While SpaceShipOne’s flights were successful, would incidents that took place during the flights trigger provisions in HR 5382 that require additional safety regulations had the bill been in force? (credit: J. Foust)

The costs and benefits of less-than-perfect legislation

<< page 1: the benefits of passing HR 5382

The dangers of passing HR 5382

In order to understand the potential dangers, we have to understand the real relevance of this legislation. The legislation is not the final rule, but rather is just a broad policy guideline that the FAA will use to guide its final rulemaking. While the legislation is legally binding, AST will decide how to apply its broad guidelines in subsequent rulemakings, and the specifics of how these rulemakings are applied to each company, craft, and mission will be controlled by particular licenses. The real importance of the overarching regulation’s wording is in deciding the signal that is sent to AST, and in how the policies the regulation sets out will manifest through their work.

The danger is that the legislation might send the signal that the safety of the crew is to be valued over encouraging the development of the industry. In doing so Congress may be taking the decision-making power out of the hands of those who are in a position to see the conditions on the ground (or more specifically, in the air). Up until now AST seems to have shared the excitement of the space policy world, and the public at large, in seeing a new industry being born. They have been willing to waive licensing requirements based on the differences between liquid rockets and hybrid rockets, and they have been willing to work with companies to ensure that the designs are given a chance to succeed or fail based on their merit, not the preconceptions of legislators. However, the people at AST are only human, and more importantly, they are only government employees. Given a mandate to look to the safety of the passengers and crew, it is their job to ensure that there are specific requirements that will work to ensure that safety.

Well, shouldn’t they do something to protect the passengers? I have to answer a resounding no. The reason for this answer is that paying customers in the space tourism industry are not the same as passengers in the traditional sense of transportation by air. Instead, it is more appropriate to think of these persons as adventure tourists or reverse skydivers. Suborbital tourists are not paying to be transported from one point to another. In fact, they generally will end up just where they started. Instead, suborbital tourists are paying to be allowed along for the ride. Subrbital space tourism is the ultimate roller coaster ride, not a service designed to transport passengers. While we all want this to develop into a passenger service in the traditional functional sense, for now they are paying for the heart-pounding thrill of the ride and to see the awe inspiring view. Just as is not appropriate to mandate safety for persons who go swimming with sharks or climbing Mount Everest, it is not appropriate to mandate safety for private space flight participants.

But what about the compromise bill: doesn’t it give launchers the benefit of the doubt while also potentially helping the uninformed customer? On the surface it does, but when you look deeper the impact is far from clear. Allowing one event that might pose a threat to the crew or participant does give launch companies the chance to risk it and try to prove their technology. However, it seems likely that any rational business will not take this risk. Furthermore, the wording they use to describe what might trigger this new layer of safety regulations is radically ambiguous. The bill says that passenger or crew safety requirements will come into effect upon events resulting in death, or “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 (as defined in 49 CFR 830, as in effect on November 10, 2004) to crew or space flight participants.” The unplanned event wording sets a very low threshold, and any accident occurring at high altitude would have a high risk of causing serious injury. Given this wording, it is entirely possible that the spins we all saw during the first SpaceShipOne X Prize launch would have been enough of a threat to Mike Melville’s life to require SpaceShipOne be subject to additional, even more costly, licensing requirements. Finally, the crew and passenger safety provisions defeat the purpose of clarifying the launch licensing regime by creating the potential for a whole new layer of safety regulation that will not be spelled out until someone risks a life.

On the bright side, it would be AST that would have the discretion to enforce this wording, and the people working for AST have demonstrated their awareness of the impact their actions have on the industry. However, this brings us back to the original danger: sending a signal that crew and passenger safety should be valued more than the development of the industry. This means that it would be very much in the interest of AST to enforce the crew and passenger safety requirements in a way that will raise costs for an industry that is already struggling to reach maturity. The people at AST have shown themselves to be intelligent and capable regulators under the current regime. There are clear holes in the current regime where they have explicitly reserved judgment, in particular as regards flights carrying persons, but we should not rush to fill those holes if it risks forcing paternalism on regulators that have shown a tendency towards acknowledging the rights of people to assume their own risks.

So where do we go from here?

There are some functional additions in the new bill, most specifically the experimental permit option. There are also some useful clarifications in the new bill. However, since most of these just enact existing procedures, the real benefit from these will be in ease of explanation to potential investors and customers. Thus, the new bill is useful, but more as a public relations or marketing tool than as a functional change to current procedures. That being said, it should be noted that the process of creating the new bill has been exceptionally useful in that many of the existing practices that are codified in the proposed bill were aided by the result of the lengthy debate surrounding HR 3752.

With all the above in mind, it seems that industry leaders are willing to accept the risks offered by the safety provisions if it will allow for a statute that offers the chance to jump start the suborbital launch industry. In fact, Burt Rutan and others have pushed for applying the even more rigorous aircraft certification regime. This would seem to indicate that at least some launchers consider themselves up to the task of providing safe access to space. I am less confident that the level of safety required for certification will be met in the short term, but then I guess that’s one reason Rutan is where he is and I’m where I am. Bottom line, I have to defer to the industry members who are willing to take on the burden of passenger safety, and encourage support for the bill sooner rather than later. However, if the Senate does not pass the bill this year, there should not be a need to start looking into overseas launch regulations (which are far less well developed than ours) anytime soon.

Nathan Horsley (n_horsley@msn.com) is an attorney who apparently has enough time on his hands to do some writing in the area of space law. He received his LL.M. in the field of International Air and Space law, where he wrote his thesis on FAA launch licensing.

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