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Exploring the Overlapping Regulations of the US-Australia Technology Safeguards Agreement and Export Controls: What You Need to Know


Introduction



In a move long-awaited by domestic space industry, the United States (US) and Australia signed the Agreement on Technology Safeguards Associated with US Participation in Space Launches from Australia, or the US-Australia Technology Safeguards Agreement (TSA), on 26 October 2023. Many in Australian industry are now wondering: how does the TSA intersect with export controls?


This blog provides a brief synopsis of the TSA, what it does, and how it relates to the US export control regimes.


Background

A Technology Safeguards Agreement (TSA) is a treaty between the US and another Missile Technology Control Regime (MTCR) Partner country that establishes the legal and technical framework to enable the launch of US space technology from that MTCR Partner country while safeguarding sensitive US technology. The US-Australia TSA coming into force is subject to implementation of the treaty into Australian law, which has commenced with the tabling of the US-Australia TSA in Parliament on 27 February 2024.


The US currently has TSAs with five MTCR Partner countries, including Brazil, New Zealand, and the United Kingdom. The MTCR is a 35-country regime that seeks to limit the proliferation of weapons of mass destruction by controlling the export of missiles and unmanned aerial vehicles, and equipment, software and technology used for the development or production of such missiles and systems.


MTCR Partners apply mutually agreed upon export control policy to a common list of items (the MTCR Equipment, Software and Technology Annex). In US regulations, MTCR Annex items are designated with an ‘MT’ in the US Munitions List (USML) of the International Traffic in Arms Regulations (ITAR), and Missile Technology (MT) is a Reason for Control under the Export Administration Regulations (EAR). In Australia, the Defence Strategic Goods List (DSGL) notes that certain items may be subject to the MTCR Guidelines for Sensitive Missile-Relevant Transfers, available here.


What does the TSA do?

The US requires a TSA to be in place to authorise commercial space launch activities to occur in a MTCR partner country such as Australia. As such, the US-Australia TSA provides the mechanism for US entities to undertake the following activities:

  1. Launch from Australia of US spacecraft (such as satellites) by means of US launch vehicles (such as rockets);

  2. Launch from Australia of US spacecraft by means of non-US launch vehicles;

  3. Launch from Australia of non-US spacecraft by means of US launch vehicles; and

  4. Landing in Australia of US spacecraft or US launch vehicles.


Intersection with export controls?

On 6 March 2024, the Australian Space Agency delivered an Australian space sector briefing on the TSA. One of the common questions was about the TSA and US export controls, and whether the TSA overrides or negates US export controls for space launch activities in Australia.


The unequivocal response from the ASA was that the ITAR and US export control framework sits outside the TSA, with no intersection. The TSA is simply the framework that provides the overarching Treaty level authorisation and requirements for US space launch activities to occur in Australia, as required by US law and in compliance with MTCR obligations. The ITAR and US export control rules still apply to the exports, re-exports and re-transfers of US origin space equipment and technology to and within Australia, as they do now.


Conclusion

The US-Australia TSA is good news for US entities looking to conduct space launch activities in Australia, as well as Australian entities looking to offer launch facilities to US entities. It is a treaty that charts the course of Australia – United States bilateral space cooperation for the next 10-20 years and hopefully expands our bilateral relationship going forward in a way that benefits both the Australian and US space economies.


Importantly however, the US-Australia TSA is not a blanket approval for US space technology to be brought in or transferred to Australia. Each specific launch activity would need to be authorised through a US export license (e.g. an ITAR license) or authorisation. Likewise, Australia will regulate space launch activities involving US technology through launch facility licences and Australian launch permits through the existing provisions in the Space (Launches and Returns) Act 2018.

 

 

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