The Wrong Stuff: America's Aerospace Export Control Crisis

• Publication year: 2021

87 Nebraska L. Rev. 521. The Wrong Stuff: America's Aerospace Export Control Crisis

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The Wrong Stuff: America's Aerospace Export Control Crisis

Michael N. Gold(fn*)

TABLE OF CONTENTS

I. Introduction ........................................... 521 R
II. The Bigelow Aerospace Story............................. 522 R
III. Adventures In Export Control, the Genesis I and II
Campaigns .............................................. 524 R
IV. Reaping What We Sow, the Dangerous Results of an
Irrational Policy ...................................... 527 R
V. Conclusion: Simple, Common Sense Reforms................ 528 R

I. INTRODUCTION

In Science Fiction, Earth is often threatened by a variety of space- based enemies from evil robots to malevolent Martians. However, in reality, the greatest barrier to America revitalizing its moribund commercial space launch and manufacturing industries is none other than

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the United States Government itself, a force that would leave even Klingons weak with fear and dread.

Specifically, the obsolete and poorly enforced International Traffic in Arms Regulations ("ITAR") have become an albatross around U.S. companies' necks, stifling innovation and stunting development.(fn1)

The great irony is that, in stark contrast to U.S. export control's twin policy goals of maintaining domestic preeminence in the aerospace field and supporting national security, the ITAR is having exactly the opposite effect.(fn2) Since 1999, when all space-related systems were returned to the United States Munitions List ("USML"), America's leadership in commercial space capabilities has eroded, while Russian, European, and Asian entities have expanded and deepened their growing dominance.(fn3)

II. THE BIGELOW AEROSPACE STORY

For the past ten years, I have had the privilege to be associated in one form or another with Bigelow Aerospace. Founded by the visionary entrepreneur Robert T. Bigelow, the goal of Bigelow Aerospace is to create a new, robust, private sector-driven space industry by dramatically reducing the costs of conducting space-based activities. The exclusive focus of the company is developing next-generation space habitats that utilize "expandable" technology.

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The idea of an expandable space habitat was first developed by NASA in the early 1960s,(fn4) but the giant tire-like structures that were envisioned at the time could never have survived in the harsh environment of space, and the concept was eventually dropped. However, decades later, with the introduction of advanced flexible fabrics such as Kevlar in the 1980s and 1990s, the idea of producing spacecraft that could inflate/expand after reaching orbit was revisited. The benefits of what NASA was then calling an "inflatable habitat" included reduced usage of rocket fairing volume (which saves money), decreased mass (which also reduces costs), increased usable volume (after deployment), and enhanced protection from radiation (a key issue for long duration missions). Due to these advantages, NASA began a program called "TransHab" to develop an inflatable habitat that would be used as a crew quarters for the International Space Station.(fn5) Despite the promising nature of the technology, the TransHab program was canceled by Congress in 2000 due to political and budgetary concerns.

After the termination of the TransHab program and NASA abandoning an extraordinarily promising technology, Bigelow Aerospace picked up the torch that the government had dropped and dedicated itself to implementing the concept.

Unfortunately, NASA never got very far with the TransHab program, and Bigelow Aerospace was forced to begin almost from scratch. Under Robert Bigelow's personal direction, by 2002, the company had crafted a bold plan to develop sub-scale pathfinder modules that would demonstrate and validate this new technology in an actual, orbital environment.

To launch these trailblazing spacecraft, Bigelow Aerospace selected ISC Kosmotras, a joint Russian-Ukrainian venture that converts Russian SS-18 missiles (a critical part of the Russian nuclear arsenal) into a commercial space launch vehicle known as the "Dnepr." Kosmotras's business is literally a "swords into plowshares" story. The strong capacity of the Dnepr was needed since the Bigelow Aerospace pathfinders, the first of which was dubbed Genesis I, are substantial spacecraft, each more than fourteen feet (4.4 meters) in length with an eight foot (2.4 meters) diameter (post deployment) and a weight of nearly 3,000 lbs.

Previously, Dnepr launches had taken place from Baikonur, Russia's primary commercial space launch facility located in Kazakhstan. However, for a variety of reasons, the Genesis I launch was shifted to

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an active Russian nuclear missile base near the town of Yasny in the Orenburg region of Russia. Genesis I was the first commercial launch in the history of Yasny, and it was also the first time that the Dnepr would carry a single, large integrated payload. The launch occurred on July 12, 2006, and was a stunning success. The following year, on June 28, 2007, Genesis II was successfully launched, also on a Dnepr from what is now known as the Yasny Space and Missile Complex. Both launches exceeded Bigelow Aerospace's expectations, and the two spacecraft successfully validated Bigelow Aerospace's fundamental engineering concepts. Genesis I and Genesis II both remain in orbit today and continue to produce invaluable data.

However, what Bigelow Aerospace learned during the Genesis I and II programs was that while the technical challenges were difficult, they...