BIS, State Dept. Issue Final Rules to Revise Controls for Spacecraft Systems
The Bureau of Industry and Security and the State Department are issuing concurrent final rules to finalize the transfer of items from U.S. Munitions List (USML) Category XV (spacecraft systems and associated equipment) to the Commerce Control List (CCL) that no longer warrant USML control. BIS’s (here) and State’s (here) final rules build upon comments received after respective interim final rules were published on May 13, 2014 (see 14051224), and will take effect Jan. 15, they said.
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BIS has made amendments in its final rule that include: (1) movement of additional spacecraft and related items from the USML to CCL resulting from changes in aperture size for spacecraft that warrant International Traffic in Arms Regulations (ITAR) control, (2) changes to address the shift of the James Webb Space Telescope from the USML to CCL, (3) the addition of “.y items” -- which are low-level “600 series” items that require a license to ship only to China, Cuba, Iran, North Korea, Russia, Sudan, Syria and Venezuela -- to CCL Export Control Classification Number (ECCN) 9A515, and (4) other corrections and clarifications to the May 2014 BIS interim rule.
State in its final rule is increasing the aperture threshold for electro-optical satellite systems warranting control on the USML from over 0.35 meters to 0.50 meters, acknowledging that aperture technology is evolving, and “to reflect the current status of technology that provides the United States with a critical military or intelligence advantage and warrants control on the USML.” Commenters in response to the BIS interim final rule “strongly advocated” a more permissive aperture size, and the concurrent final rules will move items that no longer warrant ITAR control to the CCL. BIS expects to receive about 10 to 20 more license applications annually resulting from these additions to the Export Administration Regulations, it said.
However, BIS is imposing stricter requirements on these satellites compared to other 9x515 items in some cases. BIS is adding new paragraph (a)(8) to 15 CFR 742.6 as a Regional Stability (RS) license requirement for certain spacecraft and related items. The paragraph specifies that a license is required to export spacecraft classified under ECCNs 9A515.a.1, .a.2, .a.3, .a.4, .g and 9E515.f. While the license requirements for these items will become more restrictive than before, they will undergo the same license review policy as other 9x515 items, BIS said.
BIS is adding paragraphs (b)(5)(i) and (b)(5)(ii) to 15 CFR 742.6 to state when applications to export or re-export a spacecraft controlled under ECCN 9A515.a for launch “in or by a country” will or may require a technology transfer control plan (TCP) approved by the Defense Department, an encryption technology control plan approved by the National Security Agency, and DoD monitoring of all launch activities. The former paragraph will qualify that this is a requirement for all such applications for countries not members of NATO or not major non-NATO allies. Moreover, the BIS rule will add new paragraph (b)(6) (remove sensing spacecraft) to 15 CFR 742.6, to describe that applications for spacecraft in ECCNs 9A515.a.1, .a.2, .a.3 and .a.4, for sensitive remote-sensing components in 9A515.g, or for technology in ECCN 9E515.f, may require a government-to-government agreement at the U.S. government’s discretion. The BIS rule will also add new paragraph (d)(2)(iv) to 15 CFR 750.4 to inform applicants that the State-led Remote Sensing Interagency Working Group will review license applications involving remote-sensing spacecraft, comprising items in ECCNs 9A515.a.1, .a.2, .a.3 or .a.4, as well as sensitive remote-sensing components in 9A515.g or “technology” in 9E515.f.
In addition to changing the above-mentioned aperture threshold for ITAR control, State’s final rule is amending ITAR language to better reflect intended control scopes related to autonomous tracking systems, logistics, propulsion systems, cryocoolers and vibration suppression systems. Among the changes to the ITAR are State’s addition of the term “specially designed” to USML Category XV paragraph (e)(5) to put a stop to certain commercial control electronics being inadvertently “caught” under the ITAR. State’s final rule also amends Category XV paragraph (a)(2) to clarify that ITAR controls apply to spacecraft that “perform real-time autonomous detection and tracking of moving objects, other than celestial bodies,” State said. “The control does not include systems that can track fixed points to determine their own movement based on the relative position of the fixed points over time.”
Moreover, the rule will amend Category XV paragraph (a)(10) to control spacecraft autonomously performing collision avoidance, rather than the current control of spacecraft that provide “space-based logistics, surveillance, assembly, repair, or servicing of any spacecraft … and have integrated propulsion other than that required for attitude control.” State’s final rule also revises Category XV paragraph (a)(11) to specify that controls for sub-orbital craft apply to those that have certain propulsion systems and are specially designed for atmospheric entry or re-entry.
(Federal Register 01/10/17)