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Since the launch of export control reform (“ECR”) last year, the immediate focus has been on commodities and technology transitioning from the International Traffic in Arms Regulations (“ITAR”) to the Export Administration Regulations (“EAR”), particularly the new 600-series. But ECR also brought other significant changes, including explicit incorporation into the ITAR of the definition of “range” for Unmanned Aerial Vehicles (“UAV”) from the Missile Technology Control Regime (“MTCR”). Proper application of the definition is essential for making correct determinations about export authorizations but the definition is often misunderstood by UAV manufacturers and exporters.

Asked about the range of their UAVs, operators most often cite the distance the UAV can fly out and safely return without crashing. But this functional approach is not the definition under the ITAR. Instead, Category VIII of the United States Munitions List (USML) defines range as:

“[T]he maximum distance that the specified aircraft system is capable of traveling in the mode of stable flight as measured by the projection of its trajectory over the surface of the Earth. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining range. The range for aircraft systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links, or other external constraints. For aircraft systems, the range will be determined for a one-way distance using the most fuel-efficient flight profile (e.g., cruise speed and altitude), assuming International Civil Aviation Organization (ICAO) standard atmosphere with zero wind.”

So what does this mean? Put simply: “range” under the ITAR is the maximum distance a UAV can fly in one direction in perfect flight conditions when fully fueled. The definition does not contemplate the UAV’s return, but rather how far a UAV can go in one direction, even if it runs out of fuel or loses its data link and crashes to the ground.

Although at first blush this may seem like a surprising result, it makes sense in light of the policy driving the regulation, which is to prevent the proliferation of unmanned delivery systems capable of delivering Weapons of Mass Destruction (“WMD”), including nuclear, chemical, and biological weapons. If someone wants to use a UAV to deliver a WMD, one-way trajectory is all that counts.

Knowing the range of your UAV is critical to understanding export license requirements, and the likelihood of being able to sell your UAV internationally, because, under the MTCR and the USML, UAVs that operate autonomously or outside the line of sight of the operator, and have certain range and payload capabilities, are subject to stricter export controls and a presumption of denial. In particular, the MTCR subjects two categories of UAVs to more stringent controls: (1) UAVs that can carry a payload of 500 kilograms at a range of 300 kilometers, and (2) those that have a range of 300 kilometers but can’t carry a 500 kilogram payload. Both categories are designated as “MT” under the ITAR and the EAR, and license applications must accurately detail the product’s capabilities. Further, both categories are subject to a “presumption of denial” for obtaining export authorization by MTCR member countries, including the U.S.

For a UAV with a range of 300 kilometers but without the 500 kilogram payload capacity, the presumption of denial applies primarily when the exporting country deems the export to be intended for use in WMD delivery. By contrast, for a UAV capable of delivering a payload of 500 kilograms at a range of 300 kilometers, the presumption of denial is almost absolute. However, there are some strategies (though no guarantees) for overcoming the presumption. For example, doing business with entities in MTCR partner countries or working on programs with U.S. government funding or oversight increases the chance of approval. Similarly, if the application carefully substantiates the legitimacy of the end user or end use, such as using the UAV for weather monitoring, border patrol, or filming a movie, the presumption of denial may be overcome.

Military and commercial UAVs remain one of the more heavily controlled commodities for export, primarily due to their capacity to act like missiles. To avoid costly export violations, manufacturers and exporters of UAVs must assure themselves they are complying with both the ITAR and EAR, a process that must include carefully establishing the UAVs range and payload capacities.