Commercial Spaceflight Industry Pushes for Another Extension of Regulatory ‘Learning Period’

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WASHINGTON — With less than six months to go before a limitation on regulating U.S. commercial human spaceflight companies expires, industry and government officials have yet to find agreement on whether to extend the current arrangement or, if not, how to replace it.

Much of the discussion at a daylong meeting of the U.S. Federal Aviation Administration’s Commercial Space Transportation Advisory Committee (COMSTAC) here April 1 dealt with what many in the industry call the “learning period” that limits the FAA’s ability to regulate commercial human spaceflight.

A provision of the Commercial Space Launch Amendments Act of 2004 restricts the FAA’s ability to issue commercial spaceflight safety regulations except in cases of serious accidents or other high-risk incidents. The intent of the restriction was to allow companies to develop flight experience that could then be used as the basis for regulations.

SpaceShipTwo debris
Debris from Oct. 31 SpaceShipTwo accident. Credit: National Transportation Safety Board

The results of the ongoing investigation into last October’s fatal accident involving Virgin Galactic’s SpaceShipTwo suborbital vehicle could trigger a regulatory response, but the resulting rules would be tailored to the specifics of the incident and would not apply to the industry as a whole.

The learning period was originally set to expire in December 2012, eight years after the bill’s enactment, but it was extended in an FAA authorization bill in early 2012 to Oct. 1 of this year. With that new deadline now approaching, some are asking Congress to extend it again in commercial space launch legislation to be introduced in the coming weeks.

Proponents of the extension argue that it is premature to issue regulations given the slow development of vehicles and lack of flight experience. “We don’t want to start regulating based on the shape of the industry today in a fashion that prevents it from evolving,” Jeff Greason, chairman of XCOR Aerospace of Mojave, California, said during a discussion about the issue at the COMSTAC meeting.

The FAA, however, continues to be opposed to any extension of that regulatory restriction. “My concern is that we appear to be just kicking the can down the road,” said George Nield, FAA associate administrator for commercial space transportation.

Jeff Greason
“We don’t want to start regulating based on the shape of the industry today in a fashion that prevents it from evolving,” Jeff Greason, chairman of XCOR Aerospace said during a discussion about the issue at the COMSTAC meeting. Credit: Midland Airport

Nield said he understood industry’s concern that if the learning period expired, the FAA could enact “burdensome” regulations. “However, we have no plans for human spaceflight regulations in the near term,” he said.

Nield said he supported the development of industry-consensus standards that government could then refer to in later regulations it drafts. That approach, he said, is similar to the current regulatory regime for light sport aircraft, which has a far lighter regulatory burden than other parts of aviation.

“That would prevent an overreaction and hastily crafted, inappropriate regulations in response to some high-profile accident that could take place in the future,” Nield said.

Some COMSTAC members said they supported that approach, but argued that those standards should be developed during a multiyear extension of the current learning period. The committee debated and ultimately approved a recommendation that requests a five-year extension of the learning period, using that time for discussions with the FAA on safety practices and standards.

“What the industry is looking for is an atmosphere of certainty,” said Chris Kunstadter, chairman of COMSTAC’s business and legal working group, which brought up the proposed recommendation.

Other COMSTAC members, though, argued for a more rigorous regulatory regime. “I find it inconceivable that we’re going to have a lesser regulatory structure for commercial human spaceflight than we have for my Beech Bonanza” airplane, said Mike Griffin, former NASA administrator and currently the chairman and chief executive of Schaefer Corp. of Huntsville, Alabama.

The committee also considered as an alternative a partial extension of the learning period, extending it for five years for suborbital spaceflight but allowing it to expire for commercial human orbital spaceflight. That, some argued, would allow the FAA to develop regulations regarding the safety of commercial crew vehicles under development by Houston-based Boeing Space Exploration and SpaceX of Hawthorne, California, for NASA.

“My concern is that we’ve got NASA acting as a de facto regulator, and it scares me,” said COMSTAC Chairman Mike Gold, director of Washington operations and business growth for Bigelow Aerospace of North Las Vegas, Nevada. “NASA doesn’t want this job, but they are fearful that with FAA’s hands tied they are having to step into that position.” NASA-specific requirements, he said, could effectively become regulations for all commercial uses of such spacecraft.

The FAA and industry are waiting for congressional action on a potential extension of the learning period. A draft version of a Senate commercial launch bill, circulated to industry in March, would provide an extension of up to five years, according to those who have seen the bill.

The House is still working on its version of a commercial launch bill, Tom Hammond, staff director of the House Science space subcommittee, said in a presentation at the COMSTAC meeting. The learning period would be one of two top issues, along with an extension of third-party launch indemnification, that he expects the House bill to address.

The House bill could also cover a broader array of commercial space topics, from small satellites and orbital debris mitigation issues to asteroid resource property rights. Hammond said the House bill should be ready later this spring.