E9-10468. Removal of T 37 Jet Trainer Aircraft and Parts From the Commerce Control List

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This rule removes the T 37 jet trainer aircraft and specially designed component parts from under the Department of Commerce's licensing jurisdiction on the Commerce Control List (CCL). T 37 jet trainer aircraft appear on the CCL administered by the Department of Commerce, Bureau of Industry and Security (BIS). However, the Department of State, Directorate of Defense Trade Controls (DDTC) reviews license applications for these aircraft and parts. BIS is removing these aircraft and parts from the CCL to avoid potentially overlapping coverage and reduce the possibility of confusion by the public.

DATES:

This rule is effective: May 6, 2009.

FOR FURTHER INFORMATION CONTACT:

Gene Christiansen in the Office of National Security and Technology Transfer Controls, Bureau of Industry and Security, U.S. Department of Commerce at [phone].

SUPPLEMENTARY INFORMATION:

Background

Both DDTC and BIS exercise licensing jurisdiction over certain exports and reexports. The policy for designating an item as being subject to the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130) and, therefore, subject to DDTC licensing jurisdiction is described in 22 CFR 120.3. Generally, that policy is to apply DDTC licensing jurisdiction to items that are specifically designed, developed, configured, adapted or modified for a military application. Items not subject to DDTC licensing jurisdiction or to the exclusive licensing jurisdiction of another government agency are subject to the Export Administration Regulations (EAR) and BIS's licensing jurisdiction.

The T 37 jet trainer was designed as a military trainer aircraft. Such aircraft are subject to the ITAR unless excluded under the provisions of 22 CFR 121.3(b), which relate to the engine type and power of the trainer aircraft. The T 37 and its specially designed component parts do not meet the terms of that exclusion. However, the T 37 jet trainer aircraft and their specially designed component parts have been listed on the CCL (found in 15 CFR Part 774, Supp. No. 1) since at least 1993. As such, under a strict interpretation of ITAR and the CCL as currently drafted, the T 37 jet trainer aircraft could fall within the jurisdiction of both DDTC and BIS, potentially causing members of the public to conclude incorrectly that an export license is required from both agencies for this item. By removing T 37 jet trainer aircraft from the CCL, this rule clarifies that export licenses should not be obtained from BIS, avoids potentially overlapping coverage and reduces the possibility of confusion on the part of the public. Export and reexport license applications for the T 37 jet trainer aircraft and parts should be directed to DDTC.

Rulemaking Requirements

1. This 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 is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves a collection previously approved by the OMB under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. BIS believes that this rule will have no impact on the burden associated with that collection because the Department of State exercises licensing jurisdiction over the aircraft or parts affected by this rule and BIS has not issued a license for them in recent years.

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. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to William Arvin, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, Room H2705, Washington, DC 20230.

List of Subjects in 15 CFR Part 774

• Exports
• Foreign trade

Accordingly, part 774 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:

PART 774—[AMENDED]

1. 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).

2. In Supplement No. 1 to Part 774, Category 9—Propulsion Systems, Space Vehicles and Related Equipment, Export Control Classification Number 9A018, revise paragraph a. of the Items paragraph of the List of Items Controlled section to read as follows:

9A018 Equipment on the Wassenaar Arrangement Munitions List

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List of Items Controlled

* * *

Items: a. Military trainer aircraft bearing “T” designations:

a.1. Using reciprocating engines; or

a.2. Turbo prop engines with less than 600 horse power (h.p.); and

a.3. Specially designed component parts.

* * * * *

Dated: April 29, 2009.

Matthew S. Borman,

Acting Assistant Secretary for Export Administration.