By Paul Croarkin, Senior Associate
Keil Ritterpusch, Senior Compliance Associate
On January 10, 2017, the Department of State and the Department of Commerce published final rules to further refine the control of spacecraft and related items controlled for export by the International Traffic in Arms Regulations (“ITAR”) and the Export Administration Regulations (“EAR”). The final rules are part of the continuing revision of the ITAR through the Export Control Reform (“ECR”) initiative. For copies of the Federal Register Notices publishing the final rules, please see http://pmddtc.state.gov/FR/2017/82FR2889.pdf and https://www.bis.doc.gov/index.php/documents/regulations-docs/federal-register-notices/federal-register-2017/1630-82-fr-2875/file.
The revision of the ITAR’s United States Munitions List Category XV and the EAR’s Export Control Classification Number 9X515 went into effect on January 15, 2017. Unlike prior ECR revisions of the ITAR, this latest revision had a very short interval from final rule to effective date because the changes involved had already been published through Notice and Comment rulemaking and had received favorable comments from the public.
The revised rules include the following notable changes requested by the commercial space industry and advocated by the Department of Commerce, including:
- Moved certain remote sensing satellites from control by ITAR to control by the EAR:
- spacecraft with an aperture of equal or less than 0.5 m are now controlled by the EAR under ECCN 9A515.a.1
- spacecraft with remote sensing capabilities beyond NIR (i.e., SWIR, MWIR, and LWIR) that are not otherwise enumerated on the ITAR’s United States Munitions List (“USML”) are now controlled by the EAR under ECCN 9A515.a.2,
- spacecraft with radar remote sensing capabilities (e.g., EASA, SAR, and ISAR) having a center frequency equal to or greater than 1 GHz but less than 10 GhZ and having a bandwidth between 100 MHz and 300 MHz are now controlled by the EAR under ECCN 9A515.a.3
- Specifically, for the export of spacecraft and components for the aircraft in ECCNs 9A515.a.1 through a.4, the prospective exporter must submit a request to the Department of Commerce pursuant to Section 740.20(g) of the EAR for export of these more sensitive spacecraft and related components per the License Exception STA.
- In parallel with the movement of these spacecraft and components to control by the EAR, the Department of Commerce created a new mechanism to approve the export of these spacecraft and components without an export license pursuant to a revision to the EAR’s Strategic Trade Authorization (“STA”) License Exception set forth in Section 740.20 of the EAR
- Moved components of the spacecraft in ECCNs 9A515.a.1 through a.4 to control on the EAR under ECCN 9A515.g
- Moved spacecraft providing space based logistics, assembly, or servicing of other “spacecraft” that are not enumerated on the USML to the EAR under ECCN 9A515.a.4.
- Clarified that the USML does not control spacecraft automatically because the spacecraft supports human habitation. Only spacecraft with the characteristics expressly enumerated in USML Category XV are ITAR-controlled.
- Redefined several controls based on technical capabilities rather than end use of the spacecraft. For example, the final rule provides that spacecraft that perform real-time autonomous detection and tracking of moving objects, other than celestial bodies, are ITAR-controlled, but that this control does not apply to systems that can track fixed points to determine their own movement based on the relative position of the fixed points over time.
- Removed and replaced confusing criteria concerning integrated propulsion and attitude control, providing specific technical parameters for the types of spacecraft propulsion systems and attitude control apparatus that make a spacecraft ITAR-controlled.
- Along these lines, the James Webb Space Telescope (“JWST”) was removed from the ITAR for control under 9A004.u, the same ECCN that governs exports of the International Space Station.
- Despite having thrusters for attitude control and movement, unlike satellites, the Department of State ruled that the JWST and other scientific spacecraft that are able to alter their position in orbit should not automatically be controlled for export under the ITAR, and should be controlled under the EAR.