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[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Proposed Rules]
[Pages 16353-16354]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6850]

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DEPARTMENT OF STATE

22 CFR Part 123

[Public Notice: 7384]
RIN 1400-AC71

International Traffic in Arms Regulations: Exemption for 
Temporary Export of Chemical Agent Protective Gear

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: The Department of State is proposing to amend the 
International Traffic in Arms Regulations (ITAR) to add an exemption 
for the temporary export of chemical agent protective gear for 
exclusive personal use to destinations not subject to restrictions and 
to Afghanistan and Iraq under specified conditions. Additionally, an 
exemption for firearms and ammunition is clarified by removing certain 
extraneous language that does not change the meaning of the exemption.

DATES: The Department of State will accept comments on this proposed 
rule until May 23, 2011.

ADDRESSES: Interested parties may submit comments within 60 days of the 
date of the publication by any of the following methods:
     E-mail: DDTCResponseTeam@state.gov, with the subject line, 
``Regulatory Change--Section 123.17.''
     Mail: Department of State, Directorate of Defense Trade 
Controls, Office of Defense Trade Controls Policy, ATTN: Regulatory 
Change--Section 123.17, SA-1, 12th Floor, Washington, DC 20522-0112.
     Internet: View this notice by going to the regulations.gov 
Web site at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Nicholas Memos, Office of Defense 
Trade Controls Policy, Department of State, Telephone (202) 663-2804, 
or Fax (202) 261-8199; e-mail memosni@state.gov. ATTN: Regulatory 
Change, Sec. 123.17.

SUPPLEMENTARY INFORMATION: U.S. individuals are traveling to hazardous 
areas in foreign countries where they need to wear body armor or 
chemical agent protective gear for personal safety. In August 2009, the 
ITAR was amended to provide an exemption for the temporary export of 
body armor covered by 22 CFR 121.1, Category X(a)(1). Now, the 
Department of State is proposing to amend the ITAR at Sec. Sec.  
123.17(f) and (g) to add an exemption for the temporary export of 
chemical agent protective gear covered by 22 CFR 121.1, Category 
XIV(f)(4). The proposed exemption will be available for temporary 
exports to countries not subject to restrictions under ITAR Sec.  126.1 
and to Afghanistan and Iraq under specified conditions. In order to use 
the exemption, the chemical agent protective gear must be for the 
individual's exclusive use and must be returned to the United States. 
The individual may not re-export the protective gear to a foreign 
person or otherwise transfer ownership. The protective gear may not be 
exported to any country where the importation would be in violation of 
that country's laws.
    In the event the chemical agent protective gear is lost, stolen or 
otherwise not returned to the United States with the individual that 
temporarily exported the gear, a detailed report about the incident 
must be submitted to the Office of Defense Trade Controls Compliance. 
If the chemical agent protective gear is lost, the report should 
describe all attempts to locate the gear and explain the circumstances 
leading to its loss. In the event the chemical agent protective gear is 
used and disposed according to HAZMAT guidelines, the report should 
provide a disposal date and location details for the approved HAZMAT 
facility used, along with a receipt for disposal services. If a HAZMAT 
facility is not available, the report should describe the date, 
location and method used to dispose of the protective gear.
    The proposed change removes at (g)(2) the requirement that 
assistance to the government of Iraq be ``humanitarian'' to more 
accurately match the language of United Nations Security Council 
restrictions, which do not limit assistance to humanitarian assistance.
    Section (c)(3) is to be revised to remove what is in practice 
extraneous language. Subject to the requirements of (c)(1)-(3), the 
exemption applies to all eligible individuals (with the noted 
exceptions). Thus, while the text is revised, the meaning of (c)(3) is 
not changed.

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 that rules implementing 
this function are exempt from section 553 (Rulemaking) and section 554 
(Adjudications) of the Administrative Procedure Act. Although the 
Department is of the opinion that this rule is exempt from the 
rulemaking provisions of the APA, the Department is publishing this 
rule with a 60-day provision for public comment and without prejudice 
to its determination that controlling the import and export of defense 
services is a foreign affairs function.

Regulatory Flexibility Act

    Since this proposed amendment is not subject to the notice and 
comment procedures of 5 U.S.C. 553, it does not require analysis under 
the Regulatory Flexibility Act.

[[Page 16354]]

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 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 proposed amendment.

Executive Order 12866

    The Department of State does not consider this rule to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. The Department 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 that 
rules governing the conduct of this function are exempt from the 
requirements of Executive Order 12866.

Executive Order 12988

    The Department of State has reviewed the proposed amendment in 
light of sections 3(a) and 3(b)(2) of Executive Order 129888 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 123

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, 
Subchapter M, part 123 is proposed to be amended as follows:

PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES

    1. The authority citation for part 123 will continue to read as 
follows:

    Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 
U.S.C. 2752, 2778, 2797); 22 U.S.C. 2753; E.O. 11958, 42 FR 4311; 3 
CFR, 1977 Comp. p.79; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. L. 105-
261, 112 Stat. 1920; Sec. 1205(a), Pub. L. 107-228.

    2. Section 123.17 is to be amended to revise the heading, 
paragraphs (c)(3), (f), (g) introductory text, (g)(2), and to add 
paragraph (g)(3), to read as follows:

Sec.  123.17  Exports of firearms, ammunition, and protective gear.

* * * * *
    (c) * * *
    (3) They must be for that person's exclusive use and not for 
reexport or other transfer of ownership. The individual must declare 
the firearm(s) to a U.S. Customs and Border Protection officer upon 
each departure from the United States, present the Internal Transaction 
Number (ITN) from submission of the Electronic Export Information in 
the Automated Export System per Sec.  123.22(b), and declare that it is 
his or her intention to return the article(s) on each return to the 
United States. The foregoing exemption is not applicable to the 
personnel referred to in Sec.  123.18.
* * * * *
    (f) Except as provided in Sec.  126.1 of this subchapter, Port 
Directors of U.S. Customs and Border Protection (CBP) shall permit U.S. 
persons to export temporarily from the United States without a license 
one set of body armor covered by Category X(a)(1) and one set of 
chemical agent protective gear covered by Category XIV(f)(4) of this 
subchapter provided that:
    (1) A declaration by the U.S. person via the Automated Export 
System (AES) and an inspection by a U.S. CBP officer are made, per 
Sec.  123.22(b);
    (2) The body armor or chemical agent protective gear to be exported 
is with the U.S. person's baggage or effects, whether accompanied or 
unaccompanied (but not mailed);
    (3) The body armor or chemical agent protective gear to be exported 
is for that person's exclusive use and not for reexport or other 
transfer of ownership. The individual must declare the body armor or 
chemical agent protective gear to be exported to a U.S. CBP officer via 
the AES upon each departure from the United States and declare that it 
is his or her intention to return the article(s) on each return to the 
United States; and
    (4) If the body armor or chemical agent protective gear exported 
under this exemption are lost or otherwise not returned to the United 
States, a detailed report must be submitted to the Office of Defense 
Trade Controls Compliance in accordance with the requirements of Sec.  
127.12(c)(2).
    (g) The license exemption set forth in paragraph (f) of this 
section is also available for the temporary export of body armor and/or 
chemical agent protective gear for personal use to Afghanistan and to 
Iraq provided that:
    (1) * * *
    (2) For temporary exports to Iraq the U.S. person utilizing the 
license exemption is either a person affiliated with the U.S. 
Government traveling on official business or is a person not affiliated 
with the U.S. Government but traveling to Iraq under a direct 
authorization by the Government of Iraq and engaging in activities for, 
on behalf of, or at the request of the Government of Iraq.
    (3) The exporter claiming this license exemption shall present to a 
U.S. Customs and Border Protection officer prior to each export a copy 
of the direct authorization from the Government of Iraq, including an 
English translation, or a copy of the documentation showing that the 
travel is on official business for the U.S. government, along with the 
Internal Transaction Number (ITN) for the AES submission.

    Dated: March 14, 2011.
Ellen O. Tauscher,
Under Secretary, Arms Control and International Security, Department of 
State.
[FR Doc. 2011-6850 Filed 3-22-11; 8:45 am]
BILLING CODE 4710-25-P
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