GT Alert

Major Space-Related Export Control Changes for U.S. Defense & Aerospace Industries

September 2002
By Fred Shaheen, Greenberg Traurig, Tysons Corner Office

After many months of contentious deliberations between State and Commerce over jurisdiction for aerospace products that fall within the category of "space qualified" commodities, the agencies have now issued new parallel rules effective 9/23/02 which will have a significant impact on defense and aerospace and related industries. The term "space qualified" is extremely broad and may have applicability to many corporations in these industries.

Fred Shaheen

As background, several years ago, the National Defense Authorization Act for FY 1999 mandated the export control jurisdiction transfer of satellites and "related items" from Commerce to State. The transfer of "related items" resulted in confusion throughout the defense and aerospace sectors concerning licensing authority for certain "space qualified" items - i.e., items designed, manufactured and tested to meet the special electrical, mechanical or environmental requirements for use in the launch and deployment of satellites or high-altitude flight systems operating at altitudes of 100 kilometers or higher. These new rules attempt to alleviate some of the confusion.

The new rules (parallel Federal Register notices from State and Commerce — attached at the end of this email) provide for the transfer or split jurisdiction of the following "space qualified" items between State and Commerce. That said, the export of the following categories of items is now controlled by Commerce unless the item is specifically designed or modified for military application:

1. Space qualified traveling wave tubes (also known as helix tubes or TWTs), microwave solid state amplifiers, microwave assemblies, and traveling wave tube amplifiers operating at frequencies equal to or less than 31GHz.
2. Space qualified photovoltaic arrays having silicon cells or having single, dual, triple junction solar cells that have gallium arsenide as one of the junctions.
3. Space qualified tape recorders.
4. Atomic frequency standards that are not space qualified.
5. Space qualified data recorders.
6. Space qualified telecommunications systems, equipment and components not designed or modified for satellite uses.
7. Technology required for the development or production of telecommunications equipment specifically designed for non-satellite uses.
8. Space qualified focal plane array having more than 2048 elements per array and having a peak response in the wavelength range exceeding 300nm but not exceeding 900 nm.
9. Space qualified laser radar or Light Detection and Ranging (LIDAR) equipment.

Finally, and importantly, these new rules supercede any commodity classification decisions and advisory opinions issued by Commerce prior to the effective date of these rules concerning items which these rules either (i) transfer to State jurisdiction or (ii) retain under Commerce jurisdiction but remove from eligibility for export or reexport under License Exception authorization or without a license. Also, items licensed by Commerce as of September 23, 2002, including those already exported, remain subject to Commerce regulations and the licenses remain in effect in accordance with their terms.

© 2002 Greenberg Traurig

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