International Traffic in Arms Regulations: Corrections and Clarifications for Export and Reexport; Canadian Exemptions; Exemptions Regarding Intra-Company, Intra-Organization, and Intra-Governmental Transfers to Employees Who Are Dual Nationals or Third-Country Nationals; and Voluntary Disclosures, 5759-5761 [2022-01889]
Download as PDF
Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Proposed Rules
disclosures that should affect our
approach or affect our consideration of
the economic effects of any rule
changes? Are there any changes we
should consider in the methodologies
and estimates used to analyze the
economic effects of the proposed rules
in the Proposing Release?
We request and encourage any
interested person to submit comments
regarding the Proposed Rules, specific
issues discussed in this release or the
Proposing Release, and other matters
that may have an effect on the proposed
rules or the additional disclosure
requirements we have noted here that
we are considering. We request
comment from the point of view of
registrants, shareholders, directors,
executives, investors, other market
participants, and anyone else with an
interest in this issue. If alternatives to
the Proposed Rules are suggested,
supporting data and analysis and
quantitative information as to the costs
and benefits of those alternatives are of
particular assistance. Commenters are
urged to be as specific as possible; when
commenting, it would be most helpful
if you include the reasoning behind
your position or recommendation.
If any commenters who have already
submitted a comment letter wish to
provide supplemental or updated
comments, we encourage them to do so.
By the Commission.
Dated: January 27, 2022.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2022–02024 Filed 2–1–22; 8:45 am]
BILLING CODE 8011–01–P
DEPARTMENT OF STATE
22 CFR Parts 120, 126, and 127
[Public Notice: 11532]
RIN 1400–AF39
jspears on DSK121TN23PROD with PROPOSALS1
International Traffic in Arms
Regulations: Corrections and
Clarifications for Export and Reexport;
Canadian Exemptions; Exemptions
Regarding Intra-Company, IntraOrganization, and Intra-Governmental
Transfers to Employees Who Are Dual
Nationals or Third-Country Nationals;
and Voluntary Disclosures
Department of State.
Proposed rule.
AGENCY:
ACTION:
The Department of State
(DOS) proposes to amend the
International Traffic in Arms
Regulations (ITAR) to clarify the
definitions of export and reexport.
SUMMARY:
VerDate Sep<11>2014
17:06 Feb 01, 2022
Jkt 256001
Further, the Department proposes to
replace the term ‘‘national’’ with
‘‘person’’ in the Canadian exemptions;
revise the exemption for intra-company,
intra-organization, and intragovernmental transfers to dual nationals
or third-country nationals; and correct
administrative errors in the section on
voluntary disclosures.
DATES: The Department of State will
accept comments on this proposed rule
until April 4, 2022.
ADDRESSES: Interested parties may
submit comments by one of the
following methods:
• Email: DDTCPublicComments@
state.gov with the subject line:
‘‘Regulatory Change: ITAR Sections 120,
126 and 127’’
• Internet: At www.regulations.gov,
search for this notice, Docket DOS–
2021–0031. Comments received after
that date may be considered if feasible,
but consideration cannot be assured.
Those submitting comments should not
include any personally identifying
information they do not desire to be
made public or information for which a
claim of confidentiality is asserted,
because 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 website 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.
FOR FURTHER INFORMATION CONTACT: Ms.
Engda Wubneh, Foreign Affairs Officer,
Office of Defense Trade Controls Policy,
U.S. Department of State, telephone
(202) 663–1809; email
DDTCCustomerService@state.gov.
ATTN: Regulatory Change, ITAR parts
120, 126, and 127.
SUPPLEMENTARY INFORMATION: The
Department of State proposes to amend
the International Traffic in Arms
Regulations (ITAR) to revise the
definitions of export (ITAR § 120.17)
and reexport (ITAR § 120.19) to clarify
that any release of technical data to a
foreign person described within the
respective definitions is a release only
to any countries in which that foreign
person currently holds citizenship or
permanent residency. Since the
Department published ‘‘International
Traffic in Arms Regulations: Revisions
to Definition of Export and Related
Definitions’’ (81 FR 35611) in 2016, the
Department has changed its assessment
that inclusion of prior citizenship or
permanent residency in ITAR
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
5759
§§ 120.17(b) and 120.19(b) is necessary
based on its experience with this
provision. The Department assesses that
a foreign person’s former citizenship or
permanent residency status in a country
should not be deemed to automatically
result in an export or reexport to that
country. The Department proposes this
change to better align with our policy
and requirements in Section 126.18 and
to provide greater opportunities for
foreign persons who are no longer
citizens or permanent residents of
certain countries to participate in ITARregulated activities.
Further, the Department proposes to
replace the term ‘‘national’’ with the
ITAR-defined term ‘‘person’’ in ITAR
§ 126.5(b) of the Canadian exemption to
be consistent with how foreign persons
are defined in the ITAR. The
Department also proposes to remove the
phrase ‘‘although nationality does not,
in and of itself, prohibit access to
defense articles’’ from ITAR
§ 126.18(c)(2) as the definitions of
export and reexport provide that a
release to a foreign person constitutes an
export or reexport, as applicable, to all
countries in which the foreign person
holds citizenship or permanent
residency. This proposed change is not
intended to convey any change to the
Department’s long-standing position
that the purpose of vetting employees
from countries listed in ITAR § 126.1 is
to mitigate diversion. Further, simply
identifying nationalities with no
substantive contacts with ITAR § 126.1
countries is not a precondition to rely
on to use the exemption for intracompany, intra-organization, and intragovernmental transfers to dual or thirdcountry nationals. The Department also
proposes to clarify ITAR § 126.18(c)(2)
by stating that the screened employee,
not the end-user or consignee, must
execute a nondisclosure agreement to
provide assurances that said employee
will not transfer any unclassified
defense articles to unauthorized
persons.
Lastly, the Department proposes to
correct administrative errors in the
voluntary disclosures section of the
ITAR by providing the correct
references to exemptions pursuant to
the Defense Trade Cooperation Treaties
between the United States and Australia
and the United States and the United
Kingdom in ITAR §§ 126.16 and 126.17,
respectively. Additionally, the
Department proposes to streamline the
section on voluntary disclosures by
simply referencing the relevant ITAR
sections, §§ 126.1(e), 126.16(h)(8), and
126.17(h)(8), that describe the duties of
persons to notify the Directorate of
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Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Proposed Rules
Defense Trade Controls of particular
activities.
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), pursuant to 5
U.S.C. 553(a)(1). Since the Department
is of the opinion that this rule is exempt
from 5 U.S.C. 553, it is the view of the
Department that the provisions of
Section 553(d) do not apply to this
rulemaking.
Regulatory Flexibility Act
Notwithstanding the Department’s
publication of this rulemaking as a
proposed rule, this rule is exempt from
the notice-and-comment rulemaking
provisions of 5 U.S.C. 553 as a foreign
affairs function. Therefore, it does not
require analysis under the Regulatory
Flexibility Act.
jspears on DSK121TN23PROD with PROPOSALS1
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 are deemed
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
Executive Orders 12372 and 13132
This rulemaking will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with Executive Order 13132,
it is determined that this proposed
amendment 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 all costs and
benefits of available regulatory
VerDate Sep<11>2014
17:06 Feb 01, 2022
Jkt 256001
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).
This rule’s scope does not impose
additional regulatory requirements or
obligations; therefore, the Department
believes costs associated with this rule
will be minimal. Although the
Department cannot determine based on
available data how many fewer licenses
will be submitted as a result of this rule,
the amendments to the definitions of
export and reexport will inherently
relieve the licensing burden for some
exporters. Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has been designated as a ‘‘nonsignificant
regulatory action’’ by the Office and
Information and Regulatory Affairs
under Executive Order 12866.
■
Executive Order 12988
The Department of State has 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 has
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, Executive Order 13175
does not apply to this rulemaking.
Paperwork Reduction Act
This rulemaking does not impose or
revise any information collections
subject to 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Parts 120,
126, and 127
Arms and munitions, Classified
information, Crime, Exports, Penalties,
Seizures and forfeitures.
For the reasons set forth above, the
Department of State proposes to amend
22 CFR parts 120, 126, and 127 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.
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
2. Amend § 120.17 by revising
paragraph (b) to read as follows:
§ 120.17
Export.
*
*
*
*
*
(b) Any release in the United States of
technical data to a foreign person is
deemed to be an export to all countries
in which the foreign person holds
citizenship or permanent residency.
*
*
*
*
*
■ 3. Amend § 120.19 by revising
paragraph (b) to read as follows:
§ 120.19
Reexport.
*
*
*
*
*
(b) Any release outside the United
States of technical data to a foreign
person is deemed to be a reexport to all
countries in which the foreign person
holds citizenship or permanent
residency.
*
*
*
*
*
PART 126—GENERAL POLICIES AND
PROVISIONS
4. The authority citation for part 126
continues to read as follows:
Authority: 22 U.S.C. 2752, 2778, 2780,
2791, and 2797; 22 U.S.C. 2651a; 22 U.S.C.
287c; 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.
5. Amend § 126.5 by revising
paragraph (b) to read as follows:
■
§ 126.5
Canadian exemptions.
*
*
*
*
*
(b) Permanent and temporary export
of defense articles. Except as provided
in Supplement No. 1 to part 126 of this
subchapter and for exports that transit
third countries, Port Directors of U.S.
Customs and Border Protection and
postmasters shall permit, when for enduse in Canada by Canadian Federal or
Provincial governmental authorities
acting in an official capacity or by a
Canadian-registered person, or for
return to the United States, the
permanent and temporary export to
Canada without a license of unclassified
defense articles and defense services
identified on the U.S. Munitions List (22
CFR 121.1). The exceptions are subject
to meeting the requirements of this
subchapter, to include 22 CFR 120.1(c)
and (d), parts 122 and 123 (except
insofar as exemption from licensing
requirements is herein authorized) and
§ 126.1, and the requirement to obtain
non-transfer and use assurances for all
significant military equipment. For
purposes of this section, ‘‘Canadianregistered person’’ is any Canadian
person (including Canadian business
entities organized under the laws of
E:\FR\FM\02FEP1.SGM
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Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Proposed Rules
Canada), dual citizen of Canada and a
third country other than a country listed
in § 126.1 of this subchapter unless the
conditions of § 126.18(c) are satisfied, or
permanent resident registered in Canada
in accordance with the Canadian
Defense Production Act, and such other
Canadian Crown Corporations identified
by the Department of State in a list of
such persons publicly available through
the website of the Directorate of Defense
Trade Controls and by other means.
*
*
*
*
*
■ 6. Amend § 126.18 by revising
paragraph (c)(2) to read as follows:
§ 126.18 Exemptions regarding intracompany, intra-organization, and intragovernmental transfers to employees who
are dual nationals or third-country
nationals.
jspears on DSK121TN23PROD with PROPOSALS1
*
*
*
*
*
(c) * * *
(2) The end-user or consignee to have
in place a process to screen its
employees and for the employees to
have executed a nondisclosure
agreement that provides assurances that
the employee will not transfer any
defense articles to persons unless
specifically authorized. The end-user or
consignee must screen its employees for
substantive contacts with restricted or
prohibited countries listed in § 126.1.
Substantive contacts include regular
travel to such countries, recent or
continuing contact with agents, brokers,
and nationals of such countries,
continued demonstrated allegiance to
such countries, maintenance of business
relationships with persons from such
countries, maintenance of a residence in
such countries, receiving salary or other
continuing monetary compensation
from such countries, or acts otherwise
indicating a risk of diversion. 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, unless DDTC
determines otherwise. End-users and
consignees must maintain a technology
security/clearance plan that includes
procedures for screening employees for
such substantive contacts and maintain
records of such screening for five years.
The technology security/clearance plan
and screening records shall be made
available to DDTC or its agents for civil
and criminal law enforcement purposes
upon request.
*
*
*
*
*
PART 127—VIOLATIONS AND
PENALTIES
7. The authority citation for part 127
continues to read as follows:
■
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17:06 Feb 01, 2022
Jkt 256001
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.
8. Amend § 127.12 by revising
paragraph (b)(5) to read as follows:
■
§ 127.12
Voluntary disclosures.
*
*
*
*
*
(b) * * *
(5) Nothing in this section shall be
interpreted to negate or lessen the
obligations imposed pursuant to
§§ 126.1(e), 126.16(h)(8), and
126.17(h)(8) of this subchapter.
*
*
*
*
*
Bonnie Jenkins,
Under Secretary, Arms Controls and
International Security, Department of State.
[FR Doc. 2022–01889 Filed 2–1–22; 8:45 am]
BILLING CODE 4710–25–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
Air Plan Approval; State of Missouri;
Revised Plan for 1978 and 2008 Lead
NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to take
action to approve the State of Missouri’s
request to remove its State
Implementation Plan (SIP) for
maintaining the 1978 Lead National
Ambient Air Quality Standards
(NAAQS) in portions of Iron County,
Missouri, surrounding the former Glover
smelter, and replace the maintenance
plan with a plan for continued
attainment of the 2008 Lead NAAQS.
Missouri has entered into a Consent
Agreement with the facility’s current
owner, the Doe Run Company (Doe
Run), and has submitted the Consent
Agreement for approval into the SIP
along with a plan demonstrating
continued attainment of the 2008 Lead
NAAQS in the area. The EPA’s
proposed approval of the request is
based on the determination that the area
continues to meet the 1978 and 2008
Lead NAAQS and that the plan provides
additional protections to air quality
regardless of ownership and/or
operational status of the Glover facility.
DATES: Comments must be received on
or before March 4, 2022.
SUMMARY:
Frm 00020
Fmt 4702
You may send comments,
identified by Docket ID No. EPA–R07–
OAR–2021–0913 to https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Instructions: All submissions received
must include the Docket ID No. for this
rulemaking. Comments received will be
posted without change to https://
www.regulations.gov/, including any
personal information provided. For
detailed instructions on sending
comments and additional information
on the rulemaking process, see the
‘‘Written Comments’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: Ms.
Stephanie Doolan, Environmental
Protection Agency, Region 7 Office, Air
Quality Planning Branch, 11201 Renner
Boulevard, Lenexa, KS 66219 at (913)
551–7719 or by email at
doolan.stephanie@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to the EPA.
ADDRESSES:
Table of Contents
[EPA–R07–OAR–2021–0913; FRL–9351–01–
R7]
PO 00000
5761
Sfmt 4702
I. Written Comments
II. Background for the EPA’s Proposed Action
III. Missouri’s Submission
IV. The EPA’s Analysis of the State’s Request
1. Air Monitoring Demonstrates
Attainment of the 2008 Lead NAAQS
2. Demonstration that the Plan will Protect
the 2008 Lead NAAQS
3. Verification of Continued Attainment
4. Deconstruction or Demolition of
Remaining Structures
5. Other Differences Between the 2004
Maintenance Plan and 2003 Settlement
Agreement and the 2020 Plan and 2020
Consent Agreement
V. Requirements for Approval of a SIP
Revision
VI. The EPA’s Proposed Action
VII. Incorporation by Reference
VIII. Environmental Justice Concerns
IX. Statutory and Executive Order Reviews
I. Written Comments
Submit your comments, identified by
Docket ID No. EPA–R07–OAR–2021–
0913, at https://www.regulations.gov.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
E:\FR\FM\02FEP1.SGM
02FEP1
Agencies
[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Proposed Rules]
[Pages 5759-5761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01889]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Parts 120, 126, and 127
[Public Notice: 11532]
RIN 1400-AF39
International Traffic in Arms Regulations: Corrections and
Clarifications for Export and Reexport; Canadian Exemptions; Exemptions
Regarding Intra-Company, Intra-Organization, and Intra-Governmental
Transfers to Employees Who Are Dual Nationals or Third-Country
Nationals; and Voluntary Disclosures
AGENCY: Department of State.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of State (DOS) proposes to amend the
International Traffic in Arms Regulations (ITAR) to clarify the
definitions of export and reexport. Further, the Department proposes to
replace the term ``national'' with ``person'' in the Canadian
exemptions; revise the exemption for intra-company, intra-organization,
and intra-governmental transfers to dual nationals or third-country
nationals; and correct administrative errors in the section on
voluntary disclosures.
DATES: The Department of State will accept comments on this proposed
rule until April 4, 2022.
ADDRESSES: Interested parties may submit comments by one of the
following methods:
Email: [email protected] with the subject line:
``Regulatory Change: ITAR Sections 120, 126 and 127''
Internet: At www.regulations.gov, search for this notice,
Docket DOS-2021-0031. Comments received after that date may be
considered if feasible, but consideration cannot be assured. Those
submitting comments should not include any personally identifying
information they do not desire to be made public or information for
which a claim of confidentiality is asserted, because 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 website 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.
FOR FURTHER INFORMATION CONTACT: Ms. Engda Wubneh, Foreign Affairs
Officer, Office of Defense Trade Controls Policy, U.S. Department of
State, telephone (202) 663-1809; email [email protected].
ATTN: Regulatory Change, ITAR parts 120, 126, and 127.
SUPPLEMENTARY INFORMATION: The Department of State proposes to amend
the International Traffic in Arms Regulations (ITAR) to revise the
definitions of export (ITAR Sec. 120.17) and reexport (ITAR Sec.
120.19) to clarify that any release of technical data to a foreign
person described within the respective definitions is a release only to
any countries in which that foreign person currently holds citizenship
or permanent residency. Since the Department published ``International
Traffic in Arms Regulations: Revisions to Definition of Export and
Related Definitions'' (81 FR 35611) in 2016, the Department has changed
its assessment that inclusion of prior citizenship or permanent
residency in ITAR Sec. Sec. 120.17(b) and 120.19(b) is necessary based
on its experience with this provision. The Department assesses that a
foreign person's former citizenship or permanent residency status in a
country should not be deemed to automatically result in an export or
reexport to that country. The Department proposes this change to better
align with our policy and requirements in Section 126.18 and to provide
greater opportunities for foreign persons who are no longer citizens or
permanent residents of certain countries to participate in ITAR-
regulated activities.
Further, the Department proposes to replace the term ``national''
with the ITAR-defined term ``person'' in ITAR Sec. 126.5(b) of the
Canadian exemption to be consistent with how foreign persons are
defined in the ITAR. The Department also proposes to remove the phrase
``although nationality does not, in and of itself, prohibit access to
defense articles'' from ITAR Sec. 126.18(c)(2) as the definitions of
export and reexport provide that a release to a foreign person
constitutes an export or reexport, as applicable, to all countries in
which the foreign person holds citizenship or permanent residency. This
proposed change is not intended to convey any change to the
Department's long-standing position that the purpose of vetting
employees from countries listed in ITAR Sec. 126.1 is to mitigate
diversion. Further, simply identifying nationalities with no
substantive contacts with ITAR Sec. 126.1 countries is not a
precondition to rely on to use the exemption for intra-company, intra-
organization, and intra-governmental transfers to dual or third-country
nationals. The Department also proposes to clarify ITAR Sec.
126.18(c)(2) by stating that the screened employee, not the end-user or
consignee, must execute a nondisclosure agreement to provide assurances
that said employee will not transfer any unclassified defense articles
to unauthorized persons.
Lastly, the Department proposes to correct administrative errors in
the voluntary disclosures section of the ITAR by providing the correct
references to exemptions pursuant to the Defense Trade Cooperation
Treaties between the United States and Australia and the United States
and the United Kingdom in ITAR Sec. Sec. 126.16 and 126.17,
respectively. Additionally, the Department proposes to streamline the
section on voluntary disclosures by simply referencing the relevant
ITAR sections, Sec. Sec. 126.1(e), 126.16(h)(8), and 126.17(h)(8),
that describe the duties of persons to notify the Directorate of
[[Page 5760]]
Defense Trade Controls of particular activities.
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), pursuant to
5 U.S.C. 553(a)(1). Since the Department is of the opinion that this
rule is exempt from 5 U.S.C. 553, it is the view of the Department that
the provisions of Section 553(d) do not apply to this rulemaking.
Regulatory Flexibility Act
Notwithstanding the Department's publication of this rulemaking as
a proposed rule, this rule is exempt from the notice-and-comment
rulemaking provisions of 5 U.S.C. 553 as a foreign affairs function.
Therefore, it does not require 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 are deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Executive Orders 12372 and 13132
This rulemaking will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this proposed amendment 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 all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributed impacts, and equity). This
rule's scope does not impose additional regulatory requirements or
obligations; therefore, the Department believes costs associated with
this rule will be minimal. Although the Department cannot determine
based on available data how many fewer licenses will be submitted as a
result of this rule, the amendments to the definitions of export and
reexport will inherently relieve the licensing burden for some
exporters. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This rule has been designated as a
``nonsignificant regulatory action'' by the Office and Information and
Regulatory Affairs under Executive Order 12866.
Executive Order 12988
The Department of State has 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 has 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, Executive Order 13175 does not apply to this
rulemaking.
Paperwork Reduction Act
This rulemaking does not impose or revise any information
collections subject to 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Parts 120, 126, and 127
Arms and munitions, Classified information, Crime, Exports,
Penalties, Seizures and forfeitures.
For the reasons set forth above, the Department of State proposes
to amend 22 CFR parts 120, 126, and 127 as follows:
PART 120--PURPOSE and DEFINITIONS
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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.
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2. Amend Sec. 120.17 by revising paragraph (b) to read as follows:
Sec. 120.17 Export.
* * * * *
(b) Any release in the United States of technical data to a foreign
person is deemed to be an export to all countries in which the foreign
person holds citizenship or permanent residency.
* * * * *
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3. Amend Sec. 120.19 by revising paragraph (b) to read as follows:
Sec. 120.19 Reexport.
* * * * *
(b) Any release outside the United States of technical data to a
foreign person is deemed to be a reexport to all countries in which the
foreign person holds citizenship or permanent residency.
* * * * *
PART 126--GENERAL POLICIES AND PROVISIONS
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4. The authority citation for part 126 continues to read as follows:
Authority: 22 U.S.C. 2752, 2778, 2780, 2791, and 2797; 22
U.S.C. 2651a; 22 U.S.C. 287c; 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.
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5. Amend Sec. 126.5 by revising paragraph (b) to read as follows:
Sec. 126.5 Canadian exemptions.
* * * * *
(b) Permanent and temporary export of defense articles. Except as
provided in Supplement No. 1 to part 126 of this subchapter and for
exports that transit third countries, Port Directors of U.S. Customs
and Border Protection and postmasters shall permit, when for end-use in
Canada by Canadian Federal or Provincial governmental authorities
acting in an official capacity or by a Canadian-registered person, or
for return to the United States, the permanent and temporary export to
Canada without a license of unclassified defense articles and defense
services identified on the U.S. Munitions List (22 CFR 121.1). The
exceptions are subject to meeting the requirements of this subchapter,
to include 22 CFR 120.1(c) and (d), parts 122 and 123 (except insofar
as exemption from licensing requirements is herein authorized) and
Sec. 126.1, and the requirement to obtain non-transfer and use
assurances for all significant military equipment. For purposes of this
section, ``Canadian-registered person'' is any Canadian person
(including Canadian business entities organized under the laws of
[[Page 5761]]
Canada), dual citizen of Canada and a third country other than a
country listed in Sec. 126.1 of this subchapter unless the conditions
of Sec. 126.18(c) are satisfied, or permanent resident registered in
Canada in accordance with the Canadian Defense Production Act, and such
other Canadian Crown Corporations identified by the Department of State
in a list of such persons publicly available through the website of the
Directorate of Defense Trade Controls and by other means.
* * * * *
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6. Amend Sec. 126.18 by revising paragraph (c)(2) to read as follows:
Sec. 126.18 Exemptions regarding intra-company, intra-organization,
and intra-governmental transfers to employees who are dual nationals or
third-country nationals.
* * * * *
(c) * * *
(2) The end-user or consignee to have in place a process to screen
its employees and for the employees to have executed a nondisclosure
agreement that provides assurances that the employee will not transfer
any defense articles to persons unless specifically authorized. The
end-user or consignee must screen its employees for substantive
contacts with restricted or prohibited countries listed in Sec. 126.1.
Substantive contacts include regular travel to such countries, recent
or continuing contact with agents, brokers, and nationals of such
countries, continued demonstrated allegiance to such countries,
maintenance of business relationships with persons from such countries,
maintenance of a residence in such countries, receiving salary or other
continuing monetary compensation from such countries, or acts otherwise
indicating a risk of diversion. 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. End-users and consignees must maintain a technology
security/clearance plan that includes procedures for screening
employees for such substantive contacts and maintain records of such
screening for five years. The technology security/clearance plan and
screening records shall be made available to DDTC or its agents for
civil and criminal law enforcement purposes upon request.
* * * * *
PART 127--VIOLATIONS AND PENALTIES
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7. 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.
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8. Amend Sec. 127.12 by revising paragraph (b)(5) to read as follows:
Sec. 127.12 Voluntary disclosures.
* * * * *
(b) * * *
(5) Nothing in this section shall be interpreted to negate or
lessen the obligations imposed pursuant to Sec. Sec. 126.1(e),
126.16(h)(8), and 126.17(h)(8) of this subchapter.
* * * * *
Bonnie Jenkins,
Under Secretary, Arms Controls and International Security, Department
of State.
[FR Doc. 2022-01889 Filed 2-1-22; 8:45 am]
BILLING CODE 4710-25-P