[Federal Register Volume 87, Number 241 (Friday, December 16, 2022)]
[Proposed Rules]
[Pages 77046-77047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27156]


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DEPARTMENT OF STATE

22 CFR Part 120

[Public Notice: 11801]
RIN 1400-AF26


International Traffic in Arms Regulations: Amendment to the 
Definition of Activities That Are Not Exports, Reexports, Retransfers, 
or Temporary Imports

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: The Department of State proposes to add two new entries to the 
International Traffic in Arms Regulations (ITAR) to expand the 
definition of ``activities that are not exports, reexports, 
retransfers, or temporary imports.'' First, subject to certain 
conditions, the taking of defense articles outside a previously 
approved country by the armed forces of a foreign government or United 
Nations personnel on a deployment or training exercise is not an 
export, reexport, retransfer, or temporary import. Second, a foreign 
defense article that enters the United States, either permanently or 
temporarily, and that is subsequently exported from the United States 
pursuant to a license or other approval under this subchapter, is not 
subject to the reexport and retransfer requirements of this subchapter, 
provided it has not been modified, enhanced, upgraded, or otherwise 
altered or improved or had a U.S.-origin defense article integrated 
into it.

DATES: Send comments on or before February 14, 2023.

ADDRESSES: Interested parties may submit comments by one of the 
following methods:
    [ssquf] Email: [email protected] with the subject line, 
``ITAR Amendment--120.54 Additions.''
    [ssquf] Internet: at www.regulations.gov, search for this notice, 
Docket DOS-2022-0031.
    Comments received after that date may 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 any information for which a claim of 
confidentiality is asserted, because 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 
Control website at www.pmddtc.state.gov. Parties who wish to comment 
anonymously may submit comments via www.regulations.gov, leaving the 
fields that would identify the commenter blank and including no 
identifying information in the comment itself.

FOR FURTHER INFORMATION CONTACT: Dilan Wickrema, Office of Defense 
Trade Controls Policy, U.S. Department of State, telephone (202) 634-
4981, or email [email protected]. ATTN: Regulatory Change, 
ITAR 120.54 additions.

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 through 130). The items 
subject to the jurisdiction of the ITAR, i.e., defense articles and 
defense services, are identified on the ITAR's U.S. Munitions List 
(USML) (22 CFR 121.1). The ITAR imposes license requirements for 
exports and reexports of controlled items.
    On March 25, 2020, the Department added a new ITAR section (Sec.  
120.54) to clarify and consolidate activities that do not require 
authorization from the Department (84 FR 70887). This proposed rule 
would add to ITAR Sec.  120.54 two activities that are not controlled 
events (defined herein, and in the previous rule, to mean ``an export, 
reexport, retransfer, or temporary import'') and therefore do not 
require authorization from the Department. While previously not 
specified in the ITAR, the Department's long-standing policy is that 
these two proposed activities are not controlled events.
    The first of the two new proposed additions to ITAR Sec.  120.54 is 
a new paragraph (a)(6) making explicit that the taking of defense 
articles outside a previously approved country by the armed forces of a 
foreign government or United Nations personnel on a deployment or 
training exercise is not a controlled event, provided there is no 
change in end-use or end-user. The Department proposes this new 
provision to ensure interoperability between and among the United 
States and partner countries' armed forces when deployed and to provide 
assurances to partner countries that have requested a clearer statement 
of the long-standing Department policy articulated in this proposed 
rule. This policy is noted in DDTC's ``Guidelines for Preparing 
Agreements'' and this proposed provision would codify this long-
standing understanding in the ITAR.
    The second addition to ITAR Sec.  120.54 would state in a new 
paragraph (a)(7) that the transfer of a foreign defense

[[Page 77047]]

article originally imported into the United States that has since been 
exported out of the United States, is not a controlled event, unless 
certain enumerated circumstances have occurred.
    The Department proposes this new provision to eliminate any 
misperception that foreign defense articles which originally entered 
the United States and have since been exported out of the United States 
always will require Department authorization for subsequent transfers. 
The Department assesses this proposed provision will address concerns 
raised by partners and allies and avoid the need for unnecessary 
requests for authorization on the part of domestic and foreign defense 
companies.
    Request for Comments: The Department welcomes public comment on any 
of the proposed changes set forth in this rule. In particular, we 
invite comments from foreign government end-users on the application of 
these provisions.

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 rules implementing this 
function are exempt from sections 553 (rulemaking) and 554 
(adjudications) of the Administrative Procedure Act (APA), pursuant to 
5 U.S.C. 553(a)(1). Notwithstanding the assertion of the foreign 
affairs exemption, the Department is solicitating comment on this 
proposed rule.

Regulatory Flexibility Act

    Notwithstanding the Department's publication of this rulemaking as 
a proposed rule, this rule is exempt from the notice-and-comment 
rulemaking provisions of 5 U.S.C. 553 as a foreign affairs function. 
Therefore, it does not require 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 will 
not significantly or uniquely affect small governments. Therefore, no 
actions are deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

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, it is determined that this proposed 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 rulemaking.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 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). This 
rule's scope does not impose additional regulatory requirements or 
obligations; therefore, the Department believes costs associated with 
this rule will be minimal. Although the Department cannot determine 
based on available data how many fewer licenses will be submitted as a 
result of this rule, the amendments to the definition of activities 
that are not exports, reexports, retransfers, or temporary imports will 
relieve licensing burdens for some exporters. This rule is consistent 
with Executive Order 13563, which emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This rule has been designated a 
``significant regulatory action,'' although not economically 
significant, by the Office and Information and Regulatory Affairs under 
Executive Order 12866.

Executive Order 12988

    The Department of State has reviewed the proposed 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 proposed rule 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 proposed rule does not impose or revise any information 
collections subject to 44 U.S.C. chapter 35.

List of Subjects in 22 CFR Part 120

    Arms and munitions, Classified information, Exports.

    For the reasons set forth above, the Department of State proposes 
to amend title 22, chapter I, subchapter M, part 120 as follows:

PART 120--PURPOSE AND DEFINITIONS

0
1. The authority citation for part 120 continues to read as follows:

    Authority:  22 U.S.C. 2651a, 2752, 2753, 2776, 2778, 2779, 
2779a, 2785, 2794, 2797; E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp., 
p. 223.

0
2. Amend Sec.  120.54 by adding paragraphs (a)(6) and (7) to read as 
follows:


Sec.  120.54  Activities that are not exports, reexports, retransfers, 
or temporary imports.

    (a) * * *
    (6) The taking of a defense article subject to the reexport or 
retransfer requirements of this subchapter on a deployment or training 
exercise outside a previously approved country, provided:
    (i) the defense article is transported by and remains in the 
possession of the armed forces of a foreign government or United 
Nations personnel; and
    (ii) there is no change in end-use or end-user with respect to the 
subject defense article.
    (7) The transfer of a foreign defense article previously imported 
into the United States that has since been exported from the United 
States pursuant to a license or other approval under this subchapter, 
provided:
    (i) the foreign defense article was not modified, enhanced, 
upgraded or otherwise altered or improved in a manner that changed the 
basic performance of the item prior to its return to the country from 
which it was imported or a third country; and
    (ii) a U.S.-origin defense article was not incorporated into the 
foreign defense article.
* * * * *

Bonnie Jenkins,
Under Secretary, Arms Control and International Security, Department of 
State.
[FR Doc. 2022-27156 Filed 12-15-22; 8:45 am]
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