04-8108. Amendment to the International Traffic in Arms Regulations: Denial Policy Against Iraq

AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

This rule amends the International Traffic in Arms Regulations (ITAR) by modifying the denial policy regarding Iraq at 22 CFR 126.1.

DATES:

Effective Date: April 9, 2004.

ADDRESSES:

Interested parties are invited to submit written comments to the Department of State, Directorate of Defense Trade Controls, Office of Defense Trade Controls Management, ATTN: Regulatory Change, Iraq, 12th Floor, SA-1, Washington, DC 20522-0112. E-mail comments may be sent to [e-mail]. Persons with access to the Internet may also view this notice by going to the regulations.gov Web site at: http://www.reguatlions.gov/​index.cfm. Comments will be accepted at any time.

FOR FURTHER INFORMATION CONTACT:

Mary Sweeney, Office of Defense Trade Controls Management, Bureau of Political-Military Affairs, Department of State [phone].

SUPPLEMENTARY INFORMATION:

Section 1504 of the Emergency Wartime Supplemental Appropriations Act, 2003 (Pub. L. 108-11) authorized the export to Iraq of any nonlethal military equipment if the President determines and notifies within 5 days prior to export to applicable Congressional committees that the export of such nonlethal military equipment is in the national interest of the United States. However, this limitation regarding nonlethal military equipment did not apply to lethal military equipment designated by the Secretary of State for use by a reconstituted (or interim) Iraqi military or police force. Consequently, § 126.1 of the ITAR was amended in 68 FR 65633 (November 21, 2003).

Section 2205 of the Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004 (Pub. L. 108-106) amended section 1504 of Pub. L. 108-11. Exports may be authorized of lethal military equipment designated by the Secretary of State for use by a reconstituted (or interim) Iraqi military or police force, and also of small arms designated by the Secretary of State for use for private security purposes, if the President determines and notifies within 5 days prior to export to applicable Congressional committees that the export is in the national interest of the United States. Defense services may be approved for Iraq in accordance with the Arms Export Control Act (AECA), subject to the Congressional notification requirements of section 36 of the AECA. Paragraph (f) of § 126.1 is amended to reflect this and add small arms designated by the Secretary of State for use for private security purposes.

Paragraph (d) of § 126.1 identifies countries that the Secretary of State has determined, under section 40 of the AECA, to have repeatedly provided support for acts of international terrorism and for which exports of defense articles and services are contrary to the security and foreign policy of the United States. With respect to Iraq, in Presidential Determination 2003-23, dated May 7, 2003, the President suspended the application of all the provisions, other than section 586E, of the Iraq Sanctions Act of 1990 and made inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961, as amended, and any other provision of law that applies to countries that have supported terrorism. However, as described above and consistent with the provisions of sections 1503 and 1504 of Pub. L.108-11, exports to Iraq are subject to the policy specified in paragraph (f) of § 126.1.

Regulatory Analysis and Notices: This amendment involves a foreign affairs function of the United States and therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 12866 but has been reviewed internally by the Department to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act.

This amendment/rule has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Act of 1996. It will not have substantial direct effects on the States, the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this rule does not have sufficient federalism implications to warrant application of the consultation provisions of Executive Orders 12372 and 13132.

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 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, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); 22 U.S.C. 2778; E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp., p. 79; 22 U.S.C. 2658; 22 U.S.C. 287c; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899.

2. Section 126.1 is amended by revising paragraph (f) to read as follows:

§ 126.1

Prohibited exports and sales to certain countries.

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(f) Iraq. It is the policy of the United States to deny licenses, other approvals, exports and imports of defense articles, destined for or originating in Iraq except, if determined to be in the national interest of the United States and subject to the notification requirements of section 1504 of Public Law 108-11, exports may be authorized of nonlethal military equipment and, in the case of lethal military equipment, only that which is designated by the Secretary of State (or designee) for use by a reconstituted (or interim) Iraqi military or police force, and of small arms designated by the Secretary of State (or designee) for use for private security purposes.

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Dated: March 23, 2004.

John R. Bolton,

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