[Federal Register Volume 72, Number 243 (Wednesday, December 19, 2007)]
[Rules and Regulations]
[Pages 71785-71786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24651]


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DEPARTMENT OF STATE

22 CFR Part 124

[Public Notice 6031]


Amendment to the International Traffic in Arms Regulations: 
Regarding Dual and Third Country Nationals

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State is amending the text of the 
International Traffic in Arms Regulations (ITAR) to allow access to 
defense articles and services for dual and third country nationals of 
certain countries through revisions in procedures for technical 
assistance agreements and manufacturing licensing agreements. This 
regulatory change will reduce the burden on exporters of defense 
articles and on foreign parties to the agreements by reducing the 
number of individual Non Disclosure Agreements (NDA's) which must be 
executed and maintained on file.

DATES: Effective Date: This rule is effective December 19, 2007.

ADDRESSES: Interested parties may submit comments at any time by any of 
the following methods:
     E-mail: [email protected] with an appropriate 
subject line.
     Mail: Department of State, Directorate of Defense Trade 
Controls, Office of Defense Trade Controls Policy, ATTN: Regulatory 
change, ITAR

[[Page 71786]]

Sec. Sec.  124.12 and 124.16, SA-1, 12th Floor, Washington, DC 20522-
0112.
     Hand delivery or Courier (regular work hours only): 
Department of State Directorate of Defense Trade Controls, Office of 
Defense Trade Controls Policy, ATTENTION: Regulatory Change, ITAR 
Sec. Sec.  124.12 and 124.16, SA-1, 12th Floor, 2401 E Street, NW., 
Washington, DC 20037.
    Persons with access to the Internet may also view this notice by 
going to the regulations.gov Web site at http://regulations.gov/index.cfm.

FOR FURTHER INFORMATION CONTACT: Acting Director Terry Davis, Office of 
Defense Trade Controls Licensing, Department of State, Telephone (202) 
663-2739 or Fax (202) 663-3866, E-mail [email protected]. 
ATTN: Regulatory Change, ITAR Sec. Sec.  124.12 and 124.16.

SUPPLEMENTARY INFORMATION: The Department of State, Directorate of 
Defense Trade Controls (DDTC) has recently completed a review of 
licensing requirements for technical assistance and manufacturing 
license agreements (TAAs/MLAs) under Part 124 of the ITAR. The 
Department has long followed a procedure to license to all countries of 
ultimate destination, including to nationals of countries other than 
the country to which the items are to be exported under the TAA/MLA. In 
particular, Sec.  124.8(5) precludes any retransfer of defense articles 
(hardware or technical data) or defense services pursuant to an 
approved TAA/MLA to third countries or nationals of third countries 
unless specifically authorized in the agreement or for which prior 
written approval has been granted by the Department. For export control 
purposes, DDTC has considered a third country national to be an 
individual from a country other than the country which is the foreign 
signatory to the agreement. A third country national may also be a dual 
national if he holds nationality from more than one country. In 
addition to citizenship, DDTC considers country of birth a factor in 
determining nationality.
    Current procedures require that third country/dual nationals 
authorized under TAA/MLA's execute Non Disclosure Agreements (NDAs) 
before they receive access to defense articles or defense services. The 
changes to Part 124 would revise these procedures to permit the U.S. 
applicant to request further release of technical data and defense 
services and access to defense articles exported pursuant to or 
produced as a result of the TAA/MLA to third country/dual national 
employees of the foreign signatory who are nationals exclusively from 
countries that are members of the North Atlantic Treaty Organization 
(NATO), the European Union (EU), Australia, Japan, New Zealand, and 
Switzerland. These procedural changes would also apply to employees of 
sub-licensees authorized under the agreement. Execution of NDAs by 
individuals who are third country or dual nationals meeting the 
preceding criteria would not be required. These changes are being 
implemented by an additional clause in the transmittal letter required 
under Sec.  124.12 (c) whereby the applicant will request retransfer of 
defense articles and services to third country/dual nationals from 
these countries under the authority of a new ITAR Sec.  124.16 entitled 
``Special Retransfer Authorizations for Unclassified Technical Data and 
Defense Services to Member States of NATO and the European Union, 
Australia, Japan, New Zealand, and Switzerland.''

Regulatory Analysis and Notices

Administrative Procedure Act

    This amendment involves a foreign affairs function of the United 
States and, therefore, is not subject to the procedures required by 5 
U.S.C. 553 and 554.

Regulatory Flexibility Act

    This rule does not require analysis under the Regulatory 
Flexibility Act.

Unfunded Mandates Act of 1995

    This rule does not require analysis under the Unfunded Mandates 
Reform Act.

Small Business Regulatory Enforcement Fairness Act of 1996

    This amendment has been found not to be a major rule within the 
meaning of the Small Business Regulatory Enforcement Fairness Act of 
1996.

Executive Orders 12372 and 13132

    It is determined that this rule does not have sufficient federalism 
implications to warrant application of the consultation provisions of 
Executive Orders 12372 and 13132.

Executive Order 12866

    This amendment is exempt from the review under Executive Order 
12866, but has been reviewed internally by the Department of State to 
ensure consistency with the purposes thereof.

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 Part 124

    Arms and Munitions, Exports, Technical Assistance.


0
Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, part 124 is amended as follows:

PART 124--AGREEMENTS, OFF-SHORE PROCUREMENT AND OTHER DEFENSE 
SERVICES

0
1. The authority citation for part 124 continues to read as follows:

    Authority: Sec. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR 1977, Comp. 
p. 79; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub L. 105-261.


0
2. Section 124.12 is amended by adding a new paragraph (a)(10) to read 
as follows:


Sec.  124.12  Required information in letters of transmittal.

    (a) * * *
    (10) A statement specifying whether the applicant is requesting 
retransfer of defense articles and defense services pursuant to Sec.  
124.16 of this subchapter.
* * * * *

0
3. Section 124.16 is added to read as follows:


Sec.  124.16  Special Retransfer Authorizations for Unclassified 
Technical Data and Defense Services to Member States of NATO and the 
European Union, Australia, Japan, New Zealand, and Switzerland.

    The provisions of Sec.  124.8(5) of this subchapter 
notwithstanding, pursuant to this subsection the Department may approve 
access to unclassified defense articles exported in furtherance of or 
produced as a result of a TAA/MLA, and retransfer of technical data and 
defense services to individuals who are third country/dual national 
employees of the foreign signatory or its approved sub-licensees 
provided they are nationals exclusively of countries that are members 
of NATO the European Union, Australia, Japan, New Zealand, and 
Switzerland and their employer is a signatory to the agreement or has 
executed a Non Disclosure Agreement. The retransfer must take place 
completely within the physical territories of these countries or the 
United States. Permanent retransfer of hardware is not authorized.

    Dated: November 27, 2007.
John C. Rood,
Acting Under Secretary for Arms Control and International Security, 
Department of State.
 [FR Doc. E7-24651 Filed 12-18-07; 8:45 am]
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