[Federal Register Volume 74, Number 147 (Monday, August 3, 2009)]
[Rules and Regulations]
[Pages 38342-38344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18332]


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DEPARTMENT OF STATE

22 CFR Parts 123, 124, 126, and 129

[Public Notice: 6716]


Amendment to the International Traffic in Arms Regulations: 
Congressional Certification Regarding South Korea

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State is amending the International Traffic 
in Arms Regulations (ITAR) regarding Congressional certification for 
the Republic of Korea (also referred to as South Korea). South Korea is 
now in the same category as the countries in the North Atlantic Treaty 
Organization (NATO), Japan, Australia, and New Zealand concerning 
certification to Congress, requiring such certification prior to 
granting any license for export of major defense equipment sold under a 
contract in the amount of $25,000,000 or more, or for defense articles 
or defense services sold under a contract in the amount of $100,000,000 
or more, provided the transfer does not include any other countries. 
The ITAR is being amended at numerous sections to reflect these 
statutory changes and to update two provisions.

DATES: Effective Date: This rule is effective August 3, 2009.

FOR FURTHER INFORMATION CONTACT: Director Charles B. Shotwell, Office 
of Defense Trade Controls Policy, Department of State, Telephone (202) 
663-2792 or Fax (202) 261-8199; E-mail [email protected]. 
ATTN: Regulatory Change, South Korea.

SUPPLEMENTARY INFORMATION: Section 203 of the Public Law 110-429 
amended, inter alia, Sections 3(d)(3)(A)(i), 36(c), and 36(d)(2)(A) of 
the Arms Export Control Act by inserting ``Republic of Korea'' before 
``New Zealand.'' This amendment added South Korea to the category of 
countries for which higher dollar thresholds apply for mandatory 
certification to Congress in advance of approving the export or 
transfer of defense articles and defense services. South Korea is now 
in the same category as the countries in the North Atlantic Treaty 
Organization (NATO), Japan, Australia, and New Zealand concerning 
certification to Congress, requiring such certification prior to 
granting any license for export of major defense equipment sold under a 
contract in the amount of $25,000,000 or more, or for defense articles 
or defense services sold under a contract in the amount of $100,000,000 
or more, provided the transfer does not include any other countries. 
The ITAR is being amended at numerous sections, as described below, to 
reflect these statutory changes and to update two provisions.
    Section 123.9(e) of the ITAR is being amended to add ``South 
Korea.'' This section is also being amended to correct outdated 
information regarding the dollar limits for sales without prior written 
approval and to add New Zealand to the list of countries eligible for 
certain reexports or retransfers without prior written approval.
    Section 123.15 of the ITAR entitled ``Congressional certification 
pursuant to Section 36(c) of the Arms Export Control Act'' is being 
amended to add ``South Korea'' at sections 123.15(a)(1), 123.15(a)(2), 
and 123.15(b).
    Section 124.11 of the ITAR entitled ``Congressional certification 
pursuant to Section 36(d) of the Arms Export Control Act'' is being 
amended to add ``South Korea'' at section 124.11(b).
    Section 126.8 of the ITAR entitled ``Proposals to foreign persons 
relating to significant military equipment'' is being

[[Page 38343]]

amended to add ``South Korea'' at section 126.8(a)(ii).
    Part 129 of the ITAR regarding brokering activities is being 
amended at section 129.6(b)(2) to add ``South Korea'' to the category 
of NATO, Japan, Australia, and New Zealand for purposes of an exemption 
from prior written approval.
    Sections 129.7(a)(1)(vii) and 129.7(a)(2) are being amended to add 
``South Korea'' to the category of NATO, Japan, Australia, and New 
Zealand or purposes of defining brokering activities requiring prior 
written approval.

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 contained in 5 
U.S.C. 553 and 554.

Regulatory Flexibility Act

    Since this amendment is not subject to the notice-and-comment 
procedures of 5 U.S.C. 553, it does not require analysis under the 
Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This amendment does not involve a mandate that will result in the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any year and it 
will not significantly or uniquely affect small governments. Therefore, 
no actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This 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

    This amendment 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 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 amendment.

Executive Order 12866

    This amendment is exempt from 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

22 CFR Parts 123 and 126

    Arms and munitions, Exports.

22 CFR Parts 124 and 129

    Arms and munitions, Exports, Technical assistance.

0
Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, parts 123, 124, 126, and 129 are amended as follows:

PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES

0
1. The authority citation for part 123 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. 2753; 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, 112 Stat. 1920; Sec. 1205(a), Pub. L. 107-228.


0
2. Section 123.9 is amended by revising paragraphs (e) introductory 
text and (e)(2) to read as follows:


Sec.  123.9  Country of ultimate destination and approval of reexports 
or retransfers.

* * * * *
    (e) Reexports or retransfers of U.S.-origin components incorporated 
into a foreign defense article to NATO, NATO agencies, a government of 
a NATO country, or the governments of Australia, Japan, New Zealand, or 
South Korea, are authorized without the prior written approval of the 
Directorate of Defense Trade Controls, provided:
* * * * *
    (2) The U.S.-origin components are not significant military 
equipment, the items are not major defense equipment sold under 
contract in the amount of $25,000,000 ($25 million) or more; the 
articles are not defense articles or defense services sold under a 
contract in the amount of $100,000,000 ($100 million) or more; and are 
not identified in part 121 of this subchapter as Missile Technology 
Control Regime (MTCR) items; and
* * * * *

0
3. Section 123.15 is amended by revising paragraphs (a)(1), (a)(2), and 
(b) to read as follows:


Sec.  123.15  Congressional certification pursuant to Section 36(c) of 
the Arms Export Control Act.

    (a) * * *
    (1) A license for the export of major defense equipment sold under 
a contract in the amount of $14,000,000 or more, or for defense 
articles and defense services sold under a contract in the amount of 
$50,000,000 or more to any country that is not a member country of the 
North Atlantic Treaty Organization (NATO), or Australia, Japan, New 
Zealand, or South Korea that does not authorize a new sales territory; 
or
    (2) A license for export to a country that is a member country of 
the North Atlantic Treaty Organization (NATO), or Australia, Japan, New 
Zealand, or South Korea of major defense equipment sold under a 
contract in the amount of $25,000,000 or more, or for defense articles 
and defense services sold under a contract in the amount of 
$100,000,000 or more and provided the transfer does not include any 
other countries; or
* * * * *
    (b) Unless an emergency exists which requires the proposed export 
in the national security interests of the United States, approval may 
not be granted for any transaction until at least 15 calendar days have 
elapsed after receipt by the Congress of the certification required by 
22 U.S.C. 2776(c)(1) involving the North Atlantic Treaty Organization, 
any member country of the Organization, or Australia, Japan, New 
Zealand, or South Korea or at least 30 calendar days have elapsed for 
any other country; in the case of a license for an export of a 
commercial communications satellite for launch from, and by nationals 
of, the Russian Federation, Ukraine, or Kazakhstan, until at least 15 
calendar days after the Congress receives such certification.
* * * * *

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

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

    Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778, 2797); 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
5. Section 124.11 is amended by revising paragraph (b) to read as 
follows:

[[Page 38344]]

Sec.  124.11  Congressional certification pursuant to Section 36(d) of 
the Arms Export Control Act.

* * * * *
    (b) Unless an emergency exists which requires the immediate 
approval of the agreement in the national security interests of the 
United States, approval may not be granted until at least 15 calendar 
days have elapsed after receipt by the Congress of the certification 
required by 22 U.S.C. 2776(d)(1) involving the North Atlantic Treaty 
Organization, any member country of that Organization, or Australia, 
Japan, New Zealand, or South Korea or at least 30 calendar days have 
elapsed for any other country. Approvals may not be granted when the 
Congress has enacted a joint resolution prohibiting the export.
* * * * *

PART 126--GENERAL POLICIES AND PROVISIONS

0
6. 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); E.O. 11958, 42 FR 
4311; 3 CFR 1977 Comp. p. 79; 22 U.S.C. 2651a; 22 U.S.C. 287c; E.O. 
12918, 59 FR 28205, 3 CFR, 1994 Comp. p. 899.


0
7. Section 126.8 is amended by revising paragraph (a)(1)(ii) to read as 
follows:


Sec.  126.8  Proposals to foreign persons relating to significant 
military equipment.

    (a) * * *
    (1) * * *
    (ii) The equipment is intended for use by the armed forces of any 
foreign country other than a member of the North Atlantic Treaty 
Organization, Australia, Japan, New Zealand, or South Korea; and
* * * * *

PART 129--REGISTRATION AND LICENSING OF BROKERS

0
8. The authority citation for part 129 continues to read as follows:


    Authority: Sec. 38, Pub. L. 104-164, 110 Stat. 1437, (22 U.S.C. 
2778).

0
9. Section 129.6 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  129.6  Requirements for license/approval.

    (b) * * *
    (1) * * *
    (2) Brokering activities that are arranged wholly within and 
destined exclusively for the North Atlantic Treaty Organization, any 
member country of that Organization, Australia, Japan, New Zealand, or 
South Korea, except in the case of the defense articles or defense 
services specified in Sec.  129.7(a) of this subchapter, for which 
prior approval is always required.

0
10. Section 129.7 is amended by revising paragraphs (a)(1)(vii) and 
(a)(2) introductory text to read as follows:


Sec.  129.7  Prior approval (license).

    (a) * * *
    (1) * * *
    (vii) Foreign defense articles or defense services (other than 
those that are arranged wholly within and destined exclusively for the 
North Atlantic Treaty Organization, Australia, Japan, New Zealand, or 
South Korea (see Sec. Sec.  129.6(b)(2) and 129.7(a)).
    (2) Brokering activities involving defense articles or defense 
services covered by, or of a nature described by Part 121, of this 
subchapter, in addition to those specified in Sec.  129.7(a), that are 
designated as significant military equipment under this subchapter, for 
or from any country not a member of the North Atlantic Treaty 
Organization, Australia, Japan, New Zealand, or South Korea whenever 
any of the following factors are present:
* * * * *

    Dated: June 19, 2009.
Rose E. Gottemoeller,
Assistant Secretary, Verification, Compliance and Implementation, 
Department of State.
[FR Doc. E9-18332 Filed 7-31-09; 8:45 am]
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