Almost three months ago, amid great fanfare, the U.S. House of Representatives overwhelmingly approved a historic measure to open the door to private-sector spaceflight — a measure that would allow entrepreneurs to take passengers on suborbital space trips.
The chairman of the House Science Committee, Sherwood Boehlert, called the legislation "one of the most important measures this committee will move this year." California millionaire Dennis Tito, the world's first paying space passenger, said "I hope the Senate takes up this bill soon and sends it on to President Bush for his signature."
But since then, the bill — known as the Commercial Space Launch Amendments Act of 2004, or H.R. 3752 — has languished without Senate action. And some in the infant space travel industry are increasingly worried the measure might just fizzle out.
Without the legislation, private spaceflight could be left in "legal limbo," said XCOR Aerospace, a California-based company that received a suborbital launch license just last month.
Such a scenario could leave unclear whether suborbital spaceships should be regulated like rockets, as the Federal Aviation Administration is doing now, or like airplanes, which would involve far tighter regulations. There would be no legal framework for taking on paying passengers. And perhaps most importantly, investors would lack legal assurances that the industry in which they were investing will actually take off.
Ironically, the uncertainty comes even as privately funded rocketeers are poised to break the space barrier and win the $10 million Ansari X Prize.
"We must take advantage of this historic opportunity and get this legislation enacted into law this year," XCOR said in a statement issued this week. "Everyone has worked countless hours to craft legislation that creates an environment for a competitive and vibrant suborbital space flight industry. If all it takes are a few small changes to this legislation, we shouldn't let that delay getting legislation enacted this year."
So what's the holdup? It turns out that H.R. 3752 has been tied up at the intersection of rocket science and political wonkery: The debate revolves around technical points such as thrust vs. lift, as well as congressional niceties such as the Senate's rules on unanimous consent.
As arcane as the details may be, the controversy sheds light not only on how things get done (or don't) in Washington, but also on how a new space industry will be built (or won't) far from the traditional power centers.
The negotiations are so behind-the-scenes that participants are reluctant to name names publicly. But the main players can be identified through a close reading of corporate news releases and other published reports.
On one side are XCOR and other leaders of the effort to get the bill passed quickly. On the other side is Oklahoma-based Rocketplane, as well as others concerned that the legislation could be read too restrictively. In the middle: the House members and staff who dealt with the original bill, as well as members of the Oklahoma congressional delegation, such as Republican Sen. James Inhofe.
Rocketplane, which began construction of its Oklahoma facilities just this January, wants to make sure that its XP hybrid jet-rocket plane will be licensed under the legislation as a suborbital vehicle, rather than facing a dual licensing procedure as a rocket and as a jet airplane.
The House bill defines a suborbital rocket as a "rocket-propelled vehicle intended for flight on a suborbital trajectory whose thrust is greater than its lift for the majority of the powered portion of its flight." Although Rocketplane has received assurances that its rocket-jet hybrid would fall under that definition, the company wants something more explicit.
"It gets down to the bottom line that these technologies use rockets to go a certain distance to space, but there are others with jet engines involved, and essentially they should be licensed as rockets," said Kevin Kelly of Washington-based Van Scoyoc Associates, a government affairs firm that is assisting Rocketplane.
Otherwise, Rocketplane is worried that it could face delays in getting the XP licensed and in the marketplace — and such worries could make potential investors skittish as well.
Rocketplane sought help from Oklahoma lawmakers, and as a result, Rep. Frank Lucas, R-Okla., raised the issue on the House floor — drawing a pledge from Chairman Boehlert that he would "keep working" on how best to regulate hybrid space vehicles. In the Senate, Inhofe's office is facilitating discussions aimed at revising the House language before the Senate's companion bill, S. 1260, moves through the Commerce, Science and Transportation Committee.
"The reality is that there's a lot of good discussion going on," Kelly said, "and hopefully this will all resolve itself in the next month or so. ... Our goal is, you want to get it done this year, but the right bill is better than a rushed bill."
The problem with waiting
In the meantime, XCOR and its allies are nervous about the lack of progress — and about the prospect of changing language that reflects regulations drawn up by the FAA itself. The main concerns are that major changes may ruin more than a year's worth of careful negotiations that led to the bill's House passage — and that if the bill is held up for much longer, it will be lost in the shuffle of summer recesses and the fall political campaign.
"The metric of success is enacting a perfected version of H.R. 3752 as soon as possible," said Jim Muncy of PoliSpace, a Virginia-based space policy consulting firm that is advising XCOR.
The bill would likely be brought up under the Senate's unanimous-consent rules — which means every senator would have to be satisfied with the language. That includes Inhofe as well as other senators who might become dissatisfied with a change that goes too far in a different direction.
If the bill doesn't clear both houses in the 40-odd days left in this congressional session, backers on both sides of the current debate would have to start from scratch when the new Congress convenes next year. In the meantime, XCOR, Rocketplane and other builders of reusable launch vehicles might find it hard to raise money for their ventures.
In addition to providing key definitions for the industry, H.R. 3752 does other things to smooth the way for suborbital passenger flight: The bill sets up a 90-day procedure for issuing experimental rocket permits, emphasizes that the environmental regulations for such spaceships could be loosened, and would let launch companies eventually take on paying passengers on a "fly-at-your-own-risk" basis.
Suborbital spaceships aren't expected to enter commercial operations for at least two years, but Muncy said passing the legislation now would set the stage for those future flights.
"The great thing about H.R. 3752 is that it sends a crystal-clear message, that this is an important new industry that must be enabled through careful regulation and promotion," he said.
Space consultant Charles Lurio, who favors XCOR's position, said the message was particularly important in light of this year's "space race summer," which could well see the first-ever manned spaceflight involving a privately developed rocket.
"Will that momentum be carried forward or not?" he asked.