Image: Suborbital vehicle
XCOR Aerospace
An artist's conception from XCOR Aerospace shows a suborbital space passenger vehicle in flight.
By Alan Boyle Science editor
updated 10/8/2004 7:43:20 PM ET 2004-10-08T23:43:20

Just days after SpaceShipOne's prize-winning flight opened the world's eyes to the prospect for private spaceflight, legislation that might have opened the way for paying passengers to get on board has been put on hold — at the urging of space entrepreneurs who were once its biggest supporters.

Those one-time boosters say the compromise version that emerged from a House-Senate "preconference" would actually kill off private spaceflight by holding the industry to an unmeetable safety standard for passengers and crew members.

"There's a poison pill in it," Jeff Greason, president of XCOR Aerospace in Mojave, Calif., told on Thursday.

Because of the outcry, Rep. Dana Rohrabacher, the California Republican who chairs the House Space and Aeronautics Subcommittee and introduced the original bill, decided to hold back the bill, said David Goldston, chief of staff for the House Science Committee.

"Our understanding is that industry is now divided over the specific language that was negotiated between the House and the Senate," Goldston told "The concern is that the new language would give the FAA new and, to some elements of the industry's mind, excessive authority, that would alter the notion that most of the risk at this point should be borne by the crew and the spaceflight participant.

"Mr. Rohrabacher has decided that because of those industry concerns, and the inability to work them out further with the Senate, he would rather start over next year than pass this version of the bill now," Goldston said.

'Continuing uncertainty'
The turnabout came just a day before the end of the regular congressional session. Backers of the compromise had hoped to get the measure passed in the Senate on Friday by unanimous consent. Instead, the bill is in congressional limbo. One Capitol Hill source, speaking on condition of anonymity, said staff members could resume negotiations during the recess and work out a more acceptable compromise for passage during Congress' lame-duck session, after the November elections.

"It's still on life support," the source told, "but surgery's postponed until November."

If a compromise can't be worked out by then, Congress could still conceivably pass a bill with more limited scope, which would simply extend indemnification for unmanned launch vehicles such as the Boeing Delta and the Lockheed Martin Atlas rockets for another year. Under that scenario, lawmakers would have to start from scratch on the more controversial issues relating to suborbital passenger vehicles.

That's just as well, said Andrew Case, the acting director of the Washington-based SubOrbital Institute and a research associate at the University of Maryland at College Park.

"It leaves us with continuing uncertainty," Case told, "but it's better to have continuing uncertainty than the certainty of bad regulation."

In its original as well as its amended form, the bill lays out the process for licensing suborbital space vehicles so that they could carry paying passengers — something that SpaceShipOne, for example, is not allowed to do. The Federal Aviation Administration's Office of Commercial Space Transportation already issues suborbital launch licenses, but the new legislation would have put the FAA's procedures on firmer footing.

The law also would have allowed customers to fly on those space vehicles, provided that they were fully informed about the risks and signed a consent form.

The House approved the original version by a 402-1 vote, but when it went over to the Senate side, it became caught up in negotiations — at first, over the definitions of space vehicle, then over the bill's safety priorities.

Would industry be grounded?
In the amended version, the FAA is repeatedly charged with looking after the "safety of crew and spaceflight participants" as well as public health and safety. The original bill notes that "space transportation is inherently risky," while the amended version adds this phrase: "but the industry should be held to the highest standards of safety when transporting humans."

XCOR's Greason said he feared such language would put the "safety of the crew and the safety of the passengers on the same footing as the safety of the uninvolved public." He said it took decades for the airplane industry to meet that standard, and would take decades for the private spaceship industry as well.

"No one in their right mind would suggest that in the first 10 or 20 years we're going to reach levels of safety in the vehicle that are indistinguishable from the safety of being on the ground," he said. "The only way we're going to learn how to be safe is to get out there and fly."

If suborbital spaceship companies were required to demonstrate the same safety levels as, say, today's commercial airliners, the industry would never get off the ground, Greason argued. No investor would fund the multimillion-dollar efforts required to develop those spaceships, as software billionaire Paul Allen did for SpaceShipOne.

As of today, only SpaceShipOne and XCOR's yet-to-be-built rocket plane have received launch licenses from the FAA for piloted suborbital flight — and XCOR has not yet received enough investment to build the plane for which it has a license.

Supporters of the amended version might argue that the references to crew and passenger safety are consistent with the FAA's mission, and would make little practical difference in how the law is enforced. For his part, Case acknowledged that the changes might seem reasonable "to somebody who doesn't understand the issues."

"But if you understand the issues and you look at what they really mean, I think a reasonable person would agree that 'fly at your own risk' really does make sense," Case said.

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