On October 23, 2024, the Department of State, Directorate of Defense Trade Controls (DDTC) and Department of Commerce, Bureau of Industry and Security (BIS) issued a pair of proposed rules (89 FR 84482) and (89 FR 84784) which would revise controls on space-related exports under the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). Generally, the proposed changes are intended to support the U.S. space industrial base consistent with U.S. national security and foreign policy. Spacecraft used for remote sensing, servicing, and fundamental research are of particular interest.
Proposed ITAR Revisions
The DDTC Proposed Rule would primarily revise US Munitions List (USML) Categories IV and XV. Any company with USML Category IV or XV products should review the proposed rules carefully.
Proposed changes include:
- Revised/added definitions
- Reorganizes parts controlled under USML Categories IV and XV
- New license exceptions under ITAR § 126.8:
- Official Space Agency Exemption (for USG space programs, excluding their launch vehicles)
- Space Activity Exemption (includes limited articles and services, space launch telemetry, on-orbit fundamental research, and services related to on-orbit transmissions)
- Space Tourism and Research Exemption (certain transfers of manned spacecraft for space tourism or in support of fundamental research)
- Special Licensing Provision for Defense Articles Incorporated Into Spacecraft Subject to the EAR
USML Category XV controls on spacecraft would exclude certain NASA, remote sensing, Position, Navigation, and Timing (PNT), autonomous collision avoidance-capable, and servicing spacecraft. New paragraphs control “spacecraft capable of non-cooperative grappling or docking, in-orbit construction of other defense articles, and deploying multiple spacecraft into different orbits.” Descriptions of various spacecraft systems and components would also be reorganized and revised.
Revisions to USML Category IV were also proposed, including the definitions and control thresholds for:
- MANPADS (Man-Portable Air-Defense Systems)
- Anti-tank missiles
- Rockets
- Bombs
- Mines
- Grenades
- Loitering munitions
- Kinetic kill vehicles
- Post-boost vehicles
- Hypersonic glide vehicles
- Re-entry vehicles
- Launch platforms
- Rocket, SLV, and missile power plants
- Non-nuclear warheads for rockets, bombs, and missiles (e.g., explosive, kinetic, EMP, thermobaric, shape charge, and fuel air explosive (FAE))
- Systems, subsystems, parts, components, accessories, attachments, or associated equipment
Proposed EAR Revisions
The BIS Proposed Rule would make conforming changes to the Commerce Control List (CCL) for items no longer controlled by the USML and create a license exception Commercial Space Activities (CSA).
CCL changes include revisions to descriptions of spacecraft and related systems in Export Control Classification Number (ECCN) 9A515 (Spacecraft and related commodities), a new 9C515 for some spacecraft materials, and revisions to software and technology controls under 9D515 and 9E515.
New license exception under EAR § 740.26 for Commercial Space Activities (CSA), similar to the proposed ITAR exemption, would provide a licensing exception for official space agency programs and space tourism and research.
Comments on both proposed rules will be accepted through November 22, 2024. The Federal Register Notices (89 FR 84482) and (89 FR 84784) contain additional details on how to submit comments. Both notices includes summaries of comments provided in response to a pair of 2019 advanced notice of proposed rulemaking and provide additional questions for which comments are specifically requested. DDTC also requests comments on satellite signature reduction “to facilitate industry efforts to reduce the apparent magnitude, as viewed from Earth, of satellite brightness.”
BIS Rules Effective Immediately
Also on October 23rd, BIS published a final rule (89 FR 84766) and an interim final rule (89 FR 84770), both effective the same day, remove license requirements for Australia, Canada, and the United Kingdom and reduce licensing requirements over 40 countries.
The first removes controls on some spacecraft and related items when exported or reexported to Australia, Canada, and the United Kingdom. Following the BIS AUKUS rule in April, 9×515 spacecraft and related items that involved remote sensing or space-based logistics, assembly, or servicing still required licenses to all destinations worldwide pursuant to § 742.6(a)(9). This requirement is now removed.
The second removes license requirements for certain spacecraft components to over 40 countries, reduces license requirements for less sensitive components to most destinations, and broadens license exception GOV to support NASA cooperative programs.
The main revisions include:
- Changing controls on 9A515.x from NS1 and RS1 to NS2 and RS2
- Adding items to 9A515.y
- Adding software and technology exclusion for standards-related activity
- Changes to 9A004
Comments on the interim final rule will be accepted through November 22, 2024 (see the FRN for details).