I don’t recall which one, but a few years ago, the mood at the Space Access Conference was pretty somber. X-33 had cratered without even flying, X-34 the same, the dreams of a “Teledesic winter,” in which the skies would be blackened by LEO comsats and RLVs to deliver and service them, had been shown to be a fantasy, and the future for affordable space access looked grim to many. It didn’t to me, because I had never held out hope for any of those things, but the conference generally had the air of a funeral.

This year’s meeting was much more upbeat. Burt had just gotten his launch license and flown a couple weeks before, with good prospects for an X-Prize win this year, and the community was finally focused on the promising area of suborbital flight, a necessary transition for us to go through in order to get low-cost orbital flight.

While people were in a good mood coming into the conference, there was a lot of news there to further encourage them. The big news from the weekend, of course, was XCOR’s new launch license. But this was just the most notable example of a growing trend–this is a real industry, with people making real investments, and bending real metal. The prize, and not just the X-Prize, appears to be real, and people with their eyes on it are focused on the real-world issues of regulation, insurance and marketing.

Of course, there were a couple technical surprises as well. John Powell’s concept of a lighter-than-air vehicle to orbit was a new twist, and it’s not obvious that it won’t work.

Clark Lindsey has an extensive writeup, and I suspect that Jeff Foust will as well, perhaps in next week’s issue of The Space Review, but I want to focus this post on Jim Muncy’s talk, because as I said in the previous post, there are some interesting wrinkles in the new legislation that have been uncommented on so far. It’s a revised version of the legislation introduced last fall, with a new bill number of HR 3752 (sorry, no permalink available–do a search on “HR 3752,” and pull up the bill as passed), titled the “Commercial Space Launch Amendments Act of 2004.” It has passed the House, and an identical version is in the Senate. I analyzed the previous version in October.

Clark was generous enough to provide me with his notes of Jim’s talk, and this is based on them, my own recollection, and my own reading of the bill.

Jim started his presentation with a little history, pointing out two disastrous decisions made during the Clinton administration. The first was in taking away from the FAA its traditional role of promoting the aviation industry, because there was a perception that this conflicted with its responsibility to regulate and ensure that the industry flew safely. It was judged that the industry was mature enough that it didn’t require such promotion, at least by the FAA.

Unfortunately, about the same time that this decision was made, another (probably unrelated) decision was made, in the interest of “reinventing government,” to move AST from its own office reporting to the Secretary of Transportation, into the FAA. In other words, the regulation of a non-existent industry (reusable space transports) was being moved into an agency with no duty to or interest in promoting it. And of course, the best way to ensure safety, if you have no interest in the well being of the industry, is to simply eliminate any possibility of actually flying.

Under those circumstances, it’s surprising that we’ve made as much progress as we have, but the new legislation is meant to undo some of the damage of those dual decisions.

Based on my quick read, and Jim Muncy’s comments, there are three key aspects of the legislation that are new from last fall.

First, is this section (shown only in part):

(7) Section 70105 of title 49, United States Code, is amended by redesignating subsections (b) and (c) as subsections (c) and (d), respectively, and by inserting after subsection (a) the following new subsection:

(b) Experimental Permits- (1) A person may apply to the Secretary of Transportation for an experimental permit under this subsection in the form and manner the Secretary prescribes. Consistent with the public health and safety, safety of property, and national security and foreign policy interests of the United States, the Secretary, not later than 90 days after receiving an application pursuant to this subsection, shall issue a permit if the Secretary decides in writing that the applicant complies, and will continue to comply, with this chapter and regulations prescribed under this chapter. The Secretary shall inform the applicant of any pending issue and action required to resolve the issue if the Secretary has not made a decision not later than 60 days after receiving an application. The Secretary shall transmit to the Committee on Science of the House of Representatives and Committee on Commerce, Science, and Transportation of the Senate a written notice not later than 15 days after any occurrence when a permit is not issued within the deadline established by this subsection.

Many in the community have been advocating this for years. It’s an experimental rocket permit, analogous with an experimental aircraft certificate. It authorizes the holder to do the kinds of flight testing that Burt has been doing with his vehicle, and it allows a series of tests with a single permit, with much less paperwork than a full launch license.

It’s another major step away from the original launch license mentality, and toward a regulatory regime that allows incremental testing. Like an EAC, it doesn’t allow taking passengers for pay, but that can be done with a launch license after testing is complete.

Here’s the next significant difference with last fall’s legislation, and another step forward:

(17) Section 70112(b)(1) of title 49, United States Code, is amended–

(A) by inserting `space flight participants,’ after `its contractors, subcontractors,’;

(B) by inserting `or by space flight participants,’ after `its own employees’; and

(C) by adding at the end the following: `The requirement for space flight participants to make a reciprocal waiver of claims with the licensee or transferee shall expire 3 years after the first licensed launch of a launch vehicle carrying a space flight participant.’.

That there is a requirement for reciprocal waivers means that Congress intends that this be a “fly at your own risk” regime, i.e., it will be viewed as something similar to Everest expeditions, rather than as aircraft passengers, with expectations of the kind of safety afforded by that industry. This will ease the liability and insurance burden considerably, and is vital to getting this industry off the ground (so to speak).

The bill also requires that AST issue licenses within 90 days, instead of the current 180, and to streamline their procedures to whatever degree necessary to achieve that goal. This will be a great challenge to the agency, considering that they issued Xcor’s license just under the 180 day wire, but it will help accelerate progress for the licensees.

Jim mentioned one other aspect that was fascinating–he said that the legislation provides the Secretary with the authority to waive “all requirements of law” to grant a license. In other words, if (for example) the National Environmental Protection Act becomes too onerous in some particular case, the Secretary can grant relief. If true, this could be a huge breakthrough. Unfortunately, I can’t find where in the legislation that such authority is granted. If anyone can provide some enlightenment on this, I’d appreciate it.

There is some resistance to the legislation from the large launch companies and insurers, who don’t want to have to play on a level playing field with the startups. It’s not clear whether there will be enough to derail it–it clearly wasn’t in the House, but it’s hard to get any kind of legislation through the Senate in an election year, regardless of its degree of controversy. Nonetheless, Jim remained hopeful that this bill will be authorized into law this year, and if it is, it represents a great step forward for the alternative space movement, and a maturing of the industry from infancy into at least toddling.

[Update at noon]

Gary Hudson emails, in response to my query:

70105(c)2(C) But it requires the intervention of the SecDOT plus consent of the affected agency, i.e., EPA. Chances of that actually happening are about the same as pigs flying…

[Update on Wednesday evening]

Normally, I hunt down and painfully kill people who attempt to correct me, but since it’s the Great Man himself, and someone who I’ve known and loved for over two decades, I’ll simply point out that Jim Muncy notes in comments:

Thanks very much for your kind write-up of my speech to Space Access last Friday.

Unfortunately, a casual reader might draw two innaccurate inferences from your piece.

First, the legislation does not require that AST issue licenses within 90 days. It requires that they issue experimental permits within 90 days. This will be a challenge for AST, but I am convinced they will be able to achieve this as they refocus their resources towards this new, dynamic industry.

Second, the legislation does not give the Secretary any authority to waive NEPA that he doesn’t already have. That authority was written into the original CSLA. However, HR3752 explicitly reminds the Secretary of this authority, and mentions NEPA in report language.

The authority is not to simply “waive” NEPA, but rather waive by regulation. In other words, AST could promulgate a regulation that sets a standard for “environmentally clean” RLVs, specifying non-toxic and total quantity of propellants, and other vehicle system and flight profile characteristics, such that if one met the standard, NEPA would no longer apply.

My friend Gary Hudson is wrong, however, about EPA. The coordinating agency is the Council on Environmental Quality. Once these vehicles are flying, and repeatedly getting ‘findings of no significant impact’, there will be a strong paper trail to justify such a regulation which effectively replaces the NEPA requirement, rather than simply waiving it.

I realize that many of us would prefer not to have to obey this stupid law (NEPA), but it is in fact a requirement levied on FAA/AST, not on the launch company. We just have to deal with the consequences.

So now you’ve got the word from the hors^H^H^H^Hman himself.

I should also add something that no one else noted, because Jim’s comment reminds me. We should all thank Tim Hughes, Jim’s successor on the committee staff, for making this legislation happen. One of the exercises that he had us do at the conference was to write a personal thank-you note to him for this legislation, and I encourage my readers to do the same.

[Update on Thursday morning]

Clark Lindsey has put up a page describing the JP Aerospace concept for light-than-air to orbit.

[May 5th update, as a result of the link from TechCentralStation]

There’s more here on the legislation.