30 June 1998
Source:
http://www.access.gpo.gov/su_docs/aces/aaces002.html
See related 10 June 10 1998 report: http://jya.com/nsiad-98-208.htm
And 25 June 1998 hearing testimony: http://jya.com/dtsa062598.htm
And the BXA Dual Use Web site: http://www.bxa.doc.gov/dualuse.htm
Export Controls: Issues Related to the Export of Communications
Satellites (Statement/Record, 06/17/98, GAO/T-NSIAD-98-211).
GAO discussed the evolution of export controls on commercial
communications satellites, focusing on: (1) key elements in the export
control systems of the Department of Commerce and the Department of
State; (2) how export controls for commercial satellites have evolved
over the years; (3) the concerns and issues debated over the transfer of
commercial communications satellites to the export licensing
jurisdiction of Commerce; and (4) the safeguards that may be applied to
commercial satellite exports.
GAO noted that: (1) the U.S. export control system--comprised of both
the Commerce and State systems--is about managing risk; (2) exports to
some countries involve less risk than to other countries and exports of
some items involve less risk than others; (3) the planning of a
satellite launch with technical discussions and exchanges of information
taking place over several months, involves risk no matter which agency
is the licensing authority; (4) recently, events have focused on the
appropriateness of Commerce jurisdiction over communication satellites;
(5) by design, Commerce's system gives greater weight to economic and
commercial concerns, implicitly accepting greater security risks; and
(6) State's system gives primacy to national security and foreign policy
concerns, lessening--but not eliminating--the risk of damage to U.S.
national security interests.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: T-NSIAD-98-211
TITLE: Export Controls: Issues Related to the Export of
Communications Satellites
DATE: 06/17/98
SUBJECT: Export regulation
Interagency relations
Licenses
Communication satellites
Foreign trade policies
International trade restriction
Jurisdictional authority
Technology transfer
IDENTIFIER: China
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Cover
================================================================ COVER
Before the Committees on International Relations and on National
Security, House of Representatives
For release
expected at
9:30 a.m., EDT
Wednesday
June 17, 1998
EXPORT CONTROLS - ISSUES RELATED
TO THE EXPORT OF COMMUNICATIONS
SATELLITES
Statement for the Record by Katherine V. Schinasi, Associate
Director, Defense Acquisitions Issues, National Security and
International Affairs Division
GAO/T-NSIAD-98-211
GAO/NSIAD-98-211T
Abbreviations
=============================================================== ABBREV
============================================================ Chapter 0
Mr. Chairmen and Members of the Committees:
I am pleased to submit for the record my testimony on the evolution
of export controls on commercial communications satellites. The
allegation that a major U.S. satellite manufacturer provided China
with sensitive technologies that may have applicability to its
missile programs has highlighted how the United States controls the
export of such technology and how this policy has changed in recent
years.
My testimony today is based largely on our January 1997 report,
prepared at the request of the Chairman, House National Security
Committee, on the military sensitivity of commercial communications
satellites and the implications of the 1996 change in export
licensing jurisdiction.\1 I will discuss (1) key elements in the
export control systems of the Departments of Commerce and State, (2)
how export controls for commercial satellites have evolved over the
years, (3) the concerns and issues debated over the transfer of
commercial communications satellites to the export licensing
jurisdiction of the Department of Commerce, and (4) the safeguards
that may be applied to commercial satellite exports. Lastly, I will
share some observations on the current export control system.
--------------------
\1 Export Controls: Change in Export Licensing Jurisdiction for Two
Sensitive Dual-Use Items (GAO/NSIAD-97-24, Jan. 14, 1997).
SUMMARY
---------------------------------------------------------- Chapter 0:1
The U.S. export control system--comprised of both the Commerce and
State systems--is about managing risk. Exports to some countries
involve less risk than to other countries and exports of some items
involve less risk than others. The planning of a satellite launch
with technical discussions and exchanges of information taking place
over several months, involves risk no matter which agency is the
licensing authority. Recently, events have focused concern on the
appropriateness of Commerce jurisdiction over communication
satellites. This is a difficult judgement. By design, Commerce's
system gives greater weight to economic and commercial concerns,
implicitly accepting greater security risks. And by design, State's
system gives primacy to national security and foreign policy
concerns, lessening--but not eliminating--the risk of damage to U.S.
national security interests.
BACKGROUND
---------------------------------------------------------- Chapter 0:2
The U.S. export control system for items with military applications
is divided into two regimes. State licenses munitions items, which
are designed, developed, configured, adapted, or modified for
military applications, and Commerce licenses most dual-use items,
which are items that have both commercial and military applications.
Although the Commerce licensing system is the primary vehicle to
control dual-use items, some dual-use items--those of such military
sensitivity that stronger control is merited--are controlled under
the State system.
Commercial communications satellites are intended to facilitate civil
communication functions through various media, such as voice, data,
and video, but they often carry military data as well. In contrast,
military communications satellites are used exclusively to transfer
information related to national security and have one or more of nine
characteristics that allow the satellites to be used for such
purposes as providing real-time battlefield data and relaying
intelligence data for specific military needs. There are
similarities in the technologies used to integrate a satellite to its
launch vehicle and ballistic missiles.
In March 1996, the executive branch announced a change in licensing
jurisdiction transferring two items--commercial jet engine hot
section technologies and commercial communications satellites--from
State to Commerce. In October and November 1996, Commerce and State
published regulations implementing this change, with Commerce
defining enhanced export controls to apply when licensing these two
items.
KEY ELEMENTS OF EXPORT CONTROL
SYSTEM
---------------------------------------------------------- Chapter 0:3
State and Commerce's export control systems are based on
fundamentally different premises. The Arms Export Control Act gives
the State Department the authority to use export controls to further
national security and foreign policy interests, without regard to
economic or commercial interests. In contrast, the Commerce
Department, as the overseer of the system created by the Export
Administration Act, is charged with weighing U.S. economic and trade
interests along with national security and foreign policy interests.
Differences in the underlying purposes of the control system are
manifested in the systems' structure. Key differences reflect
-- who participates in licensing decisions,
-- scope of controls,
-- time frame for the decision,
-- coverage by sanctions, and
-- requirements for congressional notification.
Participants. Commerce's process involves five agencies--the
Departments of Commerce, State, Defense, Energy, and the Arms Control
and Disarmament Agency. Other agencies can be asked to review
specific license applications. For most items, Commerce approves the
license if there is no disagreement from reviewing agencies. When
there is a disagreement, the chair of an interagency group known as
the Operating Committee, a Commerce official, makes the initial
decision after receiving input from the reviewing agencies. This
decision can be appealed to the Advisory Committee on Export Policy,
a sub-cabinet level group comprised of officials from the same five
agencies, and from there to the cabinet-level Export Administration
Review Board, and then to the President.
In contrast, the State system commonly involves only Defense and
State. While no formal multi-level review process exists, Defense
officials stated that license applications for commercial
communications satellites are frequently referred to other agencies,
such as the Arms Control and Disarmament Agency, the National
Security Agency, and the Defense Intelligence Agency. Day-to-day
licensing decisions are made by the Director, Office of Defense Trade
Controls, but disagreements could be discussed through organizational
levels up to the Secretary of State.
This difference in who makes licensing decisions underscores the
weight the two systems assign to economic and commercial interests
relative to national security concerns. Commerce, as the advocate
for commercial interests, is the focal point for the process and
makes the initial determination. Under States' system, Commerce is
not involved, underscoring the primacy of national security and
foreign policy concern.
Scope of Controls. The two systems also differ in the scope of
controls. Commerce controls items to specific destinations for
specific reasons. Some items are subject to controls targeted to
former communist countries while others are controlled to prevent
them from reaching countries for reasons that include antiterrorism,
regional stability, and nonproliferation. In contrast, munitions
items are controlled to all destinations, and State has broad
authority to deny a license; it can deny a request simply with the
explanation that it is against U.S. national security or foreign
policy interests.
Time frames. Commerce's system is more transparent to the license
applicant than State's system. Time frames are clearly established,
the review process is more predictable, and more information is
shared with the exporter on the reasons for denials or conditions on
the license.
Congressional Notification. Exports under State's system that exceed
certain dollar thresholds (including all satellites) require
notification to the Congress. Licenses for Commerce-controlled items
are not subject to congressional notification, with the exception of
items controlled for antiterrorism.
Sanctions. The applicability of sanctions may also differ under the
two export control systems. Commercial communication satellites are
subject to two important types of sanctions: (1) Missile Technology
Control Regime and (2) Tiananmen Square sanctions. Under Missile
Technology sanctions, both State and Commerce are required to deny
the export of identified, missile-related goods and technologies.
Communication satellites are not so-identified but contain components
that are identified as missile-related. When the United States
imposed Missile Technology sanctions on China in 1993, exports of
communication satellites controlled by State were not approved while
exports of satellites controlled by Commerce were permitted.
Under Tiananmen Square sanctions, satellites licensed by State and
Commerce have identical treatment. These sanctions prohibit the
export of satellites for launch from launch vehicles owned by China.
However, the President can waive this prohibition if such a waiver is
in the national interest.
EVOLUTION OF EXPORT CONTROLS
FOR COMMERCIAL SATELLITES
---------------------------------------------------------- Chapter 0:4
Export control of commercial communications satellites has been a
matter of contention over the years among U.S. satellite
manufacturers and the agencies involved in their export licensing
jurisdiction--the Departments of Commerce, Defense, State, and the
intelligence community. To put their views in context, I would now
like to provide a brief chronology of key events in the transfer of
commercial communications satellites to the Commerce Control List.\2
--------------------
\2 For a chronology and background information on satellite launches
from China, see China: Possible Missile Technology Transfers from
U.S. Satellite Export Policy--Background and Chronology, by Shirley
A. Kan, Congressional Research Service, May 20, 1998 (98-485 F).
ORIGIN OF COMMERCIAL SPACE
COOPERATION WITH CHINA
-------------------------------------------------------- Chapter 0:4.1
As the demand for satellite launch capabilities grew, U. S.
satellite manufacturers looked abroad to supplement domestic
facilities. In 1988, President Reagan proposed that China be allowed
to launch U.S.-origin commercial satellites. The United States and
China signed an agreement in January 1989 under which China agreed to
charge prices for commercial launch services similar to those charged
by other competitors for launch services and to launch nine
U.S.-built satellites through 1994.
Following the June 1989 crackdown by the Chinese government on
peaceful political demonstrations on Tiananmen Square in Beijing,
President Bush imposed export sanctions on China. President Bush
subsequently waived these sanctions for the export of three
U.S.-origin satellites for launch from China. In February 1990,
Congress passed the Tiananmen Square sanctions law (P.L. 101-246) to
suspend certain programs and activities relating to the Peoples
Republic of China. This law also suspends the export of U.S.
satellites for launch from Chinese-owned vehicles.
FIRST TRANSFER OF LICENSING
JURISDICTION
-------------------------------------------------------- Chapter 0:4.2
In November 1990, the President ordered the removal of dual-use items
from State's munitions list unless significant U.S. national
security interests would be jeopardized. This action was designed to
bring U.S. controls in line with the industrial (dual-use) list
maintained by the Coordinating Committee for Multilateral Export
Controls, a multilateral export control arrangement. Commercial
communications satellites were contained on the industrial list.
Pursuant to this order, State led an interagency review, including
officials from Defense, Commerce, and other agencies to determine
which dual-use items should be removed from State's munitions list
and transferred to Commerce's jurisdiction. The review was conducted
between December 1990 and April 1992. As part of this review, a
working group identified and established performance parameters for
the militarily-sensitive characteristics of communications
satellites. During the review period, industry groups supported
moving commercial communications satellites, ground stations, and
associated technical data to the Commerce Control List.
In October 1992, State issued regulations transferring jurisdiction
of some commercial communications satellites to Commerce. These
regulations also defined what satellites remained under its control
by listing nine militarily sensitive characteristics that, if
included in a commercial communication satellite, warranted their
control on State's munitions list. (These characteristics are
discussed in appendix 1.) The regulations noted that parts,
components, accessories, attachments, and associated equipment
(including ground support equipment) remained on the munitions list,
but could be included on a Commerce license application if the
equipment was needed for a specific launch of a commercial
communications satellite controlled by Commerce. After the transfer,
Commerce noted that this limited transfer only partially fulfilled
the President's 1990 directive.
INTERAGENCY GROUPS CONSIDER
WHETHER TO TRANSFER
ADDITIONAL SATELLITES
-------------------------------------------------------- Chapter 0:4.3
Export controls over commercial communication satellites were again
taken up in September 1993. The Trade Promotion Coordinating
Committee, an interagency body composed of representatives from most
government agencies, issued a report in which it committed the
administration to review dual-use items on the munitions list, such
as commercial communication satellites, to expedite moving them to
the Commerce Control List.
Industry continued to support the move of commercial communications
satellites, ground stations, and associated technical data from State
to Commerce control. In April 1995, the Chairman of the President's
Export Council met with the Secretary of State to discuss issues
related to the jurisdiction of commercial communications satellites
and the impact of sanctions that affected the export and launch of
satellites to China.
Also in April 1995, State formed the Comsat Technical Working Group
to examine export controls over commercial communications satellites
and to recommend whether the militarily sensitive characteristics of
satellites could be more narrowly defined consistent with national
security and intelligence interests. This interagency group included
representatives from State, Defense, the National Security Agency,
Commerce, the National Aeronautics and Space Agency, and the
intelligence community. The interagency group reported its findings
in October 1995.
Consistent with the findings of the Comsat Technical Working Group
and with the input from industry through the Defense Trade Advisory
Group, the Secretary of State denied the transfer of commercial
communications satellites to Commerce in October 1995 and approved a
plan to narrow, but not eliminate, State's jurisdiction over these
satellites.
PRESIDENT OVERTURNS STATE'S
DECISION TO RETAIN EXPORT
CONTROL OF SATELLITES
-------------------------------------------------------- Chapter 0:4.4
Unhappy with State's decision to retain jurisdiction of commercial
communications satellites, Commerce appealed it to the National
Security Council and the President. In March 1996, the President,
after additional interagency meetings on this issue, announced the
transfer of export control authority for all commercial
communications satellites from State to Commerce. A key part of
these discussions was the issuance of an executive order in December
1995 that modified Commerce's procedures for processing licenses.
This executive order required Commerce to refer all licenses to
State, Defense, Energy, and the Arms Control and Disarmament Agency.
This change addressed a key shortcoming that we had reported on in
several prior reviews.\3
In response to the concerns of Defense and State officials about this
transfer, Commerce agreed to add additional controls to exports of
satellites designed to mirror the stronger controls already applied
to items on State's munitions list. Changes included the
establishment of a new control, the significant item control, for the
export of sensitive satellites to all destinations. The policy
objective of this control--consistency with U.S. national security
and foreign policy interests--is broadly stated. The functioning of
the Operating Committee, the interagency group that makes the initial
licensing determination, was also modified. This change required
that the licensing decision for these satellites be made by majority
vote of the five agencies, rather than by the chair of the Committee.
Satellites were also exempted from other provisions governing the
licensing of most items on the Commerce Control List.
In October and November 1996, Commerce and State published changes to
their respective regulations, formally transferring licensing
jurisdiction for commercial communications satellites with militarily
sensitive characteristics from State to Commerce. Additional
procedural changes were implemented through an executive order and a
presidential decision directive issued in October 1996.
--------------------
\3 See Export Controls: Some Controls Over Missile-Related
Technology Exports To China Are Weak (GAO/NSIAD-95-82, Apr. 17,
1995) and Export Controls: Concerns Over Stealth-Related Exports
(GAO/NSIAD-95-140, May 10, 1995).
CONCERNS AND ISSUES DEBATED IN
THE DECISION
---------------------------------------------------------- Chapter 0:5
According to Commerce officials, the President's March 1996 decision
reflected Commerce's long-held position that all commercial
communications satellites should be under its jurisdiction. Commerce
argued that these satellites are intended for commercial end use and
are therefore not munitions. Commerce maintained that transferring
jurisdiction to the dual-use list would also make U.S. controls
consistent with treatment of these items under multilateral export
control regimes.
Manufacturers of satellites supported the transfer of commercial
communications satellites to the Commerce Control List. They
believed that such satellites are intended for commercial end use and
are therefore not munitions subject to State's licensing process.
They also believed that the Commerce process was more responsive to
business due to its clearly established time frames and
predictability of the licensing process. Under State's jurisdiction,
the satellites were subject to Missile Technology sanctions requiring
denial of exports and to congressional notifications. Satellite
manufacturers also expressed the view that some of the militarily
sensitive characteristics of communications satellites are no longer
unique to military satellites.
State and Defense point out that the basis for including items on the
munitions list is the sensitivity of the item and whether it has been
specifically designed for military applications, not how the item
will be used.#- -# These officials have expressed concern about the
potential for improvements in missile capabilities through disclosure
of technical data to integrate the satellite with the launch vehicle
and the operational capability that specific satellite
characteristics could give a potential adversary. The process of
planning a satellite launch takes several months, and there is
concern that technical discussions between U.S. and foreign
representatives may lead to the transfer of information on militarily
sensitive components.
Defense and State officials said they were particularly concerned
about the technologies to integrate the satellite to the launch
vehicle because this technology can also be applied to launch
ballistic missiles to improve their performance and reliability.
Accelerometers, kick motors, separation mechanisms, and attitude
control systems are examples of equipment used in both satellites and
ballistic missiles. State officials said that such equipment and
technology merit control for national security reasons. They also
expressed concern about the operational capability that specific
characteristics, in particular antijam capability, crosslinks, and
baseband processing, could give a potential adversary.
SAFEGUARDS APPLIED TO COMMERCE
AND STATE SATELLITE EXPORTS
---------------------------------------------------------- Chapter 0:6
No export license application for a satellite launch has been denied
under either the State or Commerce systems. Therefore, the
conditions attached to the license are particularly significant.
Exports of U.S. satellites for launch in China are governed by a
government-to-government agreement addressing technology safeguards.
This agreement establishes the basic authorities for the U.S.
government to institute controls intended to ensure that sensitive
technology is not inadvertently transferred to China. This agreement
is one of three government-to-government agreements with China on
satellites. The others address pricing and liability issues.
During our 1997 review and in recent discussions, officials pointed
to two principal safeguard mechanisms to protect technologies. These
safeguard mechanisms include technology transfer control plans and
the presence of Defense Department monitors during the launch of the
satellites. State or Commerce may choose to include these safeguards
as conditions to licenses.
-- Technology transfer control plans are prepared by the exporter
and approved by Defense. The plans outline the internal control
procedures the company will follow to prevent the disclosure of
technology except as authorized for the integration and launch
of the satellite. These plans typically include requirements
for the presence of Defense monitors at technical meetings with
Chinese officials as well as procedures to ensure that Defense
reviews and clears the release of any technical data provided by
the company.
-- Defense monitors at the launch help ensure that the physical
security over the satellite is maintained and monitor any
on-site technical meetings between the company and Chinese
officials. Authority for these monitors to perform this work in
China is granted under the terms of the government to government
safeguards agreement.
Additional government control may be exercised on technology
transfers through State's licensing of technical assistance and
technical data. State technical assistance agreements detail the
types of information that can be provided and give Defense an
opportunity to scrutinize the type of information being considered
for export. Technical assistance agreements, however, are not always
required for satellite exports to China. While such licenses were
required for satellites licensed for export by State, Commerce
licensed satellites do not have a separate technical assistance
licensing requirement.\4
--------------------
\4 A Commerce licensed satellite would also require a State technical
assistance license if the technical discussions exceed the basic
information required to attach the satellite to the rocket, commonly
described as "form, fit, and function" data.
OBSERVATIONS ON THE CURRENT
EXPORT CONTROL SYSTEM
---------------------------------------------------------- Chapter 0:7
The addition of new controls over satellites transferred to
Commerce's jurisdiction in 1996 addressed some of the key areas where
the Commerce procedures are less stringent than those at State.
There remain, however, differences in how the export of satellites
are controlled under these new procedures.
-- Congressional notification requirements no longer apply,
although Congress is currently notified because of the Tiananmen
waiver process.
-- Sanctions do not always apply to items under Commerce's
jurisdiction. For example, under the 1993 Missile Technology
sanctions, sanctions were not imposed on satellites that
included missile-related components.
-- Defense's power to influence the decision making process has
diminished since the transfer. When under State jurisdiction,
State and Defense officials stated that State would routinely
defer to the recommendations of Defense if national security
concerns are raised. Under Commerce jurisdiction, Defense must
now either persuade a majority of other agencies to agree with
its position to stop an export or escalate their objection to
the cabinet-level Export Administration Review Board, an event
that has not occurred in recent years.
-- Technical information may not be as clearly controlled under the
Commerce system. Unlike State, Commerce does not require a
company to obtain an export license to market a satellite.
Commerce regulations also do not have a separate export
commodity control category for technical data, leaving it
unclear how this information is licensed. Commerce has informed
one large satellite maker that some of this technical data does
not require an individual license. Without clear licensing
requirements for technical information, Defense does not have an
opportunity to review the need for monitors and safeguards or
attend technical meetings to ensure that sensitive information
is not inadvertently disclosed.
-- The additional controls applied to the militarily sensitive
commercial communications satellites transferred to Commerce's
control in 1996 were not applied to the satellites transferred
in 1993. These satellites are therefore reviewed under the
normal interagency process and are subject to more limited
controls.
This concludes our statement. We appreciate the opportunity to
provide this information for the record of this hearing.
APPENDIX 1: MILITARILY SENSITIVE
CHARACTERISTICS INTEGRATED IN
COMMERCIAL COMMUNICATIONS
SATELLITES
=========================================================== Appendix 1
Military Sensitivity of
Characteristics Exceeding
Component or Certain Performance
Characteristic Definition Parameters
------------------------- ------------------------- --------------------------
Antijam capability Antennas and/or antenna Ensures that
systems with the ability communications remain open
to respond to incoming during crises.
interference by
adaptively reducing
antenna gain in the
direction of the
interference.
Antenna Allows a satellite to An antenna aimed at a spot
receive incoming signals. roughly 200 nautical miles
in diameter or less can
become a sensitive radio
listening device and is
very effective against
ground-based interception
efforts.
Crosslinks Provide the capability to Permits the expansion of
transmit data from one regional satellite
satellite to another communication coverage to
without going through a global coverage and
ground station. provides source-to-
destination connectivity
that can span the globe.
It is very difficult to
intercept and permits very
secure communications.
Baseband processing Allows a satellite to On-board switching can
switch from one frequency provide resistance to
to another with an on- jamming of signals.
board processor.
Encryption devices Scramble signals and data Allows telemetry and
transmitted to and from a control of a satellite,
satellite. which provides positive
control and denies
unauthorized access.
Certain encryption
capabilities have
significant intelligence
features important to the
National Security Agency.
Radiation-hardened Provide protection from Permit a satellite to
devices natural and man-made operate in nuclear war
radiation environment in environments and may
space, which can be enable its electronic
harmful to electronic components to survive a
circuits. nuclear explosion.
Propulsion system Allows rapid changes when Military maneuvers require
the satellite is on that a satellite have the
orbit. capability to accelerate
faster than a certain
speed to cover new areas
of interest.
Pointing accuracy Provides a low High performance pointing
probability that a signal capabilities provide
will be intercepted. superior intelligence-
gathering capabilities.
Kick motors Used to deliver If the motors can be
satellites to their restarted, the satellite
proper orbital slots. can execute military
maneuvers because it can
move to cover new areas.
--------------------------------------------------------------------------------
*** End of document. ***