The Federal Aviation Administration joins the 'Space Race'

The Federal Aviation Administration (FAA) has finally decided to join the "Space Race." After years of hesitation and equivocation, the FAA has taken steps to finalize its regulations governing commercial space launches. Much, however, remains to be done.

The United States Department of Transportation (DOT), of which FAA is the aircraft/airspace regulatory arm, first enacted regulation to structure the operation of the commercial airspace industry in the Commercial Space Launch Act of 1984, which was recodified in 2010 at 51 U.S.C. 50901-50923. The Space Launch Act authorizes the DOT, and, through DOT's power of delegation, the FAA Office of Commercial Space Transportation, to oversee, authorize and regulate both launches and reentries of launch and entry vehicles, and the operation of launch and reentry sites when operated within the US, or by US citizens in other countries.

The Space Launch Act also gives FAA broad responsibility to exercise its power consistently with public health and safety, safety of property, and the national security and foreign policy interests of the United States. The Act also directs the FAA to "encourage, facilitate, and promote" commercial space launches and reentries by the private sector.

This statutory authority technically allows FAA to regulate the safety of human passengers. However, a "statutory moratorium," or "learning period" was instituted for the purpose of allowing the FAA to catch up with the racing progress of space industry operational technology. It therefore limited the FAA's ability to assume its human safety regulatory responsibilities, first until May 11, 2024, a period that has only recently expired. Two bills now in the 118^th Congress, H.R. 5617 and 6131, would extend the "learning period" until Oct. 2031.

To complicate issues even further, the FAA's regulatory authority under 51 U.S.C. 50905(c) is not subject to the "Learning Period" moratorium. This authority allows FAA regulation of commercial operations when restricting or prohibiting design features or operating practices that have resulted in serious injury or death or contributed to an event posing a high risk of serious injury.  For example, the FAA may impose requirements on the crew of a spacecraft in support of the Agency's mission to protect public safety, pursuant to FAA regulation 14 C.F.R. Section 460, as the crew is considered to be part of the "flight safety system" of the aircraft. The safety requirements imposed on a crew include operational qualifications, medical screening, life support, and other basic safety elements. In addition, 14 C.F.R. 460.41- 460.53 requires that all human occupants be informed, in writing, of potential risks.

"Safety" itself, however, is a multi-faceted concept. The FAA's analysis includes both quantitative and qualitative factors. The quantitative factors include: (1) reliability of the function of safety-critical systems; (2) hazards, if any, associated with those systems; and (3) risk to the public near the launch sites, as well as in the flight path and upon reentry. Qualitative risks include the organizational attributes of the applicant such as adopted launch safety policies.

"Risk" is also defined in various ways. As a general proposition, "Risk" is "the product of the probability of the occurrence of an event and the consequences of that event." FAA Publication, "Commercial Space Transportation," 10/1718, p.20. More specifically, the definition of "risk" is parsed by "collective and individual risk criteria." Risk levels to the collective members of the public exposed to vehicle hazards (debris, toxics, and far-afield blast overpressure) must not exceed an expected average of 1 x 10 4^th casualties permission. Risk levels to individuals must not exceed 1 x 10 6^th per mission.

In the last analysis, the FAA requires an operation to use a three-pronged approach to public safety pursuant to the requirements of FAA Regulation 14 C.F.R. 431: (1) acceptable public risk; (2) structured application of system safety engineering and management principles, criteria and techniques; and (3) ensuring that risks do not exceed the design capabilities of the system.

Finally, despite the complexity of implementing its relatively recent safety and operational requirements, the FAA has added yet another -- compliance with the requirements of the National Environmental Policy Act, 42 U.S.C. 4321 (NEPA). NEPA requires that the environmental impacts of federally-implemented projects be thoroughly analyzed with respect to, among many other things, air and water quality and noise impacts. The problem with imposing NEPA requirements on space launches is that NEPA was created to document and mitigate environmental impacts on uses on the ground and underwater. Impacts resulting from space launches, however, may demonstrate a whole new set of impacts which are as yet unascertained.

In short, federal law and regulation governing operations to, and in space are not yet complete, and according to Congress may not even be well understood by the FAA -- the agency with sole regulatory authority over operations in space. It will likely take years of scientific study and debate before a definitive regulatory panorama can be developed. Meanwhile, it appears that private industry will be vested with the authority to create, operate, and analyze commercial space operations.