Secrets of the Launch License: Part 2
The Purpose of the Launch License: the Biggest Secret
Having been on the very front end of the entire commercial space transportation history with the exception of SSI’s launch, I think it is important to put the launch license into perspective, and I think that readers will be quite surprised. As much as OCST would like to argue otherwise, there are really only two really important purposes for the launch license today, and a third lesser important function.
The first is that it protects the US Government. This arises from the fact that the various Outer Space Treaties assigned responsibility and liability for any launches to governments, and only to governments. This put the United States Government on the hook for any launches by its citizens or from US shores. If the US Government was going to be liable for any consequences of these launches, it simply made sense to know when these launches were going to occur and to have a role should the launch not be in the US interest. It was about the US Government having some control over private activities that put the US Government at risk. The license also conveniently provided a means to require insurance to cover the Government for the majority of its 3rd party risk. However, safety was not the original consideration when DOT was assigned the lead agency role. It’s important to remember that the Reagan administration was perfectly happy to use the Department of State’s export license to control private launches even though there was not a single aspect of the export license that pertained to safety; remember, the Reagan administration was opposed to creating legislation at the time the President signed EO 12465. Finally, despite what space lawyers have taught, in one respect the Outer Space Treaties are not significant. While the US government is liable for damages as the result of a commercial accident, these costs are inconsequential compared to the benefit the US derives. Thus, even the treaties are not justification for heavy handed regulation. This is covered elsewhere in this website.
Secondly, it was important as an educational tool. The licensing process was a framework to teach companies to be regulated entities and to make them responsible and accountable for their actions. Not everyone at that time believed there was a future for a commercial space industry, but those who did envisioned a day when private launch companies would be a dominant feature in the space program of the United States. They would become companies that would transcend their government heritage, and become major space players with agendas and objectives of their own. The licensing/regulatory process was a means by which to require the companies of a brand new industry to learn about safety and to create the body of knowledge and experience by which they could operate safely. The license was a means by which to authorize a company to operate providing it stayed within a government approved framework. In my view, as the industry institutionalized its responsibility for safety, it would be possible to start moving toward voluntary industry standards to ensure safety. Once licensed, the Government would not have to be overly concerned about the behavior or operations of that company, with the exception of an occasional inspection.
The third, and least important, is illusional. It gives the public confidence that this is safe because of the fact the industry is regulated. However, this purpose is one that the members of OCST must never overrate. Congress, industry, public, and OCST take note: Safety should be on the bottom of the list; not because safety is unimportant, but because launch companies today still do not represent much threat to the public’s safety.
Why do I say that? Because, except for my last minute involvement in 1983 and saying that the Secretary of Transportation had changed her mind, today the Commerce Department would instead be named in the Commercial Space Launch Act (CSLA) as the regulator of the private launch industry. Commerce saw “promotion”, not “regulation” as the most important function for the success of the commercial space industry. So, in that case, all 200+ commercial launches that have occurred to date would have taken place under Commerce’s “promotional emphasis” without a single public incident. People today would be marveling at the success of the Commerce Department’s regulatory program.
The language of the CSLA mentions safety in the context of an era in which NASA and the USAF had convinced everyone that it was the most dangerous of activities. They even believed it themselves. As a consequence, NASA and USAF set insurance requirements so high that launch companies could not purchase insurance. Because the insurance requirements were so high, underwriters and other insurers believed it was the riskiest activity of all the activities they insured. OCST proved later that this was far from true, as seen below. Congress was addressing in the CSLA only what the two major government space agencies had said was ultra-dangerous.
The fact of the matter is that in the larger scheme of things, space launches are virtually non-risk events. They are few in number, and the activity represents minimal exposure to the public. Were it possible for a person to stand on the beach at Cape Canaveral during a launch of a rocket that had no destruct mechanism and no range safety officer to take action, that person would have a greater chance of being hit by lightning or killed in a car crash on the way home than being harmed by a failing launch vehicle. (Note to reader: before blindly challenging this, click here) . In fact, every day we drive at 60 mph next to tank trucks filled with hazardous, explosive materials (equal in explosive power to launch vehicles) on the highway, and railcars with more than twice the explosive capability of rockets pass through the centers of large cities. Each year thousands of people are injured, and hundreds are killed in accidents involving explosions of tanker trucks and rail tankers, and the US Government spent virtually no time on any of the vehicles associated with those accidents. Consider the number of small airplanes that crash land on highways, golf courses and mall parking lots, and compare this to the risk that the public faces from failing launch vehicles. Or ponder the risk of re-entry vehicles. In our search of all the records available, we were never able to find a single meteorite or space object killing a human. In all the reports of ice (usually blue in color because its frozen sewage material from aircraft toilet waste systems) coming off aircraft flying over populated areas that came crashing through peoples’ roofs, we never found a single fatality.
If the 30 launches that occurred under my watch (31 if you include Starstruck) and the 200+ that occurred later had never been licensed, I would submit that to date the US would still never have suffered the death of an innocent bystander from commercial launches. Compared to the thousands of fatalities that occur from hazardous activities that the US Government consciously chooses not to regulate on an event by event basis, the commercial space launch activity is quite safe. Or put another way, if one took the various regulatory agency budgets and divided those by the numbers of lives saved by each agency’s respective regulations, one would find that the US Government is spending an exceptionally high amount on regulating commercial space transportation.
The biggest secret of the launch license is that Americans are safe from launch events, but they needn’t give great credit to the Government. The credit goes to the fact there aren’t that many launches and even then, there are so many things that are in our daily lives that are much riskier. What we did in OCST then, and what OCST does today, is put the cosmetic icing on a pretty safe cake.
The Launch License is important, but let us all hope that today’s OCST regulators never lost the proper perspective on what is important versus what is just for show. To those companies who went through the licensing regime while I was the Director of Licensing and Safety, I am confirming now that the primary purpose was to build an industry that saw itself as capable of handling all the dimensions of the launch process, and that ultimately might stand up to the government ranges and say, “Let’s try something different. Let’s start taking advantage of the new technological opportunities that are emerging.” Or, as a simple alternative, an industry that would start to move away from government ranges and begin to come up with their own effective devices to keep their vehicles from harming the public. Perhaps most importantly, as a result of the Launch License requirements, companies became knowledgeable about the 3rd party safety and risk issues associated with their vehicle and how to mitigate those. In the setting I describe, it would have been the logical next step to persuade the industry to develop their own safety standards and for OCST to start ease up further on its process.
That’s why it was so important to move away from the single license and go toward the operator’s license. We needed to see companies view themselves as professional space launch operators, rather than companies who were conducting a series of individual launches. But even more importantly, licensing multiple individual launches for a single company was a waste of time and didn’t enhance safety. With an operator’s license, the only cost to either the government or the company was the cost of inspection. Further, as the companies added more and more variation to their operations, the more we and they would understand about the methods, processes and technical features to ensure public safety. This would reduce even further the number of times they needed to seek government approval. After-all, there are no transportation industries where operators have to routinely come to the government every time they make an insignificant change; in aviation, entities using the ATC system do, but only because they are using the service.
Regardless of which purpose of the Launch License was most important, the fact is that the process itself helped to build a new industry that started having its own objectives and its own space vision.
Secret of the Launch License: Ultimately Move Toward Industry Standards
Once this industry comprised of former government contractors and new start-ups had gotten used to the regulatory process and learned its responsibilities for safety, my plan was to lighten the licensing requirements and try to move the industry toward self-regulation and voluntary standards. As the section above illustrates, the risk to the public and the need for safety protection from commercial space launches is virtually non-existent compared to airline, rail or highway transportation. Thus, once the educational part of the licensing process was completed and we were confident that the industry had developed its own understanding of how to ensure their launches didn’t endanger the public, certain parts of the safety review could be lightened. At that stage, it wouldn’t have been difficult to encourage the industry to start a process to develop industry safety standards. Further, once commercial space passenger travel started in the future, the ability of government bureaucrats to do much to protect the passengers was going to be minimal. Once commercial companies started human space travel the industry was going to become more like the maritime industry of old with respect to regulation. Unlike aircraft, rail cars and highways vehicles which remain on earth for the subsequent investigations, spaceships that failed had a good chance of not returning. Hence, just as the maritime industry advanced using many, many more voluntary standards, than other transportation modes, it was likely that those with the greatest interest in ensuring safe space travel was the industry itself. For those who think the industry isn’t capable of protecting its own safety interests without heavy government regulation, look at the reliability and safety of commercial satellites that are put into deep space without a regulator assisting in their construction or design. Most satellites make it to their destination and last long periods without physical maintenance.
In preparation for that day we had already conducted a study on voluntary standards, and I had been working with the American Institute of Astronautics and Aeronautics and commissioned AIAA to prepare a report on industry standards. Both were completed in 1993. This part of the license process evolution didn’t continue because I left the regulatory program in 1994 before it could move to that phase.
A Secret of the Launch License: Two Licenses in One! Although Congress gave authority to DOT to authorize expendable launch vehicles and their payloads, they were not thinking of those being two different things. As stated in other places in this history, at the time the space community thought in terms of missions. Even as NASA tried to describe the shuttle as a “space taxi”, each shuttle trip came with its own name, mission, and patch.
Coming from the world of transportation, we saw sister industries where the concept of the “transporter” was not tied to the “cargo”. Hence, our view of commercial space was that the payload did not have to be associated with any particular launch. That meant, there were two separate approvals with two separate objectives in mind.
We approved “cremains” under an application by Space Services, Inc. But had the cremains company later gone to Conatec instead, that would not have posed much of a problem. Thus, one could conceive of “cremains” as having been licensed. The same was true for the reentry vehicle. OCST didn’t really care who ultimately launched the reentry vehicle. It was simply cargo.
Similarly, the operator’s license had no specific payload in mind, other than it was conditioned on the payloads’ having been approved by some entity, such as FCC, DOC, or OCST. In essence, the operator’s license was simply a beefed up Safety Review.
Do the regulators in OCST today know that this was the original vision for the two parts? I don’t know. I also don’t know if they use it this way. But for the first 10 years, that is how it worked.
Feature of the Launch License: The Decision for Approvals was Delegated to the Associate Director
The attorneys came to me and said, “You have to be the one to sign the Launch License or be the first decision maker, not the OCST Director (who at the time was Courtney Stadd). The reason is that if Courtney signs or disapproves the license, and then someone wants to appeal that decision, they will have to appeal to the Secretary of Transportation. The appeal level needs to be lower in DOT. Our goal was to make this as simple as possible for launch firms, and appealing to the Secretary would add to the time, and make the appeal process really cumbersome. So Courtney Stadd signed the papers delegating decision authority for all actions related to my position. He or his successors would be the appeal level.
Secret of the Safety Review: In 1984, It Went Against the Grain
With NASA and the USAF as the two major launch operators before OCST, their practice and methods for keeping rockets safe were considered the “state of the art” approach. When we asked space safety experts how we might evaluate a private company’s launch, they would describe how NASA and the USAF did it. At the risk of over-simplification, the NASA and USAF method was to put destruct systems on the launch vehicle; track the vehicle once launched; and, if the vehicle went off course, blow up the rocket.
OCST knew there had to be other ways to be safe, and if there were, private companies would find them. That meant, we had to understand safety well enough that we could evaluate an entirely different approach. We asked experts again whether they were sure there was no other way? We knew there had to be other viable methods. In no other form of transportation did we blow up vehicles that were out of control.
The USAF detailed two military officers with extensive launch experience to help us. They told us, there was no other way to keep rockets safe. They were so adamant that they started deriding our attempts to determine other methods. It caused so much friction, we finally sent the two gentlemen back to the Air Force.
The more we looked into it, we realized that there were many different ways to achieve a safe launch. In one scenario, the company would simply put all the necessary equipment on the vehicle and if it started to fail, use an internal mechanism to stop or alter its flight. After much searching, we were introduced to Loyd Parker, one of the original space pioneers from the early days of Wallops Island. He confirmed to us what we were beginning to understand. As he put it, “Yes, of course, there were many different approaches; we just picked one method we liked and stuck with it”. It was natural that every subsequent person going to safety school was taught that method. Everyone had forgotten how they had gotten to that point in the first place.
The requirements of the Safety Review are generic. They didn’t assume that applicants are going to use a government launch range. They were prepared to handle any company that wanted to put all of its safety system on board the rocket. They were prepared to handle any space vehicle that would re-enter the atmosphere. And, with the criteria we had, we felt we could handle a manned vehicle such as the one Burt Rutan later brought to the office. However, our interest in the latter case would only have been the safety of the public, not the crew. The key point was that no company would be handicapped by an attempt to break away from the conventional space practices of the day.
Feature of the Launch License: The Magical Payload Review
The payload review was a very useful component of the license design. It had multiple purposes, not all of which had to do with the payload. It was called a “Policy or Mission Review” in the Launch License because of its multiple uses, and the fact it was all-encompassing. It was a tool that expanded OCST’s reach, lubricated the licensing process, and aided the growth potential of the industry. It had specific objectives in mind, some of which were not publicly articulated.
First, the Mission Review was used to meet the CSLA requirement to coordinate with the USAF and NASA. Trying to coordinate the technical and safety reviews of license applications with NASA and the USAF would have made the license review slower and potentially worse than pre-CSLA days. Accordingly, we reserved the “safety review” as an “OCST only” function (unless we needed NASA or USAF technical expertise). Further, we could use the Mission Review to focus the NASA and DOD reviews on “national interest or an assessment as to whether the payload affected the safety of their own missions.” Additionally, when satellites were approved by the Federal Communications Commission (telecommunications satellites) or Department of Commerce (remote sensing) there was no OCST mission review for these. Hence there was no further coordination with other Agencies, including NASA and the USAF. In effect, this made space transportation almost normal, like any other form of transportation.
Second, the Mission Review prevented other Agencies from filling a vacuum that could have stymied growth of the industry. The vacuum related to new, nonconventional applications for space. Imagine what it would have been like if Agencies had realized that no one exercised authority over new uses of space by business. Commerce would have wanted this role because it would get them back into the game. NASA might have had an interest because it later realized that its pristine view of space was about to get cluttered up with things like “space burials and cemeteries in space”. There would have been three Agencies battling for this new space responsibility.
It allowed OCST to pre-emptively claim responsibility for new commercial space business concepts such as cremains, manned space flight, reentry vehicles and completely reusable space vehicles like that of Burt Rutan’s SpaceShipOne. This quietly plugged holes in the legislation without any fanfare. There was no subsequent repeat of the problem SSI and Starstruck encountered with so many Agencies. Nor were there any other battles for “lead agency” roles in space, such as the one in which DOC and DOT had recently participated. This wasn’t a power grab by OCST because OCST received no additional authority. But it did give the space legislation time to be tested and modified as new issues arose. (Note: readers will see that I frequently mention that I viewed OCST’s launch and payload authority as being broad enough to encompass human space flight. Why was that important? I didn’t believe commercial space flight should be regulated at all. However, human space flight constituted a huge vacuum that two other agencies, i.e. FAA or NASA, would find enticing. By claiming the authority for OCST and with our authority to waive the requirements of another agency, I was able to present the “face” to both agencies that we had it. This issue isn’t over. The first time human passengers fail to make it back home and an outcry arises for increased regulation, watch out for these two agencies which will claim they have the ability to “fix” the problem.)
Why Did DOT Get Authority to Approve Payloads?
There were not any new, creative uses of space being discussed when DOT became the “lead agency”. One has to remember that when the Commercial Space Launch Act was passed, there was no space industry. Only two companies, i.e. SSI and Starstruck, had actually launched private rockets and demonstrated they were serious. General Dynamics and McDonnell Douglas had not finalized their commercialization plans. Martin Marietta was still launching rockets for the USAF as a government contractor.When Congress gave OCST authority to review payloads there were some prevailing assumptions about private rockets:
- DOD’s and the government establishment’s prevailing concern was that a commercial space vehicle could be used as a ballistic missile. That viewpoint was expressed by a DOD official at a SIG (Space) working group meeting after we were selected as Lead Agency. That was one of the major reasons BATF, FCC, and other Agencies dragged out SSI’s and Starstruck’s approvals. In order to break free their respective approvals, I had to assert that we knew the launch was not for nefarious purposes.
- Most believed General Dynamics, McDonnell Douglas, and Martin Marietta were the real space industry and they launched satellites approved by FCC and DOC. The SSI’s and Starstrucks were exciting but inconsequential. No one could envision payloads other than communications and remote sensing satellites.
Thus, most people believed that OCST ‘s responsibility to authorize payloads (not otherwise approved by the FCC and DOC) was pretty much just to make sure no one slipped a bomb or some other payload not in the national interest into a private rocket.
Third, it permitted OCST to become a clearinghouse for new uses in space that might be launched aboard a company under OCST authority. There was a big chicken and egg conundrum emerging in the commercial space business. A viable launch industry needed more than just telecommunications and remote sensing satellites as a market if it was to grow. However, businesses with new space applications couldn’t buy a launch until the government said, “Go for it! We won’t shut that use of space down!” It gave business a place to go to get a fair review of a new space business without a moral judgment or assessment of the economic or human value of its concept
When SSI approached us about cremains, NASA had already rejected “burials in space” as an unacceptable payload for the space shuttle. Motorola came to OCST’s Licensing Division to talk about Iridium because NASA and the Air Force had already told them that the concept was not feasible; it would cost them too much to launch that entire 77 satellite constellation. Even though the Federal Communications Commission regulated telecommunications satellites, which was what Iridium was, Motorola needed to know that at least one government space agency (which we were by that time) thought their idea was feasible and that our licensing process would accommodate their large launch needs. Defence Advanced Research Projects Agency (DARPA) wanted OCST to approve COMET because: a) DARPA wanted to use a commercial re-entry vehicle and launch; and b) it wanted the protection of some Federal Agency making sure COMET was safe.