E6-7850. Bureau of Political-Military Affairs, Part 121-United States Munitions List, Category VIII

AGENCY:

Department of State.

ACTION:

Notice.

SUMMARY:

The Department of State is clarifying the coverage in the U.S. Munitions List (USML), Category VIII—Aircraft and Associated Equipment to reflect decisions arising from a commodity jurisdiction conducted under section 120.4 of 22 CFR part 120. The result of the commodity jurisdiction is provided to ensure that all U.S. exporters are advised that any airframe parts and components common to the C-130 (Models A through H) and L-100 aircraft that have no current use on any other commercial aircraft are subject to the jurisdiction of the Department of State, Directorate of Defense Trade Controls (DDTC), effective 90 days from the date of publication of this notice. This 90 day period provides U.S. exporters the opportunity to complete existing transactions and to apply to DDTC for the proper export approval for new or subsequent shipments. Exporters should note that this notice addresses only airframe parts and components common to the C130 and L-100 aircraft; the Department of State is not asserting jurisdiction over the L-100 aircraft at this time. Any systems employed on the L-100 that also are employed on any other commercial aircraft will remain subject to the jurisdiction of the Department of Commerce. This is subject, however, to the requirement that any systems employed on the L-100 that are specifically designed, modified, configured, or adapted for a military application will remain subject to the jurisdiction of the Department of State. Questions concerning the appropriate jurisdiction of specific systems or subsystems should be directed to DDTC. Finally, this determination does not apply to the parts and components for the C-130J model as this aircraft differs from preceding models of the C-130 so as to be considered a separate military aircraft. All C-130J parts and components are USML-controlled.

DATES:

Effective Date: May 23, 2006.

FOR FURTHER INFORMATION CONTACT:

Mr. Stephen Tomchik, Office of Defense Trade Controls Policy, Department of State, Telephone [phone] or FAX [phone]. ATTN: Regulatory Change, USML Part 121, Category VIII.

SUPPLEMENTARY INFORMATION:

The specific purpose of this notice is to advise the exporting community of the result of a commodity jurisdiction conducted pursuant to Section 120.4 of the ITAR regarding airframe parts and components for the L-100 aircraft that are identical to the airframe parts and components for the C-130 (Models A through H) aircraft, and that are not currently employed on other commercial aircraft.

Following receipt of a commodity jurisdiction request from a U.S. exporter regarding airframe parts and components for the C-130 and L-100 aircraft, the Department conducted an intensive analysis of the production history and applications of the C-130 and L-100 aircraft, assessed the evolving ratio of one type of aircraft to the other, reviewed the licensing and commodity jurisdiction history applicable to these aircraft and their airframe parts and components, examined the applicability of the airframe parts common to the two aircraft, and applied the standards for designating and determining defense articles as set forth in Section 120.3 of the ITAR.

The Department has determined that the production and application histories of the two aircraft demonstrate a predominant military commonality. The C-130 was developed in response to a U.S. Air Force requirement and first became operational in 1956. The last production model (in the “H” variant) was delivered in 1998. A total of 2,164 C-130 aircraft were produced, 619 of which remain active in the air forces of 58 foreign countries. The L-100 was first certified in 1965 and the last production model was delivered in 1992. A total of 118 L-100's were produced, of which 59 remain in foreign inventories. Based on the application of all aircraft (C-130 models A through H and L-100) carrying common airframe parts and components, the Department has determined that there is no predominant commercial use or application for the airframe parts and components that are common to both aircraft.

The Department also examined the historical record regarding decisions taken with regard to the export of the L-100, the C-130, and the airframe parts and components common to both, and concludes that a definitive analysis of the issue was not performed until the commodity jurisdiction forming the basis of this notice. That commodity jurisdiction and this notice rectify an outstanding question by determining that airframe parts and components common to the two aircraft, and not currently used on other U.S. commercial aircraft, always have had a predominant military application.

An examination of all relevant information establishes that airframe parts and components common to the C-130 (Models A through H) and L-100 aircraft meet the definition of a defense article as set forth in Section 120.6 and is consistent with the policy on designating and determining a defense article as provided in Section 120.3. The manufacturer of both aircraft confirms that approximately 95% of the aircraft parts and components used in the C-130 are used in the L-100. Such parts were specifically designed or developed for a military application as the C-130 was developed in response to an U.S. Air Force requirement. Further, such airframe parts do not have a predominant civil application; the number of military C-130 aircraft always has exceeded and will continue to exceed the number of L-100 aircraft. Additionally, the airframe parts and components common to these two aircraft do not have a performance equivalent (defined by form, fit, and function) to those parts used for other civil applications. Indeed, the Department could not identify other aircraft in which these common airframe parts and components would serve. Finally, the intended use of such defense article, i.e., parts common to the C-130 and the L-100, is not relevant in determining the proper licensing jurisdiction.

The commodity jurisdiction determination affirms that such common airframe parts and components are covered by paragraph (h) of Category VIII of the U.S. Munitions List as set forth in 22 CFR part 121. The possibility that shipments will be detained at U.S. ports of export will be minimized by providing notice that exports of such items must be properly licensed.

Exporters must be prepared to identify and document airframe parts and components common to the C-130 and the L-100 currently used on other U.S.-origin commercial aircraft. If doubt exists, a commodity jurisdiction request may be made to the Directorate of Defense Trade Controls (DDTC). For instructions, exporters should consult the DDTC Web site http://www.pmdtc.org.

It is recognized that there may have been some ambiguity regarding airframe parts and components common to the C-130 and L-100 aircraft flowing from prior analysis. Accordingly, it is anticipated that quantities of such common parts and components were previously exported for the direct support of C-130 aircraft in accordance with the export regulations of the Department of Commerce. The Department recognizes that exporters utilized Department of Commerce procedures prior to the date of this notice for exports of airframe parts and components common to the C-130 and L-100 aircraft. The Department also recognizes that exporters are likely required to put in place new processes and procedures to change the export approval process from Commerce to State. Therefore, any exports or re-exports of the airframe parts and components that are the subject of this notice that occur 90 days after the date of this notice must take place in accordance with the ITAR.

In addition, for purposes of analysis, the Department requires information from exporters who previously used the Department of Commerce procedures to export airframe parts and components common to the C-130 and L-100 aircraft. Exporters must provide a report to DDTC within 90 days of the effective date of this notice (see above section entitled FOR FURTHER INFORMATION CONTACT for contact information). Reports should be based on available records for the past five years and should specify the following: (1) The type of aircraft supported; (2) the estimated value of the parts exported; and (3) the end user countries to which the parts were exported. In addition, exporters have an affirmative duty to notify foreign parties in receipt of such airframe parts and components that any retransfer of these parts that occur 90 days from the date of this notice will require the authorization of the Directorate of Defense Trade Controls (DDTC) in accord with current regulation and practice.

As regards L-100 aircraft that were exported prior to the effective date of this notice under the terms of a Department of Commerce authorization, such exports will continue to be governed by the terms of such authorization so long as: (1) The aircraft continues to operate in the manner and for the purpose for which the Department of Commerce authorization was granted, (2) the aircraft is not modified, configured, or adapted for a military application, and (3) ownership of the aircraft is not transferred to a party in or from a third country. L-100 aircraft that do not meet these criteria are subject to the controls of the ITAR. In addition, exporters of L-100 aircraft must advise end users that, effective 90 days from the date of this notice, L-100 aircraft in their possession may not travel to or transit countries identified in Section 126.1 of the ITAR without the express approval of the Directorate of Defense Trade Controls (DDTC). Further, consistent with current practice, U.S. exporters seeking to export L-100 aircraft should consult with both the Departments of Commerce and State regarding jurisdictional licensing requirements.

This notice 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 within the Department of State 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 be a major rule within the meaning of the Small Business Regulatory Enforcement Act of 1966. 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, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant application of Executive Orders Nos. 12372 and 13123. However, affected U.S. persons are invited to submit written comments to the Department of State, Office of Defense Trade Controls, ATTN: Stephen Tomchik, Regulatory Change, USML Category VIII, 12th Floor, SA-1, Washington, DC 20522.

Gregory M. Suchan,

Acting Assistant Secretary, Bureau of Political-Military Affairs, Department of State.