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11 April 2008
[Federal Register: April 11, 2008 (Volume 73, Number 71)]
[Proposed Rules]
[Page 19778-19780]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11ap08-15]
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DEPARTMENT OF STATE
22 CFR Part 121
[Public Notice 6187]
RIN 1400-AC47
Amendment to the International Traffic in Arms Regulations: The
United States Munitions List
AGENCY: Department of State.
ACTION: Proposed Rule.
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SUMMARY: The Department of State is proposing to amend the text of the
International Traffic in Arms Regulations (ITAR), Part 121, to add
language clarifying how the criteria of Section 17(c) of the Export
Administration Act of 1979 (``EAA'') are implemented in accordance with
the Department of State's obligations under the Arms Export Control Act
(``AECA''), and restating the Department's longstanding policy and
practice of implementing the criteria of this provision.
DATES: Effective Date: The Department of State will accept comments on
this proposed rule until May 12, 2008.
ADDRESSES: Interested parties may submit comments within 30 days of the
date of publication by any of the following methods:
E-mail: DDTCResponseTeam@state.gov with an appropriate
subject line.
Mail: Department of State, Directorate of Defense Trade
Controls, Office of Defense Trade Controls Policy, ATTN: Regulatory
Change, ITAR Section 121, SA-1, 12th Floor, Washington, DC 20522-0112.
Persons with access to the Internet may also view this notice by
going to the regulations.gov Web site at http://regulations.gov/
index.cfm.
FOR FURTHER INFORMATION CONTACT: Director Ann Ganzer, Office Defense
Trade Controls Policy, Department of State, Telephone (202) 663-2792 or
Fax (202) 261-8199; E-mail DDTCResponseTeam@state.gov. ATTN: Regulatory
Change, ITAR Part 121.
SUPPLEMENTARY INFORMATION: There have been an increasing number of
Commodity Jurisdiction (CJ) requests for certain basic parts and
components having a long history of use on both civil and military
aircraft. The intent of this notice is to make it clear that these
parts and components are not subject to the jurisdiction of the
Department of State and to restate the Department's longstanding
practice of using the CJ process to determine the applicability of the
criteria of Section 17(c) of the EAA (``Section 17(c)'') in cases where
there is uncertainty.
Specifically, Section 17(c) states that any product (1) which is
standard equipment, certified by the Federal Aviation Administration
(``FAA''), in civil aircraft and is an integral part of such aircraft,
and (2) which is to be exported to a country other than a controlled
country, shall be subject to export controls exclusively under the EAA.
Although the EAA expired on August 20, 2001, the President, through
Executive Order 13222 of August 17, 2001, as extended by the notice of
August 15, 2007, directed that the provisions of the EAA be carried out
to the extent permitted by law.
Since its passage, the Department has implemented Section 17(c)
through various regulatory amendments and notices consistent with the
aims of the EAA and the AECA.
While Section 17(c) criteria apply to certain parts and components
for civil aircraft, there have been recurring questions regarding its
scope and meaning, and the Department's interpretation of its
provisions. For example, while the language of Section 17(c) referred
specifically to certain products that are standard equipment in civil
aircraft, some exporters have mistakenly believed this provision
applied to complete aircraft. Exporters have also suggested that FAA
``certification'' should by itself be sufficient to determine whether
an article is subject to the controls of the USML. While FAA
certification is one of the factors in the Section 17(c) criteria, FAA
certifications serve a different purpose (safety of flight), and the
FAA may issue a civil certification for military aircraft and their
parts and components (e.g., the C-130J).
Shortly after the enactment of Section 17(c), the Department
requested, through a proposed rule in the Federal Register on December
19, 1980, the opinions of the public as well as other agencies
regarding the implementation of Section 17(c). The Department received
many comments from the public, the Department of Commerce, and several
other agencies. The Department noted that certain inertial navigation
systems destined for specific
[[Page 19779]]
countries would be deleted from the USML, due primarily to the
enactment of Section 17(c). In 1981, the Department conducted a review
of the USML consistent with the AECA and Section 17(c) to determine
whether any articles should be removed. The results were formally
reported in a congressionally mandated report to Congress. This report
came soon after Congress rejected a House bill that would have removed
from the USML certain defense articles having a ``direct civilian
application.'' Several years later, after taking into consideration the
comments received from the public and other agencies on its proposed
rule, the Department published a final rule in the Federal Register on
December 6, 1984. In this rule, the Department noted there had been
confusion on the relationship of the ITAR to the export regulations
administered by the Department of Commerce. In an effort to provide
clarity, the Department provided some general guidance by adding the
then new Part 120 (at the time titled: Purpose, background and
definitions), and the Department also referenced certain notable
deletions to the USML, including certain trainer aircraft and certain
inertial navigation systems.
However, some questions on this issue remained, so on April 7,
1988, the Department published a final rule in the Federal Register.
Consistent with the Department's long established practice at that time
of implementing Section 17(c), the Department added language to the
ITAR requiring that a CJ review take place to determine whether any
FAA-certified developmental aircraft or components thereof would be
removed from the USML. The Department noted this change helped to
conform the ITAR to the Department's current practice of requiring CJ's
to address such uncertainties, and that this change would ensure the
items excluded under Section 17(c) were properly identified. The
Department again obtained comments from the public regarding this
change.
In the years since the 1988 Federal Register Notice described above
was published, the ITAR has consistently required a CJ review take
place where there are uncertainties regarding whether an item is
covered by the USML, including whether the item falls within the
criteria of Section 17(c). In 1991, the Department undertook a
comprehensive review of the USML to address jurisdiction over articles
seemingly subject to both the USML and the Commerce Control List. This
large interagency review was conducted consistent with the AECA and
Section 17(c), and resulted in the removal of certain items from USML
control. In 1996, based on interagency discussions, the specific
reference to Section 17(c) in the ITAR was removed, but the
Department's policy and practice of applying the criteria of Section
17(c) remained. We note that the removal of the reference to Section
17(c) may have caused some of the current confusion as to the
Department's policy and procedures for applying Section 17(c).
This proposed rule reinstates the Section 17(c) reference in the
ITAR to assist exporters in understanding the scope and application of
the Section 17(c) criteria to parts and components for civil aircraft.
It also clarifies that any part or component that (a) is standard
equipment; (b) is covered by a civil aircraft type certificate
(including amended type certificates and supplemental type
certificates) issued by the Federal Aviation Administration for civil,
non-military aircraft (this expressly excludes military aircraft
certified as restricted and any type certification of Military
Commercial Derivative Aircraft); and (c) is an integral part of such
civil aircraft, is subject to the Export Administration Regulations.
Where such part or component is not Significant Military Equipment
(``SME''), no CJ determination is required to determine whether the
item meets these criteria for exclusion under the USML, unless doubt
exists as to whether these criteria have been met. However, where the
part or component is SME, a CJ determination is always required, except
where an SME part or component was integral to civil aircraft prior to
the effective date of this rule.
Additionally, this proposed rule adds language in a new Note after
Category VIII(h) to provide guidelines concerning the parts or
components meeting these criteria. The change to Category VIII(b) also
identifies and designates certain sensitive military items, heretofore
controlled under Category VIII(h), as SME in order to simplify the
implementation of the criteria of Section 17(c) consistent with the
aims of the AECA. Previous and current licenses and other
authorizations concerning these items will not require notification in
accordance with Sec. 124.11, and will not require a DSP-83, unless
they are amended, modified, or renewed.
This requirement for a CJ determination by the Department of State
helps ensure the U.S. Government is made aware of, and can reach an
informed decision regarding, any sensitive military item proposed for
standardization in the commercial aircraft industry before the item or
technology is actually applied to a commercial aircraft program,
whether such item is integral to the aircraft, and, if so, whether the
development, production, and use of the technology associated with the
item should nevertheless be controlled on the USML. It will also ensure
the Department of State fulfills the requirements of section 38(f) of
the Arms Export Control Act.
This regulation is intended to clarify the control of aircraft
parts and components, and does not remove any items from the USML, nor
does it change any CJ determinations. Should there be an apparent
conflict between this regulation and a CJ determination issued prior to
this date, the holder of the determination should seek reconsideration,
citing this regulation.
Regulatory Analysis and Notices
Administrative Procedure Act
This amendment involves a foreign affairs function of the United
States and, therefore, is not subject to the procedures contained in 5
U.S.C. 553 and 554.
Regulatory Flexibility Act
Since this amendment involves a foreign affairs function of the
United States, it does not require analysis under the Regulatory
Flexibility Act.
Unfunded Mandates Reform Act of 1995
This 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 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 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
[[Page 19780]]
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this amendment.
Executive Order 12866
This amendment is exempt from the review under Executive Order
12866, but has been reviewed internally by the Department of State to
ensure consistency with the purposes thereof.
Paperwork Reduction Act
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 121
Arms and munitions, Exports, U.S. Munitions List.
Accordingly, for the reasons set forth above, Title 22, Chapter I,
Subchapter M, part 121 is proposed to be amended as follows:
PART 121--THE UNITED STATES MUNITIONS LIST
1. The authority citation for part 121 continues to read as
follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp,
p. 79; 22 U.S.C. 2658; Pub L. 105-261, 112 Stat.1920.
2. Section 121.1, paragraph (c) Category VIII is amended by
revising Category VIII paragraphs (b) and (h) to read as follows:
Sec. 121.1 General. The United States Munitions List.
* * * * *
Category VIII--Aircraft and Associated Equipment
* * * * *
(b) Military aircraft engines, except reciprocating engines,
specifically designed or modified for the aircraft in paragraph (a)
of this category, and all specifically designed military hot section
components (i.e., combustion chambers and liners; high pressure
turbine blades, vanes, disks and related cooled structure; cooled
low pressure turbine blades, vanes, disks and related cooled
structure; cooled augmenters; and cooled nozzles) and digital engine
controls (e.g., Full Authority Digital Engine Controls (FADEC) and
Digital Electronic Engine Controls (DEEC)).
* * * * *
(h) Components, parts, accessories, attachments, and associated
equipment (including ground support equipment) specifically designed
or modified for the articles in paragraphs (a) through (d) of this
category, excluding aircraft tires and propellers used with
reciprocating engines.
Note: The Export Administration Regulations (EAR) administered
by the Department of Commerce control any part or component
(including propellers) designed exclusively for civil, non-military
aircraft (see Sec. 121.3 for the definition of military aircraft)
and civil, non-military aircraft engines. Also, a non-SME component
or part (as defined in Sec. 121.8(b) and (d) of this subchapter)
that is not controlled under another category of the USML, that: (a)
Is standard equipment; (b) is covered by a civil aircraft type
certificate (including amended type certificates and supplemental
type certificates) issued by the Federal Aviation Administration for
a civil, non-military aircraft (this expressly excludes military
aircraft certified as restricted and any type certification of
Military Commercial Derivative Aircraft); and (c) is an integral
part of such civil aircraft, is subject to the control of the EAR.
In the case of any part or component designated as SME in this or
any other USML category, a determination that such item may be
excluded from USML coverage based on the three criteria above always
requires a commodity jurisdiction determination by the Department of
State under Sec. 120.4 of this subchapter. The only exception to
this requirement is where a part or component designated as SME in
this category was integral to civil aircraft prior to [effective
date of the final rule]. For such part or component, U.S. exporters
are not required to seek a commodity jurisdiction determination from
State, unless doubt exists as to whether the item meets the three
criteria above (See Sec. 120.3 and Sec. 120.4 of this subchapter).
Also, U.S. exporters are not required to seek a commodity
jurisdiction determination from State regarding any non-SME
component or part (as defined in Sec. 121.8(b) and (d) of this
subchapter) that is not controlled under another category of the
USML, unless doubt exists as to whether the item meets the three
criteria above (See Sec. 120.3 and Sec. 120.4 of this subchapter).
These commodity jurisdiction determinations will ensure compliance
with this section and the criteria of Section 17(c) of the Export
Administration Act of 1979. In determining whether the three
criteria above have been met, consider whether the same item is
common to both civil and military applications without modification.
Some examples of parts or components that are not common to both
civil and military applications are tail hooks, radomes, and low
observable rotor blades. ``Standard equipment'' is defined as a part
or component manufactured in compliance with an established and
published industry specification or an established and published
government specification (e.g., AN, MS, NAS, or SAE). Parts and
components that are manufactured and tested to established but
unpublished civil aviation industry specifications and standards are
also ``standard equipment,'' e.g., pumps, actuators, and generators.
A part or component is not standard equipment if there are any
performance, manufacturing or testing requirements beyond such
specifications and standards. Simply testing a part or component to
meet a military specification or standard does not in and of itself
change the jurisdiction of such part or component unless the item
was designed or modified to meet that specification or standard.
Integral is defined as a part or component that is installed in the
aircraft. In determining whether a part or component may be
considered as standard equipment and integral to a civil aircraft
(e.g., latches, fasteners, grommets, and switches) it is important
to carefully review all of the criteria noted above. For example, a
part approved solely on a non-interference/provisions basis under a
type certificate issued by the Federal Aviation Administration would
not qualify. Similarly, unique application parts or components not
integral to the aircraft would also not qualify.
* * * * *
Dated: April 2, 2008.
John C. Rood,
Acting Under Secretary for Arms Control and International Security,
Department of State.
[FR Doc. 08-1122 Filed 4-9-08; 1:48 pm]
BILLING CODE 4710-25-P