The regulatory hurdles to commercial human spaceflight
by Jeff Foust
|“A hundred years ago, the only question the Wright Brothers had to ask was, ‘can we?’” said Kutler. “Today, all these people are really asking, ‘will we be allowed?’”|
These issues prompted a wide range of individuals, companies, and organizations to band together earlier this month to publish a joint press release in an effort to raise awareness, particularly in Congress, about these potentially show-stopping regulatory concerns. Last Thursday, several of these people, including both company founders and potential investors, spoke before a joint House-Senate hearing on the issue.
“A hundred years ago, when the Wright Brothers were figuring out how to get into the air, the only question they had to ask was, ‘can we?’” said Jon Kutler, founder and CEO of Quarterdeck Investment Partners, an aerospace and defense investment bank. “Today, all these people here with me are really asking, ‘will we be allowed?’”
The most pressing regulatory issues is one that many might have been thought solved years ago: who has the authority to regulate suborbital RLVs. Currently the Office of the Associate Administrator for Commercial Space Transportation (known by the acronym AST) of the FAA regulates launches of commercial expendable and reusable orbital launch vehicles. Most people both in the industry as well as within AST itself assumed that this authority also extended to suborbital RLVs. AST has gone so far as to develop its own working definitions of suborbital vehicles and suborbital trajectories to allow it to determine if a proposed vehicle does indeed fall within AST’s jurisdiction. (See “RLV regulation: licensing vs. certification”, April 28, 2003)
That claim has been challenged, though, by Burt Rutan and his company, Scaled Composites. When Scaled unveiled SpaceShipOne, their suborbital RLV, in April, Rutan said he planned to fly the vehicle under an experimental aircraft license, not a launch license, claiming that launch licenses are better suited for expendable launch vehicles. In late June Rutan did backtrack and file an RLV launch license with AST—becoming the first company to submit an RLV license application—but at the same time he told Aerospace Daily that he planned to ask FAA administrator Marion Blakey to reinterpret existing regulations to allow SpaceShipOne to fly under an aviation license.
This has created a situation of considerable concern for RLV companies. Not only are they unsure whether they will be regulated as aircraft or launch vehicles, they face an onerous and expensive certification process if the FAA decides to regulate suborbital RLVs as aircraft. The certification process, required for the vehicles to enter commercial service, would results in years of delays and hundreds of millions of dollars of additional costs, a combination that many fear could kill the suborbital RLV industry before it even started.
“In suborbital spaceflight, we don’t know who will regulate us,” said Dennis Tito, one of the witnesses at the Congressional hearing. He called the possibility that the FAA’s aviation branch regulating suborbital RLVs “very, very, scary.” “For example, I understand that it cost $600 million to certify a Lear 45,” he noted. “With that kind of certification cost, I see that it would be impossible for this industry to begin.”
|If suborbital RLVs were regulated like aircraft, and forced to undergo costly certification processes, “I see that it would be impossible for this industry to begin,” said Tito.|
“The only way that the emerging launch industry is ever going to develop into a profitable, taxpaying industry, is to fly, and to fly for revenue,” said Jeff Greason, president of XCOR Aerospace. “While we fly for revenue, it’s obvious that the uninvolved public has to be kept safe. The only regulatory regime that we have that allows safe flight for the general public while permitting revenue operation of untried vehicles is the launch vehicle regulatory regime. That’s how we have to fly.”
In his prepared testimony, Greason addressed Rutan’s concerns about launch vehicle licensing more directly. “For those who have exclusively flown experimental-type aircraft, the launch vehicle regulatory world can seem daunting. On closer examination, it is less so: all that is needed is to demonstrate that the public is safe. That is only more burdensome than for experimental aircraft because the precedents are not set yet.”
What Greason and Tito, as well as many other people within the industry, want is for Congress to step in and explicitly define key terms. “One reason there is regulatory confusion is that the terms ‘suborbital rocket’ and ‘suborbital trajectory’ are used in the original [Commercial Space] Launch Act but never actually defined,” Tito noted in his prepared testimony. “This new industry needs the Congress to mandate in law an enabling regulatory framework for commercial suborbital human spaceflight.” Tito also suggested an alternative solution to the problem: take AST out of the FAA altogether and make it a standalone entity within the Department of Transportation.