State Seeks Comments on the Proposal to Amend ITAR to Revise Category VIII of the USML

On November 7, 2011, the Department of State issued a proposed rule in the Federal Register that amends the International Traffic in Arms Regulations (ITAR) to revise Category VIII (aircraft and related articles) of the U.S. Munitions List (USML) to describe more precisely the military aircraft and related defense articles warranting control of the USML. 

Specifically, the proposed rule revises USML Category VIII, covering aircraft and related articles, to establish a clearer line between the USML and the Commerce Control List (CCL) regarding controls over military aircraft and related articles. The proposed narrows the types of aircraft and related items controlled on the USML to only those that warrant control under the stringent requirements of the Arms Export Control Act (AECA). Changes include moving similar articles currently controlled in multiple categories into a single category or subcategory. Other former Category VIII subcategories have been "reserved" because the Department is proposing to change the jurisdictional status of the items covered therein so that they would become subject to the EAR.     

This proposed rule also revises Sec.  121.3 to more clearly define "aircraft" for purposes of the revised USML Category VIII.     

The most significant aspect of this more positive, but not yet tiered, proposed USML category is that it does not contain controls on all generic parts, components, accessories, and attachments that are specifically designed or modified for a defense article, regardless of their significance to maintaining a military advantage for the United States. Rather, it primarily contains a positive list of specific types of parts, components, accessories, and attachments that continue to warrant control on the USML. 

The Administration has also proposed revisions to the jurisdictional status of certain militarily less significant end items that do not warrant USML control, but the primary impact of this proposed change will be with respect to current USML controls on parts, components, accessories, and attachments that no longer warrant USML control.

Comments on the proposed rule are due December 21, 2011. 

Department of State specifically requests input on the following:

  1. Identifying any potential lack of coverage caused by the proposed rule for Category VIII contained in the Federal Register notice and the new Category ECCNs published separately by the Department of Commerce when viewed together; and
  2. On the aircraft controlled in paragraph (a) of Category VIII not defined based on objective parameters (e.g., unmanned aerial vehicles controlled under (a)(6) are simply described as "military"), the public is asked to comment on regulatory language that would control those with an objective description that precludes removal from the USML and does not inadvertently designate as "defense articles" aircraft currently subject to the EAR.