President Delegates Authority for Congressional Notification on Missile Equipment & Technology Exports

October 21, 2009

On October 2, 2009, the Federal Register published Presidential Determination 2009-31 (dated September 29, 2009) which addresses the congressional notification requirement of § 1512 of the Strom Thurmond Defense Authorization Act of 1999 ("Thurmond Act").  See 74 Fed. Reg. 190 at 50913.  An October 15th Washington Times article raised concerns that the President’s delegation of authority to the Commerce Department would result in a loosening of export controls that would contribute to the military capability of China’s missile program.  Our analysis of the Thurmond Act, and the related U.S. export control laws and regulations relating to missile and space technology, indicates that the President’s delegation does not materially change the current export control regime relating to China.

Section 1512 of the Thurmond Act, Pub. L. 105-261 (1999), to which Presidential Determination 2009-31 relates, states that: "The President shall certify to the Congress at least 15 days in advance of any export to the People’s Republic of China of missile equipment or technology (as defined in section 74 of the Arms Export Control Act (22 U.S.C. 2797c)) that—

  1. such export is not detrimental to the United States space launch industry; and
  2. the missile equipment or technology, including any indirect technical benefit that could be derived from such export, will not measurably improve the missile or space launch capabilities of the People’s Republic of China."

The Arms Export Control Act in turn defines "missile equipment or technology" as those items listed in Category I or Category II of the Missile Technology Control Regime ("MTCR") Annex.  See 22 U.S.C. 2797c(a)(5).  Certain items listed in Categories I and II of the MTCR Annex are currently subject to export control under the Export Administration Regulations (“EAR”), administered by the Department of Commerce, while other items in the MCTR Annex are subject to export control under the International Traffic in Arms Regulations ("ITAR"), such as complete rocket systems, space launch vehicles, subsystems of rockets, propulsion components, propellants, structural materials, navigation and flight control items, and numerous other items including launch support, software, computers & electronics, and special shielding.  See 22 C.F.R. § 121.16. 

Presidential Determination 2009-31 delegates to the Commerce Department the authority to make the Section 1512 certification to Congress.  While the Washington Times article expressed great concern that this would loosen existing export controls, the article also noted that "Commerce officials say the shift will not cause controls to be loosened in regards to the export of missile and space technology."       

Presidential Determination 2009-31 does not loosen existing export controls.  To the extent any items on the MTCR Annex are subject to Commerce Department export licensing, delegating the certification requirement under Section 1512 of the Thurmond Act should not materially alter the existing EAR licensing requirements applicable to dual-use exports to China.  As for exports that are subject to the ITAR, the Foreign Relations Authorization Act of 1990-1991 specifically restricts the shipment of defense articles and services on the U.S. Munitions List, as well as commercial satellites for launch, to China, and the State Department Directorate of Defense Trade Controls maintains a policy of denial regarding such exports to China.  See Pub. L. 101-246, §902(a)(3), (a)(5) (1990); 22 C.F.R. §126.1. The President may waive these restrictions, but under the Thurmond Act, he must submit a full national interest and economic interest justification when granting any such waiver.  See Pub. L. 105-261, §1515 (1999).  (Even if the President submits this justification and grants a waiver, Congress may block, by joint resolution, the issuance of an export license for contract sales of major defense equipment of $14 million or more, or any defense articles or services of $50 million or more.  See 22 C.F.R. §123.15(a)(1).)       

In sum, the President did not delegate his authority regarding the submission of a full national interest and economic interest justification, which must accompany a waiver under § 1515 of the Thurmond Act.  Rather, he delegated his authority under § 1512, which does not concern Presidential waivers, but rather imposes an additional layer of required certifications regarding the impact of exports on the U.S. space launch industry and missile and space launch capabilities of China. 

If you have any questions regarding the export control regimes relating to missile and space technology, please contact Ed Krauland (202.429.8083), ekrauland@steptoe.com, or Anthony Rapa (202.429.8120), arapa@steptoe.com, in Steptoe’s Washington, DC office.