Editorial | FAA Deserves Extra Credit for Safety Dialog

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When Paul Allen and Burt Rutan’s SpaceShipOne snagged the $10 million Ansari X Prize in the fall of 2004 by flying to suborbital space twice within a week, many reasonably assumed that more such jaunts — with paying passengers on board — would soon follow. Few would have imagined that eight years would fly by without another flight. But that’s what has happened.

Virgin Galactic, the suborbital spaceflight industry’s well-financed frontrunner, says it is on track to begin powered test flights of the six-passenger SpaceShipTwo by year’s end with ticketed flights to follow in 2013. If the New Mexico-based company holds to this schedule, it still stands to benefit from a regulatory amnesty period the United States enacted in late 2004 to nurture the still nascent commercial human spaceflight sector.

But just barely.

A key provision of the 2004 Commercial Space Launch Amendments Act that Congress sent to the president’s desk within two months of SpaceShipOne’s prize-winning flight is set to expire on Oct. 1, 2015. It would have expired this December if lawmakers had not passed a bare-minimum extension in February.

The Commercial Space Launch Amendments Act did three important things: First, it gave the Federal Aviation Administration (FAA) clear jurisdiction over private human spaceflight; second, it established an experimental-permit regime meant to fast track flight tests; and third, it barred the FAA for eight years from writing rules designed solely for the protection of passengers and crew flying aboard these brand-new vehicles.

Only this last provision, meant to prevent the FAA from snarling operators in a jumble of best-guess dos and don’ts, is subject to an expiration date.

Proponents cast the partial ban on rule making as a “learning period” meant to allow human spaceflight regulatory standards to evolve without stifling innovation or subjecting passengers and crew to undue risk.

The FAA, of course, remains free to act during the amnesty period to protect public safety — by dictating through the licensing process, for example, where and when these vehicles can fly. Lawmakers back in 2004 also carved out an important exception to the rule-making moratorium that allows the FAA to ban vehicle design features or operating practices that kill or seriously injure crew or passengers, or contribute to a close call that could easily have done so.

However, the underlying notion of letting early passengers fly at their own risk — these are people, after all, who can afford to pay $200,000 for a 90-minute joyride — is essential for allowing the industry to take flight without being weighed down by overregulation.

It has taken longer than many imagined, but the suborbital human spaceflight industry finally appears ready for takeoff. And thanks to NASA, the FAA already finds itself licensing one commercial operator — Space Exploration Technologies — that’s now flown its first quasi-commercial cargo mission to the international space station and is champing at the bit to launch astronauts.

The last thing commercial human spaceflight operators need during the early going is a shelf full of rules approximating those the FAA imposes on an airline industry that carries millions of passengers every day.

But just because the FAA doesn’t have free rein to regulate doesn’t mean it has no responsibility to promote crew and passenger safety.

Congress made this fairly plain in February when it passed the FAA Modernization and Reform Act of 2012. “Nothing in this provision is intended to prohibit the FAA and industry stakeholders from entering into discussions intended to prepare the FAA for its role in appropriately regulating the commercial space flight industry when the provision expires,” lawmakers wrote in a report accompanying the bill.

What’s more, industry is eager to engage the FAA in a safety dialog.

Yet FAA lawyers took a heap of persuading to allow the agency’s Office of Commercial Space Transportation to begin these discussions. Only part of the concern, FAA officials have said, was running afoul of the spirit of the rule-making moratorium. The broader objection pertained to a longstanding federal law that governs the federal rule-making process. The Administrative Procedures Act, which dates back to 1946, is very strict about when and how federal officials may share their thinking about future regulations. Violators can go to jail.

It was no small matter, therefore, for the Office of Commercial Space Transportation to organize a series of monthly public telephone calls, starting in August, to give industry a forum for sharing its views on improving safety while avoiding imprudent regulations.

It’s a good start, but more can be done.

For starters, Congress should extend the learning period beyond 2015. House lawmakers were on the right track when they voted to restart the clock at eight years from the time of the first licensed flight. House and Senate conferees, unfortunately, limited the extension to the three-year duration of the authorization bill itself.

Next, Congress should give the Office of Commercial Space Transportation a small funding boost, focusing the additional money on fielding experts, not putting more bureaucrats in Washington. Currently budgeted at $16 million, the 70-person organization needs to staff up its field offices so that its technical experts can work alongside operators as this industry evolves. A lessons-learned database, maintained with industry’s cooperation and structured to protect proprietary information, would help ensure little problems don’t become big problems; any mistake could be very costly to the whole industry, not just the company that made it.

Finally, the Office of Commercial Space Transportation needs to remember its dual mandate to regulate and promote the U.S. commercial spaceflight industry. The FAA can and should use this promotional mandate to issue safety advisories aimed at heading off accidents.

Because one mishap could be all it takes to bring the hopes of an entire industry tumbling back to Earth.