International Traffic in Arms Regulations: Modification of Civil Aircraft To Incorporate Aircraft Survivability Equipment
| Citation | 91 FR 55457 |
| Published date | 28 August 2026 |
| FR Document | 2026-17660 |
| Pages | 55457-55461 |
| Section | Rules and Regulations |
| Issuer | State Department |
Federal Register, Volume 91 Issue 166 (Friday, August 28, 2026)
[Federal Register Volume 91, Number 166 (Friday, August 28, 2026)]
[Rules and Regulations]
[Pages 55457-55461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-17660]
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DEPARTMENT OF STATE
[Public Notice: 13088]
22 CFR Parts 120 and 121
RIN 1400-AG17
International Traffic in Arms Regulations: Modification of Civil
Aircraft To Incorporate Aircraft Survivability Equipment
AGENCY: Department of State.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Department of State (the Department) amends the
International Traffic in Arms Regulations (ITAR) to remove from the
U.S. Munitions List (USML) certain aircraft that have been modified to
incorporate aircraft survivability equipment (ASE) and to exclude from
the ITAR certain activities that would otherwise meet the definition of
reexport or temporary import of ASE incorporated into such aircraft.
DATES:
Effective date: This rule is effective October 13, 2026.
Comment due date: Send comments on or before September 28, 2026.
ADDRESSES: Interested parties may submit comments to the Department of
State by any of the following methods:
Visit the Regulations.gov website at: https://www.regulations.gov and search for the docket number [DOS-2026-0892].
Email: [email protected]. Commenting parties
must include RIN 1400-AG17 in the subject line of the email message.
See SUPPLEMENTARY INFORMATION for other information about
electronic filing.
FOR FURTHER INFORMATION CONTACT: Mr. Chris Weil, Office of Defense
Trade Controls Policy, Department of State, email
[email protected] SUBJECT: Aircraft Survivability
Equipment--RIN 1400-AG17.
SUPPLEMENTARY INFORMATION: The Department of State's Directorate of
Defense Trade Controls (DDTC) administers the ITAR (22 CFR parts 120
through 130) to, among other things, regulate the export, reexport,
retransfer, and temporary import of defense articles and defense
services described on the USML at ITAR Sec. 121.1. Items not subject
to the ITAR or to the exclusive licensing jurisdiction of any other
department or agency of the U.S. Government are subject to the Export
Administration Regulations (EAR; 15 CFR parts 730 through 774), which
include the Commerce Control List (CCL) in Supplement No. 1 to part
774. The EAR is administered by the Bureau of Industry and Security
(BIS), U.S. Department of Commerce. This rule does not modify the list
of defense articles and defense services controlled for purposes of
permanent import by the Attorney General, as enumerated on the U.S.
Munitions Import List (USMIL) at 27 CFR 447.21.
Section 38 of the Arms Export Control Act (AECA) (22 U.S.C. 2778),
the authority from which the ITAR is derived, requires periodic review
to determine what articles and services, if any, no longer warrant
designation on the USML at ITAR Sec. 121.1. In maintaining the USML,
DDTC's Office of Defense Trade Controls Policy (DTCP) identifies
articles and services for review for addition to or removal from the
USML, or for clarification on how they are described on the USML,
through a variety of methods, including public feedback and interagency
consultations, commodity jurisdiction reviews, advisory opinions, and
technology monitoring. The Department maintains the USML such that it
comprises those defense articles or defense services that provide a
critical military or intelligence advantage or, in the case of weapons,
have an inherently military function. The Department, informed by
consultations with its interagency partners, determined that those
articles and services this rule removes from the USML no longer warrant
ITAR control. Additionally, the Department has long used its delegated
authority under the AECA to define which events are controlled as
exports, reexports, retransfers, and temporary imports.
For the purposes of this rule the Department refers to civil
aircraft that are subsequently modified to incorporate certain aircraft
survivability equipment (ASE) as survivability-enhanced aircraft. ASE
is a term generally used to refer to systems and equipment designed to
reduce an aircraft's susceptibility and vulnerability to manufactured
threats by detecting, alerting on, and mitigating threats. For purposes
of this preamble,
[[Page 55458]]
ASE specifically refers to directed infrared countermeasures (DIRCM)
and infrared or ultraviolet missile warning systems necessary for the
operation of DIRCM. Survivability-enhanced aircraft are often used to
mitigate risk in the transport of passengers or goods, in various
threat environments. These aircraft incorporate ASE described on the
USML to protect the aircraft and its occupants from man-portable air
defense systems (MANPADS) and other guided weapons that can pose a
serious threat to aircraft. Foreign governments also utilize civil
aircraft incorporating ASE to transport heads of state and other
persons, and some airlines have incorporated ASE to protect passengers
traveling in higher risk areas.
ASE is described in the subparagraphs of USML Category XI(a)(4),
which describes electronic warfare (EW) systems and equipment; thus,
survivability-enhanced aircraft are currently described in USML
Category VIII(a)(8), as aircraft specially designed to incorporate a
defense article for the purpose of performing an EW function. The
Department notes that aircraft modified to facilitate incorporation of
ASE are currently described in paragraph (a)(8) even when the ASE is
not physically present in the aircraft. Since such modifications are
properties peculiarly responsible for the incorporation of the ASE,
they satisfy the specially designed definition at Sec. 120.41(a)(1).
Based on its assessments and the discretion afforded it, and to
facilitate the operation and maintenance of certain aircraft that have
been modified to incorporate ASE, the Department is amending USML
Category VIII(a)(8), adding corresponding definitions to Sec. 121.0,
and adding two new entries to Sec. 120.54 to expand the definition of
``activities that are not exports, reexports, retransfers, or temporary
imports.'' Activities listed in ITAR Sec. 120.54 do not require an
authorization from DDTC.
USML Category VIII
The Department is revising USML Category VIII(a)(8) to exclude
certain aircraft that have been modified to incorporate ASE. To
concisely implement this exclusion, the Department is also adding new
definitions of secured ASE and survivability-enhanced aircraft, and the
acronyms ``ASE'' and ``USML,'' to Sec. 121.0.
Furnishing assistance to a foreign person in maintaining,
repairing, or operating an aircraft described in paragraph (a)(8) is a
defense service even for repairs limited to an aircraft component
otherwise subject to the EAR, such as brakes controlled in the EAR's
Export Control Classification Number (ECCN) 9A991.d, while that item is
incorporated into the aircraft. This is because such activities furnish
assistance to the foreign person in maintaining the aircraft, which is
a defense article.
Servicing activities for aircraft described on the USML continue to
warrant control under the ITAR because maintenance of an aircraft helps
maintain the foreign person's access to the capabilities of the
aircraft. However, the Department assesses that incorporating secured
ASE to protect an aircraft and its occupants should not, by itself,
subject an otherwise civil aircraft to regulation under the ITAR. Such
regulation of maintenance services, when not directly related to the
incorporated ASE, may place U.S. companies at an unnecessary
competitive disadvantage due to the widespread availability of such
services and a lack of similar foreign regulation. The Department
assesses that, when incorporated into an otherwise civil aircraft
without modifications to incorporate other defense articles, ASE
supports a purely protective function. For this and other reasons, the
Department assesses commercial servicing and maintenance of
survivability-enhanced aircraft does not provide a critical military or
intelligence advantage that warrants continued ITAR control.
Following the changes in this rule to remove certain aircraft from
paragraph (a)(8), ASE will still be described on the USML in Category
XI. The Department has determined that ASE, and directly related
technical data and defense services, continue to provide a critical
military or intelligence advantage and therefore should remain on the
USML. ITAR Sec. 120.11(c) will continue to apply to ASE incorporated
into an aircraft, regardless of the export jurisdiction of the
aircraft. As a result, servicing ASE for a foreign person continues to
be a defense service. Furthermore, assisting a foreign person in the
modification of an aircraft to facilitate incorporation of ASE is a
defense service described in USML Category XI(d) even before the ASE is
installed. Such assistance is directly related to the ASE and, at a
minimum, assists the foreign person in the use of the ASE. Similarly,
assisting a foreign person in maintaining or repairing portions of the
aircraft modified for the purpose of incorporating ASE (e.g., upgraded
power supplies, dedicated wiring) are defense services described in
USML Category XI(d). Even when such services are performed on aircraft
components subject to the EAR, they both directly relate to the ASE and
assist the foreign person in the use of the ASE.
The new definition of secured ASE in Sec. 121.0 limits the scope
of that term to specific types of defensive EW equipment. The
Department considered further limiting the scope of the exclusion to
ASE designed to provide protection against MANPADS; however, the
Department's review of civil aircraft losses concluded that the threat
is no longer limited to MANPADS. The new definition of secured ASE also
specifies that certain anti-tamper protections must be in place when
the ASE is incorporated into the aircraft.
The new definition of survivability-enhanced aircraft specifically
excludes unmanned aircraft, aircraft that did not start out as civil
aircraft (as described in paragraph (1) of the new definition for
``survivability-enhanced aircraft''), and aircraft described in USML
Category VIII(a)(8) or elsewhere on the USML for reasons other than
incorporating secured ASE.
New Entries in Sec. 120.54(a)
The Department is adding two new paragraphs to Sec. 120.54(a) to
remove the ITAR authorization requirement for certain reexports and
temporary imports of defense articles that meet the new Sec. 121.0
definition of secured ASE. Pursuant to Sec. 120.11(c), ASE retains its
status as a defense article following incorporation or integration into
an aircraft, regardless of the jurisdiction of the aircraft. For
example, an ITAR license or other authorization type is currently
required for all exports of ASE out of the United States and for all
temporary imports of ASE into the United States, including instances in
which the ASE is incorporated into an aircraft not described on the
USML. Similarly, when ASE is subject to the reexport or retransfer
restrictions of the ITAR (e.g., U.S.-origin defense articles and
defense articles subject to ITAR Sec. 124.8(a)(5)), an ITAR
authorization is currently required for all reexports and retransfers,
including when an aircraft incorporating secured ASE travels to a third
country.
The Department determined ASE provides a critical military or
intelligence advantage such that it warrants description on the USML.
ASE is military technology, regardless of its use by civilian entities.
In providing notifications of guided missile threats and assisting
pilots in defending against those threats, ASE provides a critical
advantage--including during contested airspace operations. However,
standard ITAR requirements impose an
[[Page 55459]]
unnecessary compliance burden on international partners using secured
ASE to protect dignitaries and commercial passengers, particularly when
traveling to a country identified in ITAR Sec. 126.1. The requirements
also place U.S. manufacturers at a competitive disadvantage relative to
foreign manufacturers whose products are not subject to ITAR regulation
of reexports.
The Department assesses that, when ASE has previously been
authorized for export from the United States pursuant to a license
issued under the ITAR (and thus subjected to a U.S. national security
review), for incorporation into a survivability-enhanced aircraft, and
continues to be utilized only for its authorized use by an authorized
end user, it is not necessary for the Department to review the
operational movements of that aircraft. Similarly, the Department
assesses that temporary imports of secured ASE incorporated into
survivability-enhanced aircraft, without other modifications that make
the aircraft described on the USML, do not require its review while the
ASE remains incorporated.
For these reasons, the Department is adding two new paragraphs to
Sec. 120.54(a) to exclude what would otherwise be a reexport or
temporary import of secured ASE while it is incorporated into
survivability-enhanced aircraft, under specified conditions. Defense
services directly related to ASE and transfer to a foreign person of
technical data directly related to ASE remain controlled events,
regardless of the ASE status.
The primary purpose of the new Sec. 120.54(a)(8) is to remove
certain restrictions on otherwise civil aircraft temporarily entering
and exiting the United States with secured ASE installed. Similarly,
the primary purpose of the new Sec. 120.54(a)(9) is to remove certain
restrictions on the movement of aircraft that incorporate secured ASE
already approved for export from the United States pursuant to a
license and remaining under the control of users already authorized to
possess the ASE. Such aircraft may include those operated by civilian
airlines or those maintained or operated for the benefit of heads of
state, international organizations like the United Nations, and
humanitarian organizations. New paragraphs (a)(8) and (9) apply only to
the physical movement of the secured ASE while it is incorporated into
a survivability-enhanced aircraft; these paragraphs do not authorize
any defense services or release of technical data directly related to
the ASE (including removal of the ASE from the aircraft). New paragraph
(a)(9) applies only to ASE previously authorized for export from the
United States pursuant to a license; it does not apply to ASE that has
only been exported pursuant to an exemption.
Retransfer of ASE to a foreign person while outside the United
States remains a controlled event in all cases. The new Sec.
120.54(a)(8) does not enable temporary imports that involve transfers
of the aircraft or the incorporated ASE to a different foreign person
while inside the United States. If the ASE has been authorized for
export under a separate ITAR authorization, for use by a particular
organization and its employees, then a transfer of control of the
aircraft and secured ASE between employees of the same organization
must be completed using that ITAR authorization.
Effective Date and Updating of Licenses and Agreements
The Department is implementing an effective date of October 13,
2026, in making the revisions described in this interim final rule. The
Department's website (www.pmddtc.state.gov) includes guidance for
practitioners on the treatment of items removed from the USML.
Submission of Voluntary Disclosures or Voluntary Self-Disclosures
In reviewing the clarifications provided by this rule, if you
identify a potential violation of the ITAR, you may submit a voluntary
disclosure to DDTC, consistent with the procedures outlined in ITAR
Sec. 127.12. For potential violations of the EAR, persons are
encouraged to disclose violations to BIS, including through the
submission of voluntary self-disclosures, consistent with the
procedures outlined in EAR Sec. Sec. 764.4 and 764.5. For potential
violations of both the EAR and the ITAR, persons are encouraged to
submit disclosures to both agencies.
Request for Comments
Comments Requested
The Department is requesting public comments on the revisions
described in this rulemaking. The Department encourages the public to
provide comments related to this rule, as well as comments specifically
responsive to the five questions described in this section. To
facilitate timely review and assessment of the comments, comments
should be provided in a concise sentence or paragraph, followed by
supporting explanatory paragraphs and examples, with each distinct
comment treated separately (as opposed to multiple comments in one
paragraph or section). The Department requests comments focused on the
following questions:
1. How much would practitioners benefit from the Department
defining the terms for the eligible types of ASE?
2. Are there commodities, services, or technical data closely
related to these revisions that warrant ITAR control, but are currently
either not described on the USML, or not described with sufficient
clarity? If so, please provide examples and a concise explanation.
3. Are there commodities, services, or technical data closely
related to these revisions that do not warrant ITAR control? If so,
please provide examples and a concise explanation.
4. Are there specific functions, performance levels, or
characteristics related to these revisions that could better:
a. Distinguish between the commodities that do, and do not, warrant
ITAR control; or
b. Align with the constructions or language used elsewhere in the
ITAR?
5. Can any of these revisions be more clearly or concisely stated?
Comment Submission Instructions
Include the Regulatory Information Number (RIN) (1400-AG17) for all
submissions related to this rule. Parties who wish to comment
anonymously may do so by submitting their comments via
www.regulations.gov, leaving the fields that would identify the
commenter blank and including no identifying information in the comment
itself. Commenters are cautioned not to include proprietary, export-
controlled, personal, or other sensitive information in their comments
that they would not want to be made public. If such information would
provide useful insight to the comment: (1) assemble that information in
a separate document with proprietary markings; (2) include
``Proprietary supplement on file with: [provide POC]'' as the first
line in the body of the email submission; (3) submit the public portion
of the comment via email; and (4) call DDTC at (202) 663-1282 to
coordinate submission of the proprietary supplement.
Regulatory Analysis and Notices
Administrative Procedure Act
This rulemaking is exempt from the rulemaking requirements of the
Administrative Procedure Act (APA) pursuant to 5 U.S.C. 553(a)(1) as it
involves a military or foreign affairs function of the United States.
Nevertheless, and without prejudice to
[[Page 55460]]
this determination, the Department seeks certain public comments in
this rule.
Regulatory Flexibility Act
Since this rule is exempt from the notice-and-comment rulemaking
provisions of 5 U.S.C. 553, it does not require analysis under the
Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
This rulemaking does not involve a mandate that will result in the
expenditure by state, local, and tribal governments, in the aggregate,
or by the private sector of $100 million or more in any year and it
will not significantly or uniquely affect small governments. Therefore,
no actions are deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Congressional Review Act
This rule does not meet the criteria of 5 U.S.C. 804(2).
Executive Orders 12372 and 13132
This rulemaking does not have sufficient federalism implications to
require consultations or warrant the preparation of a federalism
summary impact statement. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities do not apply to this rulemaking.
Executive Orders 12866 and 13563
Executive Order 12866, as supplemented and affirmed by Executive
Order 13563, directs agencies to assess all costs and benefits of
available regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety effects,
distributed impacts, and equity). Executive Order 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. The Department
specifically welcomes public comment on the effects, including costs
and benefits, of this rule. After review by the Office of Management
and Budget (OMB), this rule has been deemed a ``significant regulatory
action'' under section 3(f) of Executive Order 12866.
This rule was undertaken pursuant to a statutory directive to
periodically review the items on the USML. The Department generally
determines which items warrant addition to, or removal from, the USML
by assessing whether each provides a critical military or intelligence
advantage based on national security and foreign policy considerations.
Because the costs and benefits of changing what is controlled focus on
the effect or utility of the item or service, rather than its market
prevalence or economic value, quantitative analyses cannot be usefully
estimated and are not available, particularly since the global
prevalence or availability of the item or service are not known.
Qualitatively, the rule was assessed for costs and benefits. These
revisions are also informed by confidential commodity jurisdiction
determination and advisory opinion requests, submitted by industry. The
Department takes into account common questions and strives to
streamline and simplify USML entries based on how it understands
industry experience with certain parts of the USML.
This rule moves the export regulation of certain aircraft from the
ITAR to the EAR, and it excludes from ITAR authorization requirements
certain transfers of defense articles while they are incorporated into
those aircraft. These actions reduce the regulatory burden on those who
transfer, repair, or maintain such aircraft. The Department assesses
that continuing to regulate these modified aircraft under the ITAR is
unnecessary and that removing them will add options for U.S.
participation in improving aviation safety. The Department assesses the
benefits of this rulemaking outweigh any costs, that modifying the USML
in this manner is the most cost-effective method to achieve the
Department's regulatory objectives on this matter, and that doing so
will result in a net reduction of the burden on the regulated
community.
The alternative to this rule was inaction or delay. The Department
could have waited to amend larger parts of the USML at once or
continued to gather data to evaluate the controls affected by this
rule. These alternatives were rejected. Statutory requirements,
including section 38(f) of the Arms Export Control Act (22 U.S.C.
2778(f)), and section 1345 of the National Defense Authorization Act
for Fiscal Year 2024, require a periodic review of the USML for edits
like those made by this rule. While the Department continuously reviews
the entire USML, it aims to focus on particular USML revisions in
cycles, as it has done in implementing this rule.
Executive Order 14192
This rule is exempt from Executive Order 14192 as it is a
regulation issued with respect to a foreign affairs or national
security function of the United States.
Executive Order 12988
The Department of State has reviewed this rulemaking in light of
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burden.
Executive Order 13175
The Department of State has determined that this rulemaking will
not have tribal implications, will not impose substantial direct
compliance costs on Indian tribal governments, and will not preempt
tribal law. Accordingly, the requirements of Executive Order 13175 do
not apply to this rulemaking.
Paperwork Reduction Act
This rulemaking does not impose or revise any information
collections subject to 44 U.S.C. chapter 35.
List of Subjects
22 CFR Part 120
Arms and munitions, Classified information, Exports.
22 CFR Part 121
Arms and munitions, Classified information, Exports.
For reasons stated in the preamble, the Department of State amends
22 CFR parts 120 and 121, the United States Munitions List, as follows:
PART 120--PURPOSE AND DEFINITIONS
0
1. The authority citation for part 120 continues to read as follows:
Authority: 22 U.S.C. 2651a, 2752, 2753, 2776, 2778, 2779,
2779a, 2785, 2794, 2797; E.O. 13637, 78 FR 16129, 3 CFR, 2013 Comp.,
p. 223.
0
Amend Sec. 120.54 by revising paragraphs (a)(6) and (a)(7) and adding
paragraphs (a)(8) and (a)(9), to read as follows:
Sec. 120.54 Activities that are not exports, reexports, retransfers,
or temporary imports.
(a) * * *
(6) * * *
(iii) The defense article is not being exported from or temporarily
imported into the United States;
(7) * * *
(iii) The defense article is not being exported from or temporarily
imported into the United States;
(8) Temporarily bringing secured ASE (as defined in Sec. 121.0)
into the United States; provided that neither the ASE,
[[Page 55461]]
nor the aircraft in which it is incorporated, is transferred without a
license or other approval under this subchapter to another foreign
person while in the United States; and
(9) Taking secured ASE (as defined in Sec. 121.0), previously
exported from the United States pursuant to a license under this
subchapter, from one foreign country to another while it is
incorporated into a survivability-enhanced aircraft (as defined in
Sec. 121.0).
PART 121--THE UNITED STATES MUNITIONS LIST
0
3. The authority citation for part 121 continues to read as follows:
Authority: 22 U.S.C. 2752, 2778, 2797; 22 U.S.C. 2651a; Sec.
1514, Pub. L. 105-261, 112 Stat. 2175; E.O. 13637, 78 FR 16129, 3
CFR, 2013 Comp., p. 223.
0
4. Amend Sec. 121.0 by adding definitions of ASE, secured ASE,
survivability-enhanced aircraft, and USML, as follows:
Sec. 121.0 United States Munitions List description and definitions.
* * * * *
ASE means Aircraft Survivability Equipment.
* * * * *
Secured ASE means a system or equipment that meets all of the
following conditions:
(1) Is one of the following defense articles designed for the
purpose of aircraft survivability:
(i) Directed/directional infrared countermeasures (DIRCM) systems;
or
(ii) Infrared or ultraviolet missile warning systems necessary for
the operation of DIRCM;
(2) Is incorporated into an aircraft; and
(3) Employs anti-tamper measures to deter, delay, and detect access
to, or exploitation of, critical system components and software.
Survivability-enhanced aircraft means a manned aircraft meeting all
of the following criteria:
(1) Prior to the modifications described in paragraph (2) of this
definition, was an aircraft in production that:
(i) Is not described on the USML;
(ii) Is described only in ECCN 9A991.b; and
(iii) Was issued either:
A. A type certificate by the U.S. Federal Aviation Administration
as a transport airplane or small commuter airplane, or
B. An equivalent certification by the civil aviation authorities of
one or more North Atlantic Treaty Organization member states or major
non-NATO allies;
(2) Has been modified to facilitate the incorporation of one or
more items of secured ASE as defined in this section;
(3) But for the modifications performed to incorporate secured ASE,
would not be described in paragraph (a)(8) of USML Category VIII; and
(4) Is not described in any USML paragraph other than paragraph
(a)(8) of USML Category VIII.
USML means the United States Munitions List in Sec. 121.1.
* * * * *
0
5. Amend Sec. 121.1 by revising paragraph (a)(8) under Category VIII,
as follows:
Sec. 121.1 The United States Munitions List.
* * * * *
Category VIII--Aircraft and Related Articles
(a) * * *
* (8) Aircraft specially designed to incorporate a defense article
for the purpose of performing an electronic warfare function, excluding
survivability-enhanced aircraft (see Sec. 121.0 of this subchapter);
airborne warning and control aircraft; or aircraft specially designed
to incorporate a defense article for the purpose of performing a
command, control, and communications function;
* * * * *
Thomas G. DiNanno,
Under Secretary for Arms Control and International Security, U.S.
Department of State.
[FR Doc. 2026-17660 Filed 8-27-26; 8:45 am]
BILLING CODE 4710-25-P
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