[Federal Register Volume 81, Number 189 (Thursday, September 29, 2016)]
[Rules and Regulations]
[Pages 66804-66807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23284]


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DEPARTMENT OF STATE

22 CFR Parts 120 and 126

[Public Notice: 9602]
RIN 1400-AD95


Amendment to the International Traffic in Arms Regulations: 
Tunisia, Eritrea, Somalia, the Democratic Republic of the Congo, 
Liberia, C[ocirc]te d'Ivoire, Sri Lanka, Vietnam, and Other Changes

AGENCY: Department of State.

ACTION: Interim final rule.

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SUMMARY: The Department of State is amending the International Traffic 
in Arms Regulations (ITAR) to designate Tunisia as a major non-NATO 
ally (MNNA); reorganize the content in several paragraphs to clarify 
the intent of the ITAR; update defense trade policy regarding Eritrea, 
Somalia, the Democratic Republic of the Congo, Liberia, and C[ocirc]te 
d'Ivoire to reflect resolutions adopted by the United Nations Security 
Council; update defense trade policy regarding Sri Lanka to reflect the 
Consolidated Appropriations Act, 2016; and update defense trade policy 
regarding Vietnam to reflect a determination made by the Secretary of 
State.

DATES: The rule is effective on September 29, 2016. The Department of 
State will accept comments on this interim final rule until October 31, 
2016.

ADDRESSES: Interested parties may submit comments within 30 days of the 
date of publication by one of the following methods:
     Email: [email protected] with the subject line, 
``ITAR Amendment--Section 126.1 Re-organization.''
     Internet: At www.regulations.gov, search for docket number 
DOS-2016-0059.

Comments received after that date may be considered, 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: Mr. C. Edward Peartree, Director, 
Office of Defense Trade Controls Policy, U.S. Department of State, 
telephone (202) 663-2792, or email [email protected]. ATTN: 
Regulatory Change, ITAR Section 126.1 Update 2016.

SUPPLEMENTARY INFORMATION: In Presidential Determination No. 2015-09, 
on July 10, 2015, President Obama exercised his authority under Sec.  
517 of the Foreign Assistance Act of 1961 (FAA) to designate Tunisia as 
a MNNA for the purposes of the FAA and the Arms Export Control Act 
(AECA). The Department of State amends ITAR Sec.  120.32 to reflect 
this change.
    Paragraphs (a), (c), and (d) of Sec.  126.1 of the ITAR are updated 
to enhance their clarity. The fundamental content of the aforementioned 
paragraphs is not changing, but is reorganized in this rule by subject 
matter. The lists of proscribed countries were previously in multiple 
paragraphs, but are now consolidated in paragraph (d). Provisions 
relevant to the rationale for defense trade sanctions, previously 
located in paragraphs (a), (c), and (d) are now consolidated in 
paragraph (c). Section 126.18 of the ITAR is amended to maintain 
conformity with revised paragraph (d) of ITAR Sec.  126.1.
    Recent actions by the United Nations (UN), Congress, and the 
Executive require the Department to amend ITAR Sec.  126.1 to reflect 
the change in policy towards individual nations identified in that 
section.
    On October 23, 2015, the United Nations Security Council (UNSC) 
adopted United Nations Security Council Resolution (UNSCR) 2244, which 
reaffirmed the arms embargoes on Eritrea and Somalia. Exemptions from 
the arms embargo on Somalia are set forth in paragraphs 6 through 11 of 
UNSCR 2111 and paragraphs 2 through 9 of UNSCR 2142. Thus subparagraphs 
(1) and (2) of Sec.  126.1(m) of the ITAR have been revised to reflect 
this change, and subparagraphs (3) through (6) are added to reflect new 
exceptions for Somalia as enumerated in UNSCR 2111. The revised control 
text follows the language as published in the aforementioned UNSCRs.
    Exemptions from the arms embargo on Eritrea are set forth in 
paragraphs 12 and 13 of UNSCR 2111; consequently, Eritrea will be moved 
to paragraph (h) of Sec.  126.1. The revised control text follows the 
language as published in the aforementioned UNSCRs. The Department 
modifies paragraph (h) of ITAR Sec.  126.1 accordingly.
    On June 23, 2016, the UNSC adopted Resolution 2293, which expanded 
the exemptions from the arms embargo on the Democratic Republic of the 
Congo. Exemptions from the arms embargo are set forth in paragraph 3 of 
the UNSCR. The revised control text follows the language as published 
in the aforementioned UNSCR. The Department modifies paragraph (i) of 
ITAR Sec.  126.1 accordingly.
    On May 25, 2016, the UNSC adopted Resolution 2288, which terminated 
the sanctions regime against Liberia, including restrictions on exports 
to Liberia of arms and related materiel. The Department reserves 
paragraph (o) to remove Liberia from ITAR Sec.  126.1.
    On April 28, 2016 the UNSC adopted Resolution 2283, which 
terminated the sanctions regime against C[ocirc]te d'Ivoire, including 
restrictions on exports to C[ocirc]te d'Ivoire of arms and related 
materiel. The Department reserves paragraph (q) to remove C[ocirc]te 
d'Ivoire from ITAR Sec.  126.1.

[[Page 66805]]

    Licensing restrictions relating to Sri Lanka articulated in section 
7044(e) of the Consolidated Appropriations Act, 2015, Public Law 113-
235, and in previous appropriations acts, were not carried forward in 
section 7044(e) of the Consolidated Appropriations Act, 2016, Public 
Law 114-113. Therefore, the Department reserves paragraph (n) to remove 
Sri Lanka from ITAR Sec.  126.1.
    The Secretary of State lifted the ban on lethal weapons sales to 
Vietnam in May 2016. Accordingly, the Department reserves paragraph (l) 
and the associated note to remove Vietnam from ITAR Sec.  126.1.
    For more information, please visit the Directorate of Defense Trade 
Controls (DDTC) internet Web site at https://www.pmddtc.state.gov/.

Request for Comments

    The Department invites public comment regarding the organization 
and clarity of paragraphs (a), (c), and (d) of ITAR Sec.  126.1, as set 
forth in this rulemaking. Comments regarding the foreign policy of the 
United States as described herein are outside of the scope of this 
request.

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. Since this rule is 
exempt from 5 U.S.C. 553, the provisions of Sec.  553(d) do not apply 
to this rulemaking. Therefore, this rule is effective upon publication. 
The Department also finds that, given the national security issues 
surrounding U.S. policy towards the aforementioned countries, there is 
good cause for the effective date of this rule to be the date of 
publication, as provided by 5 U.S.C. 553(d)(3).

Regulatory Flexibility Act

    Since this 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 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

    The Department does not believe this rulemaking is a major rule 
within the definition of 5 U.S.C. 804.

Executive Orders 12372 and 13132

    This 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, the Department has determined that this 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 activities do 
not apply to this rulemaking.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess 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. The 
Department has determined that the benefits of this rulemaking outweigh 
any cost to the public, which the Department believes will be minimal. 
This rule has been designated a ``significant regulatory action,'' 
although not economically significant, under section 3(f) of Executive 
Order 12866. Accordingly, the rule has been reviewed by the Office of 
Management and Budget (OMB).

Executive Order 12988

    The Department of State reviewed this rulemaking in light of 
Executive Order 12988 to eliminate ambiguity, minimize litigation, 
establish clear legal standards, and reduce burden.

Executive Order 13175

    The Department of State determined that this rulemaking will not 
have tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not preempt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

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 Parts 120 and 126

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, parts 120 and 126 are amended as follows:

PART 120--PURPOSE AND DEFINITIONS

0
1. The authority citation for part 120 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. 2794; 22 U.S.C. 2651a; Pub. L. 
105-261, 112 Stat. 1920; Pub. L. 111-266; Section 1261, Pub. L. 112-
239; E.O. 13637, 78 FR 16129.


0
2. Section 120.32 is revised to read as follows:


Sec.  120.32  Major non-NATO ally.

    Major non-NATO ally, as defined in section 644(q) of the Foreign 
Assistance Act of 1961 (22 U.S.C. 2403(q)), means a country that is 
designated in accordance with section 517 of the Foreign Assistance Act 
of 1961 (22 U.S.C. 2321k) as a major non-NATO ally for purposes of the 
Foreign Assistance Act of 1961 and the Arms Export Control Act (22 
U.S.C. 2151 et seq. and 22 U.S.C. 2751 et seq.). The following 
countries are designated as major non-NATO allies: Afghanistan (see 
Sec.  126.1(g) of this subchapter), Argentina, Australia, Bahrain, 
Egypt, Israel, Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan, 
the Philippines, Republic of Korea, Thailand, and Tunisia. Taiwan shall 
be treated as though it were designated a major non-NATO ally.

PART 126--GENERAL POLICIES AND PROVISIONS

0
3. 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); 22 U.S.C. 2651a; 
22 U.S.C. 287c; E.O. 12918, 59 FR 28205; 3 CFR, 1994 Comp., p. 899; 
Sec. 1225, Pub. L. 108-375; Sec. 7089, Pub. L. 111-117; Pub. L. 111-
266; Sections 7045 and 7046, Pub. L. 112-74; E.O. 13637, 78 FR 
16129.


0
4. Section 126.1 is amended by

[[Page 66806]]

0
a. Revising paragraphs (a), (c), and (d);
0
b. Adding paragraph (h);
0
c. Revising paragraphs (i)(2) and (3):
0
d. Adding paragraph (i)(5):
0
e. Removing and reserving paragraph (l);
0
f. Revising paragraph (m); and
0
g. Removing and reserving paragraphs (n), (o), and (q).
    The revisions and additions read as follows:


Sec.  126.1  Prohibited exports, imports, and sales to or from certain 
countries.

    (a) General. It is the policy of the United States to deny licenses 
and other approvals for exports and imports of defense articles and 
defense services, destined for or originating in certain countries. The 
exemptions provided in this subchapter, except Sec. Sec.  123.17, 
126.4, and 126.6 of this subchapter, or when the recipient is a U.S. 
government department or agency, do not apply with respect to defense 
articles or defense services originating in or for export to any 
proscribed countries, areas, or persons. (See Sec.  129.7 of this 
subchapter, which imposes restrictions on brokering activities similar 
to those in this section).
* * * * *
    (c) Identification in Sec.  126.1 of the ITAR may derive from:
    (1) Exports and sales prohibited by United Nations Security Council 
sanctions measures. Whenever the United Nations Security Council 
mandates sanctions measures, all transactions that are prohibited by 
the aforementioned measures and involve U.S. persons (see Sec.  120.15 
of this subchapter) inside or outside of the United States, or any 
person in the United States, and defense articles or defense services 
described on the United States Munitions List (22 CFR part 121), 
irrespective of origin, are prohibited under the ITAR for the duration 
of the sanction, unless the Department of State publishes a notice in 
the Federal Register specifying different measures.
    (2) Terrorism. Exports or temporary imports of defense articles or 
defense services to countries that the Secretary of State has 
determined to be State Sponsors of Terrorism are prohibited under the 
ITAR. These countries have repeatedly provided support for acts of 
international terrorism, which is contrary to the foreign policy of the 
United States and thus subject to the policy specified in paragraph (a) 
of this section and the requirements of section 40 of the Arms Export 
Control Act (22 U.S.C. 2780) and the Omnibus Diplomatic Security and 
Anti-Terrorism Act of 1986 (22 U.S.C. 4801). Exports to countries that 
the Secretary of State has determined and certified to Congress, 
pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2781) 
and Executive Order 13637, are not cooperating fully with United States 
antiterrorism efforts are subject to the policy specified in paragraph 
(a) of this section. The Secretary of State makes such determinations 
and certifications annually.
    (3) Arms embargoes and sanctions. The policy specified in paragraph 
(a) of this section applies to countries subject to a United States 
arms embargo or sanctions regime, such as those described in the 
Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.), the 
International Religious Freedom Act of 1998 (22 U.S.C. 6401 et seq.), 
or the Child Soldiers Prevention Act of 2008 (22 U.S.C. 2370c-2370c-2), 
or whenever an export of defense articles or defense services would not 
otherwise be in furtherance of world peace and the security and foreign 
policy of the United States.
    (d) Countries subject to certain prohibitions:
    (1) For defense articles and defense services, the following 
countries have a policy of denial:

------------------------------------------------------------------------
                                 Country
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Belarus.
Burma.
China.
Cuba.
Iran.
North Korea.
Syria.
Venezuela.
------------------------------------------------------------------------

    (2) For defense articles and defense services, a policy of denial 
applies to the following countries except as specified in the 
associated paragraphs below:

------------------------------------------------------------------------
                                            Country specific paragraph
                Country                              location
------------------------------------------------------------------------
Afghanistan............................  See also paragraph (g) of this
                                          section.
Central African Republic...............  See also paragraph (u) of this
                                          section.
Cyprus.................................  See also paragraph (r) of this
                                          section.
Democratic Republic of Congo...........  See also paragraph (i) of this
                                          section.
Eritrea................................  See also paragraph (h) of this
                                          section.
Haiti..................................  See also paragraph (j) of this
                                          section.
Iraq...................................  See also paragraph (f) of this
                                          section.
Lebanon................................  See also paragraph (t) of this
                                          section.
Libya..................................  See also paragraph (k) of this
                                          section.
Somalia................................  See also paragraph (m) of this
                                          section.
Sudan..................................  See also paragraph (v) of this
                                          section.
Zimbabwe...............................  See also paragraph (s) of this
                                          section.
------------------------------------------------------------------------

* * * * *
    (h) Eritrea. It is the policy of the United States to deny licenses 
or other approvals for exports or imports of defense articles and 
defense services destined for or originating in Eritrea, except that a 
license or other approval may be issued, on a case-by-case basis, for:
    (1) Non-lethal military equipment intended solely for humanitarian 
or protective use, as approved in advance by the relevant committee of 
the Security Council; or
    (2) Personal protective clothing, including flak jackets and 
military helmets, temporarily exported to Eritrea by United Nations 
personnel, representatives of the media, humanitarian and development 
workers, and associated personnel for their personal use only.
    (i) * * *
    (2) Defense articles and defense services intended solely for the 
support of or use by the United Nations Organization Stabilization 
Mission in the Democratic Republic of the Congo (MONUSCO) or the 
African Union-Regional Task Force;
    (3) Protective clothing, including flak jackets and military 
helmets, temporarily exported to the Democratic Republic of the Congo 
by United Nations personnel, representatives of the media, and 
humanitarian and

[[Page 66807]]

development workers and associated personnel, for their personal use 
only;
* * * * *
    (5) Defense articles and defense services as approved by the 
relevant committee of the Security Council.
* * * * *
    (l) [Reserved]
    (m) Somalia. It is the policy of the United States to deny licenses 
or other approvals for exports or imports of defense articles and 
defense services destined for or originating in Somalia, except that a 
license or other approval may be issued, on a case-by-case basis, for:
    (1) Defense articles and defense services intended solely for the 
support of or use by the following:
    (i) The African Union Mission in Somalia (AMISOM);
    (ii) United Nations personnel, including the United Nations 
Assistance Mission in Somalia (UNSOM);
    (iii) AMISOM's strategic partners, operating solely under the 
African Union (AU) Strategic Concept of January 5, 2012 (or subsequent 
AU strategic concepts), and in cooperation and coordination with 
AMISOM; or
    (iv) The European Union Training Mission (EUTM) in Somalia.
    (2) Defense articles and defense services intended solely for the 
development of the Security Forces of the Federal Government of 
Somalia, to provide security for the Somali people, notified to the 
relevant committee of the Security Council at least five days in 
advance, except in relation to deliveries of the following articles, 
the supply of which needs to be approved in advance by the relevant 
committee of the Security Council:
    (i) Surface to air missiles, including Man-Portable Air-Defense 
Systems (MANPADS);
    (ii) Guns, howitzers, and cannons with a caliber greater than 12.7 
mm, and ammunition and components specially designed for these (this 
does not include shoulder fired anti-tank rocket launchers such as RPGs 
or LAWs, rifle grenades, or grenade launchers);
    (iii) Mortars with a caliber greater than 82 mm;
    (iv) Anti-tank guided weapons, including Anti-tank Guided Missiles 
(ATGMs) and ammunition and components specially designed for these 
items;
    (v) Charges and devices intended for military use containing 
energetic material; mines, and related materiel; and
    (vi) Weapon sights with a night vision capability.
    (3) Defense articles and defense services supplied by United 
Nations member states or international, regional, or subregional 
organizations intended solely for the purposes of helping develop 
Somali security sector institutions, other than the Security Forces of 
the Federal Government of Somalia, and in the absence of a negative 
decision by the relevant committee of the Security Council within five 
working days of receiving a notification of any such assistance from 
the supplying State, international, regional or subregional 
organization;
    (4) Defense articles for the sole use by United Nations member 
states or international, regional, or subregional organizations 
undertaking measures to suppress acts of piracy and armed robbery at 
sea off the coast of Somalia, upon the request of the Federal 
Government of Somalia for which it has notified the Secretary-General, 
and provided that any measures undertaken shall be consistent with 
applicable international humanitarian and human rights laws;
    (5) Personal protective clothing, including flak jackets and 
military helmets, temporarily exported to Somalia by United Nations 
personnel, representatives of the media, humanitarian or development 
workers, or associated personnel for their personal use only; or
    (6) Supplies of non-lethal defense articles intended solely for 
humanitarian or protective use, notified to the relevant committee of 
the Security Council five days in advance for its information only, by 
the supplying State, international, regional, or subregional 
organization.
    (n)-(o) [Reserved]
* * * * *
    (q) [Reserved]
* * * * *

0
5. Section 126.18 is amended by revising the fourth sentence of 
paragraph (c)(2) to read as follows:


Sec.  126.18  Exemptions regarding intra-company, intra-organization, 
and intra-government transfers to employees who are dual nationals or 
third-country nationals.

* * * * *
    (c) * * *
    (2) * * * Although nationality does not, in and of itself, prohibit 
access to defense articles, an employee who has substantive contacts 
with persons from countries listed in Sec.  126.1(d)(1) shall be 
presumed to raise a risk of diversion, unless DDTC determines 
otherwise. * * *

Rose E. Gottemoeller,
Under Secretary, Arms Control and International Security, Department of 
State.
[FR Doc. 2016-23284 Filed 9-28-16; 8:45 am]
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