Proceedings of the Workshop - United Nations Office for Outer ...

EXPANDING GLOBAL LAUNCH SERVICES 53waivers, and in the case of liability in excess of requiredinsurance cover, the potential for the Government topay such excess amount up to a maximum of $1.5billion. In addition, the CSLA was amended in 1998 toinclude licensing jurisdiction with respect to re-entryvehicles.Launch of U.S. Government PayloadsPrior to 1990, U.S. law reflected a definite preferencefor the launch of these payloads on U.S-built andoperated launch vehicles. In September 1990, PresidentBush signed an executive order mandating that suchpayloads would only be launched on U.S.-built andoperated launch vehicles, unless the President decidedotherwise. This executive mandate was codified asstatutory law in the Commercial Space Act of 1998 .22This Act provides that with certain limited exceptions(e.g., Shuttle-unique payloads), the Government shallacquire space transportation services from “UnitedStates commercial providers”, and to the maximumextent practicable shall plan its missions toaccommodate the capabilities of such providers. Thedefinition of the quoted phrase, although quite complex,nevertheless clearly excludes foreign providers whichare primarily controlled by foreign governments, butmakes a limited exception in the case of U.S.-foreignjoint ventures that meet a number of specified criteria.Export ControlsLaunch vehicles and their technologies are and havealways been classified as munitions and carried on theU.S. Munitions List. Their export is controlled by theState Department Office of Defense Trade Controlspursuant to the Arms Export Control Act23 and itsimplementing International Traffic-In-ArmsRegulations (“ITARs”)24 and the U.S. obligations as aparty to the Missile Technology Control Regime(“MTCR”). The export of technical data ( a broadly22 42 U.S.C.A. §§ 14701, 14731 (1999 Pamphlet).232 2 U.S.C. §2751 e t seq.242 2 CFR Parts 120-130.defined term under the ITARs) as well as the furnishingof technical assistance relating to launch vehicles is alsocontrolled exclusively by the State Department.Likewise, until 1992, the export of communicationssatellites was controlled and licensed by the StateDepartment under the ITARs. Decisions as to whetherto license the export of Munitions List items,technology, technical assistance and technical datapertaining thereto, are made on the basis of nationalsecurity and foreign policy interests of the UnitedStates, and not on the basis of whether the export willpromote U.S. business and trade. Therefore, at theurging of U.S. spacecraft manufacturers who saw theincreasing potential for foreign sales of commercialcommunications satellites, the Bush Administrationmade a partial transfer of licensing jurisdiction to theCommerce Department in 1992 in the case of suchcommercial satellites, except for those satellites inwhich any one of nine specific technologies wasincorporated. In the latter case, jurisdiction withrespect to the entire satellite remained with the StateDepartment. The Commerce Department’s licensingjurisdiction is pursuant to the Export AdministrationAct of 1979 ( as amended and extended by executiveorder). Commerce includes as part of its licensingprocess consideration as to the economic effect on U.S.trade of granting (or denying) a license. However, theretention of jurisdiction by the State Department in thecase of any of the nine exceptions made this transfer toCommerce largely meaningless, since most advancedsatellites employed one or more of the ninetechnologies. Also, the transfer of technical data and thegiving of technical assistance remained under thejurisdiction of the state Department. Therefore, in 1996the President, at the behest of the satellitemanufacturers, transferred licensing jurisdiction withrespect to the export of the complete commercialcommunications satellite to the Commerce Department,including that technical data necessary to mate thesatellite with its intended launch vehicle (i.e., “form, fitand function” technical data). All other technical dataincluding design and manufacturing data was retainedunder the control of the State Department. In addition,changes were made in the administrative proceduresleading up to a decision on a license application so thatany disappointed department or agency could appeal thedecision to the President. Export jurisdiction with