Today, the Department of State’s final rule (with corrections available here) and the Department of Commerce’s final rule revising the export controls applicable to satellites and related parts, components, software, technology, and services became effective. The agencies published interim final rules detailing the changes in May 2014. This is long-awaited and welcome news to the satellite and space industry, as commercial communications satellites (without classified components or capability), remote sensing satellites with performance parameters below certain thresholds, as well as a number of other items are now controlled by Commerce’s Export Administration Regulations (EAR), rather than State’s International Traffic in Arms Regulations (ITAR). Of course, most of the items that now fall under the purview of the EAR will remain subject to fairly stringent export controls requirements, including special controls and rules applicable to countries subject to arms embargo policies.
There are two points of note in the new rules: First, State and Commerce codified existing policy regarding telemetry data. Neither the ITAR nor new Export Control Classification Number (ECCN) 9E515 in the EAR covering technology related to the formerly ITAR-controlled satellites and spacecraft control data transmitted to or from a satellite or spacecraft, whether real or simulated, when limited to information about the health, operational status, or function of, or measurements or raw sensor output from, the spacecraft, spacecraft payload(s), or their associated subsystems or components. Such “housekeeping data” includes, for example:
- System, hardware, component configuration, and operation status information pertaining to temperatures, pressures, power, currents, voltages, and battery charges;
- Spacecraft or payload orientation or position information, such as state vector or ephemeris information;
- Payload raw mission or science output, such as images, spectra, particle measurements, or field measurements;
- Command responses;
- Accurate timing information; and
- Link budget data.
Importantly, processing the raw telemetry into engineering units or readable products or encrypting such data does not, alone, cause the data to shift to control under the ITAR or ECCN 9E515. This regulatory change provides a definitive, legal carve-out that companies, universities, and research institutions can rely upon without having to worry about the exact scope of the U.S. government policy on telemetry data or whether such policy has changed.
Second, even if a satellite or spacecraft has shifted from ITAR- to EAR-controlled, defense services still may be an issue. In this connection, the ITAR explicitly controls furnishing assistance in the integration of a satellite or spacecraft to a launch vehicle (planning and onsite support) and in the launch failure analysis of a satellite or spacecraft, regardless of the jurisdiction, ownership, or origin of the satellite or spacecraft and regardless of whether or not ITAR-controlled technical data is used. In other words, these types of activities require authorization under the ITAR even if the satellite or spacecraft is now EAR-controlled and even if no ITAR-controlled technical data is transferred.
These are just two of many revisions and clarifications made by State’s and Commerce’s final rules. Now that the much anticipated change to U.S. export controls on satellites is a reality, manufacturers and exporters should carefully review the new rules to determine where their products and technology fall and make any necessary changes to their export compliance programs.