In preparing my comments to the State and Commerce Department NPRMs revising the US Munitions List Category XV and creating the Commerce Control List ECCNs for items thus moved off the USML (comments are due on the 8th of July), I figured I ought to share the specific areas I’m focusing my comments on. This is more of an outline than a full draft, but I hope it can help seed people’s thoughts who are thinking of preparing their own comments.
EAR NPRM Comments
I’ll be focusing most of my comments on the USML Category XV revision, but will start with two quick comments about the NPRM for the Export Administration Regulations first, since I only have two comments so-far:
- First for fans of manned spaceflight, there’s actually a very useful note in the NPRM that I thought was worth repeating here, since I haven’t heard anyone else in the industry mention this. This note is found under the section heading “New ECCN 9E515”:
The appendix to the 1248 Report referred to a possible need to control technology required for passenger participation in space travel (e.g., sub-orbital, orbital, lunar, interplanetary or habitat) for space tourism, research or scientific endeavors, or transportation from one point to another for commercial purposes. The Departments of Defense and State have since reviewed such technology and concluded that it is not per se now subject to USML Category XV. There is thus no proposed inclusion of such technology as a general matter in either the proposed USML Category XV or the proposed 9E515. To the extent other technology described in either the proposed USML XV or 9E515 would be released to a foreign person during such activities, then it would be controlled according to the requirements of the relevant paragraph.
What this basically means is that the mere act of a foreign person flying on a suborbital, orbital, lunar, interplanetary vehicle or in a space habitat is not considered an export by the company flying that person, and thus does not require a license from either the State Department (ITAR) or the Commerce Department (EAR). So VG wouldn’t need to get a license from the DoS or DoC in order to fly say Richard Branson from a US spaceport. They would have to get some sort of export license to ship a SS2/WK2 out to say Sweden to do flights, but wouldn’t need an individual license per passenger. The ITAR lawyer who pointed this out to me said that this was due to work that had been done by, IIRC George Whitesides of Virgin Galactic. To me this is a very positive move by the State Department, DoD, and Department of Commerce, and I wanted to explicitly call this out for praise.
- Items controlled by the Commerce Control List are given “Reason for Control” designations. These reasons for control are used to reference a “country list” to determine if a license is needed to “export” an item to a national of a given country. For instance, there are two National Security related reasons for control (NS-1 and NS-2) that correspond to two columns on the CCL country list for export items that are deemed to directly impact national security. The proposed rule suggests an NS-1 and RS-1 (Regional Stability) designation for all technology moved from the USML to the CCL. If you look at the country list, NS-1 and RS-1 are identical, and the only country you don’t need a license to “export” to is Canada (which means we’ll have to find another nickname for our “evil Canadian” friends). If you look at NS-2 and RS-2, those lists don’t require license for export to NATO countries, Japan, South Korea, Australia, New Zealand, and one or two other close allies. Personally I totally understand giving these items NS or RS designations, but they provided no explanation for why they picked NS-1/RS-1 instead of NS-2/RS-2. I can see reasons for treating Canada different than say China, but treating Germany or UK or Australia the same as China seems just as wrongheaded, and somewhat lowers the benefit of moving stuff off of the USML. The most ridiculous thing is that for NS-1/RS-1 items, there’s an STA-36 exemption that allows you to basically get the benefits of a NS-2/RS-2 designation with only a little paperwork…so why not just make it NS-2/RS-2? That would still require licenses and scrutiny for all exports to nationals of “bad actor nations”, but would make it a lot easier to work with allies–which I thought was why we were pushing this whole exercise. In fact if you look at finding #4 from the “Section 1248 Report“, it states explicitly that:
4. Export of space-related items to our allies and closest partners presents a low risk to national security and should be subject to fewer restrictions than exports to other countries. Certain North Atlantic Treaty Organization (NATO) allies and other close partners are among the top-tier satellite and space-faring nations. Some western European countries have space-related design, manufacturing, and operational capabilities closest to that of the United States, and it is unlikely that exports of U.S.-origin satellites and related items, including technology, to these countries would result in harm to U.S. national security objectives. Moreover, there is a likelihood that any improvement in their military capabilities would serve to enhance and strengthen our strategic partnership, and the Departments judge that these potential benefits
outweigh the low risks associated with export.
NATO Allies and other partners present an unparalleled opportunity for international cooperation in space. France and Italy recently signed agreements to develop the Athena-Fidus telecommunications satellite systems that will share payloads and provide communications services for the governments of both nations as well as NATO Allies. Recently, Europe’s Arianespace carried the first commercially hosted payload for the U.S. Air Force into geostationary transfer orbit. European nations are in discussions with the U.S. Government on possible cooperation in space exploration and space science.
Direct transfer to our allies and partners of the satellites and related items identified in Finding #2 presents low risk to national security and serves to advance U.S. interests. Continuing to enforce the current regulatory requirements associated with munitions controls on our partners for these satellites and related items places an unneeded administrative burden on transfers that the United States will ultimately approve. To give a sense of scale, considering all types of satellites and their associated parts and components, in 2011, DoD reviewed 1,935 licenses involving USML controlled satellite-related parts and components going to the 36 countries identified as “Strategic Partners” for CCL export control purposes. DoD approved 95.7% of these licenses with no additional provisos or restrictions, another 4% were approved with some additional provisos, and a mere 0.3% were denied or returned without action due to insufficient information. Under the CCL, many of these transfers could occur without obtaining a license at all. Neither U.S. regulators nor the U.S. space industrial base should expend personnel, time, or funding when there is no benefit gained or harm avoided. The more flexible controls of the CCL would promote this important cooperation while maintaining sensible controls given the level of foreign availability, trust we place in our partners, and the assessed impact of unauthorized transfer.
The problem is that by placing these items under the NS-1 and RS-1 reasons for control, they are effectively still requiring licenses for all foreign countries other than Canada–thus directly contradicting one of the key findings of the Section 1248 report that was the impetus for this reform effort. I think it’s pretty clear that they should change the reasons of control on these items from NS-1/RS-1 to NS-2/RS-2 to stay consistent with both logic and with the Section 1248 Report findings.
USML Category XV Revision Comments
I won’t go into the full logic train for my USML comments, but at least wanted to point out which items I wanted to comment on, and what I wanted to advocate in my comments on those items. Generally I think these proposed revisions go a long way towards establishing a more rational export control policy for spacecraft and satellites–one that actually improves national security. However I did have some specific points of praise or concern.
First regarding the new definition of Defense Services:
- In Part 120.9(a)(1), I’m glad that the new definition of Defense Services explicitly states that in order to be a Defense Service, the technical assistance has to use “other than public domain information”. This is a big improvement over the status quo, where just pointing out something in a textbook to a foreigner could technically be considered an ITAR-controlled export that would require a license from the State Department! I still worry that depending on how cranky an ITAR agent got they might look at Selenian Boondocks and go after me for my technical musings on here, but at least this is a solid step back towards sanity.
- In Part 120.9(a)(5) it defines payload to launcher integration of ANY spacecraft as a defense service, even though in the USML Category XV revision, a large range of non-military satellites were removed from the USML. I think this should be revised to only refer to payload integration for spacecraft still covered by paragraph (a) of the USML Category XV.
- Other than that I didn’t have any specific praise or concerns with the new definition.
Now regarding the USML revision. The goal discussed in the so-called “Section 1248” report was to create a “positive list” (ie a clearly defined list that if you’re not clearly on it, you’re by definition not on it) of spacecraft capabilities and hardware items that had a “purely military or intelligence missions” or applications. Looking at the proposed revised Category XV, the two most important paragraphs are: paragraph (a), which is focused on capabilities that they feel are purely military or intelligence missions, and paragraph (e), which focuses on spacecraft technologies that are deemed to be either purely militarily useful or an area where we have a special military advantage they want to protect via ITAR. While I think they did a great job of making a more positive list, and removing most of the items that were non-military, there were a few glaring items explicitly left on the list that I think need to go. Note, these aren’t new items being added to the list, these are space or spacecraft technologies that being explicitly left on the list. Technically they’ve been on the list since the 90s along with everything else space related, but are now being explicitly left on the list while other things are moving off.
Comments to Paragraph (a):
- Paragraph (a)(2) states that Spacecraft that “Track ground, airborne, missile, or space objects using imaging, infrared, radar, or laser systems;” should remain on the USML. While it is true that a large fraction of space-based tracking capabilities are military or intelligence-focused, I feel this item is overly broad since it would include all prox-ops capable vehicles (Dragon, Cygnus, ViviSat’s Mission Extension Vehicle, etc), because all standard rendezvous and docking procedures involve some form of “tracking space objects” for relative navigation in the last mile or so of the rendezvous/prox-ops process. The goal would be to suggest a modification to the verbiage of this paragraph, or provide a note to this paragraph that clearly leaves mere prox-ops capabilities off of the USML and on the CCL, because while there are military applications, there are also clearly several commercial and civil applications, and there’s a large amount of foreign availability of the technology (many of the key prox-ops sensors are made in Canada!).My two thoughts on how to solve this would either:
- A note stating: “Note to paragraph (a)(2): This paragraph does not control a satellite or spacecraft which uses tracking solely for rendezvous or docking/capture purposes.” This might work because although they’re trying to capture capabilities, not end-uses, the sensors used for rendezvous/prox-ops tend to be markedly different in capability than say what SBIRS uses to track missile launches.
- Some sort of quantitative measurement which would separate tracking capabilities that are solely useful for prox-ops and ones that are useful for other more purely military/intelligence applications of space tracking. For instance rephrasing the paragraph to state: “Track ground, airborne, missile, or space objects using imaging, infrared, radar, or laser system that have the ability to track objects at ranges in excess of 100km, and at relative velocities in excess of 500 m/s;”. Relative navigation sensors are currently usually used only in the last few kilometers of the rendezvous process (ground-based tracking or GPS is typically used for the “far-field” portion of a rendezvous), and are typically only used when the target is moving relatively slow with respect to your spacecraft. And a sensor that couldn’t track beyond 100km would be unable to track items on the earth’s surface, aircraft, or missile other than near apogee. My only challenge with this approach is that I still need to make sure that a) the sensors used for prox-ops would actually not be useful for tracking at long-ranges and high relative velocities, and b) make sure my numbers are such that we’re not painting ourselves into a corner.
- Paragraph (a)(4) state that spacecraft that “provide space-based logistics, assembly or servicing of any spacecraft (e.g., refueling);” should be left on the USML. I feel that this paragraph needs to be either removed entirely, or strongly narrowed, because most of these capabilities are provably not “purely” or even “predominately” military or intelligence in application, the foreign availability for most of these technologies are on par with US availability, and most of these missions are clearly dual-use ones with commercial, civil, and military applications. Left unaltered, this would also suck in all robotic cargo delivery vehicles (Dragon, Cygnus), and would suck in all life extension vehicles like the ViviSat MEV. And with foreign entities like MDA-Canada actively trying to commercially sell these capabilities, leaving them controlled by the USML instead of the CCL would only serve to raise the barriers to entry for US firms.I’ve got a range of options for how to deal with this paragraph:
- The best option would be to entirely get rid of this paragraph. The assumption that satellite servicing is somehow purely military in nature when there are several commercial existence proofs doesn’t hold water.
- Next best might be a suggestion like what the NSS suggested that stated modifying this to be only applicable to satellite servicing to satellites covered by USML Category XV paragraph (a). My concern is that they’re trying to classify things by capability, not by intended end-use. Because really, how much difference would there be between a refueling ship that can refuel a GEO Comsat and one that could refuel a LEO Airforce optical recon satellite?
- Next best might be to explicitly exempt life extension capabilites, the ability to deliver cargo to manned or robotic space facilities, and the ability to refuel cooperative targets (ie those with built-in refueling ports).
- Worst case, at least find a way to exempt both cargo deliveries to space stations and satellite life extension.
It might also be good to ask for a clarification of what they mean by “space-based logistics”, as it could actually mean a wide range of things.
- I like the fact that Paragraph (a)(9) makes it clear that just providing a differential GPS correction does not make a spacecraft covered by the USML.
- Paragraph (a)(11) should clearly not be on the USML for a ton of reasons, the single biggest one being that none of these “man-rated” spacecraft are being developed specifically for the military. In fact, other than TGV’s now-defunct MICHELLE-B, I don’t think any of the manned suborbital or orbital companies has even stated any focus on military or intelligence markets. It would also be good to get them to clarify what they mean by “man-rated”. If they mean that it has been certified by NASA as in compliance with NPR 8705.2 b, does that mean that a manned space vehicle that wasn’t certified by NASA wouldn’t be USML controlled? Or are they using man-rated as shorthand to mean “capable of flying people”? I can see almost no way you’d justify putting this paragraph into the USML based on any of the four or five different criteria that the DoD/DoS have proposed for determining if something should be on the USML or not. I can obviously provide a lot of details on this one, so I won’t belabor the point.
Regarding paragraph (e):
- I think paragraph (e)(18) should go away entirely. This paragraph states that “Department of Defense-funded secondary or hosted payload, and specially designed parts and components therefor;” should stay on the USML. This paragraph is the only one in the USML that refers to the funding-source of the technology instead of the capability or specifications. If the DoD funded a hosted payload that was for a satellite capability that had been clearly removed from the USML, why should it be dragged back on just because of the funding source? And if it is something covered in paragraphs (a) or (e) of Category XV, this line would be entirely redundant. I think it clearly needs to go to make it consistent with the rest of the way the USML Category XV is handled.
Ok, sorry if that was a bit of a slog. I didn’t even really get into all the explicit examples of commercial applications or foreign availability for these items I think need to be removed, but I think this provides a good overview of my comments to the two NPRMs.