February.20.2015
On February 17, the Obama Administration announced a new U.S. export control policy for military and commercial Unmanned Aerial Vehicles ("UAVs"). The policy, the details of which have not been released, reportedly includes evaluation standards for export license applications for U.S.-origin UAVs, as well as certain government-to-government and security processing, end-use monitoring, proper lawful and responsible use, and other security requirements applicable to international sales and transfers of U.S.-origin military UAVs.
The policy does not change the export license requirements currently applicable to international sales and transfers of U.S.-origin military and commercial UAVs and related technology under the International Traffic in Arms Regulations and the Export Administration Regulations. A State Department license is normally required to export U.S.-origin military UAVs regardless of the destination.
As a separate matter, the policy maintains the "strong presumption of denial" of export licenses for U.S.-origin Missile Technology Control Regime Category I-military UAVs, i.e., UAVs capable of a range of at least 300 kilometers and of carrying a payload of at least 500 kilograms.
For exports of commercial UAVs and related technology, exporters must comply with the Export Administration Regulations. Exporters should examine the regulations' "Commerce Control List" to assess items' export control status under the regulations. Exporters must then evaluate a variety of potentially applicable license requirements to assess whether a license requirement applies to any given planned export.
Both the International Traffic in Arms Regulations and the Export Administration Regulations include license requirements that apply not only to conventional exports and reexports (movements of items over international borders), but also to so-called "deemed exports" – release of technology and software to non-local nationals.
Finally, the new policy is limited in scope to U.S.-origin UAVs, and does not address requirements applicable to foreign-origin UAVs once they come into the United States. All such UAVs and related technology are subject to U.S. export control laws, irrespective of their origin.
For more information about these developments, please contact Harry L. Clark at +1 (202) 339-8499 or [email protected], W. Clark McFadden II at +1 (202) 339-8479 or [email protected] or your Orrick relationship partner.