Amendment to the International Traffic in Arms Regulations: Tunisia, Eritrea, Somalia, the Democratic Republic of the Congo, Liberia, Côte d'Ivoire, Sri Lanka, Vietnam, and Other Changes, 66804-66807 [2016-23284]
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66804
Federal Register / Vol. 81, No. 189 / Thursday, September 29, 2016 / Rules and Regulations
(3) The following service information was
approved for IBR on September 23, 2016 (81
FR 61987, September 8, 2016).
(i) Gulfstream II Maintenance Manual TR
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(ii) Gulfstream IIB Maintenance Manual TR
5–3, dated April 15, 2016.
(iii) Gulfstream III Maintenance Manual TR
5–2, dated April 15, 2016.
(iv) Gulfstream IV Maintenance Manual TR
5–7, dated April 29, 2016.
(4) For service information identified in
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email pubs@gulfstream.com; Internet https://
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(5) You may view this service information
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Suzanne Masterson,
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[FR Doc. 2016–23091 Filed 9–28–16; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF STATE
22 CFR Parts 120 and 126
[Public Notice: 9602]
RIN 1400–AD95
Amendment to the International Traffic
in Arms Regulations: Tunisia, Eritrea,
Somalia, the Democratic Republic of
ˆ
the Congo, Liberia, Cote d’Ivoire, Sri
Lanka, Vietnam, and Other Changes
Department of State.
Interim final rule.
AGENCY:
ACTION:
The Department of State is
amending the International Traffic in
Arms Regulations (ITAR) to designate
Tunisia as a major non-NATO ally
(MNNA); reorganize the content in
several paragraphs to clarify the intent
of the ITAR; update defense trade policy
regarding Eritrea, Somalia, the
Democratic Republic of the Congo,
ˆ
Liberia, and Cote d’Ivoire to reflect
resolutions adopted by the United
Nations Security Council; update
defense trade policy regarding Sri Lanka
to reflect the Consolidated
Appropriations Act, 2016; and update
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SUMMARY:
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defense trade policy regarding Vietnam
to reflect a determination made by the
Secretary of State.
DATES: The rule is effective on
September 29, 2016. The Department of
State will accept comments on this
interim final rule until October 31,
2016.
Interested parties may
submit comments within 30 days of the
date of publication by one of the
following methods:
• Email:
DDTCPublicComments@state.gov with
the subject line, ‘‘ITAR Amendment—
Section 126.1 Re-organization.’’
• Internet: At www.regulations.gov,
search for docket number DOS–2016–
0059.
Comments received after that date may
be considered, but consideration cannot
be assured. Those submitting comments
should not include any personally
identifying information they do not
desire to be made public or information
for which a claim of confidentiality is
asserted because those comments and/or
transmittal emails will be made
available for public inspection and
copying after the close of the comment
period via the Directorate of Defense
Trade Controls Web site at
www.pmddtc.state.gov. Parties who
wish to comment anonymously may do
so by submitting their comments via
www.regulations.gov, leaving the fields
that would identify the commenter
blank and including no identifying
information in the comment itself.
Comments submitted via
www.regulations.gov are immediately
available for public inspection.
FOR FURTHER INFORMATION CONTACT: Mr.
C. Edward Peartree, Director, Office of
Defense Trade Controls Policy, U.S.
Department of State, telephone (202)
663–2792, or email
DDTCResponseTeam@state.gov. ATTN:
Regulatory Change, ITAR Section 126.1
Update 2016.
SUPPLEMENTARY INFORMATION: In
Presidential Determination No. 2015–
09, on July 10, 2015, President Obama
exercised his authority under § 517 of
the Foreign Assistance Act of 1961
(FAA) to designate Tunisia as a MNNA
for the purposes of the FAA and the
Arms Export Control Act (AECA). The
Department of State amends ITAR
§ 120.32 to reflect this change.
Paragraphs (a), (c), and (d) of § 126.1
of the ITAR are updated to enhance
their clarity. The fundamental content
of the aforementioned paragraphs is not
changing, but is reorganized in this rule
by subject matter. The lists of proscribed
countries were previously in multiple
ADDRESSES:
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paragraphs, but are now consolidated in
paragraph (d). Provisions relevant to the
rationale for defense trade sanctions,
previously located in paragraphs (a), (c),
and (d) are now consolidated in
paragraph (c). Section 126.18 of the
ITAR is amended to maintain
conformity with revised paragraph (d) of
ITAR § 126.1.
Recent actions by the United Nations
(UN), Congress, and the Executive
require the Department to amend ITAR
§ 126.1 to reflect the change in policy
towards individual nations identified in
that section.
On October 23, 2015, the United
Nations Security Council (UNSC)
adopted United Nations Security
Council Resolution (UNSCR) 2244,
which reaffirmed the arms embargoes
on Eritrea and Somalia. Exemptions
from the arms embargo on Somalia are
set forth in paragraphs 6 through 11 of
UNSCR 2111 and paragraphs 2 through
9 of UNSCR 2142. Thus subparagraphs
(1) and (2) of § 126.1(m) of the ITAR
have been revised to reflect this change,
and subparagraphs (3) through (6) are
added to reflect new exceptions for
Somalia as enumerated in UNSCR 2111.
The revised control text follows the
language as published in the
aforementioned UNSCRs.
Exemptions from the arms embargo
on Eritrea are set forth in paragraphs 12
and 13 of UNSCR 2111; consequently,
Eritrea will be moved to paragraph (h)
of § 126.1. The revised control text
follows the language as published in the
aforementioned UNSCRs. The
Department modifies paragraph (h) of
ITAR § 126.1 accordingly.
On June 23, 2016, the UNSC adopted
Resolution 2293, which expanded the
exemptions from the arms embargo on
the Democratic Republic of the Congo.
Exemptions from the arms embargo are
set forth in paragraph 3 of the UNSCR.
The revised control text follows the
language as published in the
aforementioned UNSCR. The
Department modifies paragraph (i) of
ITAR § 126.1 accordingly.
On May 25, 2016, the UNSC adopted
Resolution 2288, which terminated the
sanctions regime against Liberia,
including restrictions on exports to
Liberia of arms and related materiel.
The Department reserves paragraph (o)
to remove Liberia from ITAR § 126.1.
On April 28, 2016 the UNSC adopted
Resolution 2283, which terminated the
ˆ
sanctions regime against Cote d’Ivoire,
ˆ
including restrictions on exports to Cote
d’Ivoire of arms and related materiel.
The Department reserves paragraph (q)
ˆ
to remove Cote d’Ivoire from ITAR
§ 126.1.
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Federal Register / Vol. 81, No. 189 / Thursday, September 29, 2016 / Rules and Regulations
Licensing restrictions relating to Sri
Lanka articulated in section 7044(e) of
the Consolidated Appropriations Act,
2015, Public Law 113–235, and in
previous appropriations acts, were not
carried forward in section 7044(e) of the
Consolidated Appropriations Act, 2016,
Public Law 114–113. Therefore, the
Department reserves paragraph (n) to
remove Sri Lanka from ITAR § 126.1.
The Secretary of State lifted the ban
on lethal weapons sales to Vietnam in
May 2016. Accordingly, the Department
reserves paragraph (l) and the associated
note to remove Vietnam from ITAR
§ 126.1.
For more information, please visit the
Directorate of Defense Trade Controls
(DDTC) internet Web site at https://
www.pmddtc.state.gov/.
Request for Comments
The Department invites public
comment regarding the organization and
clarity of paragraphs (a), (c), and (d) of
ITAR § 126.1, as set forth in this
rulemaking. Comments regarding the
foreign policy of the United States as
described herein are outside of the
scope of this request.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is of the
opinion that controlling the import and
export of defense articles and services is
a foreign affairs function of the United
States Government and that rules
implementing this function are exempt
from sections 553 (rulemaking) and 554
(adjudications) of the Administrative
Procedure Act. Since this rule is exempt
from 5 U.S.C. 553, the provisions of
§ 553(d) do not apply to this
rulemaking. Therefore, this rule is
effective upon publication. The
Department also finds that, given the
national security issues surrounding
U.S. policy towards the aforementioned
countries, there is good cause for the
effective date of this rule to be the date
of publication, as provided by 5 U.S.C.
553(d)(3).
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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
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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. 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 the benefits of this
rulemaking outweigh any cost to the
public, which the Department believes
will be minimal. This rule has been
designated a ‘‘significant regulatory
action,’’ although not economically
significant, under section 3(f) of
Executive Order 12866. Accordingly,
the rule has been reviewed by the Office
of Management and Budget (OMB).
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
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66805
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 in 22 CFR Parts 120 and
126
Arms and munitions, Exports.
Accordingly, for the reasons set forth
above, Title 22, Chapter I, Subchapter
M, parts 120 and 126 are amended as
follows:
PART 120—PURPOSE AND
DEFINITIONS
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 120.32 is revised to read as
follows:
■
§ 120.32
Major non-NATO ally.
Major non-NATO ally, as defined in
section 644(q) of the Foreign Assistance
Act of 1961 (22 U.S.C. 2403(q)), means
a country that is designated in
accordance with section 517 of the
Foreign Assistance Act of 1961 (22
U.S.C. 2321k) as a major non-NATO ally
for purposes of the Foreign Assistance
Act of 1961 and the Arms Export
Control Act (22 U.S.C. 2151 et seq. and
22 U.S.C. 2751 et seq.). The following
countries are designated as major nonNATO allies: Afghanistan (see § 126.1(g)
of this subchapter), Argentina,
Australia, Bahrain, Egypt, Israel, Japan,
Jordan, Kuwait, Morocco, New Zealand,
Pakistan, the Philippines, Republic of
Korea, Thailand, and Tunisia. Taiwan
shall be treated as though it were
designated a major non-NATO ally.
PART 126—GENERAL POLICIES AND
PROVISIONS
3. The authority citation for part 126
continues to read as follows:
■
Authority: Secs. 2, 38, 40, 42, and 71, Pub.
L. 90–629, 90 Stat. 744 (22 U.S.C. 2752, 2778,
2780, 2791, and 2797); 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.
■
4. Section 126.1 is amended by
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Federal Register / Vol. 81, No. 189 / Thursday, September 29, 2016 / Rules and Regulations
a. Revising paragraphs (a), (c), and (d);
b. Adding paragraph (h);
c. Revising paragraphs (i)(2) and (3):
d. Adding paragraph (i)(5):
e. Removing and reserving paragraph
(l);
■ f. Revising paragraph (m); and
■ g. Removing and reserving paragraphs
(n), (o), and (q).
The revisions and additions read as
follows:
■
■
■
■
■
§ 126.1 Prohibited exports, imports, and
sales to or from certain countries.
(a) General. It is the policy of the
United States to deny licenses and other
approvals for exports and imports of
defense articles and defense services,
destined for or originating in certain
countries. The exemptions provided in
this subchapter, except §§ 123.17, 126.4,
and 126.6 of this subchapter, or when
the recipient is a U.S. government
department or agency, do not apply
with respect to defense articles or
defense services originating in or for
export to any proscribed countries,
areas, or persons. (See § 129.7 of this
subchapter, which imposes restrictions
on brokering activities similar to those
in this section).
*
*
*
*
*
(c) Identification in § 126.1 of the
ITAR may derive from:
(1) Exports and sales prohibited by
United Nations Security Council
sanctions measures. Whenever the
United Nations Security Council
mandates sanctions measures, all
transactions that are prohibited by the
aforementioned measures and involve
U.S. persons (see § 120.15 of this
subchapter) inside or outside of the
United States, or any person in the
United States, and defense articles or
defense services described on the
United States Munitions List (22 CFR
part 121), irrespective of origin, are
prohibited under the ITAR for the
duration of the sanction, unless the
Department of State publishes a notice
in the Federal Register specifying
different measures.
(2) Terrorism. Exports or temporary
imports of defense articles or defense
services to countries that the Secretary
of State has determined to be State
Sponsors of Terrorism are prohibited
under the ITAR. These countries have
repeatedly provided support for acts of
international terrorism, which is
contrary to the foreign policy of the
United States and thus subject to the
policy specified in paragraph (a) of this
section and the requirements of section
40 of the Arms Export Control Act (22
U.S.C. 2780) and the Omnibus
Diplomatic Security and Anti-Terrorism
Act of 1986 (22 U.S.C. 4801). Exports to
countries that the Secretary of State has
determined and certified to Congress,
pursuant to section 40A of the Arms
Export Control Act (22 U.S.C. 2781) and
Executive Order 13637, are not
cooperating fully with United States
antiterrorism efforts are subject to the
policy specified in paragraph (a) of this
section. The Secretary of State makes
Country
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*
*
*
*
(h) Eritrea. 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 Eritrea,
except that a license or other approval
may be issued, on a case-by-case basis,
for:
(1) Non-lethal military equipment
intended solely for humanitarian or
protective use, as approved in advance
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Country
Belarus.
Burma.
China.
Cuba.
Iran.
North Korea.
Syria.
Venezuela.
(2) For defense articles and defense
services, a policy of denial applies to
the following countries except as
specified in the associated paragraphs
below:
Country specific paragraph location
Afghanistan ...............................................................................................
Central African Republic ...........................................................................
Cyprus ......................................................................................................
Democratic Republic of Congo ................................................................
Eritrea .......................................................................................................
Haiti ...........................................................................................................
Iraq ............................................................................................................
Lebanon ....................................................................................................
Libya .........................................................................................................
Somalia .....................................................................................................
Sudan .......................................................................................................
Zimbabwe .................................................................................................
*
such determinations and certifications
annually.
(3) Arms embargoes and sanctions.
The policy specified in paragraph (a) of
this section applies to countries subject
to a United States arms embargo or
sanctions regime, such as those
described in the Foreign Assistance Act
of 1961 (22 U.S.C. 2151 et seq.), the
International Religious Freedom Act of
1998 (22 U.S.C. 6401 et seq.), or the
Child Soldiers Prevention Act of 2008
(22 U.S.C. 2370c–2370c–2), or whenever
an export of defense articles or defense
services would not otherwise be in
furtherance of world peace and the
security and foreign policy of the United
States.
(d) Countries subject to certain
prohibitions:
(1) For defense articles and defense
services, the following countries have a
policy of denial:
See
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also
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paragraph
paragraph
paragraph
paragraph
paragraph
paragraph
paragraph
paragraph
paragraph
paragraph
paragraph
paragraph
(g) of this section.
(u) of this section.
(r) of this section.
(i) of this section.
(h) of this section.
(j) of this section.
(f) of this section.
(t) of this section.
(k) of this section.
(m) of this section.
(v) of this section.
(s) of this section.
by the relevant committee of the
Security Council; or
(2) Personal protective clothing,
including flak jackets and military
helmets, temporarily exported to Eritrea
by United Nations personnel,
representatives of the media,
humanitarian and development
workers, and associated personnel for
their personal use only.
(i) * * *
(2) Defense articles and defense
services intended solely for the support
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of or use by the United Nations
Organization Stabilization Mission in
the Democratic Republic of the Congo
(MONUSCO) or the African UnionRegional Task Force;
(3) Protective clothing, including flak
jackets and military helmets,
temporarily exported to the Democratic
Republic of the Congo by United
Nations personnel, representatives of
the media, and humanitarian and
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development workers and associated
personnel, for their personal use only;
*
*
*
*
*
(5) Defense articles and defense
services as approved by the relevant
committee of the Security Council.
*
*
*
*
*
(l) [Reserved]
(m) Somalia. 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 Somalia,
except that a license or other approval
may be issued, on a case-by-case basis,
for:
(1) Defense articles and defense
services intended solely for the support
of or use by the following:
(i) The African Union Mission in
Somalia (AMISOM);
(ii) United Nations personnel,
including the United Nations Assistance
Mission in Somalia (UNSOM);
(iii) AMISOM’s strategic partners,
operating solely under the African
Union (AU) Strategic Concept of January
5, 2012 (or subsequent AU strategic
concepts), and in cooperation and
coordination with AMISOM; or
(iv) The European Union Training
Mission (EUTM) in Somalia.
(2) Defense articles and defense
services intended solely for the
development of the Security Forces of
the Federal Government of Somalia, to
provide security for the Somali people,
notified to the relevant committee of the
Security Council at least five days in
advance, except in relation to deliveries
of the following articles, the supply of
which needs to be approved in advance
by the relevant committee of the
Security Council:
(i) Surface to air missiles, including
Man-Portable Air-Defense Systems
(MANPADS);
(ii) Guns, howitzers, and cannons
with a caliber greater than 12.7 mm, and
ammunition and components specially
designed for these (this does not include
shoulder fired anti-tank rocket
launchers such as RPGs or LAWs, rifle
grenades, or grenade launchers);
(iii) Mortars with a caliber greater
than 82 mm;
(iv) Anti-tank guided weapons,
including Anti-tank Guided Missiles
(ATGMs) and ammunition and
components specially designed for these
items;
(v) Charges and devices intended for
military use containing energetic
material; mines, and related materiel;
and
(vi) Weapon sights with a night vision
capability.
(3) Defense articles and defense
services supplied by United Nations
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member states or international, regional,
or subregional organizations intended
solely for the purposes of helping
develop Somali security sector
institutions, other than the Security
Forces of the Federal Government of
Somalia, and in the absence of a
negative decision by the relevant
committee of the Security Council
within five working days of receiving a
notification of any such assistance from
the supplying State, international,
regional or subregional organization;
(4) Defense articles for the sole use by
United Nations member states or
international, regional, or subregional
organizations undertaking measures to
suppress acts of piracy and armed
robbery at sea off the coast of Somalia,
upon the request of the Federal
Government of Somalia for which it has
notified the Secretary-General, and
provided that any measures undertaken
shall be consistent with applicable
international humanitarian and human
rights laws;
(5) Personal protective clothing,
including flak jackets and military
helmets, temporarily exported to
Somalia by United Nations personnel,
representatives of the media,
humanitarian or development workers,
or associated personnel for their
personal use only; or
(6) Supplies of non-lethal defense
articles intended solely for
humanitarian or protective use, notified
to the relevant committee of the
Security Council five days in advance
for its information only, by the
supplying State, international, regional,
or subregional organization.
(n)–(o) [Reserved]
*
*
*
*
*
(q) [Reserved]
*
*
*
*
*
5. Section 126.18 is amended by
revising the fourth sentence of
paragraph (c)(2) to read as follows:
■
§ 126.18 Exemptions regarding intracompany, intra-organization, and intragovernment transfers to employees who are
dual nationals or third-country nationals.
*
*
*
*
*
(c) * * *
(2) * * * Although nationality does
not, in and of itself, prohibit access to
defense articles, an employee who has
substantive contacts with persons from
countries listed in § 126.1(d)(1) shall be
presumed to raise a risk of diversion,
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66807
unless DDTC determines otherwise.
* * *
Rose E. Gottemoeller,
Under Secretary, Arms Control and
International Security, Department of State.
[FR Doc. 2016–23284 Filed 9–28–16; 8:45 am]
BILLING CODE 4710–25–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2016–0668]
Drawbridge Operation Regulation;
James River, Hopewell, VA
Coast Guard, DHS.
Notice of temporary deviation
from drawbridge regulation;
modification.
AGENCY:
ACTION:
The Coast Guard has modified
a temporary deviation from the
operating schedule that governs the SR
156/Benjamin Harrison Memorial
Bridge across the James River, mile 65.0,
at Hopewell, VA. This modified
deviation is necessary to extend the
deviation timeframe to perform bridge
maintenance and repairs. This modified
deviation allows the bridge to remain in
the closed-to-navigation position.
DATES: This modified deviation is
effective without actual notice from
September 29, 2016 through 6 a.m. on
October 28, 2016. For the purposes of
enforcement, actual notice will be used
from September 22, 2016, 8:45 a.m.,
until September 29, 2016.
ADDRESSES: The docket for this
deviation, [USCG–2016–0668] is
available at https://www.regulations.gov.
Type the docket number in the
‘‘SEARCH’’ box and click ‘‘SEARCH’’.
Click on Open Docket Folder on the line
associated with this deviation.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this modified
temporary deviation, call or email Mr.
Michael R. Thorogood, Bridge
Administration Branch Fifth District,
Coast Guard, telephone 757–398–6557,
email Michael.R.Thorogood@uscg.mil.
SUPPLEMENTARY INFORMATION: On July
25, 2016, the Coast Guard published a
temporary deviation entitled
‘‘Drawbridge Operation Regulation;
James River, Hopewell, VA’’ in the
Federal Register (81 FR 49898). Under
that temporary deviation, the bridge
would be maintained in the closed-tonavigation position from 8 p.m. through
6 a.m.; Monday through Thursday; July
SUMMARY:
E:\FR\FM\29SER1.SGM
29SER1
]]>Agencies
[Federal Register Volume 81, Number 189 (Thursday, September 29, 2016)]
[Rules and Regulations]
[Pages 66804-66807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23284]
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DEPARTMENT OF STATE
22 CFR Parts 120 and 126
[Public Notice: 9602]
RIN 1400-AD95
Amendment to the International Traffic in Arms Regulations:
Tunisia, Eritrea, Somalia, the Democratic Republic of the Congo,
Liberia, C[ocirc]te d'Ivoire, Sri Lanka, Vietnam, and Other Changes
AGENCY: Department of State.
ACTION: Interim final rule.
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SUMMARY: The Department of State is amending the International Traffic
in Arms Regulations (ITAR) to designate Tunisia as a major non-NATO
ally (MNNA); reorganize the content in several paragraphs to clarify
the intent of the ITAR; update defense trade policy regarding Eritrea,
Somalia, the Democratic Republic of the Congo, Liberia, and C[ocirc]te
d'Ivoire to reflect resolutions adopted by the United Nations Security
Council; update defense trade policy regarding Sri Lanka to reflect the
Consolidated Appropriations Act, 2016; and update defense trade policy
regarding Vietnam to reflect a determination made by the Secretary of
State.
DATES: The rule is effective on September 29, 2016. The Department of
State will accept comments on this interim final rule until October 31,
2016.
ADDRESSES: Interested parties may submit comments within 30 days of the
date of publication by one of the following methods:
Email: DDTCPublicComments@state.gov with the subject line,
``ITAR Amendment--Section 126.1 Re-organization.''
Internet: At www.regulations.gov, search for docket number
DOS-2016-0059.
Comments received after that date may be considered, but consideration
cannot be assured. Those submitting comments should not include any
personally identifying information they do not desire to be made public
or information for which a claim of confidentiality is asserted because
those comments and/or transmittal emails will be made available for
public inspection and copying after the close of the comment period via
the Directorate of Defense Trade Controls Web site at
www.pmddtc.state.gov. Parties who wish to comment anonymously may do so
by submitting their comments via www.regulations.gov, leaving the
fields that would identify the commenter blank and including no
identifying information in the comment itself. Comments submitted via
www.regulations.gov are immediately available for public inspection.
FOR FURTHER INFORMATION CONTACT: Mr. C. Edward Peartree, Director,
Office of Defense Trade Controls Policy, U.S. Department of State,
telephone (202) 663-2792, or email DDTCResponseTeam@state.gov. ATTN:
Regulatory Change, ITAR Section 126.1 Update 2016.
SUPPLEMENTARY INFORMATION: In Presidential Determination No. 2015-09,
on July 10, 2015, President Obama exercised his authority under Sec.
517 of the Foreign Assistance Act of 1961 (FAA) to designate Tunisia as
a MNNA for the purposes of the FAA and the Arms Export Control Act
(AECA). The Department of State amends ITAR Sec. 120.32 to reflect
this change.
Paragraphs (a), (c), and (d) of Sec. 126.1 of the ITAR are updated
to enhance their clarity. The fundamental content of the aforementioned
paragraphs is not changing, but is reorganized in this rule by subject
matter. The lists of proscribed countries were previously in multiple
paragraphs, but are now consolidated in paragraph (d). Provisions
relevant to the rationale for defense trade sanctions, previously
located in paragraphs (a), (c), and (d) are now consolidated in
paragraph (c). Section 126.18 of the ITAR is amended to maintain
conformity with revised paragraph (d) of ITAR Sec. 126.1.
Recent actions by the United Nations (UN), Congress, and the
Executive require the Department to amend ITAR Sec. 126.1 to reflect
the change in policy towards individual nations identified in that
section.
On October 23, 2015, the United Nations Security Council (UNSC)
adopted United Nations Security Council Resolution (UNSCR) 2244, which
reaffirmed the arms embargoes on Eritrea and Somalia. Exemptions from
the arms embargo on Somalia are set forth in paragraphs 6 through 11 of
UNSCR 2111 and paragraphs 2 through 9 of UNSCR 2142. Thus subparagraphs
(1) and (2) of Sec. 126.1(m) of the ITAR have been revised to reflect
this change, and subparagraphs (3) through (6) are added to reflect new
exceptions for Somalia as enumerated in UNSCR 2111. The revised control
text follows the language as published in the aforementioned UNSCRs.
Exemptions from the arms embargo on Eritrea are set forth in
paragraphs 12 and 13 of UNSCR 2111; consequently, Eritrea will be moved
to paragraph (h) of Sec. 126.1. The revised control text follows the
language as published in the aforementioned UNSCRs. The Department
modifies paragraph (h) of ITAR Sec. 126.1 accordingly.
On June 23, 2016, the UNSC adopted Resolution 2293, which expanded
the exemptions from the arms embargo on the Democratic Republic of the
Congo. Exemptions from the arms embargo are set forth in paragraph 3 of
the UNSCR. The revised control text follows the language as published
in the aforementioned UNSCR. The Department modifies paragraph (i) of
ITAR Sec. 126.1 accordingly.
On May 25, 2016, the UNSC adopted Resolution 2288, which terminated
the sanctions regime against Liberia, including restrictions on exports
to Liberia of arms and related materiel. The Department reserves
paragraph (o) to remove Liberia from ITAR Sec. 126.1.
On April 28, 2016 the UNSC adopted Resolution 2283, which
terminated the sanctions regime against C[ocirc]te d'Ivoire, including
restrictions on exports to C[ocirc]te d'Ivoire of arms and related
materiel. The Department reserves paragraph (q) to remove C[ocirc]te
d'Ivoire from ITAR Sec. 126.1.
[[Page 66805]]
Licensing restrictions relating to Sri Lanka articulated in section
7044(e) of the Consolidated Appropriations Act, 2015, Public Law 113-
235, and in previous appropriations acts, were not carried forward in
section 7044(e) of the Consolidated Appropriations Act, 2016, Public
Law 114-113. Therefore, the Department reserves paragraph (n) to remove
Sri Lanka from ITAR Sec. 126.1.
The Secretary of State lifted the ban on lethal weapons sales to
Vietnam in May 2016. Accordingly, the Department reserves paragraph (l)
and the associated note to remove Vietnam from ITAR Sec. 126.1.
For more information, please visit the Directorate of Defense Trade
Controls (DDTC) internet Web site at https://www.pmddtc.state.gov/.
Request for Comments
The Department invites public comment regarding the organization
and clarity of paragraphs (a), (c), and (d) of ITAR Sec. 126.1, as set
forth in this rulemaking. Comments regarding the foreign policy of the
United States as described herein are outside of the scope of this
request.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is of the opinion that controlling the
import and export of defense articles and services is a foreign affairs
function of the United States Government and that rules implementing
this function are exempt from sections 553 (rulemaking) and 554
(adjudications) of the Administrative Procedure Act. Since this rule is
exempt from 5 U.S.C. 553, the provisions of Sec. 553(d) do not apply
to this rulemaking. Therefore, this rule is effective upon publication.
The Department also finds that, given the national security issues
surrounding U.S. policy towards the aforementioned countries, there is
good cause for the effective date of this rule to be the date of
publication, as provided by 5 U.S.C. 553(d)(3).
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
The Department does not believe this rulemaking is 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 the benefits of this rulemaking outweigh
any cost to the public, which the Department believes will be minimal.
This rule has been designated a ``significant regulatory action,''
although not economically significant, under section 3(f) of Executive
Order 12866. Accordingly, the rule has been reviewed by the Office of
Management and Budget (OMB).
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 in 22 CFR Parts 120 and 126
Arms and munitions, Exports.
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, parts 120 and 126 are amended as follows:
PART 120--PURPOSE AND DEFINITIONS
0
1. The authority citation for part 120 continues to read as follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; 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 120.32 is revised to read as follows:
Sec. 120.32 Major non-NATO ally.
Major non-NATO ally, as defined in section 644(q) of the Foreign
Assistance Act of 1961 (22 U.S.C. 2403(q)), means a country that is
designated in accordance with section 517 of the Foreign Assistance Act
of 1961 (22 U.S.C. 2321k) as a major non-NATO ally for purposes of the
Foreign Assistance Act of 1961 and the Arms Export Control Act (22
U.S.C. 2151 et seq. and 22 U.S.C. 2751 et seq.). The following
countries are designated as major non-NATO allies: Afghanistan (see
Sec. 126.1(g) of this subchapter), Argentina, Australia, Bahrain,
Egypt, Israel, Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan,
the Philippines, Republic of Korea, Thailand, and Tunisia. Taiwan shall
be treated as though it were designated a major non-NATO ally.
PART 126--GENERAL POLICIES AND PROVISIONS
0
3. The authority citation for part 126 continues to read as follows:
Authority: Secs. 2, 38, 40, 42, and 71, Pub. L. 90-629, 90 Stat.
744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); 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
4. Section 126.1 is amended by
[[Page 66806]]
0
a. Revising paragraphs (a), (c), and (d);
0
b. Adding paragraph (h);
0
c. Revising paragraphs (i)(2) and (3):
0
d. Adding paragraph (i)(5):
0
e. Removing and reserving paragraph (l);
0
f. Revising paragraph (m); and
0
g. Removing and reserving paragraphs (n), (o), and (q).
The revisions and additions read as follows:
Sec. 126.1 Prohibited exports, imports, and sales to or from certain
countries.
(a) General. It is the policy of the United States to deny licenses
and other approvals for exports and imports of defense articles and
defense services, destined for or originating in certain countries. The
exemptions provided in this subchapter, except Sec. Sec. 123.17,
126.4, and 126.6 of this subchapter, or when the recipient is a U.S.
government department or agency, do not apply with respect to defense
articles or defense services originating in or for export to any
proscribed countries, areas, or persons. (See Sec. 129.7 of this
subchapter, which imposes restrictions on brokering activities similar
to those in this section).
* * * * *
(c) Identification in Sec. 126.1 of the ITAR may derive from:
(1) Exports and sales prohibited by United Nations Security Council
sanctions measures. Whenever the United Nations Security Council
mandates sanctions measures, all transactions that are prohibited by
the aforementioned measures and involve U.S. persons (see Sec. 120.15
of this subchapter) inside or outside of the United States, or any
person in the United States, and defense articles or defense services
described on the United States Munitions List (22 CFR part 121),
irrespective of origin, are prohibited under the ITAR for the duration
of the sanction, unless the Department of State publishes a notice in
the Federal Register specifying different measures.
(2) Terrorism. Exports or temporary imports of defense articles or
defense services to countries that the Secretary of State has
determined to be State Sponsors of Terrorism are prohibited under the
ITAR. These countries have repeatedly provided support for acts of
international terrorism, which is contrary to the foreign policy of the
United States and thus subject to the policy specified in paragraph (a)
of this section and the requirements of section 40 of the Arms Export
Control Act (22 U.S.C. 2780) and the Omnibus Diplomatic Security and
Anti-Terrorism Act of 1986 (22 U.S.C. 4801). Exports to countries that
the Secretary of State has determined and certified to Congress,
pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2781)
and Executive Order 13637, are not cooperating fully with United States
antiterrorism efforts are subject to the policy specified in paragraph
(a) of this section. The Secretary of State makes such determinations
and certifications annually.
(3) Arms embargoes and sanctions. The policy specified in paragraph
(a) of this section applies to countries subject to a United States
arms embargo or sanctions regime, such as those described in the
Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.), the
International Religious Freedom Act of 1998 (22 U.S.C. 6401 et seq.),
or the Child Soldiers Prevention Act of 2008 (22 U.S.C. 2370c-2370c-2),
or whenever an export of defense articles or defense services would not
otherwise be in furtherance of world peace and the security and foreign
policy of the United States.
(d) Countries subject to certain prohibitions:
(1) For defense articles and defense services, the following
countries have a policy of denial:
------------------------------------------------------------------------
Country
-------------------------------------------------------------------------
Belarus.
Burma.
China.
Cuba.
Iran.
North Korea.
Syria.
Venezuela.
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(2) For defense articles and defense services, a policy of denial
applies to the following countries except as specified in the
associated paragraphs below:
------------------------------------------------------------------------
Country specific paragraph
Country location
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Afghanistan............................ See also paragraph (g) of this
section.
Central African Republic............... See also paragraph (u) of this
section.
Cyprus................................. See also paragraph (r) of this
section.
Democratic Republic of Congo........... See also paragraph (i) of this
section.
Eritrea................................ See also paragraph (h) of this
section.
Haiti.................................. See also paragraph (j) of this
section.
Iraq................................... See also paragraph (f) of this
section.
Lebanon................................ See also paragraph (t) of this
section.
Libya.................................. See also paragraph (k) of this
section.
Somalia................................ See also paragraph (m) of this
section.
Sudan.................................. See also paragraph (v) of this
section.
Zimbabwe............................... See also paragraph (s) of this
section.
------------------------------------------------------------------------
* * * * *
(h) Eritrea. 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 Eritrea, except that a
license or other approval may be issued, on a case-by-case basis, for:
(1) Non-lethal military equipment intended solely for humanitarian
or protective use, as approved in advance by the relevant committee of
the Security Council; or
(2) Personal protective clothing, including flak jackets and
military helmets, temporarily exported to Eritrea by United Nations
personnel, representatives of the media, humanitarian and development
workers, and associated personnel for their personal use only.
(i) * * *
(2) Defense articles and defense services intended solely for the
support of or use by the United Nations Organization Stabilization
Mission in the Democratic Republic of the Congo (MONUSCO) or the
African Union-Regional Task Force;
(3) Protective clothing, including flak jackets and military
helmets, temporarily exported to the Democratic Republic of the Congo
by United Nations personnel, representatives of the media, and
humanitarian and
[[Page 66807]]
development workers and associated personnel, for their personal use
only;
* * * * *
(5) Defense articles and defense services as approved by the
relevant committee of the Security Council.
* * * * *
(l) [Reserved]
(m) Somalia. 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 Somalia, except that a
license or other approval may be issued, on a case-by-case basis, for:
(1) Defense articles and defense services intended solely for the
support of or use by the following:
(i) The African Union Mission in Somalia (AMISOM);
(ii) United Nations personnel, including the United Nations
Assistance Mission in Somalia (UNSOM);
(iii) AMISOM's strategic partners, operating solely under the
African Union (AU) Strategic Concept of January 5, 2012 (or subsequent
AU strategic concepts), and in cooperation and coordination with
AMISOM; or
(iv) The European Union Training Mission (EUTM) in Somalia.
(2) Defense articles and defense services intended solely for the
development of the Security Forces of the Federal Government of
Somalia, to provide security for the Somali people, notified to the
relevant committee of the Security Council at least five days in
advance, except in relation to deliveries of the following articles,
the supply of which needs to be approved in advance by the relevant
committee of the Security Council:
(i) Surface to air missiles, including Man-Portable Air-Defense
Systems (MANPADS);
(ii) Guns, howitzers, and cannons with a caliber greater than 12.7
mm, and ammunition and components specially designed for these (this
does not include shoulder fired anti-tank rocket launchers such as RPGs
or LAWs, rifle grenades, or grenade launchers);
(iii) Mortars with a caliber greater than 82 mm;
(iv) Anti-tank guided weapons, including Anti-tank Guided Missiles
(ATGMs) and ammunition and components specially designed for these
items;
(v) Charges and devices intended for military use containing
energetic material; mines, and related materiel; and
(vi) Weapon sights with a night vision capability.
(3) Defense articles and defense services supplied by United
Nations member states or international, regional, or subregional
organizations intended solely for the purposes of helping develop
Somali security sector institutions, other than the Security Forces of
the Federal Government of Somalia, and in the absence of a negative
decision by the relevant committee of the Security Council within five
working days of receiving a notification of any such assistance from
the supplying State, international, regional or subregional
organization;
(4) Defense articles for the sole use by United Nations member
states or international, regional, or subregional organizations
undertaking measures to suppress acts of piracy and armed robbery at
sea off the coast of Somalia, upon the request of the Federal
Government of Somalia for which it has notified the Secretary-General,
and provided that any measures undertaken shall be consistent with
applicable international humanitarian and human rights laws;
(5) Personal protective clothing, including flak jackets and
military helmets, temporarily exported to Somalia by United Nations
personnel, representatives of the media, humanitarian or development
workers, or associated personnel for their personal use only; or
(6) Supplies of non-lethal defense articles intended solely for
humanitarian or protective use, notified to the relevant committee of
the Security Council five days in advance for its information only, by
the supplying State, international, regional, or subregional
organization.
(n)-(o) [Reserved]
* * * * *
(q) [Reserved]
* * * * *
0
5. Section 126.18 is amended by revising the fourth sentence of
paragraph (c)(2) to read as follows:
Sec. 126.18 Exemptions regarding intra-company, intra-organization,
and intra-government transfers to employees who are dual nationals or
third-country nationals.
* * * * *
(c) * * *
(2) * * * Although nationality does not, in and of itself, prohibit
access to defense articles, an employee who has substantive contacts
with persons from countries listed in Sec. 126.1(d)(1) shall be
presumed to raise a risk of diversion, unless DDTC determines
otherwise. * * *
Rose E. Gottemoeller,
Under Secretary, Arms Control and International Security, Department of
State.
[FR Doc. 2016-23284 Filed 9-28-16; 8:45 am]
BILLING CODE 4710-25-P
