Res Communis

No Need For ITAR License for Space Flight Participants

by P.J. Blount with the blog faculty

From the Economist:

Freedom to fly

Apr 22nd 2009
From Economist.com
A small company wins an important legal challenge to America’s space-technology export-control regime

FOR many years, parts of America’s space industry have complained that the rules governing the export of technology are too strict. Understandably, the government does not want militarily useful stuff to fall into the hands of its foes. But the result is a system that is too strict in its definition of “militarily useful” and which favours lumbering dinosaurs such as Lockheed Martin and Boeing, which survive on fat government contracts, rather than nimble but small “furry mammals” that need every customer they can get, domestic or foreign.

In December 2007 one of those mammals, a company called Bigelow Aerospace, filed the first legal challenge to America’s rules for exporting space technology. It disputed the government’s claim that foreign passengers travelling on a spaceship or space station were involved in a transfer of technology. The outcome suggests that there may be a chink in the armour of the export-controls regime. . . .

. . . Yet, taking a passenger flight does not mean you can build an aeroplane, observes Mike Gold, head of Bigelow’s office in Washington, DC. His line of argument, it seems, has been accepted. Mr Gold says that the company received the ruling in February and that it has spent the past two months digesting it. He says that Bigelow has got “everything we could want”, though the ruling still precludes passengers from what he describes as the “bad-boy list of export control”—nationals from Sudan, Iran, North Korea and China will not be allowed to fly or train on suborbital passenger flights, or visit Bigelow’s space station.

Other private space companies have welcomed the ruling. Marc Holzapfel, legal counsel for Virgin Galactic, describes it as a “major development” because it frees the industry from having to go through the “complicated, expensive and dilatory export-approval process”. Tim Hughes, chief counsel of SpaceX, says the approval is exciting, because it seems to represent a “common-sense approach” and bodes well for similar requests made by companies such as his own to carry foreign astronauts hoping to work on missions to the International Space Station. . . . [Full Story]

My article on this now moot point is available from SSRN: Informed Consent v. ITAR: Regulatory Conflicts that Could Constrain Commercial Human Space Flight