Is it a rocket? An aircraft? The fledgling suborbital travel industry awaits rules that will finally categorise vehicles such as Burt Rutan's SpaceShipOne
Scaled Composites founder Burt Rutan would prefer to define the SpaceShipOne as an "experimental aircraft", set apart from others in his hangar only because it happens to fly people into space. The US Federal Aviation Administration, however, sees the situation differently and the agency that regulates both commercial aircraft and rocket launches has ruled that SpaceShipOne - and its embryonic suborbital kindred - are "space launch vehicles".
Ordinarily, this decision would subject the USA's nascent suborbital travel industry to the FAA's commercial launch regulations - and almost certain doom.
This is because, notwithstanding SpaceShipOne's first spaceflight on 21 June, manned suborbital vehicles have barely entered the experimental stage, a period that involves more risk - and potentially more failures - than allowed under FAA-approved launch licences. Also, only a few of the fledgling suborbital industry's entrepreneurs have the resources to comply with regulations intended for the 40-year-old launch industry.
This gloomy picture may yet be saved by a compromise on the verge of passage in Congress, but the still-uncertain fate of the legislation, its troubled two-year history and the limits of its expected effectiveness reveal much about the challenges of adapting fixed government standards to a revolutionary new technology.
The compromise has taken the form of two different bills - one already passed by the House, the other nearing a vote in the Senate. Both are exactly the same except for five words inserted into the Senate version. Depending on whom you ask, the five words added by Oklahoma senator James Inhofe in early August either redeems or risks derailing the legislation.
Devil in the detail
Essentially, the legislation would introduce a new experimental airworthiness certificate for manned space launch vehicles, providing more freedom for operators than the FAA's traditional licensing rules for spaceflight. Another clause absolves the vehicle designer of liability for passengers who are made aware of suborbital spaceflight risks.
Representatives of suborbital companies supporting the legislation view the new certificate and liability ruling as critical for gaining new backing from financiers and insurers more than simply adjusting the FAA's rulebook.
The five-word adjustment proposed by Inhofe focuses on the FAA's definition of a suborbital vehicle. This definition, Inhofe claims, is unclear when it comes to the status of hybrid rocket/jet vehicles, the hallmark of a design proposed by Rocketplane - based in Inhofe's home state. Inhofe's version would expand the definition to clearly include hybrid vehicles. In doing so, Inhofe may make the legislation more palatable to a nascent industry, but he risks jeopardising the laborious, year-long process that produced the original suborbital definition.
Dr George Nield, deputy associate administrator for the FAA's office of commercial space transport, AST, says: "The definitions were needed because some re-usable launch vehicles have the characteristics of both an aircraft and a launch vehicle, so developers of such vehicles are uncertain about the regulatory regime needed - ie, launch licensing or aircraft certification - and that this uncertainty may impede the ability to obtain financial backing for vehicle development."
The conclusion was that physics would be the basis for definition:the vehicle in question would either maintain its desired trajectory by relying on the lift generated by its wing or thrust from its rocket.
That led to the final definition being "a rocket-propelled vehicle, intended for flight on a suborbital trajectory, whose thrust is greater than its lift for the majority of the powered portion of its flight".
The definition was published in 2003 in the US Federal Register - the official publication for rules, proposed rules and notices by Federal agencies - and included in the legislation presented to the House of Representatives last year.
But the first controversy appeared in February, shortly before the House moved to reconsider the bill. George French, president of Rocketplane - which is designing a hybrid vehicle - secured the support of Inhofe to block the Senate version of the bill until a key change was added to the suborbital vehicle definition, which now reads, "a rocket propelled vehicle, in whole or in part".
Any differences between the two approved versions of the bill must be resolved in a joint conference of House and Senate lawmakers before the legislation can be sent to the US president for final approval.
If approved in its current form, the industry will broadly welcome it. "It will be a big step forward," says Jeff Greason, chief executive of reusable vehicle developer XCor. However, the bill is only expected to result in experimental permits and is not a basis for the industry that Greason hopes for.
Dr Henry Hertzfeld, space law expert at George Washington University's Space Policy Institute, believes the law, despite its difficult birth, is really about the short term. "It's a way of getting X-Prize entrants up there," he says. "The hybrid compromise is probably a good way forward. Let's see what happens with the industry and the technology. Ultimately the market will determine future changes in the rules."
Nield believes experimental licences will be like "experimental airworthiness certificates. The goal is to get something that is fairly quick and easy to get so you can go out and do some testing before you have to prove the safety of the vehicle." The FAA seems prepared to streamline and be flexible in interpretation to a sufficient degree to enable as many vehicles as possible to gain such an experimental licence.
Environmental obstacle
One major obstacle is the overriding environmental legislation. According to US House of Representatives space and aeronautics committee's space policy consultant James Muncy, "these vehicles will fly faster than the speed of sound and, eventually, at hypersonic speeds. FAA environmental rules do not allow experimental aircraft to do so without a special waiver."
Nield has a wider view on environmental issues: "The National Environmental Protection Act is the law of the land and we are bound to abide by it as is everyone else. That is not going to change. Long term, we're working on hopefully having some categorical exclusion that might just exempt at least smaller vehicles with certain kinds of non-toxic propellant and so forth from having to go through this process. What we have found is that even the largest rockets, the Titans and the Deltas, have not had any real significant environmental impact in the past."
Some in the industry are unsurprised by the FAA's flexibility, not least because the agency's space launch office is uniquely tasked with both promoting and regulating suborbital flight. Industry insiders recognise an organisation that is ensuring its own future when they see it. The FAA's space launch office needs the flights to go ahead for the office to continue as a success.
Success or not, suborbital flights half way round the world will be complicated by multiple-nation overflight issues, traffic control responsibilities and the need for an internationally recognised border between space and national airspace.
If anyone thought that getting a consensus on US law was difficult, getting international agreement may simply not be worth the hypersonic candle.
ROB COPPINGER / LONDON & STEPHEN TRIMBLE / WASHINGTON DC
Source: Flight International
