E9-27685. Amendment to the International Arms Traffic in Arms Regulations: U.S. Government Transfer Programs and Foreign-Owned Military Aircraft and Naval Vessels

AGENCY:

Department of State.

ACTION:

Proposed rule.

SUMMARY:

The Department of State is proposing to amend Section 126.6 of the International Traffic in Arms Regulations (ITAR) pertaining to U.S. Government transfer programs and foreign-owned military aircraft and naval vessels. Section 126.6 is being amended to clarify the particular circumstances when a license is not required by the Directorate of Defense Trade Controls.

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, 126.6, 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 B. Shotwell, Office of Defense Trade Controls Policy, Department of State, Telephone [phone] or Fax [phone]; E-mail [e-mail]. ATTN: Regulatory Change, 126.6.

SUPPLEMENTARY INFORMATION:

Section 126.6 of the ITAR specifies when a license from the Directorate of Defense Trade Controls is not required for certain specified U.S. Government transfer programs and exports involving foreign-owned military aircraft and naval vessels. The title of this particular section has been changed from “Foreign-owned military aircraft and naval vessels, and the Foreign Military Sales program” to “U.S. Government transfer programs and foreign-owned military aircraft and naval vessels” to more accurately describe its coverage. Section 126.6 is being amended to clarify the particular circumstances when a license is not required by the Directorate of Defense Trade Controls. Current regulatory language was implemented when the U.S. Government executed these programs with mostly U.S. Government personnel. Over the years the U.S. Government, especially the Department of Defense, has expanded operations and migrated to utilization of the Defense Transportation System as well as commercial carriers to, in some instances, fully replace government transportation systems and personnel. As a result, U.S. Customs and Border Protection was unclear as to which programs were U.S. Government programs and, therefore, which items were qualified to be exported from the United States without an associated export license. The proposed changes address this issue. Also, the proposed amendment addresses in more detail the export requirements involving the Foreign Military Sales program and extends the exemption to exports pursuant to section 1206 of the National Defense Authorization Act for Fiscal Year 2006, as amended and extended, or section 1206 of the National Defense Authorization Act for Fiscal Year 2008. It further delineates requirements, authorized periods for license exemptions, documentary requirements, and the applicable terms and conditions relating to the U.S. Government's transfer and/or loan of defense articles to foreign governments or international organizations.

Regulatory Analysis and Notices

Administrative Procedure Act and Executive Order 12866

Applicability of 5 U.S.C. 553 and Executive Order 12866 is under discussion with the Office of Management and Budget.

Regulatory Flexibility Act

The applicability of the Regulatory Flexibility Act is contingent on the applicability of 5 U.S.C. 553, which will be determined at a later time.

Unfunded Mandates 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 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 proposed amendment.

Paperwork Reduction Act

This proposed rule would 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 126

• Arms and munitions
• Exports

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, part 126 is proposed to be amended as follows:

PART 126—GENERAL POLICIES AND PROVISIONS

1. The authority citation for part 126 continues to read as follows:

Authority: Secs. 2, 38, 40, 42 and 71, Public Law 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791 and 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp., p. 79; 22 U.S.C. 2651a; 22 U.S.C. 287c; E.O. 12918, 59 FR 28205; 3 CFR, 1994 Comp., p. 899; Sec. 1225, Public Law 108-375.

2. Section 126.6 is amended by revising paragraphs (a)(1), (a)(2), (a)(3), (b), (c), and (d) to read as follows:

§ 126.6

U.S. Government transfer programs and foreign-owned military aircraft and naval vessels.

(a) * * *

(1) The defense article to be exported was sold, granted, leased, or loaned by the Department of Defense to the government of a foreign country or to an international organization pursuant to the Arms Export Control Act, as amended, (AECA) or the Foreign Assistance Act of 1961, as amended;

(2) The defense article is exported to representatives of the government of the foreign country or international organization in the United States;

(3) The defense article is to be exported from the United States:

(i) On a military aircraft or naval vessel of the government of the foreign country or international organization. The shippers export declaration (SED) must be entered in the Automated Export System (AES) by such government or international organization prior to export;

(ii) By the Department of Defense via the Department of Defense Transportation System (DTS) in accordance with the vetting procedures and the requirements in DoD 5105.38-M, “Security Assistance Management Manual” (SAMM), and DoD Regulations 4500.9E and 4500.9R, “Defense Transportation Regulations” (DTR). The SED must be entered in the AES by the cognizant or responsible military service or implementing agency; or

(iii) By a Department of Defense contracted carrier via the DTS in accordance with the vetting procedures and the requirements in DoD 5105.38-M, “Security Assistance Management Manual” (SAMM), and DoD Regulations 4500.9E and 4500.9R, “Defense Transportation Regulations” (DTR). The SED must be entered in the AES by the cognizant or responsible military service or implementing agency; and

(4) In the event the defense article to be exported is classified, the export is made by a person having the appropriate USG security clearance, in compliance with the Department of Defense National Industrial Security Program Operating Manual (DoD NISPOM), and pursuant to an approved transportation plan.

(b) Foreign military aircraft and naval vessels. A license is not required for the entry into and subsequent exit from the United States of military aircraft or naval vessels of any foreign state if no overhaul, repair, or modification of the aircraft or naval vessel is to be performed. However, Department of State approval for overflight (pursuant to 49 U.S.C. 40103) and naval visits must be obtained from the Department of State, Bureau of Political-Military Affairs, Office of International Security Operations.

(c) Foreign Military Sales program. A license from the Directorate of Defense Trade Controls is not required if the defense article or defense service is to be exported to a foreign country or international organization under the Foreign Military Sales (FMS) program of the AECA pursuant to a jointly-signed Letter of Offer and Acceptance (LOA) authorizing such export where such export meets the criteria stated below:

(1) Exports of the defense article or defense service using this exemption may take place only during the period in which the FMS Program LOA and implementing USG FMS contracts and subcontracts are in effect and serve as authorization for the exports hereunder in lieu of a license. The Department of Defense shall ensure that defense articles and defense services exported are limited to those authorized under the valid LOA, maintain the dollar value balance shipped against the LOA, and shall promptly notify U.S. Customs and Border Protection (CBP) of any amendments or modifications to the LOA, including the remaining balance when the LOA is completed, closed, or is no longer valid as an authorization;

(2) The defense article or defense service to be exported is specifically identified in an executed LOA, in furtherance of the FMS program, signed by an authorized representative of the Department of Defense and an authorized representative of the foreign government;

(3) The total value of the defense articles and defense services exported must not exceed that value authorized by the relevant LOA and any relevant contract and subcontract;

(4) The export is not to a country proscribed in § 126.1 of this subchapter;

(5) The U.S. person responsible for the transfer or the Department of Defense (in the case of DTS shipments) maintains records of all exports in accordance with Part 122 of this subchapter;

(6) For exports of defense articles:

(i) The shipment is made by the relevant foreign diplomatic mission of the purchasing country or its authorized freight forwarder, provided that the freight forwarder is so designated in writing by the foreign government to, and is registered with, the Directorate of Defense Trade Controls pursuant to Part 122 of this subchapter;

(ii) Prior to shipment, the Department of Defense shall lodge the LOA, and any amendments or modifications thereto, with the Port Director of U.S. Customs and Border Protection of the primary port;

(iii) The relevant foreign diplomatic mission of the purchasing country, or its authorized freight forwarder, prepares and provides to the Port Director of U.S. Customs and Border Protection a properly executed DSP-94 that has been countersigned by an authorized representative of the Department of Defense verifying that the export is in accordance with the LOA. The exporter must also provide any other documents required by the Port Director of U.S. Customs and Border Protection in carrying out its responsibilities. The AES SED or, if authorized, the outbound manifest must be annotated as follows: “This shipment is being exported under the authority of Department of State Form DSP-94 pursuant to a current and valid FMS Case [case identification], implemented [implementation date]. 22 CFR 126.6(c) applicable. The U.S. Government point of contact is___, telephone number ___,”; and

(iv) In the event the defense article to be exported is classified, the export must be made by a person having the appropriate USG security clearance and must be made in compliance with the Department of Defense National Industrial Security Program Operating Manual (DoD NISPOM) and pursuant to an approved transportation plan; and

(7) For exports of defense services:

(i) The U.S. exporter must have entered into a contract with the Department of Defense that:

(A) Specifically defines the scope of the defense service to be exported;

(B) Cites the FMS case identifier;

(C) Identifies the foreign recipients of the defense service;

(D) Identifies any other U.S. or foreign parties that may be involved and their roles/responsibilities to the extent known when the contract is executed; and

(E) Specifies the period during which the defense service may be performed;

(ii) The U.S. person that is a party to a contract with the Department of Defense for the provision of defense services pursuant to an FMS case must maintain a valid registration with the Directorate of Defense Trade Controls for the entire time that the defense service is being provided. In any instance when that U.S. person employs a U.S. subcontractor, that subcontractor may only provide defense services pursuant to this subsection when registered with Directorate of Defense Trade Controls, and when such subcontract meets the requirements of paragraphs (c)(7)(i)(A) thorugh (E) of this section;

(iii) In instances when the defense service involves the transfer of classified technical data, the U.S. person transferring the defense service must have the appropriate USG security clearance and a transportation plan, if appropriate, in compliance with the Department of Defense National Industrial Security Program Operating Manual (DoD NISPOM);

(iv) Where defense articles are exported along with defense services, the exporter must comply with paragraph (c)(6) of this section; and

(v) The U.S. exporter reports its initial export, citing this section of the International Traffic in Arms Regulations. The U.S. exporter must maintain records of the export to include the FMS case identifier, the contract and subcontract number, the foreign country, and the duration of the service being provided. These records must be kept in accordance with § 122.5 of this subchapter.

(d) Other USG Programs. A license from the Directorate of Defense Trade Controls is not required if:

(1) Defense articles to be exported were sold, granted, leased or loaned by the Department of Defense to a foreign country or international organization pursuant to section 1206 of the National Defense Authorization Act for Fiscal Year 2006, as amended and extended, or section 1206 of the National Defense Authorization Act for Fiscal Year 2008;

(2) The defense article is to be exported from the United States:

(i) By the Department of Defense via the Department of Defense Transportation System (DTS) in accordance with the vetting procedures and the requirements in DoD 5105.38-M, “Security Assistance Management Manual” (SAMM), and DoD Regulations 4500.9E and 4500.9R, “Defense Transportation Regulations” (DTR). The SED must be entered in the AES by the cognizant or responsible military service or implementing agency; or

(ii) By a Department of Defense contracted carrier via the DTS in accordance with the vetting procedures and the requirements in DoD 5105.38-M, “Security Assistance Management Manual” (SAMM), and DoD Regulations 4500.9E and 4500.9R, “Defense Transportation Regulations” (DTR). The SED must be entered in the AES by the cognizant or responsible military service or implementing agency; and

(3) In the event the defense article to be exported is classified, the export is made by a person having the appropriate USG security clearance, in compliance with the Department of Defense National Industrial Security Program Operating Manual (DoD NISPOM) and pursuant to an approved transportation plan.

Dated: November 3, 2009.

Ellen O. Tauscher,

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