The commercial human spaceflight industry has experienced significant growth in recent years, with private companies like SpaceX, Blue Origin, and Virgin Galactic making strides in developing spacecraft capable of transporting humans to space. As the industry continues to evolve, the regulatory landscape surrounding commercial human spaceflight is also undergoing changes. The Federal Aviation Administration (FAA) has been tasked with overseeing the safety of these operations, but a statutory moratorium, known as the “learning period,” has limited the agency’s ability to regulate the safety of human occupants until May 11, 2024.
Legislative Background
The Commercial Space Launch Amendments Act of 2004 granted the FAA the authority to regulate the launch and re-entry of commercial spacecraft, including those carrying humans. However, the act also established an eight-year learning period, during which the FAA could not promulgate regulations designed to protect the safety of crew and spaceflight participants. This moratorium was intended to allow the nascent commercial spaceflight industry to develop without the burden of potential regulations.
The learning period has been extended several times, most recently until May 11, 2024, by the Airport and Airway Extension Act of 2024. Two bills introduced in the 118th Congress, H.R. 5617 and H.R. 6131, propose further extending the learning period to October 1, 2031.
FAA’s Current Authority and Responsibilities
Despite the learning period, the FAA maintains some regulatory authority under 51 U.S.C. §50905(c) and 14 C.F.R. §460. This authority allows the FAA to regulate commercial operators when restricting or prohibiting design features or operating practices that have resulted in serious or fatal injury or contributed to an event posing a high risk of such injury. The FAA can also impose requirements on spacecraft crew to protect public safety, focusing on crew qualifications, medical screening, life support, and other basic safety elements.
Industry Progress and Readiness Indicators
The Commercial Space Launch Competitiveness Act (CSLCA) of 2015 directed the FAA and its Commercial Space Transportation Advisory Committee (COMSTAC) to facilitate the development of voluntary industry consensus safety standards and a safety framework that may include regulation. The act also required the FAA to report on the industry’s progress toward developing these standards and framework, as well as metrics that could indicate the readiness of the industry and the FAA to transition to a new safety framework.
In 2017, the FAA delivered a report to Congress identifying possible safety framework features and detailing industry progress towards voluntary consensus standards development and adoption. The report also identified several “readiness indicators” that could be used to assess industry and FAA readiness to transition to a new safety framework.
Independent Assessment and Recommendations
The FAA contracted with the RAND Corporation to conduct an independent assessment of the industry’s progress towards developing and adopting voluntary consensus standards, as required by the CSLCA. In its 2023 report, RAND noted that while the commercial spaceflight industry had made some progress toward standards development, significant work remained to be done.
RAND concluded that the learning period should be allowed to expire, the development of voluntary consensus standards should continue, and the FAA should establish an Aerospace Rulemaking Committee to solicit industry input. In April 2023, the FAA created the Human Space Flight Occupant Safety Aerospace Rulemaking Committee in response to these recommendations.
FAA’s Preparations for Expanded Oversight
In its September 2023 report to Congress, the FAA stated that it believes both the industry and the agency are ready to develop and transition to a new safety framework. The FAA has tasked the Human Space Flight Occupant Safety Aerospace Rulemaking Committee with creating recommendations to guide the agency’s development of an initial set of rules following the expiration of the learning period.
The FAA anticipates that final rules will come into effect around April 2028, and the rulemaking process will be subject to the Administrative Procedure Act, which sets forth a structured process for promulgating regulations with opportunities for stakeholder input. The regulations may also be subject to congressional review before they can take effect.
Considerations for the Future
As the expiration of the learning period approaches, Congress must decide whether to extend the moratorium again or allow it to lapse. Stakeholders have raised questions about the FAA’s readiness to develop regulations, the industry’s ability to respond to draft regulations, and the potential impact of benefit-cost analyses on proposed regulations.
There are also concerns about the FAA’s resources and its ability to effectively regulate commercial human spaceflight while managing its other statutory duties. Some stakeholders argue that a high-profile accident could spur regulation, regardless of an extension to the moratorium, and that regulations methodically implemented with stakeholder buy-in would be preferable to those quickly implemented in reaction to an accident.
Conclusion
The commercial human spaceflight industry is at a critical juncture as it navigates the changing regulatory landscape. The expiration of the learning period and the potential for new safety regulations present both challenges and opportunities for the industry and the FAA.
As the industry continues to mature, it is essential that all stakeholders work together to ensure the safe and responsible development of commercial human spaceflight. This includes the continued development of voluntary consensus standards, open communication between the industry and the FAA, and a regulatory framework that prioritizes safety while fostering innovation and growth.
The decisions made by Congress and the FAA in the coming years will have a significant impact on the future of commercial human spaceflight. By striking the right balance between safety and progress, the United States can maintain its position as a leader in this exciting and rapidly evolving industry.
