Separate proposed rules from the State and Commerce departments last week would result in sweeping changes to U.S. export controls on most aircraft and associated parts, components, attachments and accessories.
The U.S. Department of State’s Directorate of Defense Trade Controls (State/DDTC) has published a proposal (76 Fed. Reg. 68694) to amend the International Traffic in Arms Regulations (ITAR) to revise Category VIII (aircraft and related articles) of the U.S. Munitions List (USML) to describe more precisely the military aircraft and related defense articles warranting control on the USML.
Specific proposed changes include moving similar articles currently controlled in multiple categories into a single category or subcategory (e.g., inertial navigations systems for aircraft formerly controlled under Category VIII(e) will likely be moved to controls either in Category XII or the CCL in future proposed rules and, as noted in proposed Category VIII(b), gas turbine engines for articles controlled in this category will likely be included in proposed Category XIX, which will be the subject of a separate notice).
Other former Category VIII subcategories have been “reserved’” because the Department is proposing to change the jurisdictional status of the items covered therein so that they would become subject to the EAR, most likely under ECCN 9A610 or 9A619. This proposed rule also revises Sec. 121.3 to more clearly define “aircraft” for purposes of the revised USML Category VIII.
The most significant aspect of this more positive, but not yet tiered, proposed USML category is that it does not contain controls on all generic parts, components, accessories, and attachments that are specifically designed or modified for a defense article, regardless of their significance to maintaining a military advantage for the United States. Rather, it contains, with one principal exception, a positive list of specific types of parts, components, accessories, and attachments that continue to warrant control on the USML. The exception pertains to parts, components, accessories, and attachments “specially designed” for the following U.S.-origin aircraft that have low observable features or characteristics: B-1B, B-2, F-15SE, F/A18E/F/G, F-22, F-35 (and variants thereof), F-117, or United States Government technology demonstrators.
All other parts, components, accessories, and attachments “specially designed” for a military aircraft and other articles now subject to USML Category VIII would become subject to the new 600 series controls in Category 9 of the CCL to be published separately by the Department of Commerce. Interested persons have until December 22, 2011, to submit comments on these proposed changes.
Simultaneously with State/DDTC’s publication of its proposed changes to the ITAR, the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) has published a proposal (76 Fed. Reg. 68675) describing how articles the President determines no longer warrant control under Category VIII (aircraft and related items) of the United States Munitions List (USML) would be controlled under the Commerce Control List (CCL) in new Export Control Classification Numbers (ECCNs) 9A610, 9B610, 9C610, 9D610, and 9E610.
In addition, this proposed rule would control military aircraft and related items now controlled under ECCNs 9A018, 9D018 and 9E018 under new ECCNs 9A610, 9D610 and 9E610. This proposed rule also addresses license exception availability for items controlled by the five new ECCNs that would be created. This proposed rule would also modify aspects of BIS’ July 15, 2011, proposed rule (76 Fed. Reg. 41958) by adding cross references to ECCNs 9A018, 9D018 and 9E018; by adding provisions relating to License Exception Strategic Trade Authorization (STA) eligibility to clarify that its scope extends to the U.S. Government, to any person in the United States, and to the “development” or “production” of items; and by including a general policy of denial for 600 series items for destinations that are subject to a United States arms embargo under the regional stability reasons for control.
Interested persons have until December 22, 2011, to submit comments on these significant changes proposed by the U.S. government.