Since 2004, a Congressionally protected learning period has stopped the Federal Aviation Administration from regulating the safety of space flight participants (aka “passengers” in ordinary language) on board commercial space flights. This “moratorium” is scheduled to expire October 1, 2023. The House Speaker recently introduced a short bill that would extend the learning period until 2031.
Background. The moratorium grants the human spaceflight industry a learning period similar to the one the aviation industry had in the early 1900s. Aviation saw several decades of experimentation, progress, and innovation before the FAA began regulating it. The commercial space sector wanted the same before it would be required to contend with regulatory drag. Regulations are expensive for both the public and private sector. Without the FAA imposing regulatory criteria, the commercial sector has birthed a variety of designs, from winged vehicles to capsules. Regulation can stifle that innovation, and deprive us of new technology and development speed. Careful consideration should precede a decision that more regulation is necessary.
Commercial spaceflight companies have started to launch and reenter space flight participants, but those flights still number fewer than fifty according to the FAA’s website.[1] Does this mean it’s time to let the moratorium expire so the FAA can begin regulating the safety of people on board? Not according to the FAA’s own metrics. Under the FAA’s criteria, industry is not yet “ready” for regulation.
As an initial point of order, let us acknowledge what a strange word the FAA’s use of “readiness” is in this context. “Readiness” makes regulation sound like something eagerly anticipated. The usual way of looking at regulation, however, is to ascertain whether it is necessary, not whether someone is “ready” for it. If an industry is regularly harming the public or its passengers, fouling the nation’s waterways, or otherwise causing avoidable harm, we might speak of that industry “requiring” regulation to avoid deaths or other damage to public health and safety. Instead, here we see a regulator in search of a problem to regulate. The Rand Report that the FAA commissioned—apparently to accomplish a sharp turnaround from its earlier conclusions—admits that its review found no specific hazard or problem establishing a need for regulation.
During the learning period, Congress allows the FAA to issue regulations governing the design or operation of a vehicle to protect the health and safety of crew, government astronauts, and spaceflight participants under certain conditions: until October 1, 2023, the FAA may issue regulations to address design features or operating practices that resulted in death, a serious injury, or an event that posed a high risk of causing death or serious injury. To date, despite at least one launch failure resulting in death, the FAA has not taken advantage of its opportunities to regulate for occupant safety.
The FAA’s own criteria. Congress directed the FAA to come up with criteria for determining when the FAA and the industry needed regulation, and the FAA prepared a report identifying those metrics in 2017. The FAA recommended three areas for assessing industry “readiness”: the purpose of space travel, the size and complexity of the industry, and the industry’s safety record. The first and third metrics are of interest here. The FAA expects “the public’s expectation of safety to increase as the purpose of flying to space evolves from adventure, to occupation, to transportation.” Safety may require regulation if, for example, there is evidence of unsafe operations, if industry has trouble attracting new customers, and if insurance companies are unwilling to insure spaceflight participants. The report noted that the FAA’s own readiness to regulate depends, in relevant part, on whether it has the necessary expertise in human spaceflight safety. In 2019, again in response to congressional direction and noting the paucity of commercial activity, the FAA assessed its readiness indicators and concluded that “there are no commercial human spaceflight activities that are ready for a new safety framework that may include regulatory action.”
Since then, human space flights under FAA license have added up to fewer than fifty rather than the thousands originally predicted. Even counting flight crew and government astronauts, the industry is not seeing thousands of persons heading to space for work yet, and we have not come close to the 10,000 launches the FAA predicted back in 2004. It remains an adventure ride. The FAA-commissioned Rand report stated, in fact, that the “commercial human spaceflight industry appears almost solely focused on adventure as the purpose of spaceflight participant (i.e., noncrew) travel, and this appears likely to remain the case for at least the next several years.” Additionally, Rand identified no particular safety regulations to recommend, but nonetheless would have the FAA reverse its earlier conclusions.
The Rand Report itself highlights the lack of need for regulation yet. Without regard to how little has changed, Rand attempted to pronounce industry and the FAA “ready” for regulation. It should have looked instead at whether regulation was necessary.
Is regulation necessary? So far, no one has made that case. The FAA itself does not appear to consider regulation necessary yet. The agency has not, for example, issued regulations in response to a fatal accident a number of years ago, although Congress would have allowed the FAA to do so. Many commenters make the circular assumption that if something is unregulated it therefore needs to be. Rather than speaking of a lack of regulation as an unproven flaw, proponents should be able to say whether industry has shown itself somehow careless of occupant safety. Have there been avoidable deaths or injuries? Phrasing the inquiry as one of readiness hides the real question, which is whether regulation is necessary.
Before Congress allows the moratorium to end, it should determine whether fewer than fifty commercial human space flights provide sufficient data to determine whether something needs to be regulated. Next, Congress should determine whether the FAA would impose the subjective and relatively standardless and non-transparent system safety process it has shown a predilection for in the past? It’s perhaps late in the day to do that kind of homework by October 1, but that doesn’t mean it’s too late to extend the learning period for another few years while the homework gets done. In the meantime, should needs arise, the FAA’s hands are not tied.
Finally, to even further allay concerns, it should be noted that current FAA regulations do protect people on board. Specifically, the FAA’s regulations protect crew members because the crew protects the public on the ground. As a practical matter protection of the crew results in protection of other persons on board, including spaceflight participants. For example, the FAA requirement for life-sustaining atmospheric conditions for all of a vehicle’s inhabited areas is allowed under the moratorium for the protection of the flight crew. The FAA already has many other similar crew-focused safety measures in place, many of which protect other vehicle occupants, too. Accordingly, as the industry develops and grows, and as the FAA continues to regulate for occupant safety in a constrained and limited way, an extension of the learning period would allow for the proper balance between innovation and governmental oversight.
[1] https://www.faa.gov/data_research/commercial_space_data (last checked Sept. 11 2023).