Private space ventures such as Scaled Composites' SpaceShipOne have to be regulated - but they must be allowed to breathe

This time, the US government's regulatory bureaucracy has not been caught napping by a venture so radically new that no rules cover it. The furious, three-year quest by Scaled Composites to launch a manned suborbital spaceflight, capped by SpaceShipOne's 100km (62 miles) ascent on 21 June, was overseen by the US Federal Aviation Administration's commercial space licensing agency, AST.

A few months earlier, AST provided the first suborbital flight licence to Scaled Composites founder Burt Rutan as regulators tried to stay one step ahead of the licensing and standards required to control a diverse collection of reusable, suborbital rocket designs moving closer to reality. AST faces the challenge of imposing limits on an industry dominated by entrepreneurial characters endemically suspicious of government intrusion.

Along the way, rifts have surfaced over many of the same questions that came with the implementation of the Air Commerce Act of 1926, which launched the US government's regulation of civil aviation. How far should the FAA press operating restrictions on an industry still deep in an experimental period? How can it make rules elastic enough to ensure safety without smothering innovation? How much risk should operators and paying passengers be allowed to willingly expose themselves to early on?

The FAA's leadership rightfully appears to be plotting a relatively hands-off approach to governing the boundaries of civilian spaceflight - understanding that the suborbital innovators in question may quibble with our assessment of what "hands-off" really means.

"Airframes are manufactured to a very, very high standard. We didn't get to that high level overnight," says Nick Sabatini, FAA associate administrator in charge or regulations. "You are not going to have a Part 25 standard for SpaceShipOne, given where that industry is today. Suborbital vehicles are not going to be at the same level of safety."

Sabatini's philosophy is clearly in evidence in an FAA-backed proposed law, now stalled in the US Senate, which is the first attempt to codify AST's responsibilities for regulating non-government human spaceflight, broadening the agency's mission from licensing unmanned rocket launches. AST was formed by Congress in 1984 as part of reforms that privatised the space-launch industry. But nothing in its charter mentions the possibility of privately funded human space travel, leaving the agency unsure about its authority to address the rise of manned suborbital flight.

The bill creates two classes of licence applications: to accommodate experimental vehicles used for suborbital flight tests; and for full-up passenger-carrying operations. Fundamentally, it removes the burden on the government of regulating an unknowable risk. The operator bears no liability for passengers as long as the extreme risks of suborbital launches and the operator's safety record are fully explained.

Unfortunately, a shortsighted but well-intentioned passage in the bill has stalled it. The industry is divided on the bill's definition of a suborbital rocket - a vehicle "whose thrust is greater than its lift for the majority of the powered portion of the flight". It was the FAA's artful attempt to apply a broad, qualitative definition rather than a threshold based on a meaningless and possibly counter-productive data point, such as maximum ceiling or thrust capability.

Suborbital entrepreneurs opposing the bill, however, are right to be concerned that the definition puts the status of hybrid rocket jets in an uncertain area. Under different interpretations, the bill could require hybrid designs to receive both a launch licence and an airworthiness certificate, or just the licence. The uncertainty leaves a pocket of the industry in a state of limbo, and it must be resolved before the legislation should be allowed to go forward.

Beyond this first step, the FAA has even bolder ideas for designing standards for suborbital vehicle designs and passenger safety. Sabatini says the FAA is considering a plan to use a "voluntary consensus" model to write regulations as the industry matures and the technology is better understood. This allows operators, customers and regulators to agree on standards together, rather than follow the agency's more common, topdown approach to design rules. This is an encouraging step that may show merit in rulemaking policy for conventional aviation.

But SpaceShipOne's well-publicised in-flight anomalies are a frightening reminder of the limits of unconstrained ingenuity, and anyone who indulges in suborbital space travel in the early days has to know what they are doing.

Source: Flight International