Published in the Daily Bugle, January 19, 2024
They go by many names – UAV -Unpiloted Aerial Vehicle; UAS – Unpiloted Aircraft System; DFW – Damn Flying Weedwhackers. They can be as small as your fist or as big as a commercial airliner. They can even be a commercial airliner. In addition to changing the modern battlefield or the tranquility of your local park, they make for a migraine of a compliance headache.
As background, the Missile Technology Control Regime (MTCR) was established in 1987 with the goal of limiting the spread of ballistic missiles and other unmanned delivery systems – primarily a nuclear weapon concern. The 500 kg payload/300 km range – “Category I” threshold was set by the minimum weight of a first generation nuclear weapon and the minimum distance for a strategic nuclear strike. It was later expanded to address Chem-Bio weapons with Category II – 300 km range with lesser payload (or none at all). And all was good until the world changed.
Cell phone technology made nation-state “missile” capability available to almost everyone, with high performance, low power computing chips, cheap, high-resolution cameras, miniature high quality accelerometers and gyros, and GPS. The 3 km Circular Error Probable[1] of a SCUD missile became 1 meter for a drone. Piloted aircraft could be turned into UAVs, and could happen even after the sale. P.S. – Optionally Piloted Vehicles are treated as UAVs.
There are four EAR and two USML entries specific to UAVs, and many more implicated with MT, and of course, the whole MTCR list. You can determine if an engine meets the parameters of 9A101. It’s a little harder with a 6A008 radar system “usable[2]” in systems controlled for MT. But the real land mine is 744.3(a)(1), which boils down to:
Any item subject to the EAR – including EAR99 – requires a license, if at the time of the export, reexport, or transfer, you “know” the item is for[3] a UAS with a range of at least 300 km in or by a D:4 country.
If a U.S. manufacturer sells an EAR99 gasket to a French pump maker which is then installed in an Italian UAV that is sold to Egypt (a D:4 country), the export of the gasket from the U.S. requires a license because of the Egyptian end-use. That’s true even if the French pump or Italian UAV isn’t subject to the EAR.
Yikes! Of course, a lot hinges on the “knowledge” standard. The original exporter may not be aware of all the (ultimate) end-uses of their gasket, but if an Egyptian supply sergeant writes on the order that the gasket is for their Acme X-100 UAV, that sudden “knowledge” of the person taking the order may be imputed to the company as a whole.
Another place this gets tricky is when you don’t “know” the end-use of a given instance of a part, but you “know” at least some instances are making it into a restricted end-use. For example, you supply a part that’s used in three models of a given aircraft – civil passenger, military (manned) surveillance, and unmanned surveillance (i.e., UAV). The part is 9A991.c because it’s not “specially designed” for the military or UAV use, and the airframer is in an A:5 country, so the export from the U.S. is NLR. The airframer orders parts for 100 aircraft; 80 are civil, 10 are manned, and 10 are unmanned. They have contracts with their own government and a D:4 country. No issue with the A:5 government end-use. You don’t know which of those 100 parts are going to the D:4 destined UAV, but you know if they’ve got that UAV, your part is in it. Where does the “knowledge” standard leave you?
One approach is to get yourself a 744.3 license if you know[4] a customer is using your stuff in unmanned versions. 744.3(a)(1) kicks in only for a range of at least 300 km, so this isn’t a DJI drone. Explain the situation to BIS – they’re living with the same broad control as you are. Tell them what you know, and what you don’t. They’ll listen.
Another gotcha can occur from situations after the end-item sale. For example[5], Pacific Aerospace (New Zealand) makes the nifty PA-750 civil, piloted aircraft, with a range of over 2,000 km and a payload up to 1,500 kg. Press reports tell of a company in China (very D:4) buying these aircraft, tearing the seats out, and installing their own version of an autonomous Otto Pilot. Their stated goal is low-cost cargo delivery to the hinterlands of China, where unimproved airfields are the norm. If you get a call from China looking for a spare part that is used in a PA-750, you may have a robust 744.21 MEU process, but do you have a 744.3 process?
The best you can do is to do your best[6]. AT-controls, even EAR99 aren’t always safe – when it comes to exports, you need to know location AND end-use. UAV applications can come up quickly – the airframer decides to create a UAV variant, or there is an “innovative” aftermarket conversion.
Good policy is to Always Be Asking – what are the end uses, who are the end users, and where are the end users? And assume things will change, so keep asking.
Got J&C questions? – please reach out to me at ArtOfJC@arinovis.com
[1] Aka CEP, describing a circular radius with a 50% probability of a hit.
[2] Fodder for another column.
[3] “Is for” is shorthand for all the usual regulatory verbs – design, production, operation, yada yada.
[4] That word again…
[5] From public sources.
[6] I got that off a coffee mug.