[Federal Register Volume 73, Number 233 (Wednesday, December 3, 2008)]
[Rules and Regulations]
[Pages 73547-73549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28654]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 770 and 774

[Docket No. 080305374-81467-01]
RIN 0694-AE31


Clarification of Export Control Jurisdiction for Civil Aircraft 
Equipment Under the Export Administration Regulations

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: This final rule amends the Export Administration Regulations 
(EAR) to clarify how Section 17(c) of the Export Administration Act of 
1979 (EAA) is implemented in the EAR in accordance with the Department 
of Commerce's authority under the EAA. On August 14, 2008, the 
Department of State published a final rule amending Part 121 of the 
International Traffic in Arms Regulations (ITAR) to clarify how Section 
17(c) of the EAA is implemented in relation to the ITAR (73 FR 47523).
    This final rule provides guidance to assist the regulated public in 
determining what civil aircraft equipment (including parts, 
accessories, attachments, and components) is subject to the EAR based 
upon the statutory criteria of the EAA.

DATES: This rule is effective: December 3, 2008. Although there is no 
formal comment period, public comments on this regulation are welcome 
on a continuing basis.

ADDRESSES: You may submit comments, identified by RIN 0694-AE31, by any 
of the following methods:
    E-mail: [email protected]. Include ``RIN 0694-AE31'' in 
the subject line of the message.
    Fax: (202) 482-3355. Please alert the Regulatory Policy Division, 
by calling (202) 482-2440, if you are faxing comments.
    Mail or Hand Delivery/Courier: Timothy Mooney, U.S. Department of 
Commerce, Bureau of Industry and Security, Regulatory Policy Division, 
14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, 
Attn: RIN 0694-AE31.
    Send comments regarding the collection of information associated 
with this rule, including suggestions for reducing the burden, to 
Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to 
[email protected], or by fax to (202) 395-7285; and to the U.S. 
Department of Commerce, Bureau of Industry and Security, Regulatory 
Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, 
Washington, DC 20230. Comments on this collection of information should 
be submitted separately from comments on the final rule (i.e. RIN 0694-
AE31)--all comments on the latter should be submitted by one of the 
three methods outlined above.

FOR FURTHER INFORMATION CONTACT: Gene Christiansen, Senior Engineer/
Licensing Officer, Office of National Security and Technology Transfer 
Controls, telephone: (202) 482-2984.

SUPPLEMENTARY INFORMATION:

Background

Amendments to the ITAR To Clarify Application of Section 17(c) of the 
EAA

    On April 11, 2008 (73 FR 19778), the Department of State published 
the proposed rule, ``Amendments to the International Traffic in Arms 
Regulations: The United States Munitions List''. That proposed rule 
noted that there have been an increasing number of Commodity 
Jurisdiction (CJ) requests submitted to the Department of State for 
certain parts and components that have a long history of use on both 
civil and military aircraft. To provide guidance to the public 
regarding the proper export control jurisdiction for these parts and 
components, State proposed in that rule to amend the ITAR, Part 121, to 
add language clarifying how the criteria of Section 17(c) of the EAA 
are implemented in accordance with the Department of State's authority 
under the Arms Export Control Act (AECA). The State Department adopted 
the proposed rule, which was published, with minor edits, as a final 
rule on August 14, 2008 (73 FR 47523).
    The State Department final rule added a new Note after Category 
VIII(h) to clarify 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 (which expressly excludes military aircraft 
certified as restricted and any type certification of Military 
Commercial Derivative Aircraft, defined by FAA Order 8110.101 effective 
date September 7, 2007 as ``civil aircraft procured or acquired by the 
military''); and (c) is an integral part of such civil aircraft, is 
subject to the EAR.
    Pursuant to the Note to Category VIII(h) of the ITAR, exporters may 
generally determine whether an item meets the 17(c) criteria. However, 
where a part or component would fall under a paragraph within ITAR 
Category VIII designated as Significant Military Equipment (SME) or any 
other USML category designated as Significant Military Equipment (SME), 
were such item to be found subject to the ITAR, the exporter is 
required to submit a CJ request to determine whether the 17(c) criteria 
are met, except where an SME part or component was integral to civil 
aircraft prior to August 14, 2008. The Department of Commerce, based on 
its licensing authority under the EAA, will participate in the review 
of CJ requests under established interagency procedures. In the course 
of its review

[[Page 73548]]

of a CJ request, the Department of Commerce will apply the criteria of 
Section 17(c) in its review and recommendation, including an assessment 
of whether a part or component meets the definition of ``standard 
equipment'' included in the Note to Category VIII(h) of the ITAR. 
``Standard equipment'' includes parts and components that are 
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 (e.g., proprietary) civil 
aviation industry specifications and standards are also ``standard 
equipment,'' e.g., pumps, actuators, and generators.

Purpose of This EAR Rule To Clarify Application of Section 17(c) of the 
EAA

    The purpose of this final rule amending the EAR is to clarify what 
parts and components meet the criteria of Section 17(c). Those that 
meet the Section 17(c) criteria are subject to the jurisdiction of the 
EAR.
    Section 17(c) provides that notwithstanding any other provision of 
law, 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. Since its passage, the Departments 
of State and Commerce have implemented Section 17(c) through various 
regulatory amendments and notices consistent with the aims of the EAA 
and the AECA.

Amendments to the EAR To Clarify Application of Section 17(c) of the 
EAA

    In Section 770.2 (Item Interpretations), this rule revises 
paragraph (i) (Interpretation 9: aircraft, parts, accessories and 
components) to provide jurisdictional guidance for aircraft, parts, 
accessories and components, as follows:
    This revised interpretation clarifies what (1) aircraft and related 
training equipment, (2) aircraft engines, and (3) components, parts, 
accessories, attachments, and associated equipment are subject to the 
jurisdiction of the Department of Commerce.
    In Supplement No. 1 to Part 774 (Commerce Control List), this rule 
also makes a conforming change to paragraph (a) of the ``Items'' 
paragraph in the List of Items Controlled Section of ECCN 9A991 to 
conform this paragraph to Section 121.3 of the ITAR.
    Although the Export Administration Act expired on August 20, 2001, 
the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 
2001 Comp., p. 783 (2002), as extended by the Notice of July 23, 2008, 
73 FR 43603 (July 25, 2008), has continued the Export Administration 
Regulations in effect under the International Emergency Economic Powers 
Act.
Rulemaking Requirements
    1. This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information, subject to the 
requirements of the Paperwork Reduction Act, unless that collection of 
information displays a currently valid Office of Management and Budget 
Control Number. This rule involves a collection of information subject 
to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). This 
collection has been approved by the Office of Management and Budget 
under control number 0694-0088, ``Multi-Purpose Application,'' which 
carries a burden hour estimate of 58 minutes for a manual or electronic 
submission.
    3. This rule does not contain policies with Federalism implications 
as that term is defined under E.O. 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C. 
553) requiring notice of proposed rulemaking, the opportunity for 
public participation, and a delay in effective date, are inapplicable 
because this regulation involves a military and foreign affairs 
function of the United States (5 U.S.C. 553(a)(1)). Further, no other 
law requires that a notice of proposed rulemaking and an opportunity 
for public comment be given for this final rule. Because a notice of 
proposed rulemaking and an opportunity for public comment are not 
required to be given for this rule under the Administrative Procedure 
Act or by any other law, the analytical requirements of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, 
this regulation is issued in final form.

List of Subjects

15 CFR Part 770

    Exports.

15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

0
Accordingly, parts 770 and 774 of the Export Administration Regulations 
(15 CFR parts 730-774) are amended as follows:

PART 770--[AMENDED]

0
1. The authority citation for 15 CFR part 770 is revised to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of July 
23, 2008, 73 FR 43603 (July 25, 2008).


0
2. Section 770.2 is amended by revising paragraph (i), to read as 
follows:


Sec.  770.2  Item interpretations.

* * * * *
    (i) Interpretation 9: Civil aircraft and Civil aircraft equipment 
(including parts, accessories, attachments, components, and related 
training equipment). Aircraft and related training equipment, parts, 
accessories, and components defined in Categories VIII and IX of the 
Munitions List are under the export licensing authority of the U.S. 
Department of State (22 CFR parts 120 through 130). All other aircraft, 
parts, accessories and components are subject to the EAR and under the 
export licensing authority of the U.S. Department of Commerce, as 
follows:
    (1) Aircraft and related training equipment. (i) Aircraft not 
specifically designed, modified or equipped for military purposes, and
    (ii) The following aircraft, so long as they have not been 
specifically equipped, re-equipped, or modified for military 
operations:
    (A) Cargo aircraft bearing ``C'' designations and numbered C-45 
through C-118 inclusive, C-121 through C-125 inclusive, and C-131, 
using reciprocating engines only.
    (B) Trainer aircraft bearing ``T'' designations and using 
reciprocating engines or turboprop engines with less than 600 
horsepower (s.h.p.).
    (C) Utility aircraft bearing ``U'' designations and using 
reciprocating engines only.
    (D) All liaison aircraft bearing an ``L'' designation.
    (E) All observation aircraft bearing ``O'' designations and using 
reciprocating engines.
    (2) Engines. (i) All reciprocating engines, and
    (ii) All other aircraft engines not specifically designed or 
modified for military aircraft, except those defined in category 
VIII(f) of 22 CFR part 121.
    (3) Components, parts, accessories, attachments, and associated 
equipment. Any aircraft tires as well as any

[[Page 73549]]

components, parts, accessories, attachments and associated equipment 
that are not specifically designed or modified for aircraft on the 
Munitions List and all components and parts not on the Munitions List 
by virtue of the criteria set forth in the note to Category VIII(h) of 
22 CFR part 121.
* * * * *

PART 774--[AMENDED]

0
3. The authority citation for 15 CFR part 774 continues to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et 
seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 
U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; 
22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 
CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., 
p. 783; Notice of July 23, 2008, 73 FR 43603 (July 25, 2008).


0
4. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 9--Propulsion Systems, Space Vehicles and Related Equipment, 
Export Control Classification Number (ECCN) 9A991 is amended by 
revising paragraph (a) of the ``Items'' paragraph in the List of Items 
Controlled section, to read as follows:

Supplement No. 1 to Part 774--The Commerce Control List

* * * * *
9A991 ``Aircraft'', n.e.s., and gas turbine engines not controlled 
by 9A001 or 9A101 and parts and components, n.e.s.
* * * * *

List of Items Controlled

    Unit: * * *
    Related Controls: * * *
    Related Definitions: * * *
    Items:
    a. Military aircraft, demilitarized (not specifically equipped 
or modified for military operation), as follows:
    a.1 Cargo aircraft bearing ``C'' designations and numbered C-45 
through C-118 inclusive, C-121 through C-125 inclusive, and C-131, 
using reciprocating engines only.
    a.2 Trainer aircraft bearing ``T'' designations and using 
reciprocating engines or turboprop engines with less than 600 
horsepower (s.h.p.).
    a.3 Utility aircraft bearing ``U'' designations and using 
reciprocating engines only.
    a.4 All liaison aircraft bearing an ``L'' designation.
    a.5 All observation aircraft bearing ``O'' designations and 
using reciprocating engines.
* * * * *

    Dated: November 26, 2008.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. E8-28654 Filed 12-2-08; 8:45 am]
BILLING CODE 3510-33-P