Export Control

 

Export Controls on UAVs/UASs

Unmanned aerial systems (UASs) and unmanned aerial vehicles (UAVs) (collectively termed “UASs”) have the potential to use some of the most high-profile and highly controlled technologies currently in use. They are considered a “Dual-Use” item: a commodity that can be used for both military/strategic and commercial/civilian purposes. Almost all UASs are subject to some form of export control, even if the UAS/UAV is for research or non-commercial use. Different UAS abilities will cause the hardware, software, and technical information associated with the UAS to be controlled by government regulatory agencies.

 

Many UASs are export controlled under the Export Administration Regulations (EAR) governed by the Department of Commerce, or the International Traffic in Arms Regulations (ITAR) governed by the Department of State. UASs which are specifically designed for defense purposes – regardless of their intended use at Oklahoma State University – will usually be controlled under the ITAR. UASs which are civil by design intent, but with capabilities that could inherently be useful for defense purposes, will generally be controlled under the EAR. Both sets of regulations trigger foreign national access and use restrictions with respect to the equipment as well as related software and technology (information); however, as outlined below, access thresholds differ significantly depending on whether the item is ITAR or EAR-controlled.

 

Department of State Regulations (ITAR) and UAS Classification

The International Traffic in Arms Regulations (ITAR) have specific controls and regulations on both unarmed and armed military UASs. “Military” in this respect is a UAS that was designed to military or intelligence specifications, designed for a military application, or that may be classified or controlled for national security purposes. Items controlled under the USML are subject to strict restrictions on export to foreign countries and access by foreign nationals. Foreign nationals, even students, are not permitted to work on or have access to any ITAR controlled UAS (including all associated hardware, software and technical data) without explicit authorization form the U.S. Government in the form of export licenses. The chart below details how specific capabilities are controlled under the ITAR’s United States Munitions List (USML).

Classification Description	USML Category Number	Notes
Unarmed Military UAVs	VIII(a)(5)	Considered “Significant Military Equipment”
ALL armed UAVs	VIII(a)(6)	No range for  USML threshold listed, considered “Significant Military Equipment”
UAV flight control systems and vehicle management systems with swarming capability	VIII(h)(12)	Swarming – UAVs interact with each other to avoid collisions and stay together, or, if weaponized, coordinate targeting.

 

Other components of a UAS may also be controlled depending on their capabilities and if they are built to United States or foreign military specifications. Other UAS components that may be ITAR-controlled include but are not limited to fire control systems, certain guidance and navigation systems, and anti-collision capabilities.

 

Department of Commerce (EAR) Regulations and UAS Classification

The Export Administration Regulations (EAR) control the export of mostly commercial and “Dual-Use” items. Many UAS used in research today fall under the commercial or Dual-Use category. While not as restricted as items on the USML, many items and technology on the EAR’s Commerce Control List (CCL) are potentially restricted to foreign nationals. The chart below outlines the primary UAS related categories on the CCL:

Classification Description	Export Control Classification Number	Note
Non-military UAVs or unmanned airships with maximum endurance greater than or equal to 30 minutes but less than 1 hour and designed to take-off and have stable controlled flight in wind gusts equal to or exceeding 46.3 km/h (25 knots)	9A012.a.1
Non-military UAVs with maximum endurance of 1 hour or greater	9A012.a.2	This is the most common UAS for research use
Complete UAV with autonomous flight control	9A120.a.1	Only if not specified by 9A012
Complete UAV with capability of controlled-flight out of the direct vision range of human operator	9A120.a.2	Only if not specified by 9A012
Complete UAV with aerosol dispensing system	9A120.b.1	Must have capacity greater than 20 liters

 

EAR controls apply to items found on the Commerce Control List (CCL) and apply on a country-by-country (citizenship-by-citizenship basis), rather than as a blanket restriction on all foreign nationals. UAVs are controlled for numerous reasons such as national security, missile technology, anti-terrorism, etc. These control levels are, in turn, mapped to various countries and their nationals.

 

Can a Foreign National Operate a Controlled UAS or UAV?

In general, a foreign national must do more than merely operate or use a “Dual Use” item for a “deemed export” to occur. Rather, the foreign national’s level of access would have to enable him/her to gain what is defined as “use” or development technology. For EAR purposes, “use” technology is defined as information relating to:

• Operation
• Installation (including on-site installation)
• Maintenance (checking)
• Repair
• Overhaul
• Refurbishing

Hence, if an item is controlled for “use” technology, the foreign national would have to perform at least several of these functions so as to gain an understanding of the underlying controlled technology. In other words, if when installing or refurbishing a controlled component on a UAS, a foreign national gains an understanding of the controlled technology of either the component or the UAS system as a whole, a deemed export may be triggered if the “use” technology control applies to that particular person’s citizenship.

 

Alternatively, UASs may be controlled for “development” technology which is defined as information “related to all stages prior to serial production, such as: design, design research, design analysis, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts.” Hence, were a foreign national to use a repair manual or software code that contained this type of information or performed related design activities, a deemed export could be triggered. Likewise, were such design technology provided to a foreign national in order to engage in one of the aforementioned “use” activities, for example installation, this could likewise trigger a deemed export, even if the foreign national is not “designing” anything per se.

 

EAR “600 series” Requirements

There is one class of more highly controlled EAR dual use UASs where even merely operating the device can trigger a deemed export, such that that technology transfer is deemed to occur through this activity alone. These items are found in the so-called “600” series within Category 9 of the CCL.

To the extent that you wish to authorize foreign nationals to gain access to controlled “use” or “development” technology, or use a “600 series” EAR item, export licenses may be granted by the Commerce Department’s BIS division; note that routine deemed export licenses can take up to 60 days to receive approval.

 

Are Parts/Systems for UAVs Also Controlled?

The CCL also controls certain types of autopilot systems (e.g. fly-by-wire), GPS, gimbals, and sensors. Additionally, the EAR has levels of control for differ countries, such as Anti-Terrorism or Regional Stability. For example, certain UAS may be exported to Canada without government authorization, but the same UAS could not be exported to Egypt for national security reasons.

 

What Happens If My UAV/UAS Is Export Controlled?

The Export Control office can assist in determining whether your UAV/UAS is export controlled. If you UAS is controlled, Export Control will also help you understand what controls apply, and how to store, operate, and use your UAV/UAS within the requirements. Potential steps include:

• Export Classification
• Licensing and license management
• Technology Control Plan
• Restricted Party screening/H1-B review
• Record Keeping

How Are Federal Export Controls Different from FAA Regulations?

The operation of unmanned aircraft systems (UAS), including but not limited to “drones” and model aircraft, is regulated by the United States Federal Aviation Administration (FAA) and applicable state and local laws. Additionally, the Department of State and the Department of Commerce control certain UAS for export outside the United States. All members of Oklahoma State University, specifically staff, faculty, and students, are responsible for complying with appropriate FAA and export control regulations, as well as all relevant university policies, when purchasing or using UAS as part of their University duties.

 

Export controls and FAA regulations are equally important, but different missions and end-goals. FAA regulations are focused on civilian aviation safety and general public safety. Export controls on the other hand are primarily concerned with the transfer of sensitive technologies for national security purposes. While there is some overlap, the regulations are not harmonized. FAA approval (such as a COA or other form of flight authorization) does not authorize the export or transfer of the UAS to foreign countries or foreign nationals.

 

As a federally registered exporter, and a recipient of government contracts, Oklahoma State University must comply with all federal law regarding the research use and export of controlled materials, software, and technology. Research use of UAS is heavily regulated by the FAA and the primary United States export control agencies. This affects:

• University faculty, staff, and students operating unmanned aircraft systems in any location as part of their university research employment or as part of OSU research activities.
• Any purchase of unmanned aircraft systems (for research purposes only) with funding through the University, including university accounts, grants, or foundation accounts.

Examples of FAA Restrictions

• All UAS over 0.55 pounds (250g/8.8 oz.) must be registered with the FAA PRIOR to any flight outdoors. Examples of UAS that need to be registered can be found at the Federal Drone Registration page. UAS weighing more than 55 pounds require additional registration requirement with the UAS Registration, costs $5 and is valid for 3 years. More information can be found at the FAA Drone Information Site.
• Additional requirements for registration with FAA is UAS is not specifically for hobby and recreation use (i.e., commercial use)
• Additional registrations requirements from FAA for any UAS that will be used outside of the U.S. and potential export licenses from BIS or DDTC.

What about Hobby UASs?

While most hobby UASs are not export controlled, many UAVs/UASs used in research have capabilities that are controlled. Additionally, even some commercial off-the-shelf (COTS) can be controlled, either individually or as parts of a complete UAS.

 

What Do I Do If I Have or Am Working on a Controlled UAS, Ground system or Technology?

As a federally registered exported and a recipient of government contracts, OSU must comply with all federal laws and regulations regarding the research use and export of controlled materials, software, and technology. If your UAS falls into one of the above ITAR or CCL Categories, Export Control will work with you to review for conditions that undermine the Fundamental Research Exclusion and ensure full compliance with the applicable regulations. Depending on the research, a Technology Control Plan (TCP) may be required. A TCP outlines specific physical security, cyber security, and training requirements for individual projects.

 

What If I Have to Ship a UAS Overseas for Field Research or as Part of a Contract Deliverable?

Depending on the end-user and end-use of the UAS, international UAS exports may require an export license authorization from the U.S. Government. You may also require a license authorization for foreign nationals to work on controlled UAS in the United States as well. Export Control Officer will draft and submit the license application on your behalf. The license review process can take up to 18 months, so appropriate planning for license submittal (preferably at the proposal stage) is required.

 

What Information Do I Need to Provide for an Export Control Review or License Application?

For export license applications, technology control plans, and sponsored research contract reviews, the Export Control Office will need the following information:

• Manufacturer and model number of UAS components (including autopilot and any payload)
• Specific UAS capability (including flight time and payload)
• Sponsor of project and statement of work (SOW)
• Names and ogranizations of all collaborators (U.S. and others)
• Potential date(s) of export
• Required foreign national access (such as source code, blueprints, or design manifests)

When Should I Contact the Export Control Officer about My UAS Project?

The Office of Export Trade Compliance can assist you with the following activities:

• Review of export control requirements in proposal and contract
• Review of publication or participant restrictions in proposals and contracts
• Review of current or proposed UAS capabilities and export classification of UAS
• International exports of UAS and associated paperwork
• Technology Control Plans for UAS associated with sponsored research
• Drafting and submitting export license applications for international UAS collaborative research