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Commercial human spaceflight and the arms control problem

Spacecraft are technically munitions, meaning booking foreign passengers for flights run by a U.S. company counts as exporting arms

Despite the fact that many commercial human spaceflight companies have thus far been financially fueled by adventurer-billionaires like The Virgin Group’s Richard Branson (Virgin Galactic), PayPal’s Elon Musk (SpaceX) and Amazon.com’s Jeff Bezos (Blue Origin), everyone in this emerging industry agrees that the goal is economic sustainability. A company must become profitable in its own right by attracting ample numbers of passengers who have the financial means to pay the substantial ticket price for a trip to space.

This amount will range from the high tens of thousands for passengers on XCOR's suborbital flights aboard the two-person ‘Lynx’ spacecraft, to millions of dollars for a flight aboard a SpaceX ‘Dragon’ capsule destined for, say, one of Bigelow Aerospace’s orbiting space habitats. Ultimately, seats will be available for expeditions to the moon at prices in the range of hundreds of millions of dollars. With these price points, a spaceflight company’s long-term viability will require a global customer base. Companies must be able to tap into the universe of people around the globe who have both the desire and money to participate in this new wave of human exploration.

But there is an impediment to casting such an international net. U.S. spaceflight regulations require that passengers be provided with technical information about the spacecraft they will be riding in as part of the mandatory informed consent regime and emergency procedures training. And if the people aboard the spacecraft must actually operate it in some way rather than simply being passengers, the company must impart still more technical information.

Because spacecraft are generally deemed by the U.S. Department of State to be munitions, this mandatory conveyance of technical information about the spacecraft from the company to the passenger can be deemed to be a transfer of defense articles subject to the International Traffic in Arms Regulations (ITAR).Thus, if the passenger is a foreigner, the transfer is considered to be an arms export and must be done in compliance with ITAR, just as if the company was selling tanks to the passenger’s home country.

Certain companies at the forefront of the industry, including Virgin Galactic, SpaceX and Bigelow Aerospace, have been grappling with this hurdle for several years now and have made good progress with the State Department in establishing ad hoc criterion and protocols enabling compliance with both the regulatory disclosure rules and ITAR for those companies’ foreign passengers. Additionally, there are groups working hard to change the law so that a typical spaceflight company’s operations will not be deemed to fall within ITAR.

Though these are positive developments, spacecraft in the meantime remain on the munitions list and therefore are treated as arms for export purposes, meaning that a company must incur the effort and expense of navigating ITAR or risk serious criminal penalties. For the foreseeable future, ITAR compliance will be a necessary evil in the course of a spaceflight company’s effort to reach the worldwide customer base it needs to become profitable. 

Contributing Author

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Doug Griffith

Doug Griffith is a Los Angeles attorney whose practice caters exclusively to clients in the aviation and commercial human spaceflight industries. Formerly with the aviation practice...

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