Published in the Daily Bugle, December 4, 2023
Musings on the temporary modification to Category VIII.
Scheduled for publication today is a temporary modification to Category VIII of Part 121.1. Specifically, modifying Note 1 to VIII(h)(1), allowing existing stealth aircraft parts to be used on the Korean KF-21 fighter and still retain ITAR control when the KF-21 enters production. The bad news is that it retains ITAR control for what would otherwise become an EAR-controlled item, but the good news is that it opens the door for U.S. suppliers.
In my opinion, this is a good thing; it lets DDTC out of a trap set in October 2013, itself a last minute fix for the original trap set April 16, 2013, with the publication of the first ECR rule. No judgement here – this stuff is hard, and trying to figure out all the implications when publication dates are bearing down doesn’t make it any easier.
Twins VIII(h)(1) and twin XIX(f)(1) are catch-alls of last resort, to keep ITAR control of parts and components Specially Designed for Stealth Superfriends aircraft and engines (respectively). At ECR’s inception, concern that it would be nigh on impossible to enumerate all items critical to stealth aircraft and engines led to a broad catch-all, and left it to the CJ process to sort things out.
Note 1 is not a restatement of the (b)(3) release[1] – it is an additional, entry-specific release – call it (b)(3.5) with special circumstances. Without this Note, parts common to (h)(1) listed aircraft and non-(h)(1) but USML listed aircraft remain caught in (h)(1). Assume there was no Note 1 – which was the case in the April 16 publication. A heat exchanger (HEX) is used in both the F-35 and F-16; both aircraft are in production and both aircraft are enumerated on the USML in VIII(a). The HEX isn’t released by (b)(3) because we fail (b)(3)(ii). The (b)(3) release is not about the part, but what it’s used in or with. What should be a 600 series HEX for a F-16, which clearly doesn’t impart stealth capability, can’t transition to the EAR because it happens to also be used on a stealth platform. This was not DDTC’s ECR goal, hence a need for the Note.
Note 1 to VIII(h)(1) was added in the last minute cleanup rule of October 3rd, less than two weeks before the 2013 rule effective date. The similar XIX(f)(1) version of the Note was added a year later, on October 10, 2014. Not sure why the delay, but better late than never.
This worked fine, right up until it didn’t. South Korea has been developing an indigenous fighter – first called the KF-X, now the KF-21 – for quite a few years now, and would like to use the latest U.S. technology and hardware. The U.S. would like South Korea to incorporate some of the latest U.S. stuff, but was hamstrung. With Note 1 as written, authorizing the use of a F-35 part on the KF-21, once in production, would kick the part out of VIII(h)(1) and into EAR 9A610. That opens up license exception STA eligibility, not just for the KF-21, but for other applications that DDTC and DTSA can’t object to. For a while it’s been tricky to get licenses to supply the KF program with F-22 or F-35 parts, precisely because of the potential to transition those parts to the EAR. It was OK pre-production, but with KF production imminent[2], action was required.
The amendment to Note 1 doesn’t break Specially Designed, because the existing Note is an additional release specific to the (h)(1) entry. The amendment simply withholds that additional release for a specific aircraft platform. You have to admire a good “exception to the exception to the rule.”
I assume the rule is temporary because it is a bit of a band-aid on top of a band-aid, but it gives DDTC time to come up with something cleaner and more scalable. It’s reasonable to assume that as the F-35 moves into middle age (and the F-22 starts to age out) there will be pressure to allow some of the more mundane items to be shared with our allies for other programs.
This rule leaves untouched Note 1 to XIX(f)(1), and I’m not sure why. The KF-21 uses the F414 engine which is (f)(1) listed, an engine also used in the Saab JAS39E fighter and Indian HAL Tejas. Without amending the Note, some parts for the F414 will transition to the EAR. Perhaps DTSA isn’t as concerned about parts for a 30 year old engine. Or perhaps, in deference to precedent, DDTC will wait a year to publish the XIX(f)(1) Note 1 update.
[1] When the Note first came out I assumed it was just a restatement, but on further review, I see I was wrong. That’s why I’m burying my mea culpa in a footnote.
[2] When it comes to programs like this, “imminent” is a very soft term.