defense article or defense service
previously exported, transferred, or obtained under this exemption by
any foreign person, including a member of the United Kingdom Community,
to an end-use that is not authorized by this exemption is prohibited
without a license or other written approval of DDTC (see paragraphs (e)
and (f) of this section regarding authorized end-uses).
* * * * *
(6) Defense articles excluded by paragraph (g) of this section or
Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI
(a)(3) electronically scanned array radar systems) that are embedded in
a larger system that is eligible to ship under this section (e.g., a
ship, an aircraft) must separately comply with any restrictions placed
on that embedded defense article unless otherwise specified. A license
or other authorization must be obtained from DDTC for the export,
transfer, reexport, retransfer, or change in end-use of any such
embedded defense article (for example, USML Category XI(a)(3)
electronically scanned array radar systems that are excluded from this
section by Supplement No. 1 to part 126 of this subchapter, Note 2 that
are incorporated in an aircraft that is eligible to ship under this
section continue to require separate authorization from DDTC for their
export, transfer, reexport, or retransfer).
(7) A license or prior approval from DDTC is not required for a
transfer, retransfer, or reexport of an exported defense article or
defense service under this section, if:
(i) The transfer of defense articles or defense services is made by
a member of the United States Community to United Kingdom Ministry of
Defence (UK MOD) elements deployed outside the Territory of the United
Kingdom and engaged in an authorized end-use (see paragraphs (e) and
(f) of this section regarding authorized end-uses) using United Kingdom
Armed Forces transmission channels or the provisions of this section;
(ii) The transfer of defense articles or defense services is made
by a member of the United States Community to an Approved Community
member (either United States or UK) that is operating in direct support
of UK MOD elements deployed outside the Territory of the United Kingdom
and engaged in an authorized end-use (see paragraphs (e) and (f) of
this section regarding authorized end-uses) using United Kingdom Armed
Forces transmission channels or the provisions of this section;
(iii) The reexport is made by a member of the United Kingdom
Community to UK MOD elements deployed outside the Territory of the
United Kingdom engaged in an authorized end-use (see paragraphs (e) and
(f) of this section regarding authorized end-uses) using United Kingdom
Armed Forces transmission channels or the provisions of this section;
(iv) The reexport is made by a member of the United Kingdom
Community to an Approved Community member (either U.S. or UK) that is
operating in direct support of UK MOD elements deployed outside the
Territory of the United Kingdom engaged in an authorized end-use (see
paragraphs (e) and (f) of this section regarding authorized end-uses)
using United
[[Page 8087]]
Kingdom Armed Forces transmission channels or the provisions of this
section; or
(v) The defense article or defense service will be delivered to the
UK MOD for an authorized end-use (see paragraphs (e) and (f) of this
section regarding authorized end-uses); the UK MOD may deploy the item
as necessary when conducting official business within or outside the
Territory of the United Kingdom. The item must remain under the
effective control of the UK MOD while deployed and access may not be
provided to unauthorized third parties.
(8) U.S. persons registered, or required to be registered, pursuant
to part 122 of this subchapter and members of the United Kingdom
Community must immediately notify DDTC of any actual or proposed sale,
retransfer, or reexport of a defense article or defense service on the
U.S. Munitions List originally exported under this exemption to any of
the countries listed in Sec. 126.1 of this subchapter or any person
acting on behalf of such countries, whether within or outside the
United States. Any person knowing or having reason to know of such a
proposed or actual sale, reexport, or retransfer shall submit such
information in writing to the Office of Defense Trade Controls
Compliance, Directorate of Defense Trade Controls.
(i) Transitions. (1) Any previous export of a defense article under
a license or other approval of the U.S. Department of State remains
subject to the conditions and limitations of the original license or
authorization unless DDTC has approved in writing a transition to this
section.
(2) If a U.S. exporter desires to transition from an existing
license or other approval to the use of the provisions of this section,
the following is required:
(i) The U.S. exporter must submit a written request to DDTC, which
identifies the defense articles or defense services to be transitioned,
the existing license(s) or other authorizations under which the defense
articles or defense services were originally exported, and the Treaty-
eligible end-use for which the defense articles or defense services
will be used. Any license(s) filed with U.S. Customs and Border
Protection should remain on file until the exporter has received
approval from DDTC to retire the license(s) and transition to this
section. When this approval is conveyed to U.S. Customs and Border
Protection by DDTC, the license(s) will be returned to DDTC by U.S.
Customs and Border Protection in accord with existing procedures for
the return of expired licenses in Sec. 123.22(c) of this subchapter.
(ii) Any license(s) not filed with U.S. Customs and Border
Protection must be returned to DDTC with a letter citing approval by
DDTC to transition to this section as the reason for returning the
license(s).
(3) If a member of the United Kingdom Community desires to
transition defense articles received under an existing license or other
approval to the processes established under the Treaty, the United
Kingdom Community member must submit a written request to DDTC, either
directly or through the original U.S. exporter, which identifies the
defense articles or defense services to be transitioned, the existing
license(s) or other authorizations under which the defense articles or
defense services were received, and the Treaty-eligible end-use (see
paragraphs (e) and (f) of this section regarding authorized end-uses)
for which the defense articles or defense services will be used. The
defense article or defense service shall remain subject to the
conditions and limitations of the existing license or other approval
until the United Kingdom Community member has received approval from
DDTC.
(4) Authorized exporters identified in paragraph (b)(2) of this
section who have exported a defense article or defense service that has
subsequently been placed on the list of exempted items in Supplement
No. 1 to part 126 of this subchapter must review and adhere to the
requirements in the relevant Federal Register notice announcing such
removal. Once removed, the defense article or defense service will no
longer be subject to this section, and such defense article or defense
service previously exported shall remain on the U.S. Munitions List and
be subject to the requirements of this subchapter unless the applicable
Federal Register notice states otherwise. Subsequent reexport or
retransfer must be made pursuant to Sec. 123.9 of this subchapter.
* * * * *
(j) Marking of exports. (1) All defense articles and defense
services exported or transitioned pursuant to the Defense Trade
Cooperation Treaty between the United States and the United Kingdom and
this section shall be marked or identified prior to movement as
follows:
(i) For classified defense articles and defense services the
standard marking or identification shall read ``//CLASSIFICATION LEVEL
USML//REL USA and GBR Treaty Community//.'' For example, for defense
articles classified SECRET, the marking or identification shall be ``//
SECRET USML//REL USA and GBR Treaty Community//.''
(ii) Unclassified defense articles and defense services exported
under or transitioned pursuant to this section shall be handled while
in the UK as ``Restricted USML'' and the standard marking or
identification shall read ``//RESTRICTED USML//REL USA and GBR Treaty
Community//.''
(2) Where U.S.-origin defense articles are returned to a member of
the United States Community identified in paragraph (b) of this
section, any defense articles marked or identified pursuant to
paragraph (j)(1)(ii) of this section as ``//RESTRICTED USML//REL USA
and GBR Treaty Community//'' will be considered unclassified and the
marking or identification shall be removed; and
(3) * * *
(i) Defense articles (other than technical data) shall be
individually labeled with the appropriate identification detailed in
paragraphs (j)(1) and (j)(2) of this section; or, where such labeling
is impracticable (e.g., propellants, chemicals), shall be accompanied
by documentation (such as contracts or invoices) clearly associating
the defense articles with the appropriate markings as detailed in
paragraphs (j)(1)(i) and (j)(1)(ii) of this section;
(ii) Technical data (including data packages, technical papers,
manuals, presentations, specifications, guides and reports), regardless
of media or means of transmission (physical, oral, or electronic),
shall be individually labeled with the appropriate identification
detailed in paragraphs (j)(1) and (j)(2) of this section; or, where
such labeling is impractical shall be accompanied by documentation
(such as contracts or invoices) or verbal notification clearly
associating the technical data with the appropriate markings as
detailed in paragraphs (j)(1)(i) and (j)(1)(ii) of this section; and
* * * * *
(5) The exporter shall incorporate the following statement as an
integral part of the bill of lading and the invoice whenever defense
articles are to be exported: ``These U.S. Munitions List commodities
are authorized by the U.S. Government under the U.S.-UK Defense Trade
Cooperation Treaty for export only to United Kingdom for use in
approved projects, programs or operations by members of the United
Kingdom Community. They may not be retransferred or reexported or used
outside of an approved project, program,
[[Page 8088]]
or operation, either in their original form or after being incorporated
into other end-items, without the prior written approval of the U.S.
Department of State.''
(k) * * *
(1) * * *
(i) * * *
(A) Exporters registered with DDTC and eligible;
* * * * *
(C) Commercial air freight and surface shipment carriers, freight
forwarders, or other parties not exempt from registration under Sec.
129.3(b)(3) of this subchapter, that are identified at the time of
export as being on the U.S. Department of Defense Civil Reserve Air
Fleet (CRAF) list of approved air carriers, a link to which is
available on the DDTC Web site; or
(ii) * * *
(B) Freight forwarders, customs brokers, commercial air freight and
surface shipment carriers, or other United Kingdom parties that are
identified at the time of export as being on the list of Authorized
United Kingdom Intermediate Consignees, which is available on the DDTC
Web site.
* * * * *
(l) * * *
(1) All exporters authorized pursuant to paragraph (b)(2) of this
section who export defense articles or defense services pursuant to the
Defense Trade Cooperation Treaty between the United States and the
United Kingdom and this section shall maintain detailed records of
their exports, imports, and transfers. Exporters shall also maintain
detailed records of any reexports and retransfers approved or otherwise
authorized by DDTC of defense articles or defense services subject to
the Defense Trade Cooperation Treaty between the United States and the
United Kingdom and this section. These records shall be maintained for
a minimum of five years from the date of export, import, transfer,
reexport, or retransfer and shall be made available upon request to
DDTC or a person designated by DDTC (e.g., U.S. Department of State's
Bureau of Diplomatic Security) or U.S. Immigration and Customs
Enforcement, or U.S. Customs and Border Protection. Records in an
electronic format must be maintained using a process or system capable
of reproducing all records on paper. Such records when displayed on a
viewer, monitor, or reproduced on paper, must exhibit a high degree of
legibility and readability. (For the purpose of this section,
``legible'' and ``legibility'' mean the quality of a letter or numeral
that enables the observer to identify it positively and quickly to the
exclusion of all other letters or numerals. ``Readable'' and
``readability'' means the quality of a group of letters or numerals
being recognized as complete words or numbers.) These records shall
consist of the following:
* * * * *
(2) * * *
(iii) For exports in support of mutually determined specific
security and defense projects where the Government of the United
Kingdom is the end-user identify Sec. 126.17(e)(3) (the name or an
appropriate description of the project shall be placed in the
appropriate field in the EEI, as well); or
(iv) For exports that will have a U.S. Government end-use identify
Sec. 126.17(e)(4) (the U.S. Government contract number or solicitation
number (e.g., ``U.S. Government contract number XXXXX'') shall be
placed in the appropriate field in the EEI, as well). Such exports must
meet the required export documentation and filing guidelines, including
for defense services, of Sec. 123.22(a), (b)(1), and (b)(2) of this
subchapter.
(m) Fees and commissions. All exporters authorized pursuant to
paragraph (b)(2) of this section shall, with respect to each export,
transfer, reexport, or retransfer, pursuant to the Defense Trade
Cooperation Treaty between the United States and the United Kingdom and
this section, submit a statement to DDTC containing the information
identified in Sec. 130.10 of this subchapter relating to fees,
commissions, and political contributions on contracts or other
instruments valued in an amount of $500,000 or more.
(n) * * *
(4) DDTC or a person designated by DDTC (e.g., U.S. Department of
State's Bureau of Diplomatic Security), U.S. Immigration and Customs
Enforcement, or U.S. Customs and Border Protection may require the
production of documents and information relating to any actual or
attempted export, transfer, reexport, or retransfer pursuant to this
section. Any foreign person refusing to provide such records within a
reasonable period of time shall be suspended from the United Kingdom
Community and ineligible to receive defense articles or defense
services pursuant to the exemption under this section or otherwise.
(o) * * *
(1) Exports pursuant to the Defense Trade Cooperation Treaty
between the United States and the United Kingdom and this section by
any person identified in paragraph (b)(2) of this section shall not
take place until 30 days after DDTC has acknowledged receipt of a
written notification from the exporter notifying the Department of
State if the export involves one or more of the following:
* * * * *
(iii) A contract, regardless of value, for the manufacturing abroad
of any item of significant military equipment (see Sec. 120.7 of this
subchapter); or
* * * * *
(2) The written notification required in paragraph (o)(1) of this
section shall indicate the item/model number, general item description,
U.S. Munitions List category, value, and quantity of items to be
exported pursuant to the Defense Trade Cooperation Treaty between the
United States and the United Kingdom and this section, and shall be
accompanied by the following additional information:
* * * * *
PART 127--VIOLATIONS AND PENALTIES
0
13. The authority citation for part 127 continues to read as follows:
Authority: Sections 2, 38, and 42, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2791); 22 U.S.C. 401; 22 U.S.C. 2651a; 22
U.S.C. 2779a; 22 U.S.C. 2780; E.O. 13637, 78 FR 16129.
0
14. Section 127.1 is amended by revising paragraph (d)(2), to read as
follows:
Sec. 127.1 Violations.
* * * * *
(d) * * *
(2) Order, buy, receive, use, sell, deliver, store, dispose of,
forward, transport, finance, or otherwise service or participate in any
manner in any transaction subject to this subchapter that may involve
any defense article, which includes technical data, defense services,
or brokering activities, where such ineligible person may obtain any
benefit therefrom or have any direct or indirect interest therein.
* * * * *
0
15. Section 127.11 is amended by revising paragraph (b), to read as
follows:
Sec. 127.11 Past violations.
* * * * *
(b) Policy. An exception to the policy of the Department of State
to deny applications for licenses or other approvals that involve
persons described in paragraph (a) of this section shall not be
considered unless there are extraordinary circumstances surrounding the
conviction or
[[Page 8089]]
ineligibility to export, and only if the applicant demonstrates, to the
satisfaction of the Assistant Secretary of State for Political-Military
Affairs, that the applicant has taken appropriate steps to mitigate any
law enforcement and other legitimate concerns, and to deal with the
causes that resulted in the conviction, ineligibility, or debarment.
Any person described in paragraph (a) of this section who wishes to
request consideration of any application must explain, in a letter to
the Deputy Assistant Secretary of State for Defense Trade Controls the
reasons why the application should be considered. If the Assistant
Secretary of State for Political-Military Affairs concludes that the
application and written explanation have sufficient merit, the
Assistant Secretary shall consult with the Office of the Legal Adviser
and the Department of the Treasury regarding law enforcement concerns,
and may also request the views of other departments, including the
Department of Justice. If the Directorate of Defense Trade Controls
does grant the license or other approval, subsequent applications from
the same person need not repeat the information previously provided but
should instead refer to the favorable decision.
* * * * *
PART 128--ADMINISTRATIVE PROCEDURES
0
16. The authority citation for part 128 continues to read as follows:
Authority: Sections 2, 38, 40, 42, and 71, Arms Export Control
Act. 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); 22
U.S.C. 2651a; E.O. 12291, 46 FR 1981; E.O. 13637, 78 FR 16129.
0
17. Section 128.5 is amended by revising paragraph (c), to read as
follows:
Sec. 128.5 Answer and demand for oral hearing.
* * * * *
(c) Submission of answer. The answer, written demand for oral
hearing (if any) and supporting evidence required by paragraph (b) of
this section shall be in duplicate and mailed or delivered to the
designated Administrative Law Judge. A copy shall be simultaneously
mailed to the Deputy Assistant Secretary of State for Defense Trade
Controls, SA-1, Room 1200, Department of State, Washington, DC 20522-
0112, or delivered to 2401 Street NW., Washington, DC addressed to the
Deputy Assistant Secretary of State for Defense Trade Controls, SA-1,
Room 1200, Department of State, Washington, DC 20037.
0
18. Section 128.10 is revised to read as follows:
Sec. 128.10 Disposition of proceedings.
Where the evidence is not sufficient to support the charges, the
Deputy Assistant Secretary of State for Defense Trade Controls or the
Administrative Law Judge will dismiss the charges. Where the
Administrative Law Judge finds that a violation has been committed, the
Administrative Law Judge's recommendation shall be advisory only. The
Assistant Secretary of State for Political-Military Affairs will review
the record, consider the report of the Administrative Law Judge, and
make an appropriate disposition of the case. The Deputy Assistant
Secretary of State for Defense Trade Controls may issue an order
debarring the respondent from participating in the export of defense
articles or technical data or the furnishing of defense services as
provided in Sec. 127.7 of this subchapter, impose a civil penalty as
provided in Sec. 127.10 of this subchapter, or take such action as the
Administrative Law Judge may recommend. Any debarment order will be
effective for the period of time specified therein and may contain such
additional terms and conditions as are deemed appropriate. A copy of
the order together with a copy of the Administrative Law Judge's report
will be served upon the respondent.
0
19. Section 128.13 is amended by revising paragraph (e)(1), to read as
follows:
Sec. 128.13 Appeals.
* * * * *
(e) Preparation of appeals--(1) General requirements. An appeal
shall be in letter form. The appeal and accompanying material should be
filed in duplicate, unless otherwise indicated, and a copy
simultaneously mailed to the Deputy Assistant Secretary of State for
Defense Trade Controls, SA-1, Room 1200, Department of State,
Washington, DC 20522-0112 or delivered to 2401 E Street NW.,
Washington, DC addressed to the Deputy Assistant Secretary of State for
Defense Trade Controls, SA-1, Room 1200, Department of State,
Washington, DC 20037.
* * * * *
0
20. Section 128.15 is amended by revising paragraph (a), to read as
follows:
Sec. 128.15 Orders containing probationary periods.
(a) Revocation of probationary periods. A debarment order may set a
probationary period during which the order may be held in abeyance for
all or part of the debarment period, subject to the conditions stated
therein. The Deputy Assistant Secretary of State for Defense Trade
Controls may apply, without notice to any person to be affected
thereby, to the Administrative Law Judge for a recommendation on the
appropriateness of revoking probation when it appears that the
conditions of the probation have been breached. The facts in support of
the application will be presented to the Administrative Law Judge, who
will report thereon and make a recommendation to the Assistant
Secretary of State for Political-Military Affairs. The latter will make
a determination whether to revoke probation and will issue an
appropriate order. The party affected by this action may request the
Assistant Secretary of State for Political-Military Affairs to
reconsider the decision by submitting a request within 10 days of the
date of the order.
* * * * *
PART 130--POLITICAL CONTRIBUTIONS, FEES AND COMMISSIONS
0
21. The authority citation for part 130 is revised to read as follows:
Authority: Sec. 39, Pub. L. 94-329, 90 Stat. 767 (22 U.S.C.
2779); 22 U.S.C. 2651a; E.O. 13637, 78 FR 16129.
0
22. Section 130.9 is amended by revising paragraph (a)(1)(ii), to read
as follows:
Sec. 130.9 Obligation to furnish information to the Directorate of
Defense Trade Controls.
(a)(1) * * *
(ii) Fees or commissions in an aggregate amount of $100,000 or
more. If so, applicant must furnish to the Directorate of Defense Trade
Controls the information specified in Sec. 130.10. The furnishing of
such information or an explanation satisfactory to the Director of the
Office of Defense Trade Controls Licensing as to why all the
information cannot be furnished at that time is a condition precedent
to the granting of the relevant license or approval.
* * * * *
Dated: January 23, 2014.
Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security,
Department of State.
[FR Doc. 2014-02293 Filed 2-10-14; 8:45 am]
BILLING CODE 4710-25-P