The U.S. International Traffic in Arms Regulations: A Hazard for the Uninitiated in the Private Spaceflight and Space Tourism Industries

Paper number

IAC-07-E6.2.14

Author

Mr. John Ordway, Berliner, Corcoran & Rowe, L.L.P., United States

Year

2007

Abstract

The International Traffic in Arms Regulations ("ITAR") are well known to the world's aerospace giants.  However, such companies are not presently at the forefront of private spaceflight and space tourism.  Most promoting private spaceflight and space tourism, rather, are at present entrepreneurs and small businesses that generally are not from an ITAR-regulated environment.  The ITAR may therefore create unanticipated complications in the plans of these individuals and small businesses in this rapidly developing branch of commercial space.  

The United States deems outer space to begin at an altitude of 50 miles from the Earth's surface.  As the leading private craft, SpaceShipOne and its progeny, are projected to reach over 360,000 feet (approximately 68 miles), there is likely little doubt that such craft are "spacecraft" under the ITAR, as are its hybrid rocket motors.  Scaled Composites of the U.S. has reportedly obtained a least one export authorization from the U.S. State Department's Directorate of Defense Trade Controls ("DDTC") to date to permit it to work with Virgin Galactic of the U.K. in connection with the craft.

ITAR control of private spacecraft and/or private spacecraft components is a hurdle for the private spaceflight and space tourism industries but certainly should not bring the nascent industries to a halt.  Examples of complications the ITAR will create include, but are not limited to, the following.  A U.S. company will be required to obtain authorization from DDTC prior to (a) shipping out of the U.S. (or transferring to a “foreign person” in the U.S.), and/or (2) transferring to a “foreign person” (whether in the U.S. or not) title to, an ITAR-controlled spacecraft (including for “launch” in a foreign country) or any ITAR-controlled parts and/or components (for repair and maintenance outside the U.S., for instance).  In addition, even within the U.S., if a U.S. company employs any foreign person who will work with ITAR-controlled technical data and/or ITAR-controlled parts and components, the employer will be required to obtain DDTC authorization prior to allowing the foreign person employee to perform such work.  

On top of these requirements for prior DDTC authorization, the U.S. Department of Defense Defense Technology Security Administration (“DTSA”) has the right to monitor meetings and teleconferences where there will be any technical interchange that involves ITAR-controlled technical data between U.S. persons and foreign persons, including within the U.S.  Finally, DTSA has the right to monitor “launches” outside the U.S.  To date, DTSA has not shown any interest in monitoring such launches, but that policy could change.

Abstract document

IAC-07-E6.2.14.pdf

Manuscript document

IAC-07-E6.2.14.pdf (🔒 authorized access only).

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