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Are You Supporting Defense Aviation Projects? Your Parts May No Longer Be ITAR-Controlled!

As of October 15, a significant change to the export regulations removed many articles from the ITARs and move them to the Commerce Department’s export jurisdiction.This movement reflects the fact that lower-risk parts do not need to have the same export controls as high-risk parts.

This change means that most dual use items (article used on both civil and defense aircraft) are transferred to the export jurisdiction of the Commerce Department’s Bureau of Industry and Security (BIS) where they will be regulated under the Export Administration Regulations (EARs).

Note that the rule change was largely aimed at aircraft parts, and non-aviation items may not be affected by this change.

So after the change, which aircraft parts remain subject to Directorate of Defense Trade Control (DDTC) export jurisdiction? Here is a partial list:

  • Certain enumerated articles (and their parts) that are specially designed for controlled aircraft:
    • Inertial Navigation Systems (INS)
    • Inertial Measurement Units (IMUs)
    • Attitude and Heading Reference Systems (AHRS)
  • Parts for DoD-funded developmental aircraft
  • Parts for B-1B, B-2, F-15SE, F/A-18E/F/G [parts for earlier models are subject to the EAR], F-22, F-35, F-117
  • Parts found in a positive list:
    • List is published at 22 C.F.R. 121.1 – VIII(h)
    • List includes articles with defense-specific purposes, like:
      • Threat-adaptive flight control systems;
      • Wing folding systems;
      • Certain high velocity gearboxes;
      • Defense-specific parts, like tail hooks, wing folding systems and bomb racks;
      • Certain technical related to export-controlled items;
      • Classified items;
      • “Commodities, software, and technical data subject to the EAR (§ 120.42 of this subchapter) used in or with defense articles controlled in this category.”

These above-referenced parts remain on the United States Munition List (USML), which is part of the International Trade in Arms Regulations (ITARs). So their exports will continue to be subject to ITAR control. But what is important is what is no longer on this list!

Parts that were previously described on the USML and were thus subject to DDTC/ITAR export jurisdiction but that are now moved to BIS/EAR jurisdiction have mostly been moved to the 600 series Export Commodity Classification Numbers (ECCNs). These are ECCNs with the number “6” in the middle spot of the five-character ECCN. The 600-series is designated for Wassenaar Arrangement Munitions List (WAML) articles and for former USML articles.

As of today, the Commerce Control List (CCLs) on the Commerce Department website did not include the 600-series ECCNs, and the fact that the government was shut down suggests that they might not be updated soon. But you can still see the new ECCNs by looking at the Federal Register publication of the final rule.

Many aircraft parts that are no longer regulated under the DDTC ITARs are moved to ECCN 9A610. If an article remains on the USML, like an Attitude and Heading Reference Systems (AHRS), then its unclassified software may have moved to a BIS/EAR 600 series ECCN; the unclassified software and technology indirectly related to such USML articles move to new ECCNs 9D610/9E610 (aircraft software/technology) or 9D619/9E619 (engine software/technology). There is also a new ECCN for military commodities outside the US that are derived from “600 series” controlled content (ECCN 0A919 – Category 0 includes miscellaneous items).

In some cases, the precise placement of an article may depend on whether it is “specially designed” for 600-series articles or for non-600 series articles. BIS has provided an online decision tree-based tool to help with the “specially designed” determination and it is available at http://www.bis.doc.gov/index.php/specially-designed-tool.

Licenses from BIS will still be required to export and reexport most 600 series items worldwide (except to Canada), unless an EAR license exception is available. If you have an article that was subject to the DDTC/ITAR jurisdiction and has been moved to BIS/EAR jurisdiction, then your existing ITAR licenses may remain valid. Details on how this works and when your license may remain valid are available in last week’s post about grandfathering existing export licenses.

Got questions? We will be talking about export at the MARPA Conference. The Washington Aviation Group continues to provide export legal advice. So if you need to get really creative, please give the Washington Aviation Group a call and let them work with you to find a solution.

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About Jason Dickstein

Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Aircraft Fleet Recycling Association and the Modification and Replacement Parts Association.

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