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Analysis: Congress restricts private space

By ROBERT ZIMMERMAN   |   Dec. 10, 2004 at 3:22 PM   |   Comments

WASHINGTON, Dec. 9 (UPI) -- Most space advocates and many in the nascent private manned spaceflight industry have been enthusiastic about the benefits of the Commercial Space Launch Amendments Act of 2004, which the Senate passed Wednesday and now awaits the president's signature, but a close reading of the bill gives reason for pause.

Case in point: The added safety restrictions -- resulting from negotiations between the conservatives and liberals in Congress -- assign far more regulatory power to the government than many of the bill's advocates would have wished.

The old version of the Commercial Space Launch Act was passed in 1998 to encourage and facilitate the growth of an American commercial space launch industry. To make things simple, Congress created what is now called the Office of the Associate Administrator for Commercial Space Transportation at the Department of Transportation and gave it authority to issue all licenses for commercial space launches -- what many in the industry have dubbed a one-stop-shopping approach.

The charter for AST -- as the office is known -- specifically required it to "facilitate the strengthening and expansion of the United States space transportation infrastructure." In other words, AST was charged with allowing the industry to take reasonable risks, recognizing rocket science is a difficult and dangerous endeavor.

"It is taken as an assumption that you are going to crash, fairly often," said Jeff Greason, chief executive officer of XCOR Aerospace in Mojave, Calif.

Expecting such failures, AST has acted to ensure rockets do not smash into populated areas after launch, but is also has been reasonably successful thus far in encouraging new commercial space-launch businesses.

The problem with the 1998 law is it said nothing about private manned spaceflight. Back then, the consensus both in and out of Congress was that it simply was too soon for legislation covering the issue of human passengers.

Nonetheless, AST decided this year that a broad interpretation of the 1998 law allowed it to issue licenses to two companies to fly manned sub-orbital reusable spacecraft.

One company, Scaled Composites, also in Mojave, used its license to win the Ansari X Prize last month with its second flight of SpaceShipOne to an altitude above 100 kilometers (62 miles), considered the threshold of space. XCOR Aerospace, the other company, will use its license to conduct test flights of its reusable spacecraft in preparation for carrying tourists in the near future.

The lack of clarity in the 1998 law has generated a turf war between AST and the Federal Aviation Administration, under whose jurisdiction the airline industry is regulated.

Unlike AST, the FAA takes a much more restrictive and risk-adverse approach to regulation. It assumes the airline industry should function without accidents and accordingly imposes tight regulations.

Most aerospace experts think such an approach would kill the private manned space-launch industry, whose technology is so experimental it is almost impossible to predict what will or will not work.

FAA officials and some in Congress put a high priority on preventing accidents -- even those involving experimental craft -- and therefore think manned private spaceflight should operate under FAA auspices and be regulated the same way as commercial aviation.

"I do not think safety regulation is ever silly," said Rep. James Oberstar, D-Minn., during the recent House debate on the issue. "I do not think we have ever over-regulated safety."

Faced with an ambiguous legal situation and the threat of regulation by fiat, industry leaders and members of Congress alike felt prompted to propose new legislation. They proposed an amendment to the 1998 law that placed the licensing of private manned spaceflight under the sole jurisdiction of AST.

The bill quickly passed the House by a 402-1 vote last March 4.

Then, Rocketplane Limited Inc. of Oklahoma City, Okla., argued that the language for defining a sub-orbital rocket was too restrictive and would place its own spacecraft outside the jurisdiction of AST. After months of negotiation, legislators agreed to a slightly broader wording and reintroduced the bill.

That version then stalled in the fall when several senators and members of congress objected to its laissez-faire approach to the industry and demanded significant safety regulations be added, including minimum standards for every flight.

As Oberstar noted during House debate, "I propose to put in place a regulatory framework of at least a minimal stature to protect people before they are dead."

For most industry experts, as well as the bill's supporters in Congress, Oberstar's proposals were unacceptable.

"In spacecraft the experience is not there yet," Greason told United Press International, explaining that the field is so experimental no one has the knowledge to set precise safety standards. "We made panic calls to senators, who agreed to stop the bill for us," he said.

So legislators worked out a new compromise and, after some feverish debate during the House's recent lame-duck session, the bill passed Nov. 19 by a vote of 269 to 120. With its approval in the Senate on Wednesday, the bill needs only President George W. Bush's signature to become law.

Though not entirely pleased with the compromise, most space advocates seem willing to accept it. "The (compromise legislation) is very narrowly restricted and the regulatory language specifically is limited for the first eight years," Greason noted.

Nonetheless, some of the new bill's language contains ominous possibilities for squelching this hatchling industry. For example, one clause requires AST to regulate as soon as any "unplanned event or series of events during a license or permitted commercial human space flight (occurs) that (poses) a high risk of causing a serious or fatal injury."

If this language had been in force last October, the uncontrolled spins experienced by SpaceShipOne during its X Prize flight would have forced AST to halt the second flight, thereby preventing Burt Rutan's ship from winning the $10-million award.

Most worrisome about the new law is it seems to shift AST's focus from encouraging the growth of new space industries to making sure they operate safely. As the law states, AST's purpose no longer will be merely to facilitate the growth of the industry, but to promote "the continuous improvement of the safety of launch vehicles designed to carry humans, including the issuance of regulations."

No one wants people to get hurt, but everyone involved in the private human spaceflight industry is aware of the risks and -- like NASA astronauts -- willing to accept them. In a free society, this seems appropriate.

The new law does not allow the industry to take on these risks; instead, it introduces the right of the government to protect spaceflight entrepreneurs from themselves.

The debate over this issue is the same debate that has been roiling in American life since the 1980s. On one side are those like Dana Rohrabacher, R-Calif., who considers it best to minimize government regulation.

"The question is whether the FAA and the bureaucracy should be able to control the design of a new space launch vehicle before there are any problems," Rohrabacher said during the House debate. "I think that would strangle the baby in the crib. In fact, it would destroy this fledgling industry and send it overseas."

On the other side are regulators like Oberstar, who favor strict government controls to prevent things from going wrong.

Based on the political dynamics in Congress today, laissez-faire politicians such as Rohrabacher simply could not get their bill past regulators such as Oberstar without making some concessions.

So, rather than have the bill die and gamble on having the risk-adverse wing of the FAA take over control of the private manned spaceflight industry, the bill's supporters chose compromise. The new law should clarify the regulatory situation in connection with manned commercial spaceflight, placing it more firmly in the control of the AST.

The bill's safety regulations, however, remain a potential noose the government could wrap around the necks of America's private spaceflight pioneers.

--

Robert Zimmerman is an independent space historian. His most recent book, "Leaving Earth," was awarded the Eugene M. Emme Award by the American Astronautical Society for the best popular space history in 2003. E-mail sciencemail@upi.com

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