Congressmen gather in a hearing room in the Hart Senate Office Building to listen to expert testimony on commercial human spaceflight. (credit: J. Foust)

The regulatory hurdles to commercial human spaceflight

by Jeff Foust
Monday, July 28, 2003

Entrepreneurs seeking to develop new launch vehicles—expendable or reusable, manned or unmanned—have typically faced three classes of obstacles. The first, and the one most commonly associated with launch vehicle development, is technical: namely, the challenges involved with developing a vehicle that can carry payloads, be they satellites or people, less expensively, more frequently, or otherwise differently than existing vehicles. The second class of obstacles is financial, as entrepreneurs seek to convince investors that there is a sufficiently large market for their vehicle to warrant funding. Most of the companies that have tried, and failed, to develop new commercial launch vehicles have been tripped up by intractable technical issues, financing problems, or a combination of both.

The third type of obstacle for new launch vehicles, less obvious to the layperson, involves regulatory issues. These challenges range from getting appropriate launch licenses to environmental assessments required for launching from specific locations. The entrepreneurial launch industry has been aware of these concerns for many years—in the late 1990s they successfully lobbied Congress to give the FAA authority to license the launch and reentry of RLVs—but in the absence of sustained successful development of any vehicles, many of these issues remained largely academic.

The recent surge of interest in suborbital RLVs has changed this, however. The lessened technical challenges of suborbital spaceflight, coupled with the potential for large markets in areas such as space tourism, have resulted in several ventures making significant process towards operational vehicles that could fly within the next few years. The companies that have surmounted the technical and financial obstacles—or at least have charted a path around them—are now encountering regulatory issues ranging from complicated paperwork up to even how their vehicles will be regulated.

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?’”

Uncertain authority

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.”

“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.

page 2: Tito’s turnaround >>