Amendment to the International Traffic in Arms Regulations: Corrections and Clarifications, 87427-87430 [2016-28406]
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Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations
Reduction Act of 1995 (44 U.S.C. 3501
et seq.) (PRA) and OMB Control Number
0694–0088 are not expected to increase
significantly as a result of this rule.
Notwithstanding any other provisions of
law, no person is required to respond to,
nor be subject to a penalty for failure to
comply with a collection of information
subject to the requirements of the PRA,
unless that collection of information
displays a currently valid OMB Control
Number.
3. This rule does not contain policies
with Federalism implications as that
term is defined under Executive Order
13132.
4. Pursuant to the Administrative
Procedure Act (APA), 5 U.S.C.
553(b)(B), BIS finds good cause to waive
requirements that this rule be subject to
notice and the opportunity for public
comment because they are unnecessary.
In determining whether to grant or
remove VEU designations, a committee
of U.S. Government agencies evaluates
information about and commitments
made by candidate companies, the
nature and terms of which are set forth
in 15 CFR part 748, Supplement Nos. 8
and 9. The criteria for evaluation by the
committee are set forth in 15 CFR
748.15(a)(2) and the authority to remove
VEU designations is contained in 15
CFR 748.15(a)(3). The information,
commitments, and criteria for this
extensive review were all established
through the notice of proposed
rulemaking and public comment
process (71 FR 38313 (July 6, 2006)
(proposed rule), and 72 FR 33646 (June
19, 2007) (final rule)). In publishing this
final rule, BIS removes a VEU from the
list of VEUs in the PRC, at the request
of the VEU, similar to past requests by
other VEUs, approved by the End-User
Review Committee. This change has
been made within the established
regulatory framework of the VEU
program. Further, this rule does not
abridge the rights of the public or
eliminate the public’s option to export
under any of the forms of authorization
set forth in the EAR.
Publication of this rule in other than
final form is unnecessary because the
procedure for revocation of a VEU or
facility from the Authorized VEU list is
similar to the license revocation
procedure, which does not undergo
public review. During the VEU
revocation procedure, the U.S.
Government analyzes confidential
business information according to set
criteria to determine whether a given
authorized VEU entity remains eligible
for VEU status. Revocation may be the
result of a material change in
circumstance at the VEU or the VEU’s
authorized facility. Such changes may
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be the result of a VEU or VEU facility
no longer meeting the eligibility criteria
for Authorization VEU, and may thus
lead the U.S. Government to modify or
revoke VEU authorization. VEUs or VEU
facilities that undergo material changes
that result in their no longer meeting the
criteria to be eligible VEUs must,
according to the VEU program, have
their VEU status revoked. Here,
however, SMIC requested removal from
the VEU program. Consequently, BIS is
removing SMIC from the list of VEUs.
Public comment on whether to make the
removal is unnecessary.
Section 553(d) of the APA generally
provides that rules may not take effect
earlier than thirty (30) days after they
are published in the Federal Register.
However, BIS finds good cause to waive
the 30-day delay in effectiveness for this
rule pursuant to 5 U.S.C. 553(d)(3)
because the delay would be contrary to
the public interest. BIS is simply
removing SMIC as a VEU. In this rule,
BIS amends the EAR consistent with
established objectives and parameters
administered and enforced by the
responsible designated departmental
representatives to the End-User Review
Committee. Delaying this action’s
effectiveness would likely cause
confusion regarding which items are
authorized by the U.S. government, and
in turn stifle the purpose of the VEU
program. Accordingly, it would be
contrary to the public interest to delay
this rule’s effectiveness.
No other law requires that a notice of
proposed rulemaking and an
opportunity for public comment be
given for this final rule. Because a
notice of proposed rulemaking and an
opportunity for public comment are not
required under the APA or by any other
law, the analytical requirements of the
Regulatory Flexibility Act (5 U.S.C.
601et seq.) are not applicable. As a
result, no final regulatory flexibility
analysis is required and none has been
prepared.
List of Subjects in 15 CFR Part 748
Administrative practice and
procedure, Exports, Reporting and
recordkeeping requirements.
Accordingly, part 748 of the EAR (15
CFR parts 730–774) is amended as
follows:
PART 748—[AMENDED]
1. The authority citation for part 748
continues to read as follows:
■
Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C.
1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025,
3 CFR, 2001 Comp., p. 783; Notice of August
4, 2016, 81 FR 52587 (August 8, 2016).
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87427
Supplement No. 7 to Part 748—
[AMENDED]
2. Amend Supplement No. 7 to Part
748 by removing the entire entry for
‘‘Semiconductor Manufacturing
International Corporation,’’ in ‘‘China
(People’s Republic of)’’.
■
Dated: November 23, 2016.
Kevin J. Wolf,
Assistant Secretary for Export
Administration.
[FR Doc. 2016–29057 Filed 12–2–16; 8:45 am]
BILLING CODE 3510–33–P
DEPARTMENT OF STATE
22 CFR Parts 120, 121, 122, 124, 126
and 127
[Public Notice: 9757]
RIN 1400–AE05
Amendment to the International Traffic
in Arms Regulations: Corrections and
Clarifications
Department of State.
Final rule; request for
comments.
AGENCY:
ACTION:
The Department of State is
amending the International Traffic in
Arms Regulations (ITAR) to clarify
recent revisions made pursuant to the
President’s Export Control Reform (ECR)
initiative. This rule clarifies the scope of
disclosure of information submitted to
the Directorate of Defense Trade
Controls (DDTC), clarifies the policies
and procedures regarding statutory
debarments, and corrects administrative
and typographical errors.
DATES: This Final rule is effective on
December 5, 2016. The Department will
accept comments on the Final
regulation up to January 4, 2017.
ADDRESSES: Interested parties may
submit comments within 30 days of the
date of publication by one of the
following methods:
• Email:
DDTCResponseTeam@state.gov with the
subject line, ‘‘ITAR Corrections and
Clarifications.’’
• Internet: You may view this Final
rule and submit your comments by
visiting the Regulations.gov Web site at
www.regulations.gov, and searching for
docket number DOS–2016–0070.
Comments received after that date
will be considered if feasible, but
consideration cannot be assured. All
comments (including any personally
identifying information or information
for which a claim of confidentiality is
asserted in those comments or their
transmittal emails) will be made
SUMMARY:
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Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Rules and Regulations
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: Mr.
C. Edward Peartree, Director, Office of
Defense Trade Controls Policy,
Department of State, telephone (202)
663–2792; email
DDTCResponseTeam@state.gov. ATTN:
Regulatory Change, Corrections and
Clarifications.
The
Department makes the following
revisions to the ITAR in this final rule:
• A definition of ‘‘classified’’ is
moved from § 121.1(e) to § 120.46;
• The structure of § 121.1(a)–(e) is
realigned, with paragraphs (a) and (b)
revised to clarify the existing
requirements for United States
Munitions List (USML) controls, and
paragraphs (c), (d) and (e) removed;
• Thirteen USML categories are
amended to clarify that commodities,
software, and technology subject to the
Export Administration Regulations
(EAR) and related to defense articles in
a USML category may be exported or
temporarily imported on the same
license with defense articles from any
category, provided they are to be used
in or with that defense article;
• In three places within the USML,
the word ‘‘enumerated’’ is replaced with
the word ‘‘described’’ to make the
language consistent with changes
directed in the Final Rule published at
79 FR 61226, Oct. 10, 2014;
• Section 122.4(c)(4) is revised to
permit the Directorate of Defense Trade
Controls (DDTC) to approve an
alternative timeframe, not less than 60
days, to the current 60-day requirement
for registrants to provide a signed
amended agreement;
• Section 124.2(c)(5)(v) is revised to
correct errors to the USML category
references for gas turbine engine hot
sections, from VI(f) and VIII(b) to
Category XIX;
• Section 124.12 is amended in
paragraph (a)(9) to update the name of
the Defense Investigative Service to
Defense Security Service;
• Section 126.9 on Advisory
Opinions and Related Authorizations is
amended to correct paragraph (a);
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SUPPLEMENTARY INFORMATION:
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• Paragraph (b) of § 126.10 is
amended to clarify the scope of control
and disclosure of information, however,
notwithstanding the changes to
paragraph (b) it is the Department’s
policy not to publicly release
information relating to activities
regulated by the ITAR except as
required by law or when doing so is
otherwise in the interest of the United
States Government; and
• Section 127.7(b) is amended to
clarify the policies and procedures
regarding statutory debarments
(addressing inadvertent omissions
resulting from a prior amendment to
that section), and § 127.11 is amended
to make conforming revisions to
paragraph (c) omitted from prior
amendment to that section.
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 providing 30 days for the public to
submit comments without prejudice to
its determination that controlling the
import and export of defense services is
a foreign affairs function.
Regulatory Flexibility Act
Since 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
This rulemaking is not a major rule
within the definition of 5 U.S.C. 804.
Executive Orders 12372 and 13132
This rulemaking will not have
substantial direct effects on the States,
on the relationship between the national
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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,
the Department has 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. The Department has
determined that, given the nature of the
amendments made in this rulemaking,
there will be minimal cost to the public.
Therefore, the benefits of this
rulemaking outweigh the cost. This rule
has not been designated a ‘‘significant
regulatory action’’ by the Office and
Information and Regulatory Affairs
under Executive Order 12866.
Executive Order 12988
The Department of State reviewed this
rulemaking in light 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 Parts 120 and 121
Arms and munitions, Classified
information, Exports.
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22 CFR Part 122
ii. Removing the word ‘‘enumerated’’
and adding in its place the word
‘‘described’’ in paragraph (g); and
■ e. Removing the word ‘‘enumerated’’
and adding in its place the word
‘‘described’’ in paragraph (h) of Category
VII.
The revisions read as follows:
■
Arms and munitions, Exports.
22 CFR Part 124
Arms and munitions, Exports,
Technical assistance.
22 CFR Part 126
Arms and munitions, Exports.
§ 121.1
22 CFR Part 127
Arms and munitions, Exports, Crime,
Law, Penalties, Seizures and forfeitures.
Accordingly, for the reasons set forth
above, title 22, chapter I, subchapter M,
parts 120, 121, 122, 124, 126, and 127
are amended as follows:
PART 120—PURPOSE AND
DEFINITIONS
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; 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.
2. Section 120.46 is added to read as
follows:
■
§ 120.46
Classified.
Classified means classified pursuant
to Executive Order 13526, and a security
classification guide developed pursuant
thereto or equivalent, or to the
corresponding classification rules of
another government or international
organization.
PART 121—THE UNITED STATES
MUNITIONS LIST
3. 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); 22 U.S.C. 2651a; Pub. L. 105–261, 112
Stat. 1920; Section 1261, Pub. L. 112–239;
E.O. 13637, 78 FR 16129.
4. Section 121.1 is amended by:
a. Revising paragraphs (a) and (b);
b. Removing paragraphs (c), (d), and
(e);
■ c. Removing the words ‘‘controlled in
this category’’ in paragraph (x) and the
Note to paragraph (x) for each of the
following USML categories: Category IV,
Category V, Category VI, Category VII,
Category VIII, Category IX, Category X,
Category XI, Category XIII, Category XV,
Category XVI, Category XIX, and
Category XX;
■ d. In Category VI:
■ i. Removing the word ‘‘enumerated’’
and adding in its place the word
‘‘described’’ in Note 1 to paragraph (f);
and
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■
■
■
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The United States Munitions List.
(a) U.S. Munitions List. In this part,
articles, services, and related technical
data are designated as defense articles or
defense services pursuant to sections 38
and 47(7) of the Arms Export Control
Act and constitute the U.S. Munitions
List (USML). Changes in designations
are published in the Federal Register.
Paragraphs (a)(1) through (3) of this
section describe or explain the elements
of a USML category:
(1) Composition of U.S. Munitions List
categories. USML categories are
organized by paragraphs and
subparagraphs identified
alphanumerically. They usually start by
enumerating or otherwise describing
end-items, followed by major systems
and equipment; parts, components,
accessories, and attachments; and
technical data and defense services
directly related to the defense articles of
that USML category.
(2) Significant Military Equipment.
All items described within a USML
paragraph or subparagraph that is
preceded by an asterisk (*) are
designated ‘‘Significant Military
Equipment’’ (see § 120.7 of this
subchapter). Note that technical data
directly related to the manufacture or
production of a defense article
designated as Significant Military
Equipment (SME) is also designated as
SME.
(3) Missile Technology Control Regime
(MTCR) designation. Annotation with
the parenthetical ‘‘(MT)’’ at the end of
a USML entry, or inclusion in § 121.16,
indicates those defense articles that are
on the MTCR Annex. See § 120.29 of
this subchapter.
(b) Order of review. Articles are
controlled on the U.S. Munitions List
because they are either:
(1) Enumerated in a category; or
(2) Described in a ‘‘catch-all’’
paragraph that incorporates ‘‘specially
designed’’ (see § 120.41 of this
subchapter) as a control parameter. In
order to classify an item on the USML,
begin with a review of the general
characteristics of the item. This should
guide you to the appropriate category,
whereupon you should attempt to
match the particular characteristics and
functions of the article to a specific
entry within that category. If the entry
includes the term ‘‘specially designed,’’
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87429
refer to § 120.41 to determine if the
article qualifies for one or more of the
exclusions articulated in § 120.41(b). An
item described in multiple entries
should be categorized according to an
enumerated entry rather than a specially
designed catch-all paragraph. In all
cases, articles not controlled on the
USML may be subject to another U.S.
government regulatory agency (see
§ 120.5 of this subchapter, and
Supplement No. 4 to part 774 of the
Export Administration Regulations for
guidance on classifying an item subject
to the EAR).
*
*
*
*
*
PART 122—REGISTRATION OF
MANUFACTURERS AND EXPORTERS
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.
6. Section 122.4 is amended by
revising paragraph (c)(4) to read as
follows:
■
§ 122.4 Notification of changes in
information furnished by registrants.
*
*
*
*
*
(c) * * *
(4) Amendments to agreements
approved by the Directorate of Defense
Trade Controls to change the name of a
party to those agreements. The registrant
must provide to the Directorate of
Defense Trade Controls a signed copy of
such an amendment to each agreement
signed by the new U.S. entity, the
former U.S. licensor and the foreign
licensee, within 60 days of this
notification, unless an extension of time
is approved by the Directorate of
Defense Trade Controls. Any agreement
not so amended may be considered
invalid.
*
*
*
*
*
PART 124—AGREEMENTS, OFFSHORE PROCUREMENT, AND OTHER
DEFENSE SERVICES
7. 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); 22 U.S.C. 2651a; 22 U.S.C. 2776;
Section 1514, Pub. L. 105–261; Pub. L. 111–
266; Section 1261, Pub. L. 112–239; E.O.
13637, 78 FR 16129.
8. Section 124.2 is amended by
revising paragraph (c)(5)(v) to read as
follows:
■
§ 124.2 Exemptions for training and
military service.
*
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(c) * * *
(5) * * *
(v) Gas turbine engine hot sections
covered by Category XIX(f);
*
*
*
*
*
■ 9. Section 124.12 is amended by
revising paragraph (a)(9) to read as
follows:
§ 124.12 Required information in letters of
transmittal.
(a) * * *
(9) For agreements that may require
the export of classified information, the
Defense Security Service cognizant
security offices that have responsibility
for the facilities of the U.S. parties to the
agreement shall be identified. The
facility security clearance codes of the
U.S. parties shall also be provided.
*
*
*
*
*
PART 126—GENERAL POLICIES AND
PROVISIONS
10. The authority citation for part 126
continues to read as follows:
■
Control Act (22 U.S.C. 2778(e))
provides, by reference to section 12(c) of
the Export Administration Act (50
U.S.C. 2411), that information obtained
for the purpose of consideration of, or
concerning, license applications shall be
withheld from public disclosure unless
the release of such information is
determined by the Secretary to be in the
national interest. Section 38(e) of the
Arms Control Export Act further
provides that, the names of countries
and types and quantities of defense
articles for which licenses are issued
under this section shall not be withheld
from public disclosure unless certain
determinations are made that the release
of such information would be contrary
to the national interest. Such
determinations required by section 38(e)
shall be made by the Assistant Secretary
of State for Political-Military Affairs.
*
*
*
*
*
13. The authority citation for part 127
continues to read as follows:
11. Section 126.9 is amended by
revising paragraph (a) to read as follows:
■
§ 126.9 Advisory opinions and related
authorizations.
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■
§ 127.7
Disclosure of information.
*
*
*
*
*
(b) Determinations required by law.
Section 38(e) of the Arms Export
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Past violations.
*
*
*
*
*
(c) Debarred persons. Persons
debarred pursuant to § 127.7(b)
(statutory debarment) may not utilize
the procedures provided by paragraph
(b) of this section while the statutory
debarment is in force. Such persons may
utilize only the procedures provided by
§ 127.7(d).
Dated: November 18, 2016.
Tom Countryman,
Acting Under Secretary, Arms Control and
International Security, Department of State.
[FR Doc. 2016–28406 Filed 12–2–16; 8:45 am]
BILLING CODE 4710–25–P
■
§ 126.10
§ 127.11
PART 127—VIOLATIONS AND
PENALTIES
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.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
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; Pub. L. 114–74, 129 Stat. 584.
24 CFR Parts 965 and 966
14. Section 127.7 is amended by
revising paragraph (b) to read as follows:
Instituting Smoke-Free Public Housing
Debarment.
*
(a) Preliminary authorization
determinations. A person may request
information from the Directorate of
Defense Trade Controls as to whether it
would likely grant a license or other
approval for a particular defense article
or defense service to a particular
country. Such information from the
Directorate of Defense Trade Controls is
issued on a case-by-case basis and
applies only to the particular matters
presented to the Directorate of Defense
Trade Controls. These opinions are not
binding on the Department of State and
may not be used in future matters before
the Department. A request for an
advisory opinion must be made in
writing and must outline in detail the
equipment, its usage, the security
classification (if any) of the articles or
related technical data, and the country
or countries involved.
*
*
*
*
*
■ 12. Section 126.10 is amended by
revising paragraph (b) to read as follows:
to this subchapter. The procedures of
part 128 of this subchapter are not
applicable in such cases.
*
*
*
*
*
■ 15. Section 127.11(c) is revised to read
as follows:
*
*
*
*
(b) Statutory debarment. It is the
policy of the Department of State not to
consider applications for licenses or
requests for approvals involving any
person who has been convicted of
violating the Arms Export Control Act
or convicted of conspiracy to violate
that Act for a three year period
following conviction and to prohibit
that person from participating directly
or indirectly in any activities that are
subject to this subchapter. Such
individuals shall be notified in writing
that they are statutorily debarred
pursuant to this policy. A list of persons
who have been convicted of such
offenses and debarred for this reason
shall be published periodically in the
Federal Register. Statutory debarment
in such cases is based solely upon the
outcome of a criminal proceeding,
conducted by a court of the United
States, which established guilt beyond a
reasonable doubt in accordance with
due process. Reinstatement is not
automatic, and in all cases the debarred
person must submit a request for
reinstatement to the Department of State
and be approved for reinstatement
before engaging in any activities subject
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[Docket No. FR 5597–F–03]
RIN 2577–AC97
Office of the Assistant
Secretary for Public and Indian
Housing, HUD.
ACTION: Final rule.
AGENCY:
This rule requires each public
housing agency (PHA) administering
public housing to implement a smokefree policy. Specifically, no later than 18
months from the effective date of the
rule, each PHA must implement a
‘‘smoke-free’’ policy banning the use of
prohibited tobacco products in all
public housing living units, indoor
common areas in public housing, and in
PHA administrative office buildings.
The smoke-free policy must also extend
to all outdoor areas up to 25 feet from
the public housing and administrative
office buildings. This rule improves
indoor air quality in the housing;
benefits the health of public housing
residents, visitors, and PHA staff;
reduces the risk of catastrophic fires;
and lowers overall maintenance costs.
DATES: Effective date February 3, 2017.
FOR FURTHER INFORMATION CONTACT:
Leroy Ferguson, Office of Public and
Indian Housing, Department of Housing
and Urban Development, 451 7th Street
SW., Washington, DC 20410–0500;
telephone number 202–402–2411 (this
is not a toll-free number). Persons who
SUMMARY:
E:\FR\FM\05DER1.SGM
05DER1
]]>Agencies
[Federal Register Volume 81, Number 233 (Monday, December 5, 2016)]
[Rules and Regulations]
[Pages 87427-87430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28406]
=======================================================================
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DEPARTMENT OF STATE
22 CFR Parts 120, 121, 122, 124, 126 and 127
[Public Notice: 9757]
RIN 1400-AE05
Amendment to the International Traffic in Arms Regulations:
Corrections and Clarifications
AGENCY: Department of State.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of State is amending the International Traffic
in Arms Regulations (ITAR) to clarify recent revisions made pursuant to
the President's Export Control Reform (ECR) initiative. This rule
clarifies the scope of disclosure of information submitted to the
Directorate of Defense Trade Controls (DDTC), clarifies the policies
and procedures regarding statutory debarments, and corrects
administrative and typographical errors.
DATES: This Final rule is effective on December 5, 2016. The Department
will accept comments on the Final regulation up to January 4, 2017.
ADDRESSES: Interested parties may submit comments within 30 days of the
date of publication by one of the following methods:
Email: DDTCResponseTeam@state.gov with the subject line,
``ITAR Corrections and Clarifications.''
Internet: You may view this Final rule and submit your
comments by visiting the Regulations.gov Web site at
www.regulations.gov, and searching for docket number DOS-2016-0070.
Comments received after that date will be considered if feasible,
but consideration cannot be assured. All comments (including any
personally identifying information or information for which a claim of
confidentiality is asserted in those comments or their transmittal
emails) will be made
[[Page 87428]]
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: Mr. C. Edward Peartree, Director,
Office of Defense Trade Controls Policy, Department of State, telephone
(202) 663-2792; email DDTCResponseTeam@state.gov. ATTN: Regulatory
Change, Corrections and Clarifications.
SUPPLEMENTARY INFORMATION: The Department makes the following revisions
to the ITAR in this final rule:
A definition of ``classified'' is moved from Sec.
121.1(e) to Sec. 120.46;
The structure of Sec. 121.1(a)-(e) is realigned, with
paragraphs (a) and (b) revised to clarify the existing requirements for
United States Munitions List (USML) controls, and paragraphs (c), (d)
and (e) removed;
Thirteen USML categories are amended to clarify that
commodities, software, and technology subject to the Export
Administration Regulations (EAR) and related to defense articles in a
USML category may be exported or temporarily imported on the same
license with defense articles from any category, provided they are to
be used in or with that defense article;
In three places within the USML, the word ``enumerated''
is replaced with the word ``described'' to make the language consistent
with changes directed in the Final Rule published at 79 FR 61226, Oct.
10, 2014;
Section 122.4(c)(4) is revised to permit the Directorate
of Defense Trade Controls (DDTC) to approve an alternative timeframe,
not less than 60 days, to the current 60-day requirement for
registrants to provide a signed amended agreement;
Section 124.2(c)(5)(v) is revised to correct errors to the
USML category references for gas turbine engine hot sections, from
VI(f) and VIII(b) to Category XIX;
Section 124.12 is amended in paragraph (a)(9) to update
the name of the Defense Investigative Service to Defense Security
Service;
Section 126.9 on Advisory Opinions and Related
Authorizations is amended to correct paragraph (a);
Paragraph (b) of Sec. 126.10 is amended to clarify the
scope of control and disclosure of information, however,
notwithstanding the changes to paragraph (b) it is the Department's
policy not to publicly release information relating to activities
regulated by the ITAR except as required by law or when doing so is
otherwise in the interest of the United States Government; and
Section 127.7(b) is amended to clarify the policies and
procedures regarding statutory debarments (addressing inadvertent
omissions resulting from a prior amendment to that section), and Sec.
127.11 is amended to make conforming revisions to paragraph (c) omitted
from prior amendment to that section.
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 providing 30 days
for the public to submit comments without prejudice to its
determination that controlling the import and export of defense
services is a foreign affairs function.
Regulatory Flexibility Act
Since 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
This rulemaking is not a major rule within the definition of 5
U.S.C. 804.
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, the Department has 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. The
Department has determined that, given the nature of the amendments made
in this rulemaking, there will be minimal cost to the public.
Therefore, the benefits of this rulemaking outweigh the cost. This rule
has not been designated a ``significant regulatory action'' by the
Office and Information and Regulatory Affairs under Executive Order
12866.
Executive Order 12988
The Department of State reviewed this rulemaking in light 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 Parts 120 and 121
Arms and munitions, Classified information, Exports.
[[Page 87429]]
22 CFR Part 122
Arms and munitions, Exports.
22 CFR Part 124
Arms and munitions, Exports, Technical assistance.
22 CFR Part 126
Arms and munitions, Exports.
22 CFR Part 127
Arms and munitions, Exports, Crime, Law, Penalties, Seizures and
forfeitures.
Accordingly, for the reasons set forth above, title 22, chapter I,
subchapter M, parts 120, 121, 122, 124, 126, and 127 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; 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 120.46 is added to read as follows:
Sec. 120.46 Classified.
Classified means classified pursuant to Executive Order 13526, and
a security classification guide developed pursuant thereto or
equivalent, or to the corresponding classification rules of another
government or international organization.
PART 121--THE UNITED STATES MUNITIONS LIST
0
3. 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); 22 U.S.C. 2651a; Pub. L. 105-261, 112
Stat. 1920; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.
0
4. Section 121.1 is amended by:
0
a. Revising paragraphs (a) and (b);
0
b. Removing paragraphs (c), (d), and (e);
0
c. Removing the words ``controlled in this category'' in paragraph (x)
and the Note to paragraph (x) for each of the following USML
categories: Category IV, Category V, Category VI, Category VII,
Category VIII, Category IX, Category X, Category XI, Category XIII,
Category XV, Category XVI, Category XIX, and Category XX;
0
d. In Category VI:
0
i. Removing the word ``enumerated'' and adding in its place the word
``described'' in Note 1 to paragraph (f); and
0
ii. Removing the word ``enumerated'' and adding in its place the word
``described'' in paragraph (g); and
0
e. Removing the word ``enumerated'' and adding in its place the word
``described'' in paragraph (h) of Category VII.
The revisions read as follows:
Sec. 121.1 The United States Munitions List.
(a) U.S. Munitions List. In this part, articles, services, and
related technical data are designated as defense articles or defense
services pursuant to sections 38 and 47(7) of the Arms Export Control
Act and constitute the U.S. Munitions List (USML). Changes in
designations are published in the Federal Register. Paragraphs (a)(1)
through (3) of this section describe or explain the elements of a USML
category:
(1) Composition of U.S. Munitions List categories. USML categories
are organized by paragraphs and subparagraphs identified
alphanumerically. They usually start by enumerating or otherwise
describing end-items, followed by major systems and equipment; parts,
components, accessories, and attachments; and technical data and
defense services directly related to the defense articles of that USML
category.
(2) Significant Military Equipment. All items described within a
USML paragraph or subparagraph that is preceded by an asterisk (*) are
designated ``Significant Military Equipment'' (see Sec. 120.7 of this
subchapter). Note that technical data directly related to the
manufacture or production of a defense article designated as
Significant Military Equipment (SME) is also designated as SME.
(3) Missile Technology Control Regime (MTCR) designation.
Annotation with the parenthetical ``(MT)'' at the end of a USML entry,
or inclusion in Sec. 121.16, indicates those defense articles that are
on the MTCR Annex. See Sec. 120.29 of this subchapter.
(b) Order of review. Articles are controlled on the U.S. Munitions
List because they are either:
(1) Enumerated in a category; or
(2) Described in a ``catch-all'' paragraph that incorporates
``specially designed'' (see Sec. 120.41 of this subchapter) as a
control parameter. In order to classify an item on the USML, begin with
a review of the general characteristics of the item. This should guide
you to the appropriate category, whereupon you should attempt to match
the particular characteristics and functions of the article to a
specific entry within that category. If the entry includes the term
``specially designed,'' refer to Sec. 120.41 to determine if the
article qualifies for one or more of the exclusions articulated in
Sec. 120.41(b). An item described in multiple entries should be
categorized according to an enumerated entry rather than a specially
designed catch-all paragraph. In all cases, articles not controlled on
the USML may be subject to another U.S. government regulatory agency
(see Sec. 120.5 of this subchapter, and Supplement No. 4 to part 774
of the Export Administration Regulations for guidance on classifying an
item subject to the EAR).
* * * * *
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 122.4 is amended by revising paragraph (c)(4) to read as
follows:
Sec. 122.4 Notification of changes in information furnished by
registrants.
* * * * *
(c) * * *
(4) Amendments to agreements approved by the Directorate of Defense
Trade Controls to change the name of a party to those agreements. The
registrant must provide to the Directorate of Defense Trade Controls a
signed copy of such an amendment to each agreement signed by the new
U.S. entity, the former U.S. licensor and the foreign licensee, within
60 days of this notification, unless an extension of time is approved
by the Directorate of Defense Trade Controls. Any agreement not so
amended may be considered invalid.
* * * * *
PART 124--AGREEMENTS, OFF-SHORE PROCUREMENT, AND OTHER DEFENSE
SERVICES
0
7. 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); 22 U.S.C. 2651a; 22 U.S.C. 2776;
Section 1514, Pub. L. 105-261; Pub. L. 111-266; Section 1261, Pub.
L. 112-239; E.O. 13637, 78 FR 16129.
0
8. Section 124.2 is amended by revising paragraph (c)(5)(v) to read as
follows:
Sec. 124.2 Exemptions for training and military service.
* * * * *
[[Page 87430]]
(c) * * *
(5) * * *
(v) Gas turbine engine hot sections covered by Category XIX(f);
* * * * *
0
9. Section 124.12 is amended by revising paragraph (a)(9) to read as
follows:
Sec. 124.12 Required information in letters of transmittal.
(a) * * *
(9) For agreements that may require the export of classified
information, the Defense Security Service cognizant security offices
that have responsibility for the facilities of the U.S. parties to the
agreement shall be identified. The facility security clearance codes of
the U.S. parties shall also be provided.
* * * * *
PART 126--GENERAL POLICIES AND PROVISIONS
0
10. 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
11. Section 126.9 is amended by revising paragraph (a) to read as
follows:
Sec. 126.9 Advisory opinions and related authorizations.
(a) Preliminary authorization determinations. A person may request
information from the Directorate of Defense Trade Controls as to
whether it would likely grant a license or other approval for a
particular defense article or defense service to a particular country.
Such information from the Directorate of Defense Trade Controls is
issued on a case-by-case basis and applies only to the particular
matters presented to the Directorate of Defense Trade Controls. These
opinions are not binding on the Department of State and may not be used
in future matters before the Department. A request for an advisory
opinion must be made in writing and must outline in detail the
equipment, its usage, the security classification (if any) of the
articles or related technical data, and the country or countries
involved.
* * * * *
0
12. Section 126.10 is amended by revising paragraph (b) to read as
follows:
Sec. 126.10 Disclosure of information.
* * * * *
(b) Determinations required by law. Section 38(e) of the Arms
Export Control Act (22 U.S.C. 2778(e)) provides, by reference to
section 12(c) of the Export Administration Act (50 U.S.C. 2411), that
information obtained for the purpose of consideration of, or
concerning, license applications shall be withheld from public
disclosure unless the release of such information is determined by the
Secretary to be in the national interest. Section 38(e) of the Arms
Control Export Act further provides that, the names of countries and
types and quantities of defense articles for which licenses are issued
under this section shall not be withheld from public disclosure unless
certain determinations are made that the release of such information
would be contrary to the national interest. Such determinations
required by section 38(e) shall be made by the Assistant Secretary of
State for Political-Military Affairs.
* * * * *
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; Pub. L. 114-
74, 129 Stat. 584.
0
14. Section 127.7 is amended by revising paragraph (b) to read as
follows:
Sec. 127.7 Debarment.
* * * * *
(b) Statutory debarment. It is the policy of the Department of
State not to consider applications for licenses or requests for
approvals involving any person who has been convicted of violating the
Arms Export Control Act or convicted of conspiracy to violate that Act
for a three year period following conviction and to prohibit that
person from participating directly or indirectly in any activities that
are subject to this subchapter. Such individuals shall be notified in
writing that they are statutorily debarred pursuant to this policy. A
list of persons who have been convicted of such offenses and debarred
for this reason shall be published periodically in the Federal
Register. Statutory debarment in such cases is based solely upon the
outcome of a criminal proceeding, conducted by a court of the United
States, which established guilt beyond a reasonable doubt in accordance
with due process. Reinstatement is not automatic, and in all cases the
debarred person must submit a request for reinstatement to the
Department of State and be approved for reinstatement before engaging
in any activities subject to this subchapter. The procedures of part
128 of this subchapter are not applicable in such cases.
* * * * *
0
15. Section 127.11(c) is revised to read as follows:
Sec. 127.11 Past violations.
* * * * *
(c) Debarred persons. Persons debarred pursuant to Sec. 127.7(b)
(statutory debarment) may not utilize the procedures provided by
paragraph (b) of this section while the statutory debarment is in
force. Such persons may utilize only the procedures provided by Sec.
127.7(d).
Dated: November 18, 2016.
Tom Countryman,
Acting Under Secretary, Arms Control and International Security,
Department of State.
[FR Doc. 2016-28406 Filed 12-2-16; 8:45 am]
BILLING CODE 4710-25-P
