[Federal Register Volume 78, Number 77 (Monday, April 22, 2013)]
[Rules and Regulations]
[Pages 23675-23677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09392]



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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 447

[Docket No. ATF-50F; AG Order No. 3383-2013]
RIN 1140-AA46


Importation of Defense Articles and Defense Services--U.S. 
Munitions Import List (2011R-20P)

AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), 
Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice is amending Bureau of Alcohol, 
Tobacco, Firearms, and Explosives (ATF) regulations to remove the cross 
reference to the regulatory United States Munitions List (USML) of the 
International Traffic in Arms Regulations (ITAR) that appears at 27 CFR 
447.21; to clarify that the Attorney General exercises delegated 
authority pursuant to the Arms Export Control Act (AECA) and Executive 
Order 13637 to designate defense articles and defense services as part 
of the statutory USML for purposes of permanent import controls, 
regardless of whether the Secretary of State controls such defense 
articles or defense services for purposes of export and temporary 
import; and to clarify that defense articles and defense services 
controlled pursuant to the Attorney General's delegated AECA authority 
are part of the statutory USML (along with those that are controlled 
for export and temporary import by the Secretary of State), but that 
the list of defense articles and defense services controlled by the 
Attorney General is labeled the USMIL to distinguish it from the list 
of defense articles and defense services in the ITAR that are 
controlled by the Secretary of State.

DATES: This rule is effective April 22, 2013.

FOR FURTHER INFORMATION CONTACT: George M. Fodor, Office of Regulatory 
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, U.S. Department of Justice, 99 New York 
Avenue NE, Washington, DC 20226, telephone (202) 648-7994.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 38 of the AECA, 22 U.S.C. 2778(a), authorizes the 
President, in furtherance of world peace and the security and foreign 
policy of the United States, to control the import and export of 
defense articles and defense services. The AECA also authorizes the 
President to designate those defense articles and defense services. Id. 
The items so designated constitute the United States Munitions List 
(USML). Id. The AECA generally requires a license prior to exporting or 
importing any defense articles and defense services so designated by 
the President. See id. 2778(b)(2).
    Through Executive Order 13637, the President has delegated his AECA 
authority to the Secretary of State with respect to the export and 
temporary import of defense articles and defense services. The 
International Traffic in Arms Regulations, 22 CFR part 120 et seq., 
implement the Secretary of State's delegated authority and list the 
defense articles and defense services regulated for export and 
temporary import by the Secretary. Through Executive Order 13637, the 
President has delegated to the Attorney General the authority under the 
AECA to control the permanent import of defense articles and defense 
services. In exercising that authority, the Attorney General ``shall be 
guided by the views of the Secretary of State on matters affecting 
world peace, and the external security and foreign policy of the United 
States.'' The executive order also requires that the Attorney General 
obtain the concurrence of the Secretary of State and the Secretary of 
Defense and provide notice to the Secretary of Commerce for 
designations, including changes in designations, of defense articles 
and defense services subject to permanent import controls.
    Pursuant to section 38(a) of the AECA, all defense articles and 
defense services, whether controlled for import or export, are part of 
the USML. But to distinguish the list of defense articles and defense 
services controlled by the Attorney General for permanent import 
purposes from the defense articles and defense services controlled by 
the Secretary of State for purposes of export and temporary import, the 
list of defense articles and defense services controlled by the 
Attorney General has been labeled the United States Munitions Import 
List (USMIL). The regulations governing this list appear at 27 CFR part 
447. To date, these regulations have described the USMIL as a subset of 
the list of defense articles and defense services controlled by the 
Secretary of State that appears in the ITAR. See 27 CFR 447.21.
    As the result of a comprehensive review of export controls ordered 
by the President, it has been determined that certain defense articles 
and defense services listed on the USML will no longer warrant control 
for export purposes by the Secretary of State pursuant to AECA. As part 
of the Administration's ongoing Export Control Reform Initiative, the 
Departments of State and Commerce are publishing a series of proposed 
rules that will remove ITAR export controls on certain defense articles 
and defense services and subject those items instead to export controls 
through the Commerce Control List (CCL), which is administered by the 
Department of Commerce as part of its Export Administration Regulations 
(EAR). See, e.g., 76 FR 41958 (July 15, 2011). Export controls are 
imposed under both the ITAR and EAR for foreign policy and national 
security reasons. Accordingly, items on the CCL will continue to be 
regulated by the Federal Government consistent with the national 
security and foreign policy interests of the United States.
    The Secretary of Commerce administers the EAR pursuant to authority 
granted by the President in Executive Order 13222 of August 17, 2001, 
which was issued pursuant to, inter alia, sections 202 and 203 of the 
International Emergency Economic Powers Act (IEEPA), 50 U.S.C. 1701-02. 
That executive order granted such authority to the Secretary of 
Commerce following the expiration of the Export Administration Act 
based on the unusual and extraordinary threat to the national security, 
foreign policy, and economy of the United States posed by the 
unrestricted access of foreign parties to U.S. goods and technology and 
the existence of certain boycott practices of foreign nations.

II. Final Rule

    Because the Department of Justice regulations at 27 CFR part 447 
listing the defense articles and defense services controlled by the 
Attorney General for purposes of permanent import currently adopt, with 
some exceptions, the list of defense articles and defense services 
controlled by the Secretary of State, and because certain defense 
articles and defense services on the Department of State export control 
list that appears in the ITAR, 22 CFR 121.1, will, in the future, be 
removed from that list and controlled for export and temporary import 
by the Secretary of Commerce, the Department of Justice is clarifying 
its regulations by amending 27 CFR 447.21, to do the following:
    (i) Remove the language adopting the State Department export 
control list maintained in the ITAR;
    (ii) Clarify that the Attorney General exercises delegated 
authority to

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designate defense articles and defense services for inclusion on the 
USML for purposes of permanent import controls, regardless of whether 
such items are controlled by the Secretary of State for purposes of 
export or temporary import; and
    (iii) Clarify that the defense articles and defense services 
regulated for purposes of permanent import pursuant to the AECA 
authority delegated to the Attorney General appear in the permanent 
import control list labeled the USMIL, set out at 27 CFR Part 447, and 
that the USMIL is a subset of the USML pursuant to the AECA.
    Accordingly, this final rule amends sections of 27 CFR Part 447 to 
implement such changes. This rule does not change the content of the 
USMIL. Revisions to the content of the USMIL, if any, will be addressed 
by the Attorney General in a separate rulemaking. As required by 
Executive Order 13637, in designating defense articles and defense 
services subject to permanent import control under section 38 of the 
AECA, 22 U.S.C. 2778(a), the Attorney General shall be guided by the 
views of the Secretary of State on matters affecting world peace and 
the external security and foreign policy of the United States, and must 
obtain the concurrence of the Secretary of State and Secretary of 
Defense and provide notice to the Secretary of Commerce regarding 
designations, including changes in designations, of defense articles 
and defense services.

How This Document Complies With the Federal Administrative Requirements 
for Rulemaking

A. Executive Order 12866

    Because the amendments to 27 CFR part 447 involve a foreign affairs 
function of the United States, Executive Order 12866 does not apply.

B. Executive Order 13132

    This regulation 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 section 6 
of Executive Order 13132, the Attorney General has determined that this 
regulation does not have sufficient federalism implications to warrant 
the preparation of a federalism summary impact statement.

C. Executive Order 12988

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

D. Administrative Procedure Act

    As reflected in 27 CFR 447.54, amendments made to 27 CFR part 447 
are exempt from the rulemaking provisions of 5 U.S.C. 553 because this 
part involves a foreign affairs function of the United States. 
Accordingly, it is not necessary to issue this rule using the notice 
and public procedure set forth in 5 U.S.C. 553(b), and the requirement 
of a delayed effective date in 5 U.S.C. 553(d) does not apply.

E. Regulatory Flexibility Act

    The provisions of the Regulatory Flexibility Act relating to an 
initial and final regulatory flexibility analysis are not applicable to 
this rule because the agency was not required to publish a general 
notice of proposed rulemaking under 5 U.S.C. 553 or any other law.

F. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a ``major rule'' as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

G. Unfunded Mandates Reform Act of 1995

    This rule will not 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 one 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.

H. Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR 
part 1320, do not apply to this rule because there are no reporting or 
recordkeeping requirements.

Drafting Information

    The author of this document is George M. Fodor, Office of 
Regulatory Affairs, Enforcement Programs and Services, Bureau of 
Alcohol, Tobacco, Firearms, and Explosives.

List of Subjects in 27 CFR Part 447

    Administrative practice and procedure, Arms control, Arms and 
munitions, Authority delegation, Chemicals, Customs duties and 
inspection, Imports, Penalties, Reporting and recordkeeping 
requirements, Scientific equipment, Seizures and forfeitures.

Authority and Issuance

    Accordingly, for the reasons discussed in the preamble, 27 CFR part 
447 is amended as follows:

PART 447--IMPORTATION OF DEFENSE ARTICLES

0
1. The authority citation for 27 CFR Part 447 is revised to read as 
follows:

    Authority:  22 U.S.C. 2778; E.O. 13637, 78 FR 16129 (Mar. 8, 
2013).


0
2. Revise Sec.  447.1 to read as follows:


Sec.  447.1  General.

    The regulations in this part relate to that portion of section 38 
of the Arms Export Control Act of 1976, as amended, authorizing the 
President to designate defense articles and defense services as part of 
the United States Munitions List (USML) for purposes of import and 
export controls. To distinguish the list of defense articles and 
defense services controlled in this part for purposes of permanent 
import from the list of defense articles and defense services 
controlled by the Secretary of State for purposes of export and 
temporary import, this part shall refer to the defense articles and 
defense services controlled for purposes of permanent import as the 
U.S. Munitions Import List (USMIL) and shall refer to the export and 
temporary import control list set out by the Department of State in its 
International Traffic in Arms Regulations as the USML. Part 447 
contains the USMIL and includes procedural and administrative 
requirements relating to registration of importers, permits, articles 
in transit, import certification, delivery verification, import 
restrictions applicable to certain countries, exemptions, U.S. military 
firearms and ammunition, penalties, seizures, and forfeitures. The 
President's delegation of permanent import control authorities to the 
Attorney General provides the Attorney General the authority to assess 
whether controls are justified, but in designating the defense articles 
and defense services set out in the USMIL the Attorney General shall be 
guided by the views of the Secretary of State on matters affecting 
world peace and the external security and foreign policy of

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the United States. All designations and changes in designations of 
defense articles and defense services subject to permanent import 
control under this part must have the concurrence of the Secretary of 
State and the Secretary of Defense, with notice given to the Secretary 
of Commerce.

0
3. Amend Sec.  447.11 by revising the definition of the term 
``Article'' to read as follows:


Sec.  447.11  Meaning of terms.

* * * * *
    Article. Any of the defense articles enumerated in the U.S. 
Munitions Import List (USMIL).
* * * * *

0
4. Amend Sec.  447.21 as follows:
0
a. Revise the introductory text.
0
b. Remove the second ``Note'' in Category IV.
0
c. Add and reserve after Category IV a heading ``Category V''.
0
d. In Category VII, remove the ``Note'' after paragraph (c) and add and 
reserve paragraphs (d) and (e).
0
e. In Category VIII, revise the title and remove the first ``Note'' 
after paragraph (a) and in its place add and reserve paragraph (b).
0
f. Add and reserve after Category VIII a heading ``Categories IX 
through XIII''.
0
g. Remove the ``Note'' after paragraph (b) in Category XVI.
0
h. Add and reserve after Category XVI a heading ``Categories XVII 
through XIX''.
0
i. Revise Category XXI.
    These amendments to Sec.  447.21 read as follows:


Sec.  447.21  The U.S. Munitions Import List.

    The following defense articles and defense services, designated 
pursuant to section 38(a) of the Arms Export Control Act, 22 U.S.C. 
2778(a), and E.O. 13637 are subject to controls under this part. For 
purposes of this part, the list shall be known as the U.S. Munitions 
Import List (USMIL):
THE U.S. MUNITIONS IMPORT LIST (USMIL)
* * * * *
CATEGORY V [Reserved]
* * * * *
CATEGORY VII--TANKS AND MILITARY VEHICLES
* * * * *
    (d) [Reserved]
    (e) [Reserved]
* * * * *
CATEGORY VIII--AIRCRAFT AND ASSOCIATED EQUIPMENT
* * * * *
    (b) [Reserved]
* * * * *
CATEGORIES IX-XIII [Reserved]
* * * * *
CATEGORIES XVII-XIX [Reserved]
* * * * *
CATEGORY XXI--MISCELLANEOUS ARTICLES
    Any defense article or defense service not specifically enumerated 
in the other categories of the USMIL that has substantial military 
applicability and that has been specifically designed or modified for 
military purposes. The decision as to whether any article may be 
included in this category shall be made by the Attorney General with 
the concurrence of the Secretary of State and the Secretary of Defense.

    Dated: April 17, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2013-09392 Filed 4-19-13; 8:45 am]
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