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Export Controls – Drone Guidance

Unmanned Aerial Vehicles (UAV) and Unmanned Aircraft Systems (UAS), commonly referred to as “drones”, are increasingly popular tools in research.  The term “drone” will be used below to refer to any UAV or UAS.

Overview of Drone Regulations and Procedures

The operation of drones is regulated by the U.S. Federal Aviation Administration (FAA) and applicable state and local laws.  Additionally, the Department of State and the Department of Commerce control certain drones for export outside of the U.S.  Export controls and FAA regulations are equally important but have different missions and end-goals.  FAA regulations are focused on civilian aviation safety and public safety, whereas export controls are primarily concerned with the transfer of sensitive technologies for national security purposes.  While there is some overlap, the regulations are not harmonized.  FAA approval does not authorize the export or transfer of the drone to foreign countries or to foreign nationals.

The guidance provided here is focused on the export control regulations. University and campus policies and further infomation on drones can be found with the Autonomous Aerial Systems Office.

Many drones are export controlled under either the Export Administration Regulations (EAR) governed by the Department of Commerce, or the International Traffic in Arms Regulations (ITAR) governed by the Department of State.  Drones which are civil by design intent, but with capabilities that could inherently be useful for defense purposes, will generally be controlled under the EAR.  Drones which are specifically designed for a defense purpose will usually be controlled under the ITAR.  Both sets of regulations trigger foreign national access and use restrictions with respect to the equipment, as well as related software and technology. 

The Export Controls Office shall be notified of new drones and shall then determine the export control classification of the equipment.  If the drone has a classification other than EAR99, export control measures must be put in place.  Export Controls staff shall discuss the required process with the user of the drone.  Anyone with access to that drone will need to sign an EAR Equipment Registration Form, or if it is ITAR-controlled, a Technology Control Plan will be put in place.

Certain drone modifications, accessories, or attachments, as cameras or lasers, may have export controls above the control level of the drone itself.  Please contact the Export Controls Office if drones are modified or additional accessories or attachments are used.

Flight Telemetry Data

Drones may automatically send flight telemetry data to the manufacturer.  Sending this data to the manufacturer could be a prohibited export.  The best way to prevent an unauthorized export is to manually disable this feature upon receipt of the drone, prior to first use.

Foreign Use

Certain drones may be export controlled under U.S. export regulations and, as such, may not be physically exported outside the U.S. without a license from the U.S. government. In addition, a license may be required if foreign nationals located within the U.S. are provided access to the technology related to such systems (deemed exports). All UM individuals or organizations that intend to design, build, research, use in research, modify, dismantle, and/or operate a drone in foreign countries and/or with foreign nationals in the U.S. or abroad must do so in accordance with U.S. export regulations and UM export control policies and procedures.  Such instances shall be discussed with the Export Controls Office to ensure all export control regulations are followed.

Depending on the classification of the drone, there will be varying levels of concern with foreign national access to drones.  The Export Controls Office would discuss this with the drone user based on the classification of the drone.  Despite not being exported internationally, there is a possibility of a “deemed export” if certain foreign nationals are provided with certain access.

In general, a foreign national must do more than merely operate or use a dual use item for a “deemed export” to occur.  Rather, the foreign national’s level of access would have to enable him/her to gain what is defined as “use” or “development” technology.  For EAR purposes:

• “Use” technology is defined as information relating to operation, installation, maintenance, repair, overhaul, and refurbishing. They would have to perform these functions to gain an understanding of the underlying controlled technology.
• “Development” technology is defined as information “related all stages prior to serial production, such as design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts.” 

Additionally, if the drone is classified as EAR “600 series”, merely operating the device can trigger a deemed export, such that the technology transfer is deemed to occur through this activity alone.

To the extent that you wish to authorize foreign national to gain access to controlled “use” or “development” technology, or use a “600 series” EAR item, export licenses may be granted by the Department of Commerce Bureau of Industry & Security (BIS), but license applications can take up to 60 days or more to be processed.

DJI Drones

DJI (Da-Jiang Innovations), a well-known drone manufacturer headquartered in China, is on the U.S. Bureau of Industry and Security (BIS) Entity List.  Depending on the scenario, the shipment of items to DJI, including drones for return or repair, may be prohibited.  Contact the Export Controls Office for a review prior to making any shipment to DJI.

While there is not a prohibition on the purchase or use of DJI drones 91¶ÌÊÓƵ, it is recommended to purchase alternative equipment, preferably from a U.S. manufacturer, whenever possible.