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Melvill and SpaceShipOne
SpaceShipOne opened the door for a new industry, and with it issues regarding how to best ensure the safety of passengers and crew. (credit: J. Foust)

The safety dance

Late last year the nascent commercial suborbital spaceflight industry won a major victory on Capitol Hill when Congress passed—almost literally at the last minute—HR 5382, the Commercial Space Launch Amendments Act (CSLAA) of 2004. (See “A tale of two victories”, The Space Review, January 3, 2005) The legislation, signed into law by President Bush just before Christmas, gave what most in the industry had sought: removal of the regulatory uncertainty surrounding suborbital spaceflight by clearly assigning jurisdiction over such vehicles to the FAA’s Office of Commercial Space Transportation (known by the obscure acronym AST). At the same time the law limited the authority AST would have over the industry, allowing companies and markets to mature before the government could enact detailed regulations governing them.

It would be tempting to conclude that these companies no longer have to worry about regulatory issues, and can instead focus solely on developing their vehicles and business plans, worrying about regulations only when it comes time to obtain a launch license. Not surprisingly, that is something of an oversimplification. While industry won the major battle with the passage of HR 5382, they still face a considerable amount of work on the issue of crew and passenger safety, both in their dealings with AST as well as among themselves. Moreover, industry advocates now face the prospect of a new effort by at least one member of Congress to roll back or otherwise alter some of the provisions won in the CSLAA.

Safety guidelines

One of the key aspects of the CSLAA is that it limits the ability of AST to issue strict regulations regarding crew and passenger safety: for the first eight years—through the year 2012—AST is “limited to restricting or prohibiting design features or operating practices” that have resulted in serious accidents or “unplanned event or series of events… that posed a high risk of causing a serious or fatal injury” to passengers and crew. The idea behind this provision is that the lack of flight experience to date prevents the government from knowing how—or even what—they should regulate on suborbital passenger vehicles. (The law does not prevent AST from regulating vehicles to protect the safety of third parties, or the “uninvolved public”; AST already has this ability through its existing launch licensing process.)

One of the key aspects of the CSLAA is that it limits the ability of AST to issue strict regulations regarding crew and passenger safety.

While the law prevents AST from issuing regulations on these issues, it does not prohibit it from publishing more generic guidelines on crew and passenger safety. In fact, the law requires the AST to issue such regulations within 18 months of the bill’s passage—June 2006—and would prevent it from issuing any launch licenses if the regulations are not released within three years.

As a first step in that process, AST released “draft guidelines” on some of these key topics during its annual conference in Washington February 10–11. One document provides guidelines for flight crew operations, while a second provides guidelines for “space flight participants”, or passengers. (AST also released at the conference a memorandum dating from March 2003 on medical screening guidelines for both orbital and suborbital passengers.)

Government officials made it clear these guidelines were indeed drafts, and that they were open to modifications and alternate approaches as necessary. “These guidelines are standards, not specifications,” Norman Mineta, Secretary of Transportation, said during a brief address at the conference. “We do not want to stifle innovation.”

A cursory review of the guidelines shows that AST is at least trying to avoid overly restraining the industry—the word “should”, not “must”, is used throughout—and applies some degree of common sense. The flight crew guidelines, for example, recommends that pilots have a pilot’s license, a valid medical certificate, and be thoroughly trained in all aspects of the vehicle’s flight systems. The passenger guidelines say that companies operating suborbital vehicles should inform passengers of the risks of flight, perform medical examinations of prospective passengers, and provide preflight safety training. It even explicitly states that vehicle operators “implement security requirements” to prevent passengers from harming other passengers or crew: in other words, don’t let passengers carry weapons on the flight!

The medical memorandum is a little more detailed, specifying how many g’s passengers should be subjected to, cabin pressure levels, and what types of disorders passengers should be screened for. Melchor Antuñano, director of the FAA’s Civil Aerospace Medical Institute (CAMI), calls the guidelines a “commonsense approach” because vehicle operators will have a natural desire to keep passengers from having an unpleasant experience on their flights. “All you need is an individual who paid $200,000 for a suborbital flight to go to the microgravity portion and start throwing up,” he said. “He has a miserable experience, and then comes back and says ‘Give me my money back, because I hated the flight.’”

The potential for new regulation

When HR 5382 came to the House floor in November of last year, there was a spirited debate on the scope of the regulatory authority included in the legislation. The bill’s proponents, including Reps. Dana Rohrabacher (R-CA), Sherwood Boehlert (R-NY), and Nick Lampson (D-TX), argued that the legislation struck a reasonable balance between protection of the public and promotion of the industry. Some, though, including Reps. James Oberstar (D-MN), ranking Democrat on the House Transportation Committee; and Peter DeFazio (D-OR), at the time the ranking Democrat on that committee’s aviation subcommittee, said that stricter regulations ensuring the safety of passengers and crew needed to be in place to avoid creating a regulatory environment that seemed to permit potentially-fatal accidents to occur.

“All you need is an individual who paid $200,000 for a suborbital flight to go to the microgravity portion and start throwing up,” Antuñano said. “He has a miserable experience, and then comes back and says ‘Give me my money back, because I hated the flight.’”

On that day the bill’s proponents won, getting just over two-thirds approval for the bill from the House. (Under a parliamentary procedure known as “suspension of the rules” that limits floor debate and amendments, that two-thirds majority was required for the bill to pass.) While that might seem sufficient to end the debate, Oberstar in particular appears willing to press the issue of safety regulations, to the point of introducing new legislation to amend the CSLAA.

Oberstar’s continued interest in this topic manifested itself February 9, during a hearing of the House Transportation Committee’s aviation subcommittee on commercial space transportation. Even as Boehlert—a senior member of the transportation committee in addition to chairing the House Science Committee—told his fellow Congressmen that the CSLAA “strikes the right balance”, Oberstar criticized the law, and the FAA, for adopting what he feels is a “tombstone mentality” to passenger safety by doing nothing until the event of an accident. “That’s not safety, that’s being reactive, and that’s what offends me,” he said. “We need, at the least, a framework for safety in commercial space travel.”

During in the hearing, Oberstar engaged in a contentious debate with FAA Administrator Marion Blakey, a supporter of the regulatory regime enacted by the CSLAA. When pressed by Oberstar to provide a sample regulation that would stifle the industry, she countered that “we don’t know enough yet to set out a regulatory regime” for the design and operation suborbital vehicles. Moreover, she noted, the agency’s existing ability to protect the uninvolved public “goes a long way towards protecting those who are in the craft itself.”

Oberstar was unconvinced. “Do you really think it’s a good idea to wait until there’s a crash, a fatality, to issue such regulations?” he asked. When Blakey noted that these vehicles are, by their nature, risky and far from the routine flight offered by commercial jetliners, Oberstar was visibly incensed. “Experimentation with human lives, we don’t allow that in the laboratories of the Food and Drug Administration or the National Cancer Institute, why should we allow it with space travel?”

During the hearing Oberstar offered no hint that he was planning to introduce new legislation on correct some of his perceived problems with the CSLAA; during his opening statement he said that “for the moment we’ll deal with this,” in reference to the law. However, the day before the hearing Oberstar introduced HR 656, a bill intended, in its words, to “enhance the safety of the commercial human space flight industry.” The bill would require AST to “ensure that each license approved includes minimum standards to protect the health and safety of crews and space flight participants, taking into account the inherently risky nature of human flight.” (See “The safety lode star”, The Space Review, February 14, 2005.)

“That’s not safety, that’s being reactive, and that’s what offends me,” Oberstar said of the CSLAA. “We need, at the least, a framework for safety in commercial space travel.”

In addition, the law would change the experimental permit regime, a system enacted by the CSLAA that allows AST to approve noncommercial test flights of vehicles on an expedited basis. The current law requires AST to render a decision within 120 days of the submission of a completed application; HR 656 would change that to 180 days, the same amount of time AST has to evaluate a full-fledged launch license.

During the hearing, Oberstar was testing this language out—and perhaps trying to score some rhetorical points in the process—by asking a panel of witnesses if they would be opposed to the safety standards language quoted above. None of the three—Will Whitehorn, president of Virgin Galactic; John Douglass, president of the Aerospace Industries Association; and Mike Kelly, chair of the RLV working group of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC)—said they objected to it.

Can the industry self-regulate?

One of the arguments made by industry proponents against greater government regulation is that it’s not in the interest of companies to wreck their vehicles and kill their passengers—who also happen to be their customers. That attitude reflects both a common-sense approach—what industry wants to kill its customers, after all—as well as the libertarian streak that runs through many of these companies and space advocates in general. “Keep the lawyers away without tying our hands in the design process,” said SpaceShipOne pilot Brian Binnie during a talk at the AST conference. “We can’t kill passengers and expect to survive.”

Whitehorn, in his testimony before the House Transportation Committee, reflected a similar attitude and attention to safety that Virgin Galactic plans to offer. He noted that Virgin Galactic’s parent, Virgin Group, also operates three airlines, none of which has lost a passenger, as well as a train service in the UK with an “unblemished” safety record. “We take safety extremely seriously at Virgin Group,” he said, “and we wouldn’t be entering this industry unless we had a safety culture to bring to it.”

“When faced with the choice of flying on an approved versus non-approved spaceship,” Kelly said of proposed industry safety standards, “a space flyer is much more likely to accept to former.”

Such attitudes are understandable and acceptable (at least to most), given the experience and safety records of companies like Virgin and Scaled Composites. However, they are not the only players in this new industry, which is attracting a number of ventures with very limited experience. Just this month two new companies announced plans to enter the suborbital passenger spaceflight field: AERA, the reincarnation of former X Prize contender American Astronautics; and Odyssey Spacelines, a venture working with Vela Technology Development on its “Space Cruiser” concept. While new companies like these may be just as committed to passenger safety, in many cases they may lack the experience and expertise needed to achieve it.

Just before the House hearing earlier this month, the X Prize Foundation announced that it and a consortium of companies had formed a new organization dedicated to “design and uphold the standards and processes necessary to ensure public safety and promote growth of the personal spaceflight industry.” This unnamed “federation” features an impressive roster of participants, including Scaled Composites, SpaceX, Armadillo Aerospace, and XCOR Aerospace, among others.

One of the first goals of the new federation is to create a “Voluntary Personal Spaceflight Industry Consensus Standards Organization”. As its cumbersome name suggests, the purpose of this organization is to develop standards regarding the safe operation of passenger-carrying suborbital spacecraft, although the group has released few other details about its plans.

“This is not transportation, and I think it is a mistake to make analogies to transportation,” Blakey said. “People aren’t using it to get from here to there.”

Kelly, one of the principals of the new group, said in his House testimony that the organization hopes to craft standards that would obviate the need for government regulations. In particular, he likened it to Underwriters Laboratories (UL), the private group that tests electrical devices. While companies don’t have to submit their products to UL for testing, they find that without the UL stamp of approval “market acceptance is low, and liability exposure to the seller is high.” Kelly believes that the same approach will work for passenger spaceflight: “When faced with the choice of flying on an approved versus non-approved spaceship,” he said, “a space flyer is much more likely to accept to former.”

Entertainment vs. transportation

When the House Transportation Committee held its hearing this month, some commercial space advocates hailed it, noting it was the first time that committee discussed space transportation, which had previously remained in the realm of the science committee. After all, this was commercial space transportation, and this committee seemed a more appropriate venue for the topic. However, that transition puts the industry as the same playing field as more mature modes of transportation, including automobiles, railroads, ships, and aircraft, which goes a long way towards explaining Oberstar’s objections to the CSLAA.

However, as Blakey pointed out at the hearing, it would be a reach to consider suborbital passenger spaceflight a mode of transportation. “This is not transportation, and I think it is a mistake to make analogies to transportation,” she said. “People aren’t using it to get from here to there. This isn’t routine.” People fly such vehicles for the thrill of the flight; for them, getting there is all the fun. This is what sets suborbital passenger spaceflight apart not just from aviation, but also from conventional space transportation, which seeks to transport cargo from the Earth into orbit and beyond.

While critics like Oberstar remain unconvinced, such a rationale—which equates suborbital spaceflight to risky hobbies like skydiving and mountain climbing rather than commercial aviation—goes a long way towards explaining the industry’s preferences for regulation. However, suborbital tourism is only the beginning for the industry: nearly everyone is looking ahead to orbital flights, carrying passengers to destinations like Bigelow Aerospace’s proposed orbital facility. At that point the industry starts to resemble more of a mode of transportation, and advocates of additional regulation will have a stronger case. When that happens, will the industry be ready? Will the government?