Permission To Fly

A very significant piece of legislation was introduced in the House of Representatives last week.

Numbered H.R. 3245, it resolves many of the regulatory uncertainties that have been plaguing the emerging suborbital passenger industry (search). The text of the bill can be found here.

There has been an ongoing turf fight within the Federal Aviation Administration over which part of it will regulate rocket-powered vehicles that take off and land like airplanes, but go briefly into space. Some, like Burt Rutan, want to operate their vehicles under experimental aircraft certificates, regulated by FAA-AVR, a process with which he's intimately familiar, and allows him to do repeated test flights without having to submit burdensome paperwork each time.

The problem with this is that if he ever wants to carry paying passengers in such a vehicle, it has to be certificated like an aircraft, and this is perceived by many to be a major expense, often increasing development costs by a very large factor.

The alternative is to license it like a launch vehicle, which is handled by a different branch of the FAA, currently called FAA-AST. It was formerly a separate office in the Department of Transportation, called the Office of Commercial Space Transportation, but it was moved into the FAA during the Clinton administration for no apparent good reason. This would, in theory, allow paying customers without the need for vehicle certification.

The problem with this solution has been two-fold.

First, the launch licensing process has developed over the years to deal with one-shot expendable launch systems, costing millions of dollars each, and the cost of getting a license has been a sufficiently small fraction of the total that it wasn't an issue. However, it can be quite burdensome if it's something that has to be done for each and every flight of a reusable, airplane-like vehicle.

Second, the regulatory authority was unclear, both in the definitions of suborbital space flight, and in whether and how passengers and crew should be regulated, since no private manned space vehicle has been flown to date. I've previously discussed this issue at length.

The proposed legislation resolves this issue by doing the following:

--It establishes and defines the categories of suborbital vehicles and suborbital flight.

--It establishes the category of "spaceflight participant" (read "passenger") as a legitimate and legal payload of private space transports, and encourages the notion that they can be such cargo.

--It categorizes them as non-third parties (they're actually what lawyers refer to as second parties), rendering them beyond the statutory reach of the DOT for now, for the purposes of ensuring safety (and thus keeping the department's hands off of vehicle regulation for this purpose).

--It requires the Department of Transportation to clearly separate the regulation of space transports from air transports, which can reasonably be interpreted as releasing the FAA from any responsibility for doing so and moving it to a different office, or perhaps an entirely new agency, within the department.

--It requires licensees to stipulate medical and training standards for passengers and crew, allowing them to statutorily enforce such standards, while not laying down generic federal requirements.

The critical new definitions are the following:

"Suborbital rocket" means "a rocket-propelled vehicle intended for flight on a suborbital trajectory whose thrust is greater than its lift for the majority of the powered portion of its flight." In other words, if it gets most of its lift, most of the time, from a rocket engine, rather than wings, it's a suborbital rocket, and regulated as one, rather than an airplane.

"Suborbital trajectory" means "the intentional flight path of a launch vehicle, reentry vehicle, or any portion thereof, whose vacuum instantaneous impact point does not leave the surface of the earth." The "vacuum instantaneous impact point" is the point that it would strike the earth if it were allowed to continue on its current trajectory. In most cases, hopefully, it's fictitious, since the rocket will enter in a controlled manner, but this definition distinguishes a suborbit from an orbit, because the latter would remain in space indefinitely and never strike the earth, absent some outside force other than earth's gravity.

Explicitly allowing for crew passengers in the law, and explicitly defining them as not being third parties is an important step.

Under the original Commercial Space Launch Act (search) (as perceived to be required by the 1967 Outer Space Treaty and 1972 Liability Convention), the Department of Transportation has no responsibility to ensure safety of payloads, or authority to deny a license on the basis that the launch may endanger them. It only has responsibility to protect uninvolved third parties on the ground.

By explicitly excluding passengers and crew from the category of third parties, the department is explicitly detached from responsibility for their safety. In so doing, it removes the danger that the requirement to set medical and training standards by the licensee can be morphed into one establishing uniform federal standards in these areas. The standards will thus be set only by the individual licensee, and the only requirement for a license will be that those standards are adhered to by that licensee.

This interpretation was verified by Jay Garvin of FAA-AST, at a conference I attended on Friday, in which he reiterated that FAA-AST has responsibility only for third-party safety, and does not have statutory authority to regulate the safety of passengers.

This language will thus provide flexibility to have different training and medical standards for different types of space transports. For example, a company that has a system with a 9-G entry will obviously have different medical standards than one with only a 3-G entry. Similarly, a company with a vertical takeoff/landing vehicle will have different crew training standards (e.g., helicopter experience) than one that employs horizontal takeoff/landing.

Some may be concerned by the fact that the government is not, at this time, going to regulate the safety of passengers in this new industry, but it must be understood that if they were to attempt to provide the level of safety through regulation that the airline industry currently provides, the industry will be stillborn.

People die climbing Everest, people die rock climbing, people die sky diving, and people die scuba diving. This industry is simply too immature to impose unreasonable safety requirements on it--the providers don't yet know exactly how to do it, and the regulators don't either, and attempting to do so would raise costs so high that it won't be possible for anyone, even those willing to take the risk, to afford it. This is truly the best solution at this time.

In addition, there's a benefit to the providers, in that they will be able to turn away potentially risky passengers, on the grounds that they don't meet their licensed standards as required by the Department of Transportation. This will minimize the danger of some potential lawsuits (e.g., oversize people who demand single-seat pricing on airlines, even though they may take up two seats).

Overall, this legislation is a major step forward, and I would encourage all interested in opening up the frontier to call or write their congressional representative and urge them to sponsor this bill.


I received a few comments on last week's column to the effect that I offered only criticism, and no solutions, to the problem of NASA, and that I had nothing critical to say about ESA or Russia, or other nation's space programs.

In my defense, I'd say that I have at various times offered solutions (this column being one), but that I have limited space in a given column, and as to my not discussing other programs, my taxes don't pay for them, and it wasn't their birthday.

But more importantly, I'd just like to note that it's not possible to offer solutions until we understand what we're trying to accomplish. As I've said repeatedly, when you don't know the destination, any road will get you there, and until we have a fruitful discussion about our national goals in space, it would be pointless to offer means to achieve them.

Rand Simberg is a recovering aerospace engineer and a consultant in space commercialization, space tourism and Internet security. He offers occasionally biting commentary about infinity and beyond at his Web log, Transterrestrial Musings.

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