E9-28181. Amendment to the International Traffic in Arms Regulations: Section 125.4(b)(9) Export Exemption for Technical Data

AGENCY:

Department of State.

ACTION:

Proposed rule.

SUMMARY:

The Department of State is proposing to amend the International Traffic in Arms Regulations (ITAR) regarding an exemption for technical data, to clarify that the exemption covers technical data, regardless of media or format, sent or taken by a U.S. person who is an employee of a U.S. corporation or a U.S. Government agency to a U.S. person employed by that U.S. corporation or to a U.S. Government agency outside the United States.

DATES:

The Department of State will accept comments on this proposed rule until January 25, 2010.

ADDRESSES:

Interested parties may submit comments within 60 days of the date of the publication by any of the following methods:

• E-mail: [e-mail] with an appropriate subject line.
• Mail: Department of State, Directorate of Defense Trade Controls, Office of Defense Trade Controls Policy, Attn: Regulatory Change, Section 125.4, SA-1, 12th Floor, Washington, DC 20522-0112.
• Persons with access to the Internet may also view this notice by going to the U.S. Government regulations.gov Web site at http://regulations.gov/​index.cfm.

FOR FURTHER INFORMATION CONTACT:

Director Charles Shotwell, Office of Defense Trade Controls Policy, Department of State, Telephone [phone] or Fax [phone]; E-mail [e-mail]. Attn: Regulatory Change, Section 125.4.

SUPPLEMENTARY INFORMATION:

The proposed export exemption at 22 CFR 125.4(b)(9) is amended to allow technical data, including classified information, and regardless of media or format, sent or taken by a U.S. person who is an employee of a U.S. corporation or a U.S. Government agency to a U.S. person employed by that U.S. corporation or to a U.S. Government agency outside the United States under certain specified circumstances reflected in 22 CFR 125.4(b)(9)(i) through (iii). This amendment will add after the word “information” the words “and regardless of media or format.” Also, the words “sent by a U.S. corporation to a U.S. person employed by that corporation overseas or to a U.S. Government agency” has been replaced by “sent or taken by a U.S. person who is an employee of a U.S. corporation or a U.S. Government agency to a U.S. person employed by that corporation or to a U.S. Government agency outside the United States.” Thus, the exemption will explicitly allow hand carrying technical data by a U.S. person employed by a U.S. corporation or a U.S. Government agency to a U.S. person employed by that U.S. corporation or to a U.S. Government agency outside the United States as long as certain criteria in § 125.4(b)(9) and 125.4(b)(9)(i) through (iii) are met. The word “overseas” will be replaced by “outside the United States” at § 125.4(b)(9), 125.4(b)(9)(i), 125.4(b)(9)(ii), and 125.4(b)(9)(iii). Also, § 125.4(b)(9)(iii) will be amended to add the words “or taken” after the word “sent.” As stated in section 22 CFR 125.4(a), this exemption does not apply to exports to proscribed destinations under 22 CFR 126.1.

Regulatory Analysis and Notices

Administrative Procedure Act

This proposed amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures contained in 5 U.S.C. 553 and 554.

Regulatory Flexibility Act

Since this proposed amendment involves a foreign affairs function of the United States, it does not require analysis under the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

This proposed amendment 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 amendment 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 amendment 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 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 amendment.

Executive Order 12866

This proposed amendment is exempt from review under Executive Order 12866 but has been reviewed internally by the Department of State to ensure consistency with the purposes thereof.

Executive Order 12988

The proposed Department of State has reviewed the proposed regulations 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.

Paperwork Reduction Act

This proposed 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 Part 125

• Arms and munitions
• Classified information
• Exports

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, part 125 is proposed to be amended as follows:

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

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

Authority: Secs. 2 and 38, Public Law 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.

2. Section 125.4 is amended by revising paragraph (b)(9) to read as follows:

§ 125.4

Exemptions of general applicability .

* * * * *

(b) * * *

(9) Technical data, including classified information, and regardless of media or format, sent or taken by a U.S. person who is an employee of a U.S. corporation or a U.S. Government agency to a U.S. person employed by that U.S. corporation or to a U.S. Government agency outside the United States. This exemption is subject to the limitations of § 125.1(b) of this subchapter and may be used if:

(i) The technical data is to be used outside the United States solely by U.S. persons;

(ii) If the U.S. person outside the United States is an employee of the U.S. Government or is directly employed by the U.S. corporation and not by a foreign subsidiary; and

(iii) The classified information is sent or taken outside the United States in accordance with the requirements of the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed).

* * * * *

Dated: November 9, 2009.

Ellen O. Tauscher,

Under Secretary, Arms Control and International Security, Department of State.