U.S.-Proposed Missile Technology Control Regime Changes

U.S.-Proposed Missile Technology Control Regime Changes

Updated May 10, 2022
U.S.-Proposed Missile Technology Control Regime Changes
Introduction
December 4, 2018. The official did not specify the
Beginning in 2017, the United States has submitted a series
proposed speed value. The proposal also included a method
of proposals to the Missile Technology Control Regime
for determining the speed of such a UAS, a feature not
(MTCR) partners that would relax the regime’s export
contained in the current MTCR annex, and a definition of
guidelines for certain Unmanned Aerial Systems (UAS).
“cruise missile.” The proposed changes would not have
Advocates of altering the guidelines to ease such exports
applied to cruise missiles or affect current MTCR treatment
argue that increasing competition from foreign UAS
of either complete production facilities or technology for
manufacturers is undermining the competitive advantage of
the development and production of complete systems.
their U.S. counterparts. Other observers have emphasized
Then-Assistant Secretary of State Christopher Ford noted
the need to maintain the MTCR’s standards, which are
during a July 24, 2020, event that the United States has
widely regarded as effective. For more information on the
“repeatedly … made technical changes and various other
MTCR, see CRS Report RL33865, Arms Control and
adjustments to our reform proposal in response to issues
Nonproliferation: A Catalog of Treaties and Agreements.
raised and ideas that were suggested by our MTCR
The MTCR, according to its website, “seeks to limit the
partners.” The proposed changes were a part of a broader
risks of proliferation of” nuclear, biological, and chemical
Donald Trump Administration UAS export policy
weapons (NBC weapons) “by controlling exports of goods
announced in April 2018 that replaced a similar 2015
and technologies that could make a contribution to delivery
Obama Administration measure.
systems (other than manned aircraft) for such weapons.”
On July 24, 2020, the Trump Administration announced a
Established in 1987 by the United States and six other
new UAS export policy similar to the March 2018 proposal
countries, the MTCR, which holds several meetings per
described above. The new policy treats “a carefully selected
year and currently consists of 35 partner countries, is an
subset of MTCR Category I UAS, which cannot travel
informal voluntary arrangement whose partners agree to
faster than 800 kilometers per hour, as Category II” and
apply common export policy guidelines to an annex
thereby overcomes the MTCR’s “strong presumption of
containing two categories of controlled items. Partner
denial” for these systems. A January 12, 2021, final rule
countries implement these guidelines pursuant to national
from the Department of Commerce’s Bureau of Industry
legislation and regularly exchange information on relevant
and Security (BIS) implements the relevant changes to U.S.
export licensing issues, including denials of technology
dual-use licensing procedures. BIS’s annual report to
transfers. The MTCR guidelines apply to both armed and
Congress for FY2020, noting the cancellation of all 2020
unarmed UAS.
MTCR meetings, explains that the United States adopted
According to the MTCR, Category I items are the most
this policy unilaterally because there were “no venues for
sensitive and include complete UAS “capable of delivering
further progress in the MTCR in the foreseeable future.” A
a payload of at least 500 kg to a range of at least 300 km,
State Department official told CRS in a May 2022 email
their major complete subsystems … and related software
that the Joseph Biden Administration has decided to leave
and technology,” as well as “specially designed” production
unchanged the 2020 UAS export policy. The United States
facilities for these UAS and subsystems. Partner
still advocates the above-described changes to the MTCR
governments should have “a strong presumption to deny”
guidelines, the official added.
such transfers, regardless of their purpose, but may transfer
Category I UAS Exporters
such items on “rare occasions.” The guidelines prohibit
The United States has exported MTCR Category I UAS to
exports of production facilities for Category I items.
France, Italy, Germany, and the United Kingdom; all of
Regime partners have greater flexibility with respect to
these governments are MTCR partners. Press and
authorizing exports of Category II items, which include less
nongovernmental expert reports also name China and the
sensitive and dual-use missile related components. This
United Arab Emirates (UAE) as exporters of MTCR
category also includes complete UAS, regardless of
Category I UAS. China is not an MTCR partner but agreed
payload, capable of ranges of at least 300 km, as well as
in 1992 to adhere to the MTCR guidelines. The UAE is not
other UAS with certain characteristics.
an MTCR partner; the government has no policy
Details
concerning Category I UAS exports, a UAE government
The United States first tabled a white paper concerning this
representative told CRS on December 26, 2018, adding that
aspect of UAS exports during the 2017 MTCR Plenary
the country needs no such policy because it does not
meeting. A U.S. proposal submitted during the March 2018
produce or export such systems.
MTCR Technical Experts Meeting would have provided
Potential Threat
Category II treatment for a certain subset of UAS with a
“maximum speed value,” as well as associated parts and
Experts have expressed concern for at least 25 years that
UAS proliferation would enable the spread of NBC
components, a Department of State official told CRS on
weapons; specifically, some observers have argued that
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U.S.-Proposed Missile Technology Control Regime Changes
hostile actors could convert some types of UAS into cruise
consent. The exporting government must also assume
missiles or incorporate UAS technology into such missiles.
“responsibility for taking all steps necessary to ensure that
RAND reports from 2014 and 2018 have downplayed this
the item is put only to its stated end-use.” Moreover, a
risk, however. Whether any country is acquiring or
government is only to authorize transfers of items that
attempting to acquire UAS for developing or producing
“could contribute to [an NBC] delivery system” if the
cruise missiles is unclear. Some observers have also warned
government receives “appropriate assurances from the
that hostile governments or nonstate actors could use UAS
[recipient] government” that the recipient will use the items
for disseminating chemical and biological agents.
only for their stated purpose and will refrain from
modifying, replicating, or retransferring the items without
The proliferation implications of the new U.S. policy are
the exporting government’s prior consent.
uncertain. The January 2021 BIS rule explains that the
UAS subject to the new policy are “widely used in
Other multilateral regimes restrict the export of
intelligence, surveillance, and reconnaissance (ISR)
technologies that could enable the development of NBC
missions and various commercial and other applications not
payloads for UAS. For example, the Nuclear Suppliers
involving” NBC delivery. Faster delivery vehicles are
Group (NSG) governs nuclear-related exports, and the
widely regarded as more effective, but the potential effects
Wassenaar Arrangement performs a similar function with
of the proposal’s speed component on NBC weapons
respect to conventional arms and certain dual-use goods and
proliferation are unclear. Furthermore, relaxing MTCR
technologies. The Australia Group is the analogous
UAS controls could set a negative precedent, according to
organization for technologies relevant to chemical and
at least one expert. Former State Department official Vann
biological weapons.
Van Diepen warned in a February 2018 speech that
U.S. Controls
“changes made to MTCR Category I controls on non-
In addition to the controls implemented as part of U.S.
cruise-missile UAVs” could legitimize a future MTCR
membership in the multilateral groups described above, the
decision to relax controls on conventionally armed
United States imposes a number of other restrictions on
Category I ballistic and cruise missiles, given these
UAS exports. The State Department administers export
missiles’ “increasing role in conventional military
operations.”
controls on military UAS and other defense articles; the

statutory basis for this system is the Arms Export Control
Other MTCR Constraints on
Act (AECA; P.L. 94-329). Section 71(a) of that law
Proliferation
requires the Secretary of State to maintain a list of all items
The MTCR guidelines state that governments should
on the MTCR annex that are not controlled pursuant to U.S.
consider six factors when considering requests for the
dual-use controls. The AECA also restricts the uses to
export of MTCR annex items: (1) concerns about NBC
which U.S.-origin defense articles may be put and prohibits
proliferation; (2) the “capabilities and objectives of the
transfers of such items to third parties without U.S.
missile and space programs of the recipient state”; (3) the
government permission. For example, Section 38(a)(2)
“significance of the transfer in terms of the potential
requires that the executive branch “take into account”
development” of NBC delivery systems; (4) the
whether such an export would “contribute to an arms race
“assessment of the end use of the transfers,” including the
or regional instability” or “aid in” NBC weapons
government assurances described below; (5) the
development. The Export Controls Act of 2018 (P.L. 115-
“applicability of relevant multilateral agreements”; and (6)
232, Subtitle B, Part I) provides broad, detailed legislative
the “risk of controlled items falling into the hands of
authority for the President to implement controls on the
terrorist groups and individuals.”
export of dual-use items, including dual-use UAS and
related components. U.S. regulations on dual-use exports
The MTCR guidelines provide other mechanisms for
contain catch-all controls with respect to UAS.
preventing UAS exports from contributing to NBC
weapons proliferation. For example, the guidelines stipulate
The U.S. government also implements regulations to ensure
that a strong presumption of denial applies to transfers of
that recipients of U.S.-origin UAS use the items for their
any item on the MTCR annex or any unlisted missile if the
declared purpose. According to an April 2018 State
partner government “judges, on the basis of all available,
Department fact sheet, the United States will transfer
persuasive information” that the items “are intended to be
military UAS “only with appropriate technology security
used for” NBC delivery. Moreover, partner governments’
measures.” Both the State and Commerce Departments
export controls must require authorization for the transfer of
conduct end-monitoring to determine whether recipient
unlisted items in cases where the government has informed
countries are using exported items appropriately. Some
an exporter that such items “may be intended, in their
military UAS “may be subject to enhanced end-use
entirety or part, for use in connection with [NBC] delivery
monitoring,” as well as “additional security conditions,” the
systems … other than manned aircraft.” These restrictions
fact sheet says. According to the Defense Security
are known as “catch-all” controls.
Cooperation Agency, articles subject to such monitoring
“are accompanied by specialized physical security and
In addition, the MTCR guidelines state that, in cases where
accountability notes.” U.S. transfers of MTCR Category I
the exporting government does not judge the proposed
UAS also “shall require periodic consultations with” the
Category I UAS transfer as intended for NBC delivery, the
U.S. government with respect to the systems’ use,
government is to obtain “binding government-to-
government undertakings” from the recipient state that
according to the State Department fact sheet.
“[n]either the items nor replicas nor derivatives thereof will
Paul K. Kerr, Specialist in Nonproliferation
be retransferred without” the exporting government’s
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U.S.-Proposed Missile Technology Control Regime Changes

IF11069

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