[Federal Register Volume 78, Number 20 (Wednesday, January 30, 2013)]
[Proposed Rules]
[Pages 6269-6272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01825]


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DEPARTMENT OF STATE

22 CFR Parts 121, 123, 124, 125, and 129

[Public Notice 8166]
RIN 1400-AD18


Amendment to the International Traffic in Arms Regulations: 
Revision of U.S. Munitions List Category XVI

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: As part of the President's Export Control Reform effort, the 
Department of State proposes to amend the International Traffic in Arms 
Regulations (ITAR) to revise Category XVI (nuclear weapons related 
articles) of the U.S. Munitions List (USML). The revisions contained in 
this rule are part of the Department of State's retrospective plan 
under E.O. 13563 completed on August 17, 2011. The Department of 
State's full plan can be accessed at http://www.state.gov/documents/organization/181028.pdf.

DATES: The Department of State will accept comments on this proposed 
rule until March 18, 2013.

ADDRESSES: Interested parties may submit comments within 45 days of the 
date of publication by one of the following methods:
     Email: [email protected] with the subject line, 
``ITAR Amendment--Category XVI.''
     Internet: At www.regulations.gov, search for this notice 
by using this rule's RIN (1400-AD18).
    Comments received after that date will 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 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: Ms. Candace M. J. Goforth, Director, 
Office

[[Page 6270]]

of Defense Trade Controls Policy, U.S. Department of State, telephone 
(202) 663-2792, or email [email protected]. ATTN: Regulatory 
Change, USML Category XVI.

SUPPLEMENTARY INFORMATION: The Directorate of Defense Trade Controls 
(DDTC), U.S. Department of State, administers the International Traffic 
in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to 
the jurisdiction of the ITAR, i.e., ``defense articles,'' are 
identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1). 
With few exceptions, items not subject to the export control 
jurisdiction of the ITAR are subject to the jurisdiction of the Export 
Administration Regulations (``EAR,'' 15 CFR parts 730-774, which 
includes the Commerce Control List (CCL) in Supplement No. 1 to part 
774), administered by the Bureau of Industry and Security (BIS), U.S. 
Department of Commerce. Both the ITAR and the EAR impose license 
requirements on exports and reexports. Items not subject to the ITAR or 
to the exclusive licensing jurisdiction of any other agency of the U.S. 
government, such as the Department of Energy, are subject to the EAR.

Export Control Reform Update

    The Departments of State and Commerce described in their respective 
Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the 
Administration's plan to make the USML and the CCL positive, tiered, 
and aligned so that eventually they can be combined into a single 
control list (see ``Commerce Control List: Revising Descriptions of 
Items and Foreign Availability,'' 75 FR 76664 (December 9, 2010) and 
``Revisions to the United States Munitions List,'' 75 FR 76935 
(December 10, 2010)). The notices also called for the establishment of 
jurisdictional ``bright lines'' between items controlled by the 
Department of State and items other departments, primarily the 
Department of Commerce, control. This notice seeks to draw a 
jurisdictional bright line, but largely with respect to items that are 
now subject to the jurisdiction of the Department of Energy.

Revision of Category XVI

    This proposed rule removes most of the articles enumerated in USML 
Category XVI (nuclear weapons related articles). The provisions of 22 
CFR parts 120-130 do not apply to all equipment, technical data, or 
services currently described in Category XVI to the extent that exports 
of most such equipment, technical data, or services are under the 
control of the Department of Energy pursuant to the Atomic Energy Act 
of 1954, as amended, and the Nuclear Non-Proliferation Act of 1978, as 
amended, or is a government transfer authorized pursuant to these Acts.
    The only articles now covered under Category XVI that would remain 
subject to USML control are modeling or simulation tools that model or 
simulate the environments generated by nuclear detonations or the 
effects of these environments on systems, subsystems, components, 
structures, or humans, and technical data and defense services directly 
related to those defense articles. In addition, nuclear radiation 
detection and measurement devices currently controlled in paragraph (c) 
would become subject to the jurisdiction of the Department of Commerce 
under already existing Export Control Classification Number (ECCN) 
1A004.c.2 or 2A291.e.
    Conforming changes are made to ITAR parts 123, 124, 125, and 129 to 
remove reference to USML Category XVI. In addition, Supplement No. 1 to 
Part 126 will be revised to remove the following entries: (1) Nuclear 
weapons strategic delivery systems and all components, parts, 
accessories, and attachments specifically designed for such systems and 
associated equipment; (2) defense articles and services specific to 
design and testing of nuclear weapons; and (3) nuclear radiation 
measuring devices manufactured to military specifications.

Request for Comments

    As the U.S. Government works through the proposed revisions to the 
USML, some solutions have been adopted that were determined to be the 
best of available options. With the thought that multiple perspectives 
would be beneficial to the USML revision process, the public is asked 
to provide specific examples of nuclear-related items whose 
jurisdiction would be in doubt based on this revision. In particular, 
the Department seeks comments on whether the proposed paragraph (b) is 
appropriately captured in USML Category XVI or if there is a more 
suitable control within the USML or CCL.

Regulatory Analysis and Notices

Administrative Procedure Act

    The Department of State is of the opinion that controlling the 
import and export of defense articles and services is a foreign affairs 
function of the United States Government and that rules implementing 
this function are exempt from sections 553 (rulemaking) and 554 
(adjudications) of the Administrative Procedure Act (APA). Although the 
Department is of the opinion that this rule is exempt from the 
rulemaking provisions of the APA, the Department is publishing this 
rule with a 45-day provision for public comment and without prejudice 
to its determination that controlling the import and export of defense 
services is a foreign affairs function. As noted above, and also 
without prejudice to the Department position that this rulemaking is 
not subject to the APA, the Department previously published a related 
Advance Notice of Proposed Rulemaking (RIN 1400-AC78) on December 10, 
2010 (75 FR 76935), and accepted comments for 60 days.

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rulemaking 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 proposed 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 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

[[Page 6271]]

activities do not apply to this proposed rulemaking.

Executive Orders 12866 and 13563

    Executive Orders 13563 and 12866 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). These 
Executive Orders stress the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. These rules have been designated ``significant regulatory 
actions,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, this proposed rule has been 
reviewed by the Office of Management and Budget (OMB).

Executive Order 12988

    The Department of State has reviewed the proposed rulemaking in 
light of sections 3(a) and 3(b)(2) 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 proposed 
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 proposed rulemaking.

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to, nor is subject to a penalty for failure to comply with, 
a collection of information, subject to the requirements of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless 
that collection of information displays a currently valid OMB control 
number. This proposed rule would affect the following approved 
collections: (1) Statement of Registration, DS-2032, OMB No. 1405-0002; 
(2) Application/License for Permanent Export of Unclassified Defense 
Articles and Related Unclassified Technical Data, DSP-5, OMB No. 1405-
0003; (3) Application/License for Temporary Import of Unclassified 
Defense Articles, DSP-61, OMB No. 1405-0013; (4) Nontransfer and Use 
Certificate, DSP-83, OMB No. 1405-0021; (5) Application/License for 
Permanent/Temporary Export or Temporary Import of Classified Defense 
Articles and Classified Technical Data, DSP-85, OMB No. 1405-0022; (6) 
Application/License for Temporary Export of Unclassified Defense 
Articles, DSP-73, OMB No. 1405-0023; (7) Statement of Political 
Contributions, Fees, or Commissions in Connection with the Sale of 
Defense Articles or Services, OMB No. 1405-0025; (8) Authority to 
Export Defense Articles and Services Sold Under the Foreign Military 
Sales (FMS) Program, DSP-94, OMB No. 1405-0051; (9) Application for 
Amendment to License for Export or Import of Classified or Unclassified 
Defense Articles and Related Technical Data, DSP-6, -62, -74, -119, OMB 
No. 1405-0092; (10) Request for Approval of Manufacturing License 
Agreements, Technical Assistance Agreements, and Other Agreements, DSP-
5, OMB No. 1405-0093; (11) Maintenance of Records by Registrants, OMB 
No. 1405-0111; (12) Annual Brokering Report, DS-4142, OMB No. 1405-
0141; (13) Brokering Prior Approval (License), DS-4143, OMB No. 1405-
0142; (14) Projected Sale of Major Weapons in Support of Section 
25(a)(1) of the Arms Export Control Act, DS-4048, OMB No. 1405-0156; 
(15) Export Declaration of Defense Technical Data or Services, DS-4071, 
OMB No. 1405-0157; (16) Request for Commodity Jurisdiction 
Determination, DS-4076, OMB No. 1405-0163; (17) Request to Change End-
User, End-Use, and/or Destination of Hardware, DS-6004, OMB No. 1405-
0173; (18) Request for Advisory Opinion, DS-6001, OMB No. 1405-0174; 
(19) Voluntary Disclosure, OMB No. 1405-0179; and (20) Technology 
Security/Clearance Plans, Screening Records, and Non-Disclosure 
Agreements Pursuant to 22 CFR 126.18, OMB No. 1405-0195. The Department 
of State believes there will be minimal changes to these collections. 
The Department of State believes the combined effect of all rules to be 
published moving commodities from the USML to the EAR as part of the 
Administration's Export Control Reform would decrease the number of 
license applications by approximately 30,000 annually. The Department 
of State is looking for comments on the potential reduction in burden.

List of Subjects in Part 121, 123, 124, 125, and 129

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, parts 121, 123, 124, 125, and 129 are proposed to be 
amended as follows:

PART 121--THE UNITED STATES MUNITIONS LIST

0
1. The authority citation for part 121 continues to read as follows:

    Authority:  Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 
(22 U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 
Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920.

0
2. Section 121.1 is amended by revising U.S. Munitions List Category 
XVI to read as follows:


Sec.  121.1  General. The United States Munitions List.

* * * * *

Category XVI--Nuclear Weapons Related Articles

    (a) [Reserved]
    (b) Modeling or simulation tools that model or simulate the 
environments generated by nuclear detonations or the effects of these 
environments on systems, subsystems, components, structures, or humans.
    (c) [Reserved]
    (d) [Reserved]
    (e) Technical data (see Sec.  120.10 of this subchapter) and 
defense services (see Sec.  120.9 of this subchapter) directly related 
to the defense articles enumerated in paragraph (b) of this category. 
(See Sec.  123.20 of this subchapter for nuclear related controls and 
Sec.  125.4 of this subchapter for exemptions.)

PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES

0
3. 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
4. Section 123.20 is amended by revising paragraph (a) to read as 
follows:


Sec.  123.20  Nuclear related controls.

    (a) The provisions of this subchapter do not apply to equipment, 
technical data, or services in Category VI and Category XX of Sec.  
121.1 of this subchapter to the extent that the export of such 
equipment, technical data, or services is controlled by the Department 
of Energy pursuant to the Atomic Energy Act of 1954, as amended, and 
the Nuclear Non-Proliferation Act of 1978, as amended, or is a 
government transfer authorized pursuant to these Acts, or is controlled 
by the Department of Commerce pursuant to the Export Administration 
Regulations.
* * * * *

[[Page 6272]]

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

0
5. 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; Pub. 
L. 111-266.

0
6. Section 124.2 is amended by revising introductory paragraph (c), 
removing paragraphs (c)(5)(iii), (c)(5)(ix), and (c)(5)(xi), 
redesignating paragraphs (c)(5)(iv), (c)(5)(v), (c)(5)(vi), 
(c)(5)(vii), (c)(5)(viii), (c)(5)(x), (c)(5)(xii), and (c)(5)(xiii) as 
(c)(5)(iii), (c)(5)(iv), (c)(5)(v), (c)(5)(vi), (c)(5)(vii), 
(c)(5)(viii), (c)(5)(ix), and (c)(5)(x), respectively, and then 
revising redesignated paragraphs (c)(5)(iv), (c)(5)(vii), and 
(c)(5)(x), to read as follows:


Sec.  124.2  Exemptions for training and military service.

* * * * *
    (c) In addition to the basic maintenance training exemption 
provided in paragraph (a) of this section and the basic maintenance 
information exemption in Sec.  125.4(b)(5) of this subchapter, no 
technical assistance agreement is required for maintenance training or 
the performance of maintenance, including the export of supporting 
unclassified technical data, to NATO countries, Australia, Japan, and 
Sweden when the following criteria can be met:
* * * * *
    (5) * * *
* * * * *
    (iv) Gas turbine engine hot section components covered by USML 
Category XIX(f)(2);
* * * * *
    (vii) Chemical agents listed in USML Category XIV(a), biological 
agents listed in USML Category XIV(b), and equipment listed in USML 
Category XIV(f)(1)(i) for dissemination of the chemical and biological 
agents listed in USML Categories XIV(a) and (b);
* * * * *
    (x) Articles covered by USML Categories XVII and XXI.
* * * * *

PART 125--LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED 
DEFENSE ARTICLES

0
7. The authority citation for part 125 continues to read as follows:

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

0
8. Section 125.1 is amended by revising paragraph (e) to read as 
follows:
* * * * *


Sec.  125.1  Exports subject to this part.

    (e) The provisions of this subchapter do not apply to technical 
data related to articles in Category VI(e) and Category XX(b) of Sec.  
121.1 of this subchapter, to the extent that the export of such data is 
controlled by the Department of Energy pursuant to the Atomic Energy 
Act of 1954, as amended, and the Nuclear Non-Proliferation Act of 1978, 
as amended.

PART 129--REGISTRATION AND LICENSING OF BROKERS

0
9. 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
10. Section 129.7 is amended by removing and reserving paragraphs 
(a)(1)(ii) and (a)(1)(iii), as follows:


Sec.  129.7  Prior approval (license).

    (a) * * *
    (1) * * *
    (ii) [Reserved]
    (iii) [Reserved]
* * * * *

    Dated: January 22, 2013.
 Rose E. Gottemoeller,
Acting Under Secretary, Arms Control and International Security, 
Department of State.
[FR Doc. 2013-01825 Filed 1-29-13; 8:45 am]
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