I wrote three weeks ago about overburdensome regulations potentially shutting down the model rocket community.

The problem extends beyond hobbyists. While it’s important for our long-term future in space to continue to nurture budding space engineers, there is a more immediate problem. Here’s an interesting article that describes the confused situation with respect to regulation of suborbital space transports.

This is a hot subject in the news right now, with the growing excitement about the X-Prize and the fact that people are now investing in commercial suborbital passenger vehicles. And it’s a good article, but probably in the interest of brevity, it glosses over some of the history necessary to really understand the issue, and why Burt Rutan is still potentially gumming up the works, though he’s at least conceded that he needs a launch license from FAA-AST to fly his vehicle and win the prize.

From the article:

Permission to fly the proposed suborbital crafts in the United States rests at the Office of the Associate Administrator for Commercial Space Transportation (AST), an arm of the Federal Aviation Administration (FAA).

Established in 1984 as the Office of Commercial Space Transportation in the Department of Transportation, AST was transferred to the FAA in November 1995.

That’s part of the problem. The enabling legislation for that office, the Commercial Space Transportation Act of 1984, didn’t require that it be under the FAA–that was a policy decision made (for reasons that remain obscure, at least to me) by the Clinton administration. That administration made a number of disastrous decisions with regard to space (e.g., the X-33 program, Russianizing the space station, putting NASA in charge of the development of reusable launch systems) and this was one of them.

Here’s the problem.

The aviation industry is a mature one. The regulations that regulate it evolved along with it, allowing it to develop over the past several decades. Very few of them existed at its infancy, back in the late 1920s and early 1930s. If they had, it’s likely that the industry would have been stillborn, because they would have been much too stringent for companies still trying to figure out what worked and what didn’t.

And in fact, some have argued, with some merit, that the regulatory regime in place for commercial aircraft has actually held back progress in aviation even today, because the regulations are aimed at conventionally-designed aircraft, which leaves little room for innovation. In fact, the experimental aircraft category, in which Burt Rutan swims like a fish in the ocean, has been the main force in allowing visionary engineers to try new things without either being shut down by the regulations or the litigation attorneys.

At this date, early in its development, no one knows how to properly regulate a (non-expendable) space transportation industry, because no one has any experience with doing so, either from the standpoint of the regulator or the regulatee.

As long as the regulating authority remains within the FAA (charged with regulating aviation), there will be an ongoing danger of overregulation. Those who wrote the language for the 1984 Commercial Space Transportation Act recognized this, and deliberately put the office that would regulate space transportation independently within the Department of Transportation, rather than the FAA (an agency also within that department).

There were two reasons for this.

First, because doing so would give it more preeminence and clout–it could report directly to the Secretary of Transportation, rather than having to get its viewpoints heard through an insulating layer of the head of the FAA.

Second, because (also as already described) the modern FAA, had it been in place during the golden age of aviation, would have preempted the modern aviation industry.

Now here’s the problem. While Burt seems to be at least now pretending to go along with the program, this part is disturbing:

Rutan said that their initial concern is that AST considers no distinction between research flight tests and certification for commercial operations.

“Until this is done, we believe there will not be a proper environment to allow proof-of-concept research, and may result in the real progress being made by foreign competition,” Rutan said.

“I want to be sure it is clear that we have no current disagreement with AST on what the requirements should be for certification of commercial space operations,” Rutan said. “As we have found with our many previous aircraft development programs, it is helpful to understand certification requirements in order to best structure an initial research test program.”

This, of course, is exactly the issue. Burt continues to consider this an extension of the current aviation model, in which spacecraft will be “certified” by the FAA.

Here’s the rub. FAA “certification” has a very specific, and expensive meaning. The gauntlet through which an aircraft has to go to attain this vaunted imprimatur is well understood in the aviation community. However, it is so expensive (it can increase development costs by at least an order of magnitude) that it is in fact a barrier to entry to new players in the business, which is one of the reason that it’s supported strongly by existing entities.

On the other hand, it is currently meaningless under the FAA-AST launch licensing procedures–there is no certification regime for spacecraft, passenger or cargo. So it’s not clear at all what Burt is saying here. It’s not currently possible to “structure an initial research test program” around certification requirements, because they don’t exist, and (if we’re lucky) won’t for a long time, until we have developed experience with this new flight regime via vehicles such as the one that Burt is developing.

Perhaps what Burt means is that they make no distinction between flight test and operations for licensing purposes, and this may in fact be the case, since their licensing procedures for reusable vehicles are still evolving.

Unfortunately, confusion such as this, and the potential danger of industry-killing overregulation, is likely to persist as long as the office that licenses launches remains within the FAA. A good first step toward clarifying the situation may very well be to reverse the mistake of the previous administration, and set it up once again as a separate office within the Department of Transportation, as Congress originally intended.

Let us hope that the administration has the wisdom to consider doing so, or that Congress might direct it in this year’s relevant legislation. With the money for the X-Prize finally raised after many years, it would be a tragedy and a travesty if it all ends up being for nought because of regulatory confusion.