The Space Reviewin association with SpaceNews

ISDC 2024

Melvill atop SS1
The passage of HR 5382 is cause for celebration for much of the suborbital launch industry. (credit: J. Foust)

Getting into the act

HR 5382 passed the Senate last week and is expected to be signed by the President. This legislation was long sought by the suborbital industry. The suborbital adventure travel industry gains several assurances that it was seeking. The legislation formalizes that for the first 8 years, safety regulations may only be issued to prohibit “design features or operating practices that (i) have resulted in serious or fatal injury [with death occurring up to 30 days after a crash] to crew or space flight participants during a licensed or permitted commercial human space flight; or (ii) contributed to an unplanned event or series of events during a licensed or permitted commercial human space flight that posed a high risk of causing a serious or fatal injury to crew or space flight participants”.

It appears that a suborbital company can try whatever it wants as long as it doesn’t kill or nearly kill anyone in the spacecraft—a “tombstone mentality” according to critic Rep. Jim Oberstar (D-MN). Since a suborbital firm that kills its passengers is likely to want to redesign any features or alter the operating practices that have caused the crash anyway, this is not too much of a burden. While this may technically be a strengthening of the safety regulations as Rep. Dana Rohrabacher (R-CA) insists, allowing the carrot of a favorable regulatory regime without the stick of a comprehensive safety regime is definitely a boon to the industry.

It appears that a suborbital company can try whatever it wants as long as it doesn’t kill or nearly kill anyone in the space craft—a “tombstone mentality” according to Rep. Oberstar.

Writing for UPI, Robert Zimmerman worries that “If this language had been in force [in] October, the uncontrolled spins experienced by SpaceShipOne during its first X Prize flight would have forced AST to halt the second flight, thereby preventing [Burt] Rutan’s ship from winning the $10 million award.” According to Clark Lindsey this claim may just have been inserted by the editor. Regardless of who said it, though, it seems unlikely that a successful flight to space with all aboard safe would trigger anything more than the “anomalies” in Melvill’s first flight did. That is, instead of investigations and accusations, we saw a triumphantĘchief regulator, Patti Grace Smith, awarding Melvill with astronaut wings.

As Rohrabacher put it, “Earlier this year HR 3752 passed this House by a vote of 402 to 1. That bill’s central premise… was that, after being informed of the risks, that people can and should be able to decide to buy a ticket and achieve their lifelong dream of flying into space, even though they know that it is a risky proposition.” And that premise was preserved nearly intact in HR 5382.

HR 5382 may be the key to sparking investment in suborbital ventures. In March, Dennis Tito said, “HR 3752 is precisely the kind of legislation Congress should enact in order to give investors like me confidence that our space tourism ventures will be regulated in a fair and streamlined manner.”

The industry needs to develop before having confining regulations imposed.

If the investments proceed and development and testing are successful, “This bill ensures that an exciting new sector is provided the opportunity to grow into what could become a multi-billion dollar industry,” according to the Space Foundation president Elliot Pulham.

The industry needs to develop before having confining regulations imposed. Rohrabacher states further, “if we had the same level of regulation [for airplanes in the 1930s] that we have now would have just stifled all sorts of creativity at a time when people knew they were taking risks? My father, I remember when he told me he got in on a plane that flew in on a dirt road and they charged $5 to get on this plane. It was an old World War 1 SPAT or something. It excited him so much about being able to participate, and because of that we had a whole new industry created because of that.”

More recent examples of industries that have been allowed to flower with light-handed regulation are:

  1. The Internet, which has mostly avoided regulation and taxation while it grows and,
  2. Personal computers and operating systems, which have largely been free to innovate despite having tremendous safety and security implications for our nation.

Holman Jenkins described the dangers of liability in a recent column in the Wall Street Journal:

Recall that the small plane industry was dead or dying because of lawsuits. Liability coverage for a Piper Cub accounted for a bigger share of purchase price than parts and labor combined. For the first time since the Wright Brothers, the accident rate in the late 1980s had stopped falling and was beginning to rise because pilots were flying aging planes with obsolete technology.
Then Congress enacted limits freeing manufacturers from liability for planes after they’d been flying for 18 years. Millions of investment dollars thereupon revived the industry. You've seen the Cirrus SR22, a favorite of the evening news, which packs a parachute to deliver a troubled plane gently to the ground, saving nine aeronauts already in its short life. Next along will be a flock of cheap, reliable minijets made by new companies like Eclipse Aviation and Adam Aircraft, putting jet air taxi service within reach of millions of ordinary travelers.
It won’t surprise you to learn that Eclipse, for instance, is financed partly by Microsoft billionaires Bill Gates and Paul Allen the same general gusher of technology wealth is financing many of the private space projects.

This sort of argument is very dangerous when a bill requires unanimous passage. If this sort of thinking was seen as a direct threat to the plaintiffs’ bar, the bill would not have passed. Fortunately, this aspect of the bill was either ignored or deemed advantageous (or at least too non-threatening in a difficult year for the trial lawyers, who must pick their battles carefully with such a narrow margin to prevent cloture in the Senate). It is certainly in the interest of the plaintiffs’ bar to let space adventure develop into a multi-billion dollar industry so that it can compensate any victims handsomely from the inevitable mishaps.

“This industry,” said Rep. Boehlert, “is at the stage when it is the preserve of visionaries and daredevils and adventurers. These are people who do not expect and should not expect to be protected by the government. Such protection would only stifle innovation.”

Rep. Rohrabacher also argued, “People who are spending $200,000 or $100,000 to go into space, they are responsible enough to make a decision as to whether or not to take the risk, rather than having the government trying to say there will be no such people, and thus that contribution, that amount of money that would be available to developing new craft will no longer be available.” This argument only applies as long as my SpaceShot, Inc. (see “Space shot”, The Space Review, October 11, 2004), the 7-Up giveaway or others open up suborbital space to the less than rich. I would argue that any well-informed adult is capable of realizing that riding a rocket ship in the early years will not be as safe as riding in an airplane.

The bill is supposed to allow risky experimentation. As Rep. Sherwood Boehlert (R-NY) put it, “here is what the bill does not do. It does not allow the FAA right now to guess whether some new untested rocket technology will do harm to the people onboard. Why? Because this industry is at the stage when it is the preserve of visionaries and daredevils and adventurers. These are people who will fly at their own risk to try out new technologies. These are people who do not expect and should not expect to be protected by the government. Such protection would only stifle innovation.”

HR 5382 is not a free pass for suborbital. They still need to protect third parties from financial damage. It leaves in place AST maximum probable loss (MPL) calculations that consider the loss from the worst crash after 10,000,000 flights. That bad a crash won’t happen during the first ten years with 99.99% probability if there are only 100 flights a year. Still, the MPL calculations end up in the millions with SpaceShipOne only hitting $3M at its worst such crash.

Yet, by defining “spaceflight participants,” who are non-crew passengers, establishing an experimental license regime, defining suborbital, defining the difference between a spaceship and an airplane, and making a single unified permitting system, HR 5382, according to Rick Tumlinson of the Space Frontier Foundation, has granted “permission to fly.”