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DEC Policy on the Assessment of Military Aircraft and Parts

Introduction

Scope of policy

This policy describes DEC's interpretation of the export control regulations regarding manned aircraft, engines and parts. The aim of this document is to provide a framework for the consistent application of regulations across the industry, and to clearly explain this process to all Australian exporters. This policy is not intended to cover the regulations on unmanned aerial vehicles (UAVs), spacecraft, missiles, rocket engines, ramjets or scramjets. Additionally, in the event of any discrepancy between this policy and the relevant legislation, the legislation will take precedence.

Statement of policy intent

Australia is obligated to control the exports of military aircraft and parts in accordance with our international obligations and standing export policy criteria (see Export Control Policy). In doing this, we wish to avoid placing unnecessary regulatory burden on the civil aviation sector.

Overview

Industry overview

Australian exports of military aircraft, engines and parts broadly fall into three main categories:

  • the return of Australian Defence Force-owned goods to foreign manufacturers for repair;
  • the export of parts under the Defence Materiel Organisation Global Supply Chain program; and
  • the export of foreign-sourced goods to regional air forces and civil aircraft operators.

Goods from the first two categories are generally clearly identified as military components, exported by Commonwealth government agencies or defence companies, and exported to low-risk consignees (such as major United States aircraft manufacturers). Goods from the third category often can be used as both military and/or civilian aircraft parts, and can potentially be exported to private consignees in sensitive destinations.

Regulatory overview

The Defence and Strategic Goods List (DSGL) describes controls for aircraft that are specially designed for military use, in Part 1 (the ‘Munitions List'), section ML10. This includes ‘specially designed components thereof', aero-engines, and certain related equipment. To reduce the scope of control, the DSGL lists a number of specific ‘decontrols' as notes to section ML10. Additionally, further guidance about the applicability of this section is provided in the ‘General note to ML10', immediately preceding the definition section of the DSGL.

Note: This policy document doesn't contain every condition and exclusion. You can read more about the DSGL here.

A number of aircraft components are controlled in Part 2 (the ‘Dual-Use List') of the DSGL. Aerospace components made from fluorinated compounds are controlled in section 1A001. Inertial navigation equipment is controlled in sections 7A003 and 7A103. Aero gas turbine engines are controlled in sections 9A001, 9A003 and 9A101. Finally, some aerial spraying systems are controlled in section 9A350.

Importantly, in some cases the export of non-controlled goods may be an offence, if they will contribute to a military end-use that would prejudice Australia's security, defence or international relations, a weapons of mass destruction program, or be exported to a country under sanctions. See the sections on ‘catch-all controls' and ‘sanctions' below for further information.

What is a military aircraft?

A military aircraft is an aircraft that is 'specially designed or modified for military use'. Military use includes (but is not limited to) “combat, military reconnaissance, assault, military training, logistics support, and transporting and airdropping troops or military equipment” (Note 4 to ML10), and “absence of items from the Munitions List and absence of configuration for military use would mean that an aircraft would not be considered military” (General Note to ML10). Therefore, an aircraft that doesn't carry munitions or fit any military use category is considered a civil aircraft.

Some former military aircraft have been converted to civil use. Non-combat military aircraft that have been certified for civil use by the civil aviation authority in a 'Participating State' are specifically decontrolled (Note 1 to ML10). Pre-1946 aircraft that do not include operating weapon systems are also specifically decontrolled (Note 5 to ML10) - this exclusion is primarily aimed at operators of ‘warbird' aircraft.

Note: A ‘Participating State' is a state that participates in the Wassenaar Arrangement, which includes Australia. The full list of 41 states is available at the Wassenaar Arrangement website. Certification conducted by any participating state is valid for an export to any participating or non-participating state.

Additionally, some civil aircraft have been modified for military use. In the case where a non-military aircraft (or aero-engine) is modified for military use, only those specifically modified components are controlled as military items (Note 3 to ML10).

When these regulations mention ‘modifying' an aircraft, they refer to the modification of an individual aircraft, after its initial manufacture. They do not refer to the modification of a design in order to subsequently produce aircraft that are different to the initial design. For example, the design of the Lockheed Electra airliner was modified to create the design for the P-3 Orion military aircraft, but an Orion is not considered to be a modified Electra. However, if a machine gun was fitted to a standard Lockheed Electra, it would be considered a ‘civil aircraft modified for military use', and only the machine gun and mounting system would be controlled for export (Note 3 to ML10). Likewise, if a company purchased a former military C-130 Hercules transport aircraft and modified it for use as an airliner (including obtaining civil certification), it would be specifically decontrolled (Note 1 to ML10).

DEC Assessment Policy

Generic consumables and aircraft parts

Generic consumables and generic aircraft parts are not subject to export control. These items are often used in military aviation, but are widely available throughout the world and restrictions on their export would be impractical.

A generic consumable is a component that can be used in any machine assembly, including aircraft, but it is not specially designed for any one use. Some examples are generic lubricants (mineral oils and greases), bolts, nuts, washer, safety clips, safety wire, o-rings, standard seals and similar items.

A generic aircraft part is one that is suitable for multiple aircraft types, both military and civilian. Even if this part is destined to be fitted on a particular military aircraft, and even if the manufacturer of that military aircraft specified that exact part number, it is not considered to be a ‘specially designed component of a military aircraft'. Examples of these parts include: a generic tyre, a generic aircraft radio, a generic electric generator, a hydraulic pump etc.

Despite this, aerospace seals, gaskets, sealants or fuel bladders made from certain fluorinated compounds (polyimides or phosphazene elastomers) are always controlled as part of the Dual-Use List (1A001).

Parts suitable for military and civilian aircraft

Some aircraft have very similar military and civilian models that usually share a majority of parts, including ‘specially designed components' i.e. parts may be specially designed for more than one aircraft. Therefore, if an applicant can demonstrate to DEC that their parts are specially designed components of at least one civil aircraft, or a military aircraft converted to civil use (Notes 1 and 5 to ML10), then those parts are considered not controlled. If the applicant does not demonstrate this, and there is no evidence to the contrary available at the time of assessment, then DEC will assess the parts as specially designed for a military aircraft and therefore export controlled.

Note: If the parts are being exported for use on a civil aircraft, an end-user statement showing aircraft type is considered sufficient. Alternately, if no specific civil end use is identified, DEC will accept technical documentation such as a maintenance manual, information from NSN or other part number databases, or documentation from the manufacturer that shows that a part is suitable for an aircraft that is exempt from the DSGL controls.

Aero-engines suitable for military and civilian aircraft

Some aero-engines also have very similar military and civilian models. Only those components that are unique to the military models are controlled. The onus is again on the applicant to provide evidence to DEC that the engine components they wish to export are suitable for either a civil version of the same engine, or that the military engine itself has been certified for a civil aircraft (Note 2 to ML10). If the applicant does not demonstrate this, and there is no evidence to the contrary available at the time of assessment, then DEC will assess the component as specially designed for an aero-engine for a military aircraft and therefore export controlled.

Dual-use controls on inertial navigation systems

Inertial navigation equipment listed in section 7A003 of the DSGL is not controlled if it is certified for use on a civil aircraft by civil authorities of a participating state. However, equipment listed in 7A103 is not subject to the same condition, if shipped individually. This is because 7A103-controlled items are suitable for use on missiles. If these goods were incorporated as components of a civil aircraft, DEC would have to judge if this was the ‘principal element' of the export (see General Note 3 below). For example, DEC would assess a complete civil airliner as a non-controlled export, even if it contains a 7A103-controlled component.

General Note 3: “The object of the controls contained in the Defence and Strategic Goods List should not be defeated by the export of any non-controlled goods (including plant) containing one or more controlled components when the controlled component or components are the principal element of the goods and can feasibly be removed or used for other purposes.”

Dual-use controls on aero gas turbine engines

Section 9E003 lists a number of sensitive gas turbine technologies. Section 9A001 lists aero gas turbine engines that use these technologies, and section 9A003 lists components of those engines.

Note: A lot of gas turbine technology is included on the ‘Sensitive List' or ‘Very Sensitive List', which indicates that DEC applies extreme care when licensing its transfer.

Such engines are decontrolled if they are "...intended to power a non-military manned aircraft" (Note to 9A001.a). DEC interprets this ' intended to' clause to mean "suitable for fitment on a civil aircraft", as defined by section ML10. An engine may be ‘suitable for fitment' if it has the appropriate connectors and mountings and is specified by the manufacturer. If an applicant can demonstrate to DEC that their engine is suitable for fitment on at least one civil aircraft, even though it meets the technical requirements of 9A001, then the engine is considered not controlled. If the applicant does not demonstrate this, and there is no evidence to the contrary available at the time of assessment, then DEC will assess the engine as a controlled dual-use engine.

For example, the Trent 900 engines fitted to the Airbus A380 contain a number of sensitive technologies listed in 9E003, and therefore the engines meet the technical requirements of 9A001. However, because they are ‘...intended to power a non-military manned aircraft', they are not subject to export control.

A subset of smaller aero gas turbine engines is also controlled in section 9A101, described in terms of uninstalled thrust and specific fuel consumption. These are controlled because of their utility in missile propulsion. These engines are controlled exports under all circumstances.

Dual-use controls on aerial spraying systems

Section 9A350 controls spraying and fogging equipment " ...specially designed or modified for fitting to aircraft, lighter-that-air vehicles or unmanned aerial vehicles", which are by their nature able to be used to deliver biological warfare agents. This includes aerosol generating units designed for fitment to these spraying or fogging systems. These are specifically decontrolled if the applicant can demonstrate to DEC that they are not ''… capable of delivering biological agents in the form of infectious aerosols". If the applicant does not demonstrate this, and there is no evidence to the contrary available at the time of assessment, then DEC will assess the equipment as export controlled.

A C17 aircraft sits on the tarmac