On October 23, 2024, the Directorate of Defense Trade Controls published proposed changes to the International Traffic in Arms Regulations (ITAR) affecting exports of spacecraft and launch vehicles and related activities.  Subsequently the department extended the comment period from Nov. 22 to Dec. 23, 2024.  The Bureau of Industry & Security (BIS) of the Department of Commerce published corresponding proposed changes to the Export Administration Regulations on Oct. 23, 2024.

There are a bunch of proposed changes.  We will attempt to summarize some of the major ones.  Persons interested in these changes should visit the websites (pmddtc.state.gov & bis.doc.gov) of the two agencies to get the details.  As with any other regulations and changes, it is important to read the fine print before applying for a license or using an exemption.  Also, a reminder that to use an ITAR exemption the exporter must be registered with DDTC.

Proposed Changes to the ITAR

DDTC proposed several new definitions to be included in Part 120 of the ITAR.  They include:

• Amateur rocket
• Excluded NASA spacecraft
• Human spaceflight preparations
• Spacecraft payload
• Payload
• Primary payload
• Secondary payload
• Hosted payload
• Spacecraft
• Spacecraft bus

These definitions will help exporters to more accurately identify the controls associated with space and spacecraft.

Further, USML Cat. XV(a) would be amended to show two definitions of controlled articles: “spacecraft” and “excluded NASA spacecraft.” Some other verbiage will be removed as no longer necessary. All spacecraft described in XV(a) are defense articles regardless of intended end use.

Cat. XV(a)(3) will be modified to include a “specially designed” definition.  

There are changes to Cat. XV(a)(7) and (a)(9) to better reflect the current state of technology and reduce the ground sample distance.  Another change will be to eliminate the spectral band threshold and replace the aperture size threshold with a threshold on light collecting area.  The changes will also clarify that the scope is limited to spacecraft that generate a position, navigation, and timing signal.

Category XV(e)(16) for star trackers will be changed to remove the term “space qualified” from the definition.  According to the FR notice “the Department assesses that the performance requirements currently specified provide a critical military or intelligence advantage regardless of the environment in which they are used.”

There are new license exemptions that would appear in Part 126.8(b) of the ITAR:  

• The first would authorize certain transfers of defense articles and defense services supporting space launches. 
• The second would apply to certain services related to transmission of space launch telemetry.  
• The third would authorize certain services to support collaboration with foreign persons when on-orbit defense articles are utilized in support of fundamental research.  
• The fourth would authorize certain services associated with radiofrequency transmissions using on-orbit defense articles.

The FR notice has other proposed changes to the definitions and requirements for spacecraft, parts and technology.  Exporters of articles or technical data controlled in Cat. XV should carefully read the FR notice to understand whether the proposed changes will affect them.

Proposed changes to the Export Administration Regulations (EAR)

The EAR provisions applicable to spacecraft are also undergoing changes.  

The first is a Final Rule in which BIS removed controls on many spacecraft and related items exported or re-exported to Australia, Canada and UK.  This is consistent with other recent changes that removed controls for exports to these countries.  ECCN 9A515 is changed accordingly.  Further ECCN 9E515 is changed to remove the controls for export of spacecraft technology to Australia, Canada and UK.  Be aware that these changes may not apply if the spacecraft and technology involve countries other than Australia, Canada and UK.  

In a Proposed Rule published in the Federal Register of Oct. 23, 2024 BIS proposed several changes to the EAR for spacecraft related controls.

One proposed change would add a new Part 740.26 to the EAR to establish License Exception CSA (Commercial Space Activity).  This exception would authorize exports, reexports, and transfers (in-country) of items subject to the EAR for certain ‘official space agency programs,’ when the export, reexport, or transfer (in-country) is entirely within the scope of an official space agency program identified in paragraph (c)(1)(i).  Currently those programs are:

(A) NASA’s Lunar Gateway;

(B) NASA’s Mars Sample Return (a program that entails multiple spacecraft);

(C) Nancy Grace Roman Telescope;

(D) The Orion spacecraft;

(E) Commercial Low Earth Orbit Development program; and

(F) Habitable Worlds Observatory

License exception CSA would also apply to space tourism and research.  The requirements include:

(i) The spacecraft must be limited to suborbital trajectories;

(ii) The purpose of the activity must be limited to either space tourism or supporting ‘‘fundamental research;’’

(iii) The activity must not transfer registration, control, or ownership of the spacecraft to a foreign person; and

(iv) The spacecraft’s destinations, including planned diversions and contingencies, must be approved by the Federal Aviation Administration or its foreign equivalent.

BIS is proposing changes to Export Control Classification Number (ECCN) 9A515, the addition of 9C515, and changes to 9D515 and 9E515 in supplement no. 1 to part 774 of the EAR.  These changes are to conform to the corresponding changes to the ITAR. Some of these changes include:

Revises 9A515.a.4 to impose a broader control parameter.

Revises Note 1 to 9A515.a to remove the terms ‘‘planetary rovers’’ and ‘‘in-space habitats.’’

Expands the control parameter under 9A515.g.1 to control space-qualified optics

Adds a new 9A515.i to control electric (plasma/ion) thrusters and their associated power control systems

Adds a new 9A515.j to capture control moment gyroscopes (CMG) ‘‘specially designed’’ for spacecraft

Adds a new 9A515.k to control hold-down or satellite release mechanisms

Adds a new ECCN 9C515, which would control materials, coatings, treatments for reducing in-orbit signatures (i.e., radar, optical, ultraviolet, and infrared) of spacecraft, not described by USML Categories XIII(j) or XV(e)(22).

Adds new ECCN 9C515 to impose appropriate controls under the EAR for material that would be moved from the USML to the CCL

Adds a new ECCN 9D515.c to clarify software would be within the scope of 9D515.

Adds a new 9E515.g to control ‘‘technology’’ ‘‘required’’ for the ‘‘development,’’ ‘‘production,’’ operation, failure analysis or anomaly resolution of commodities controlled by ECCN 9A515.i

Adds a new 9E515.i to control ‘‘technology’’ ‘‘required’’ for the ‘‘development,’’ ‘‘production,’’ operation, failure analysis or anomaly resolution of commodities controlled by ECCN 9A515.k

Next Steps

The next steps for these proposed rules will be closure of the comment period and publication of the final rules.  This won’t happen until next year.  In the meantime, study the full text of the proposed rules for their impact because the final versions will probably be very similar.