Private Space, More Rules


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The private spaceflight industry has been eagerly awaiting an upsurge in activity since the Commercial Space Launch Amendments Act was signed into law last December, but last week’s events in Washington put an entirely different and less exciting light on the industry’s future.

When the 108th Congress passed an updated commercial space law in its waning hours last November, the enthusiasm and joy from the commercial space community was almost universal.

“Our children will be grateful for (Congress’s) courageous action on behalf of the American people,” Jeff Greason, chief executive officer of XCOR Aerospace in Mojave, Calif., said in a statement Dec. 23.

In lauding the bill, Jim Muncy, a space-policy consultant and former Congressional staffer, noted in an interview with MSNBC.com how “Congress is clearly saying that it doesn’t want to be a bar rier. It wants to open doors and fly the American people into space.”

Even commentators unrelated to space exploration, such as The Motley Fool, which normally focuses on stock-market advice, said “it was the Feds who were responsible for potentially jump-starting sub-orbital space tourism. (The new law) allows average Americans to hitch a ride on a rocket at their own risk.”

Last week, the industry got its first taste of the new law’s ramifications and found – not surprising for anything implemented by the government – things are not going to be as simple or as easy as hoped.

First came hearings Feb. 9, before the House Committee on Transportation and Infrastructure, in which a number of industry executives – and Marion Blakey, head of the Federal Aviation Administration – were harangued by Rep. James Oberstar, D-Minn., who remains unsatisfied that the new law limits the FAA’s ability to regulate the industry over th e next eight years.

“For years,” Oberstar complained, “both I and many of my colleagues on the aviation subcommittee have criticized the FAA for waiting until after a disaster to take safety actions, and have urged more proactive safety oversight.”

During the hearings, Oberstar not only berated witnesses, but he also said he would introduce legislation to amend the space law.

“My bill would give the FAA the flexibility to create a regulatory structure governing the design or operation of a launch vehicle,” he said, “to protect the health and safety of crews and spaceflight participants as is necessary, without having to wait for a catastrophic failure to occur.”

The day after the hearings, the office at the FAA with authority to regulate commercial space travel opened a two-day conference in Washington to review the industry and the law.

Transportation Secretary Norman Mineta gave the keynote speech, announcing the release of draft guidelines which, after consulting with the industry, eventually will become the regulations that determine who can go in space and how private companies can take them.

During the conference, both Mineta and Blakey expressed the FAA’s desire to jump-start what they both called a fledgling industry. They noted, repeatedly – unlike Oberstar – how a regulatory “light touch” was required, otherwise the industry would die stillborn. At the same time, they both emphasized the importance of safety and how it must be given a strong priority.

“We are not going to lose sight of safety. (FAA) has an impeccable safety record,” Mineta said. “I don’t expect that to change.”

Other FAA officials at the conference described the medical criteria behind the proposed guidelines and the methods they planned to use to integrate private space launches into the air-traffic network.

One talk, by a lawyer who specializes in the space industry, was most intriguing. According to Sean Fleming of the law firm of Zuckert Scoutt & Rasenberger in Washington, it was unsettling that no legal authority existed for the government to supervise the actions of space companies once their spacecraft reach orbit.

“For manned orbital platforms and other on-orbit activities. there’s no statute that specifically provides for licensing and regulation,” he said.

“Some believe that regulatory certainty is helpful when trying to access capital markets. … Over time, as the industry matures, it may require further regulation (of orbital activities). It may even want it.”

This elicited a response from Greason: “My goodness, there is an unregulated activity! We must do something about that! I speak as that strange and regrettably increasingly rare beast – an American. I don’t have to have a law telling me it’s OK to do something.”

Despite these suggestions for tighter regulations, the FAA officials appeared completely sincere in their desire to help – and not hinder – this barely established new industry. In unveiling their guidelines, they bent over backwards to explain this was only a first draft and they eagerly awaited advice from industry representatives on how to refine them.

As Mineta said, “Our approach at the Department of Transportation would be to give this industry the freedom to develop, mindful that it is still in its infancy.”

Nonetheless, in reading these guidelines, one wonders about the future. For example, the guidelines propose requiring every passenger to “provide his or her medical history to a physician experienced or trained in the concepts of aerospace medicine.”

If the doctor has further questions, the guidelines also propose that he or she require the passenger to undergo a physical examination.

Imagine if the airline industry had been required to develop commercial jet travel under these rules. Though at first such medical checks might have seemed reasonable, after the industry matured such rules would have only discouraged passenger travel.

Another suggested guideline – under the guise of making sure future passengers will be fully informed of the risks of spaceflight – proposes that a launch company not only provide information about its own safety record, but also submit “the safety record of all launch and re-entry vehicles that have carried one or more persons on board, including both U.S. government and private-sector vehicles.”

Under this rule, each private company would have to track both its own activities and somehow keep records on all other private American space efforts, a requirement that seems incredibly odious and unreasonable.

At the moment, industry leaders and FAA regulators are working together to revise and improve the guidelines.

It is important to note, once again, that FAA officials are sincerely trying to give the industry as much flexibility as possible. At the same time, the industry itself has welcomed this process – as shown by its support for the new law – and wants to work with FAA.

“Our first impression is that FAA’s overall approach to the draft guidelines seems sound,” Greason told UPI’s Space Watch. “We are confident FAA will work with industry to improve the guidelines.”

Considering the way governments normally function, however, it is almost certain that when something goes wrong – as is certain to happen in this dangerous effort to push toward the unknown – demands from congressmen such as Oberstar, or by the public itself, will force the FAA to make these rules more complicated and restrictive.

George Nield, deputy administrator at the FAA’s Commercial Space Transportation office, closed the conference by noting ho w Feb. 11 was the 158th anniversary of Thomas Edison’s birth. In describing Edison’s life and achievements, Nield wondered what made the man so effective.

“If I were to pick three characteristics that were integral to his success,” he noted, “I think I would chose creativity, perseverance, and flexibility.”

Sad, but Nield did not mention the most important factor in Edison’s success — which also made everything else possible. Edison worked in an atmosphere of freedom, the freedom to act without having others looking over his shoulder constantly to make sure he was doing things right.

The chances that the commercial space industry will enjoy the same freedom appear increasingly unlikely.

Robert Zimmerman is an independent space historian and the author of “Genesis: the Story of Apollo 8.” His most recent book, “Leaving Earth,” was awarded the Eugene M. Emme Award by the American Astr onautical Society for the best popular space history in 2003.

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