[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]
[[Page 23675]]
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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
[[Page 23676]]
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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