US Export Regulations

Introduction

Perhaps the one legal issue that affects our space-industry clients the most is U.S. export controls, particularly the International Traffic in Arms Regulations (“ITAR”) and the Export Administration Regulations (“EAR”). In the sections below, we will provide a brief introduction to the role U.S. export controls play in the commercial space industry.

What things are controlled?

There are two major sets of U.S. export regulations that apply to the space industry. These are the International Traffic in Arms Regulations (“ITAR”) and the Export Administration Regulations (“EAR”). The ITAR deal exclusively with items that are listed on the U.S. Munitions List (“USML”), which you can find at 22 CFR § 121.1.

The EAR deal with pretty much everything else that is not on the USML. The EAR govern the export of truly mundane things that aren’t listed anywhere in the regulations (everything from cats to band aids), which we classify as “EAR99,” and they also govern certain things that are listed in the EAR on the Commerce Control List (“CCL”), such as spacecraft. As you can imagine, EAR99 items have very few rules that apply to exporting them, while items on the CCL have more rules that apply to exporting them.

What activities are controlled under the EAR & ITAR?

Exports

“Export” is defined as:

an actual movement or transmission out of the United States (regardless of the means of movement or transmission);
releasing or otherwise transferring information listed on the USML or CCL to a foreign person in the United States (this is a “deemed export”);
transferring registration, control, or ownership of a spacecraft to a foreign person or a person in a foreign country (this rule differs slightly between the ITAR and EAR); or
Using access information to enable a foreign person to access, view, or possess unencrypted information controlled under the ITAR.

As discussed above, releasing or otherwise transferring information listed on the USML or CCL to a foreign person, while the foreign person is in the United States, is a “deemed export.” This scenario often occurs when a foreign person visits a space-industry company’s production facility in the U.S., and while at the facility, the foreign person is able to see information controlled by the ITAR or the EAR on computer screens or drawings. The foreign person might also learn the information aurally or be able to visually inspect a spacecraft beyond what is available to the public.

Given that a deemed export can only occur when a “foreign person” is involved, we must understand what this term means. The following are considered “foreign persons”:

Reexports

When an item controlled by the ITAR or the EAR is exported to one country, the U.S. government often continues to govern the item and imposes rules on any further movements to any other countries beyond the first. Each such movement to another country is considered a “Reexport.”

Re-Transfers

When a person receives a license from the U.S. government to export a thing, the license will allow the export to a particular person (usually a particular company). As with reexports, the U.S. government continues to control the item and will often not allow the item to be “re-transferred” to another person without a new license.

What activities are controlled under the ITAR?

In addition to the activities described above (exports, reexports, and re-transfers), the ITAR control a few more activities.

Defense Services

A defense service is:

the furnishing of assistance (including training) to foreign persons, in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of items described on the USML;
the furnishing to foreign persons of any information described on the USML; or
military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.

Brokering Activities

Brokering activities include any action on behalf of another to facilitate the manufacture, export, permanent import, transfer, reexport, or retransfer of a U.S. or foreign item controlled described on the USML or defense service, regardless of its origin.

What activities are controlled under foreign sanctions?

In addition to the activities that are controlled by the ITAR and the EAR, we must also consider foreign sanctions. These sanctions could prevent U.S. persons from engaging in essentially any business transactions with certain sanctioned countries, regions, companies, or individuals.

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