05-17122. Amendment to the International Traffic in Arms Regulations: Section 126.1(i)

AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

This rule amends the International Traffic in Arms Regulations (ITAR) by modifying the denial policy regarding the Democratic Republic of the Congo (DRC) at 22 CFR 126.1. This action is taken in accordance with UN Security Council Resolution (UNSCR) 1596, unanimously adopted on April 18, 2005, which imposed a nation-wide embargo on arms sales or transfers to any recipient in the DRC. It represents an expansion of the policy issued under UNSCR 1493, which on July 28, 2003, imposed an embargo on the sale of arms, related materials, and defense services in the provinces of North and South Kivu and the Ituri District in the DRC.

DATES:

Effective Date: This rule is effective on August 29, 2005.

ADDRESSES:

Interested parties are invited to submit written comments to the Department of State, Directorate of Defense Trade Controls, Office of Defense Trade Controls Policy, ATTN: Regulatory Change, Part 126, 12th Floor, SA-1, Washington, DC 20522-0112. E-mail comments may be sent to [e-mail] with the subject line: Part 126. Persons with access to the Internet may also view this notice by going to the regulations.gov Web site at: http://www.regulations.gov. Comments will be accepted at any time.

FOR FURTHER INFORMATION CONTACT:

James Juraska, Office of Defense Trade Controls Policy, Bureau of Political-Military Affairs, Department of State 202-663-2860.

SUPPLEMENTARY INFORMATION:

On April 18, 2005, the United Nations Security Council voted unanimously on UN Security Council Resolution (UNSCR) 1596 to expand the embargo of UNSCR 1493 (2003) on the export of arms and related material, as well as defense services, to the Democratic Republic of the Congo (DRC). Additionally, Resolution 1596 imposed a travel ban and an asset freeze on those who violate the expanded arms embargo, and mandated governments in the region to implement measures to monitor aircraft. This final rule amends Section 126.1(i) of the ITAR, 22 CFR 126.1(i), which details the export and sales policy of the United States with respect to the Democratic Republic of the Congo, to reflect the United Nations Security Council's expanded mandate. This amendment to Section 126.1(i) becomes effective upon publication in the Federal Register. Please note that, as of April 18, 2005 (prior to the effective date of this final rule), the substance of the measures set forth in UNSCR 1596 entered into effect in accordance with another provision of the ITAR, (Section 126.1(c)), 22 CFR 126.1(c).

It is the policy of the U.S. Government to deny all applications for licenses and other approvals and to suspend all existing licenses and authorizations to export or otherwise transfer defense articles and defense services to any geographic region in the Democratic Republic of the Congo (DRC) except under the circumstances specified below.

UNSCR 1596 established several exemptions under which the embargo would not apply, namely:

(a) Supplies of arms and related materials or technical training and assistance intended solely for the support of or use by units of the army or police of the DRC that operate under the command of the etat-major integre, have completed the process of integration (if operating in the provinces of North or South Kivu or the Ituri district), or are in the process of integration (if operating elsewhere in the DRC),

(b) Supplies of arms and related materials or technical training and assistance intended solely for the support of or use by the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), and

(c) Supplies of non-lethal military equipment and related technical assistance and training intended solely for humanitarian or protective use, as notified in advance to the DRC Committee in accordance with paragraph 8 (e) of Resolution 1533 (2004).

All future shipments of arms and related materials consistent with such exemptions noted in subparagraph (a) above shall only be made to receiving sites as designated by the Government of National Unity and Transition, in coordination with the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), and notified in advance to the DRC Committee.

As previously noted on the Directorate of Defense Trade Controls Web site, http://www.pmdtc.org, effective April 18, 2005, no application for the export to the DRC of defense articles or services covered by the ITAR will be approved. Exceptions to this policy will be made (in accordance with the ITAR) on a case-by-case basis for proposed exports that conform to the conditions specified in (a) through (c) above. Any existing license for authorization for the export to any geographic region of the DRC of ITAR-controlled defense articles or services is suspended as of April 18, 2005. Holders of existing licenses and authorizations for such exports to the DRC who wish to request lifting of the suspension must submit documentation in support of an exception for review by the Directorate of Defense Trade Controls (DDTC).

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. It has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness 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 consultation provisions of Executive Orders 12372 and 13132. 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 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, 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 126.1 is amended by revising paragraph (i) to read as follows:

§ 126.1

Prohibited exports and sales to certain countries.

* * * * *

(i) Democratic Republic of the Congo. It is the policy of the United States to deny licenses, other approvals, exports or imports of defense articles and defense services destined for or originating in the Democratic Republic of the Congo except for non-lethal equipment and training (lethal and non-lethal) to the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), the transitional National Unity Government of the Democratic Republic of the Congo and the integrated Congolese national army and police forces, such units operating under the command of the etat-major integre of the Congolese Armed Forces or National Police, and such units in the process of being integrated outside the provinces of North and South Kivu and the Ituri district; and non-lethal equipment for humanitarian or protective use, and related assistance and training, as notified in advance to the UN. An arms embargo exists with respect to any recipient in the Democratic Republic of the Congo.

Robert G. Joseph,

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