The government has been busy with UAS policy – not just with the well-known draft domestic regulations but with export policy as well.
Yesterday the Department of State announced a new policy regarding exports of military and commercial UAS. Exports of defense articles, such as military UAS, are controlled by the Department of State’s Directorate of Defense Trade Controls (“DDTC”) through the International Traffic in Arms Regulations (“ITAR”). Other UAS may be controlled through the Department of Commerce’s Bureau of Industry and Security (“BIS”) and the Export Administration Regulations (“EAR”).
The actual policy will not be released publicly, so we need to rely on the Press Release. The new policy put in place stringent controls on exports of military UAS, with numerous requirements to ensure that the end-use is in accordance with our policies and with the Missile Technology Control Regime (“MTCR”). However, exports will be allowed, even for MTCR Category I technology, but likely just to our very closest allies.
This comes on the heels of a February 6, 2015 announcement from the Defense Security Cooperation Agency (DSCA). They reported that the Department of State has approved the possible sale of General Atomics MQ-9 Reapers and associated support to the Netherlands. DCSA’s purpose is to support our global allies, including the Netherlands. The Department of State’s Directorate of Defense Trade Controls (DDTC) governs the export of defense articles through the International Traffic in Arms Regulations (ITAR).
This brings to the fore the important issue of export requirements for UAS, something I have danced around lately. While most commercially available UAS are unarmed and nonmilitary, and therefore not subject to the ITAR, they might be governed by the Department of Commerce’s Bureau of Industry and Security’s Export Administration Regulations (EAR). (Note: “military” is not defined in the ITAR as it applies to UAS – a word that has created ambiguity on whether items are ITAR controlled). The EAR covers “dual-use” items, those that may have both civilian and military applications. For example, a UAS capable of autonomous control is likely subject to the EAR with an Export Control Classification Number (ECCN) of 9A012 (see sub-paragraph a1). Many of the newer commercially available UAS can receive GPS plotting instructions and/or have “Return to home” capability; likely making them subject to this ECCN and its the associated export limitations.
The recent announcements from DCSA and DDTC provide the opportunity for an illustrative case example in the differences between what appear to be equally sophisticated ITAR-controlled UAS made by General Atomics. It also provides the opportunity to show the level of discretion provided to DDTC when determining whether to issue a license. The MQ-1B Predator can fly up to 450 miles with a payload of 450 lbs, such as Hellfire Missiles. The MQ-9 Reaper can fly over 1,800 miles with a payload of 3,750 pounds. The Predator XP is similar to the MQ-1B except that it is specifically designed not to carry weapons, in order that it can be exported more readily. This does not mean it is easy, however.
If the UAS is armed, the answer seems simple – it is controlled under ITAR Category VIII(a)(6). The category for unarmed military UAS is more ambiguous, and one will have to determine the purpose for which the UAS was designed and is being used. However, the ITAR also states “MT if the UAV has a range equal to or greater than 300km.” What does this mean? This is referring to the Missile Technology Control Regime, of which the United States is a part. This is a non-binding association entered into in the late 1980’s to limit the proliferation of weapons of mass destruction and their delivery vehicles, and its recommendations are generally heeded by the United States.
The MQ-1B and Reaper are classified under Category VIII(a)(6)* of the ITAR and the Predator XP would be classified as Category VIII(a)(5)*. The “*” indicates that the product is considered “Significant Military Equipment” and subject to special export controls. This is another area of ambiguity, the “special export controls” are not defined and are leave great discretion to DDTC.
Additionally, both aircraft will be considered “Missile Technology” and subject to the MTCR. The MTCR goes another step and has two categories, Category I and II (which should not be confused with the unrelated ITAR categories). The MTCR states that there will be a “strong presumption of denial” for exports of technology listed in Category I. As for Category II, partners to the MTCR have agreed to “exercise restraint, [but] have greater flexibility.”
As it applies to UAS, Category I covers UAS that can exceed a 300 km/500 kg (range/payload threshold). Some definitions are in order. According to the MTCR, “payload” is defined as “the total mass that can be carried or delivered by the specified rocket system or unmanned aerial vehicle (UAV) system that is not used to maintain flight.” Range is defined as the distance the aircraft can travel when fully loaded with fuel, independent of any external factors, with a trajectory that maximizes “range,” with no wind, and assuming a one-way trip with the most fuel-efficient flight profile.
The Reaper is clearly covered by Category I. The MQ-1B is also considered Category I by the USAF even though its advertised payload is less than 500 kg (~1100lb). This could either be because one can crease its range and add a greater payload or because of the weapons it can carry. Specific details on the MQ-1B are not available and neither is the rationale for this classification – at least as far as I can find. The Predator XP was specifically designed as an unarmed UAS so that General Atomics could market to foreign entities.
Even the Predator XP is not treated lightly, however. Recent reports indicate that the Department of State had refused a license request from General Atomics to enter into negotiations with Jordan (see my earlier post here). Conversely, the Category I MQ-9 Reaper is being considered for sale to our ally and MTCR signatory Netherlands, as discussed in the press release from DSCA. The only absolute prohibition on transfer, even to allies, is of the transfer of production facilities for Category I items.
This is merely a topical summary of the MTCR. The MTCR Handbook is over 300 pages and also includes numerous sub-components and production capabilities that are not addressed in this article.
One cannot stop at the airframe because both the ITAR and EAR control components within a UAS. The press release from DSCA lists the major defense components in the Reapers destined for sale to the Netherlands. Many of these systems will be classified under the ITAR (likely categories include XI – Military Electronics, XII – Fire Control, Range Finder, Optical and Guidance and Control Equipment, XV-Spacecraft Systems and Associated Equipment, XVII – Classified Items, XIX – Gas Turbine Engines).
The sales of military UAS bring together all facets of the ITAR’s control of defense articles. The examples discussed above provide a case study in how they apply, but each product can be properly classified only after a more thorough review of their design and capabilities, including a consideration of its sub-components. Exporting defense or dual-use articles is not an easy venture, but it can be done with a patient and thorough understanding of U.S. export law.