By Donald Pearce, Sentinel LLC
ECTI Core Instructor
On August 28, 2026, the Directorate of Defense Trade Controls (DDTC) published an Interim Final Rule (IFR) addressing certain civil aircraft that have been modified to incorporate aircraft survivability equipment (ASE), as well as activities that had previously fallen within the definition of reexport or temporary import for those aircraft. The rule is effective October 13, 2026, and DDTC is seeking comments from industry and interested parties by September 28, 2026.
Civil aircraft operated by governments carrying heads of state or by airlines or international organizations operating in dangerous environments may face the threat of anti-aircraft systems, such as man-portable air defense systems (MANPADS) or other guided missile systems. ASE systems use directed infrared countermeasures (DIRCM) and infrared or ultraviolet missile warning systems to prevent the missile from honing in on the aircraft.
ASE systems are captured in the subparagraphs of USML Category XI(a)(4), which describes electronic warfare (EW) systems and equipment, making survivability-enhanced aircraft specially designed to incorporate a defense article and captured by USML Category VIII(a)(8). Currently, aircraft modified to facilitate incorporation of ASE are captured even when the ASE is not physically present in the aircraft, as such modifications are properties peculiarly responsible for the incorporation of the ASE and satisfy the definition of specially designed at § 120.41(a)(1).
The IFR will revise Category VIII(a)(8) to exclude certain aircraft that have been modified to incorporate ASE and add new definitions of secured ASE and survivability-enhanced aircraft to § 121.0. The new definition of secured ASE is limited to specific types of systems, and requires anti-tamper protections to be in place when the system is on the aircraft. Also, the definition of survivability-enhanced aircraft excludes unmanned aircraft, aircraft that did not start out as a civil airframe, or are described in Category VIII(a)(8) or elsewhere on the USML for reasons other than incorporating secured ASE.
In addition, DDTC is adding two new paragraphs to § 120.54(a) to remove the ITAR authorization requirement for certain reexports and temporary imports of defense articles that meet the new definition of secured ASE. This includes flying survivability-enhanced aircraft to a third country, so long as they remain under the control of the users authorized to possess the ASE.
The new paragraphs apply only to the movement of secured ASE while it is incorporated into a survivability-enhanced aircraft. These paragraphs do not authorize defense services, the release of technical data directly related to the ASE, or the removal of the ASE from the aircraft. The new paragraph at (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 been exported under an exemption.
DDTC is seeking comments on these changes and is specifically interested in the following questions:
If you have answers to these questions or any other suggestions, you can submit them through Regulations.gov or call DDTC at (202) 663-1282 to coordinate submission of your comment. Be sure to include Regulatory Information Number 1400-AG17 for all submissions related to this rule.