Jay Garvin, manager of FAA/AST’s licensing and safety division (center), talks about RLV regulation with Brian “Rocket Guy” Walker (left), an independent vehicle developer, and Neil Milburn of Armadillo Aerospace. (credit: J. Foust)

RLV regulation: licensing vs. certification

<< page 1: licensing versus certification

Carrying passengers

While it may be clear that suborbital RLVs should be licensed and not certified, how they will go about carrying passengers remains uncertain. Current regulations don’t explicitly discuss the requirements for passengers, and while the launch licensing process includes a section for payload review, Murray noted that the FAA does not consider people to be payloads.

“We do not have specific authority to allow passengers on launch vehicles,” said Jay Garvin, manager of AST’s Licensing and Safety Division. “But also, no one has told us we can’t.” Garvin said that his office has felt pressure from companies like XCOR to make a decision one way or the other. He did note that, in just his personal opinion, that it would be possible for licensed vehicles to carry passengers. “It doesn’t say we can’t do it.”

In an effort to reduce the regulatory burden on RLV companies, the X Prize’s Diamandis has introduced a concept known as an “accredited passenger.” The concept is designed to be similar to the “accredited investor” regulations of the Securities and Exchange Commission, which allow people of relative high net worth to invest in startup companies prior to an initial public offering of stock. Under Diamandis’ accredited passenger program, people would be certified on vehicles after having proved that they are aware of the risks and have completed a training program. “There are thousands, if not tens of thousands, of people who would go through the training; in fact, they want that experience,” he said. Such a system, Diamandis believes, it will make it easier for vehicles to build up flight experience and potentially transition into a certification regime like those used for passenger aircraft.

While Diamandis has been pushing the accredited passenger concept for several years, there has been little progress made to date getting such a system into FAA regulations. “We are looking at how to get people onto reusable launch vehicles,” said Garvin. “Will an accredited passenger system make it easier? I can’t answer that. We’re just beginning to talk about it.”

Other obstacles to licensing

Getting a launch license raises other concerns for RLV companies. Environmental regulations pose a significant obstacle for these companies, particularly those who plan to fly out of locations other than existing licensed spaceports. Issuing a launch license is considered a “major federal action” and thus must comply with the National Environmental Policy Act (NEPA). While Murray notes that no commercial launch license application has ever had a finding of significant impact to the environment, the process of making that determination can slow down the licensing process and force significant changes in launch plans.

“The environment is the biggest hurdle we’ve come across for launch,” said Neil Milburn, the federal liaison for Armadillo Aerospace, another suborbital RLV developer. Those issues, he said, have forced Armadillo to consider a change in launch sites. They had planned to launch from the new Oklahoma spaceport, but found that the spaceport did not have a completed environmental study, a critical requirement to meet the NEPA regulations. While a study is now underway, it may take a year or more for the study to be completed, with no guarantee that it will be a success. “We just can’t take that kind of a gamble,” he said. “If you don’t know where you’re flying from yet, you’re not going to win the X Prize.”

Armadillo has now shifted its plans for suborbital flights to the White Sands Missile Range in New Mexico, which already has several environmental studies that Milburn said the company should be able to use to prove NEPA compliance. He noted that even at a desolate site like White Sands, which appears to be nothing more than hundreds of square kilometers of gypsum sand, there are environmental issues ranging from protecting relatively obscure species of animals to Native American archeological sites.

XCOR’s Greason echoed those concerns. “The environmental stuff is very bad. It could be a serious, serious problem,” he said. XCOR plans to fly out of Mojave Airport in the high desert of southern California; Greason said the airport staff “is doing a huge amount of work” trying to get environmental approval.

Another hurdle to RLV licensing is the requirement that vehicles be insured to cover the “maximum probable loss” (MPL) the FAA determines a vehicle could incur in an accident. “That’s not actually a regulatory problem,” said Greason. “The problem is that they tell you a high number and the insurance is hard to obtain at any reasonable cost.” Greason estimates that the MPL for a small suborbital RLV would be on the order of $10 million, but that the aviation insurance market today can only provide about $1 million in coverage. “Unless you can post a $9 million bond, where you’re going to get the insurance from is not obvious.” The newly-formed Suborbital Institute (see “Suborbital’s ascending trajectory”, April 14, 2003), an industry organization for suborbital RLV companies, has made federal support to fill the gap between required and available insurance one of its key lobbying efforts.

A necessary evil

Although one could guess that the various issues and obstacles regarding RLV licensing might create an antagonistic relationship between the companies and the government, the FAA an the industry panelists made it clear that the two sides get along quite well with each other. “The FAA aren’t the bad guys here,” said Milburn. Brian “Rocket Guy” Walker, a solo developer of a suborbital rocket he plans to fly himself, has also been pleased with his dealings with the FAA. He said that when he held a meeting with a number of AST employees “I was treated with respect, with dignity, with interest. They were all extremely helpful.”

There is also the realization that, as difficult as they may be, licensing and regulatory activities are necessary. “I don’t think it’s bad in a free society to have a situation where certain minimum requirements have to be imposed on people before they can launch something with destructive potential that can kill people,” said Greason. “The mere presence of a federal agency requiring you to demonstrate a certain level of public safety is not bad. The details can be quibbled over, but we need something, because if we don’t have something someone is going to go out and kill 100 people with a rocket.”

Jeff Foust (jeff@thespacereview.com) is the editor and publisher of The Space Review. He also operates the Spacetoday.net web site.

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