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Export Control on Satellites: Change to the Commerce Control List

Export Control on Satellites: Change to the Commerce Control List

I previously wrote about changes to the US Munitions List (USML) in the International Traffic in Arms Regulations (ITAR) affecting export controls on satellites and spacecraft.  Those changes, which will become effective on Nov. 10, 2014, will result in the removal of many satellites, ground equipment, and components from ITAR controls.  Instead, they will now be subject to controls under the Export Administration Regulations (EAR).  Let’s take a look at the upcoming EAR controls.

The Commerce Control List (CCL) in the EAR is being modified to include a new provision – 9A515.  That Export Commodity Control Number (ECCN) will control the following satellites:

“a. ‘‘Spacecraft,’’ including satellites, and space vehicles, whether designated developmental, experimental, research or scientific, not enumerated in USML Category XV or described in 9A004”

Thus, to be classified in ECCN 9A515 the satellite cannot be classified in Cat. XV of the USML, nor can it be classified in ECCN 9A004.

Classifying a satellite for export will be a process of elimination.  USML Cat. XV applies to satellites having specific features, such as detecting nuclear detonations, tracking ground and space objects, having anti-satellite capabilities, etc.  A person responsible for licensing of satellites will need to consult with a technical employee to verify whether a satellite has any features or capabilities that would make it subject to the ITAR.

A useful tool may be a questionnaire to be completed by a technical employee asking whether the satellite has any of the features described in USML Cat. XV. The completed questionnaire would form part of the license file explaining how the satellite was classified and also serve as evidence of due diligence.

ECCN 9A004 primarily controls components and systems for the International Space Station.  If that is what is being considered for export, classify in 9A004.

Once it is determined how the satellite is controlled, one can then determine controls on ground equipment, parts, components, accessories and attachments.

ECCN 9A515.b includes ground equipment “specially designed” for the satellites described in 9A515.a.  Classification as ground equipment will involve interpretation and application of the “specially designed” definition.  That may or may not be a simple task.

Parts, components, accessories and attachments are classified in ECCN 9A515.x, but only if they are not:

  • Classified in Cat. XV of the USML
  • Ground equipment in 9A515.b
  • Radiation hardened microcircuits classified in 9A515.e
  • Star trackers or gyro compasses classified in 7A004 or 7A104
  • Classified in an ECCN using “space qualified” as a criterion

In addition, to be classified in 9A515.x, the parts, components, accessories and attachments must also be “specially designed” for use in satellites classified in 9A515.a.  There is also a provision in 9A515.y for parts classified there as a result of a CCATS classification determination.

A decision tree for classification of parts, components, accessories and attachments of satellites in 9A515.x may look like this:

  • Is it classified in Cat. XV of the USML and subject to ITAR controls? If N –
  • Is it a part of the International Space Station in ECCN 9A004.b? If N –
  • Is it “specially designed” for use in satellites classified in 9A515.a? If Y –
  • Is it ground equipment classified in 9A515.b? If N –
  • Is it a radiation hardened microcircuit meeting the specifications in 9A515.d and e? If N –
  • Has it been classified in 9A515.y as a result of a CCATS? If N –
  • Is it a star tracker or gyro compass for a satellite classified in 7A004 or 7A104? If N –
  • Is it specifically described in an ECCN using “space qualified” as a criterion? If N –
  • Classify it in 9A515.x

Isn’t that easy?  Well, it really isn’t.  Classifying satellites and parts will be similar to classifying many other articles in the revised ITAR or EAR.  Export Control Reform will result in more specific descriptions and movement of many items from the ITAR to the EAR, but it will not result in a simplified classification process.  Export compliance people who can work with these rules will be more valuable than ever.  Remind your management of that when it comes time for your annual performance appraisal.