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.

(Long Post)
The current discussion regarding regulatory issues for launch vehicles, and aircraft that have a significant exo-atomospheric component, is a very critical one, and the future regulatory environment will hinge on the approach taken.
I?d like to offer an explanation as to why Rutan has been seeking to maintain the development and testing work of Spaceshipone under the regulatory environment offered by the FAA?s Federal Aviation Regulations (FARs), and has been resistant to accept the regulations found under the Commercial Space Launch Act (CSLA). Under FAR part 14, sections 21.191, 21.193, and 21,195, special airworthiness certificates can be issued for experimental aircraft for purposes such as R&D, Exhibition, Air racing, amateur-built kits, etc. Note that this does not make the aircraft certified for commercial operations, but only to allow it to conduct the above-mentioned activities. When Rutan talks about 200-300 million dollars to certify an aircraft, he?s talking about commercial certification, ie. The type required of a new Cessna model, or like the Eclipse jet. The regulations used to allow the development of experimental aircraft have been used successfully for many years to regulate the design, development, building, and flight testing of these types of vehicles. Rutan has a great deal of experience operating in this regulatory environment; in fact most of his aircraft prototypes never leave this environment. After a careful reading of these regulations, there is no reason, IMHO, why spaceshipone cannot be properly developed under these regulations, and which will ensure the safety of the public (which is one of the most important functions of BOTH regulation sets). The vague argument that spaceshipone is operating ?in space? and that somehow renders these regulations invalid is too poorly formulated for rational discussion. In fact, in can be argued that there is sufficient atmosphere at, for example, 62 miles (ICAO atompsheric pressure is between 10e-3 and 10e-4 hPa, http://ceos.cnes.fr:8100/cdrom-98/ceos1/science/dg/dg2.htm ) to result in aerodynamic effects, and thus argued that the vehicle is thus still an ?aircraft?. Your argument that ?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?? is a good one for not using the CSLA, and one that I think argues for the use of the FARs as a point of departure for the regulatory approach because of all the experience with dealing with fast-moving flight vehicles with people in them.
When you look at the regulations found in the CSLA, it is clear that they have emerged from a different regulatory perspective: a perspective that emerged from the Military/Government/industrial complex which was used to regulating and controlling everything, and which had to shoulder considerable responsibility for the ?safety? of its citizens. To obtain a launch license for an orbital or suborbital ?launch vehicle? requires the completion of many tasks: For launches, the components of the licensing process include pre-application consultation, policy review and approval, safety review and approval, payload review and determination, financial responsibility determination, and an environmental review. This lists of tasks is very onerous from the perspective of someone who has worked under the FARs, and that?s saying something, because other commercial industries find the FARs to be quite burdensome, intrusive, and non-conducive to commercial growth.
After some amount of consideration of this subject (I have a keen interest in the subject: http://www.thespaceshow.com/detail.asp?q=127 ), my suggested solution to this issue is as follows: Keep both sets of regulations. People that think they developing launch vehicles can work under the CSLA. People that think they are developing aerospace planes can work under the FARs. What should NOT be done is to try and subsume aircraft or aerospace craft operations under the CSLA. There is currently a great deal of confusion about vague definition of ?space?, (in the CSLA both the terms ?space? and ?outer space? are used with great confusion). Nor should launch vehicles and launches be subsumed under the FARs. At some point in the future, the respective regulatory territories will become more clear, and perhaps an overarching agency (the Federal Aerospace Administration) can be formulated. Until then, we should respect the individual regulatory environments and work from these un-united regulation sets.
Although I don?t think Rutan is doing himself any favors by taking a confrontational approach to dealing with the AST, I do believe that his reasons for resisting getting a launch license are legitimate. As just one example, right now, the Kern County Airport (Mojave) is having a great deal of trouble trying to understand how its going to be compliant with what will be required of it in order that it satisfy the regulations (found in the CSLA) for qualifying as a spaceport. In order for ?launch vehicles? to obtain a launch license, they must ?launch? from spaceports. It gets worse from there.
At its core, I see a fundamental difference between the perspective of aircraft people, and launch vehicle people. Terms like ?reusable launch vehicles? make no sense to aircraft people, and terms like 'flight plan' make no sense to launch vehicle people. In fact, I?ve made a ?translation table? shown below to help these two great tribes talk to one another (there are many others, please add your own):

Aircraft Guy Launch Vehicle Guy

Take off Launch
Landing splashdown
Runway launch pad
Airport spaceport
Cargo payload
Engine start Ignition
Engine un-start CATO
EGT Tc
Flight Mission
Climb Ascent
Decent re-entry
TBO Resuable Launch vehicle
Emergency
return
to airport(ERA) Activate vehicle destruct system
flight plan -
Aircraft Cert. launch license
pilot meat servo
terrorist launch safety officer
crew crew
dead dead