Regulatory Issues

The general subject of regulation of U.S. space transportation systems is a complex one, and far beyond the scope of this reportówe will instead focus on the aspects of it relating to passenger travel. Because of the immature (in fact, non-existent) state of the private space passenger business, the situation is legally unsettled. However, the present period, when the rules are in flux, is precisely the time that such issues should be resolved, and appropriately resolved, as they may have dramatic influence over the future of the public space travel service industry.

For the purpose of this survey, even for near-term space experiences, we must distinguish between actual, out-of-the-atmosphere space-passenger trips (e.g., suborbital rides, Shuttle rides, visits to Mir), and atmospheric flight experiences to the very edge of that same atmosphere (e.g., Mig-25 rides in Russia, SR-71 flights, parabolic flights for weightless experiences). This is because the FAA (by means of statutory authority of the U.S. Congress) has made such a distinction in terms of which branch of the agency will regulate each category, and the rules under which it shall be regulated.

In order to understand the current regulatory situation for space passengers, a brief history is in order.

During the early 1980s, there were no commercial launches of any kind in the U.S.--everything was launched by either the Department of Defense, or NASA. When the first commercial satellite launch companies were formed, they found that there were no clear-cut processes in place to get approval from the government agencies that had to approve various aspects of the launch operations (e.g., FCC for telemetry, DoD for range safety, State Department for munitions issues, etc.) Recognizing this, and also recognizing the obligation of the government to ensure launch safety under the 1967 Outer Space Treaty (which held states liable for any space activities within their jurisdiction), the Congress passed the Commercial Space Launch Act (CSLA) in the mid 1980s. This legislation made the Department of Transportation (DOT) the responsible agency for issuing licenses for commercial U.S. launch operations, and coordinating the approvals among the other government agencies, thus setting up a one-stop shop for the commercial launch providers.

At the time this occurred, few were contemplating commercial passenger transportation, and the legislation reflected that. DOT was not given jurisdiction over the payloads themselves--their only responsibility, as required by the 1967 treaty, was to minimize or eliminate harm against third parties. Accordingly, there was then, and remains today, no language in the launch licensing procedure with regard to passengers, and for the purposes of the Act, they would be appropriately regulatorily treated as simply another cargo, not subject to DOT regulation, and handled with insurance.

It should be noted that some in the AST office (the office responsible for licensing launches) are of the opinion that, because the CSLA does not explicitly prohibit them from regulating trips carrying passengers differently than cargo flights, they have the flexibility to do so, should it be deemed in the public interest. This opinion is not universally shared, even within that office, and it is the author's opinion that such a position would not stand up to a court challenge, as it sets on its head traditional U.S. jurisprudence ("that which is not explicitly illegal is legal"). In the latter view, AST will have to be granted explicit authority by the Congress to regulate passenger trips in a different manner than cargo trips, since they have no authority to regulate cargos in general.

It should also be noted that there is a distinct difference between issuing a launch license and certifying a vehicle for commercial space transportation operations. In the wake of the CSLA, the original Office of Commercial Space Transportation (OCST) was established at the DOT, independently from the Federal Aviation Administration (FAA), to implement the agency responsibilities. They came up with a licensing procedure tailored to expendable launch vehicles, which were all that were contemplated at the time. Each license was (appropriately) issued for an individual launch, and did not require certification of the vehicle (in the same sense that an aircraft is certified for commercial operations).

A few years ago, the DOT reorganized OCST, and moved it so that it reported to the Federal Aviation Administration (FAA), under the Associate Administrator for Commercial Space Transportation (Code AST). With the advent of potential commercial reusable space transportation vehicles, that office recently developed a new set of launch licensing procedures more appropriate to such vehicles. However, at the time these new procedures were in development, a conscious decision was made by the office to not require certification of reusable space transportation systems. This was done for two reasons.

First, all such certification is currently done (for aircraft) by the AVR branch of FAA, and this is where all of the relevant technical expertise resides. AST didn't have the budget or staff to support a certification activity, but, because it has sole responsibility for carrying out the mandate of the CSLA, it wasn't deemed appropriate for it to delegate a large portion of that responsibility to AVR.

Second, many felt that the commercial reusable space transportation business was not sufficiently mature to economically survive the kind of rigorous certification process now in place for modern aircraft. No one really has any experience with appropriate design practices and procedures for reusable space transportation vehicles, and imposing the existing aircraft rules could very well have the effect of strangling the fledgling industry in the nest. It has been pointed out that, had today's aircraft rules been in place during the 1920s and 1930s, we probably wouldn't have been able to develop a viable aviation business. So the current rules call for licensing of launches and returns, but not aircraft-like certification of space transportation vehicles.

This is a critical issue for near-term space tourism experiences, because some of them occur entirely within the atmosphere and, if provided in the U.S., must therefore operate under current FAA aviation rules (i.e., they remain under the jurisdiction of AVR--not necessarily AST).

However, even this case is complicated by two factors.

First, there is no bright legal line between in and out of the atmosphere. The International Space Station is clearly out of it. An unpressurized general-aviation aircraft is clearly within it. But there remains a legal grey area at the interface, which is, inevitably, where many of the early space tourist vehicles will be operating.

Second, AST has recently decided that it has jurisdiction even over some activities that clearly take place only within the sensible atmosphere, such as amateur rocket launches, apparently using the justification that they should license all rocket-powered vehicles. If this logic is extended to piloted vehicles, this opens up a great deal of uncertainty for developers of rocket-powered aircraft. Though they will do much of their initial flight testing within the atmosphere, they may now potentially be subject to regulation by both AVR and AST, even for such tests. To reduce investment uncertainty, this issue should be resolved as soon as possible, as will be discussed in the recommendations at the end of this paper.

Ignoring these complications, for airbreathing systems operating within the atmosphere, the current regulations present a significant barrier to proto-tourism activities. For some of them (such as offering the experience of extremely high-altitude flight in aircraft such as the SR-71 and U-2), the commercial certification necessary to permit paying passengers is totally infeasible under present interpretations of the law. For others (such as flying conventional jet transports in parabolic maneuvers to simulate weightlessness), while the aircraft could have their existing certificates extended for commercial passengers in this flight mode, the costs of doing so, given the uncertainty of the market, may be prohibitive. This issue will be discussed further and more specifically in the context of each relevant vehicle in the sections following.

For systems that fly out of the atmosphere, there are two categories (in the U.S.). The first is privately-developed systems. The second is government systems (primarily, or perhaps uniquely, the Space Shuttle). For both categories, transporting passengers will offer some interesting opportunities to establish precedents.

Privately-developed systems could in theory be certified for commercial flight, but for economic reasons, probably will not, at least initially, and the closest analogy to them in modern aviation regulatory terms would be experimental aircraft. However, because of the regulatory situation described above, in which AST (rather than AVR, the aircraft-certification branch of the FAA) might have sole jurisdiction, they could simply treat passengers as another form of cargo over which they have no authority (as long as it meets the State Department and Defense requirements with respect to munitions, export and general national security issues).

Given the immature state of the business, this would probably be the best outcome. However, if they do decide to attempt to regulate it in the same manner as AVR is regulating commercial aircraft flights, and such regulation stands up to a court challenge, there are still alternative methods of flying passengers, in the same way that the system can be finessed to allow paying passengers in experimental aircraft.

To elaborate on this, let us examine the government systems that might potentially be employed for early space tourism activities, since the same legal techniques will probably apply. In the case of the Shuttle, it has not been, and will not be, certified for commercial activity, partly for economic reasons, and partly for political reasons (NASA would argue against a rival government agency--FAA--being given oversight of their astronaut-carrying space transportation system). The X-34 (as indicated by its "X" designator) is an experimental flight-test vehicle, and similarly, it is unlikely that it would ever be commercially certified, though it is theoretically capable of carrying passengers (as will be discussed later).

However, there are precedents for carrying paying passengers on the Shuttle, and these could be applied to future Shuttle trips as well as trips of other government-owned and operated vehicles.

So in all cases, if passengers are to take space trips with current systems, novel approaches will have to be taken to allow them to legally do so.

For the near term, the issue can be finessed by making it a "non-commercial" trip, by flying it as "Ship's Company." By that we mean that whoever wanted to fly would simply set up a corporation or limited liability company (LLC) for the specific purpose of doing some sort of research, lease the vehicle and operators, and then assign themselves as "crew" on the flight. We already have a precedent for this with Charlie Walker, who basically flew on the Shuttle not because he was selected by NASA, but because McDonnell Douglas paid for research and had him sent up to perform it. Given how much these trips will cost, the additional overhead of the corporate structure is negligible. This will work for both Shuttle and X-34 flights, and possibly for some of the high-altitude aircraft as well.

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