Op-ed | In defense of regulation
Steve Blank’s op-ed of Feb. 5, “The FAA and SpaceX,” demands an informed rebuttal. Public debate over the appropriate level of regulation within any industry is appropriate in our democracy. However, Mr. Blank’s arguments lack grounding in the history and nature of private space activity regulation and he erroneously conflates that mission with the FAA’s primary task of regulating the safest transportation system in human history.
Startups and established commercial space businesses have a natural aversion to “regulation.” Regulation denotes restrictions on activity and increased costs in the form of fees, penalties, and nonproductive resources required just to handle the complexity of compliance. However, the space domain, and activities within, does by its nature demand oversight. Looking at just space transportation, the technologies that launch humans into space are fundamentally capable of hurling nuclear warheads between continents. Launch failures can and do result in serious harm to people and property and in-orbit breakups have already left us with a dangerous legacy of space debris. Critically, nation-states are treaty-bound to adhere to international rules that restrict the behavior of their citizens and corporations in space. In fact, launching states are liable for the space activities of private citizens. For these reasons, the U.S. government has traditionally laid a heavy hand in authorizing and supervising commercial space activity. Historically, this clearly slowed the development of our commercial space economy.
In its wisdom, the U.S. government noted several efforts to build a U.S. commercial space industry and reacted constructively. The 1984 Commercial Space Launch Act directed the Department of Transportation to oversee and coordinate commercial launches, to promote the industry and to establish appropriate safety standards. From this the Office of Commercial Space Transportation (now FAA AST) arose, along with the Commercial Space Transportation Advisory Committee, on which we both serve. And, as recently as 2018, Space Policy Directive-2 expressly looked to streamline regulations and further facilitate a strong U.S. commercial space industry.
Has American space regulation been a net hindrance or a net benefit? As with any regulatory regime, the record is likely mixed, and the answer lies in the eye of the beholder. However, there are a few quantifiable reasonable ways to measure regulatory success. The first is the health of the domestic industry being regulated. By all accounts the commercial space business is booming. Commercial space launches are an almost weekly event. Despite a pandemic, billions were invested in U.S. space companies in 2020. Bank of America and Morgan Stanley are projecting multi-trillion space economies within a couple of decades.
A second way to judge a regulatory environment is manifested in the locations of international corporate operations. In most industries, American firms are eagerly outsourcing operations abroad to locales they find more “business friendly.” In commercial space, however, foreign firms are coming to America. Virgin’s UK founder and his UAE investors could do business anywhere, but they have chosen California and New Mexico. When Rocket Lab launches from New Zealand, they do so under U.S. FAA AST licensing, by choice. Both Astroscale and ispace, Japanese-owned firms, have set up shop in Colorado for their U.S. practices with support from the Department of Commerce’s SelectUSA. While there is reason to be concerned over regulatory shopping, space entrepreneurs continue to place their trust in America, due in part because the regulatory environment is clearly defined, corruption free and highly functional.
Looking specifically at launch and reentry of rockets and spacecraft, FAA AST has jurisdiction, with or without crew or spaceflight participants (passengers). The primary purpose of this authority is to ensure protection of the uninvolved public. The agency does not require perfection in experimental rocket development so long as a company adheres to local, state, and federal requirements. In fact, this type of innovative testing program is exactly the sort of work the agency has a mandate to encourage, facilitate and promote. In human spaceflight systems, the agency has been prohibited by law from regulating safety standards for spaceflight participants since 2004 to enable a period of experimentation that will help support the development of commercial human spaceflight. That regulatory moratorium is currently set to expire in 2023. In preparation for that, COMSTAC has offered FAA AST areas where voluntary consensus standards can be established to enhance participant safety.
Balanced with its mandate to promote commercial space transportation activities, FAA AST must ensure that any test or operational launch or reentry event by any U.S. firm is unlikely to harm members of the U.S. public or to create an international incident. American lives and tax dollars require some level of oversight. Ensuring that space launches and re-entries do not present a threat to aircraft operating in the national airspace is also a critical FAA function.
We will not comment here whether the specifics of the recent SN9 test flight were appropriately handled, which is reasonable because we are not privy to the entirety of the information of the situation. FAA and SpaceX will exchange information on the case, and appropriate consideration or improvements should be made for future launches. In fact, we expect this incident is likely to improve the coordination, communication and overall safety of launch and reentry activity and its oversight by the FAA AST. Developing a “lessons learned” culture is one such practice from the aviation community that the space transportation community has been exploring.
Industry, and particularly commercial space transportation, is innovating and growing faster than the U.S. government can keep up. At some yet undetermined time, the space portfolio under the FAA will outgrow its position as aviation’s younger sibling. The promotion, facilitation, and regulation of a commercial space transportation industry regularly serving private customers will need alignment directly under the Secretary of Transportation to work alongside FAA as a peer agency ensuring the safety and efficacy of our transportation systems.
In the meantime, we must all remember that our regulators are public servants. Their efforts are integral to the success of the industry and whatever debate is had regarding its regulation must be factual and respectful to be productive. There is a reason why the space community often says, “space is hard,” and the hard part includes the regulatory process. All parties will play a role in securing safe and successful U.S. commercial space transportation. Industry’s responsibility is to understand, comment on, navigate, and adhere to current or future regulation. We also encourage new entrants to be engaged early in the regulatory process to understand the various rules and expectations. An adequately resourced FAA AST needs to continue improvements in bringing clarity and speed to licensing. And, yes, the public plays a role as well to be informed and engage on the unique requirements that the wider space industry needs to adhere to. While there will be differences of opinions, one thing is for certain: we are all interested in seeing a thriving and safe U.S. space industry.
Charity Weeden is vice president of global space policy at Astroscale U.S. and chair of FAA’s Commercial Space Transportation Advisory Committee (COMSTAC)
Dr. Greg Autry teaches in the ISU Center for Space Entrepreneurship at Florida Tech and is the Safety Working Group chair of FAA’s Commercial Space Transportation Advisory Committee (COMSTAC)
This article should only be interpreted as the opinion of the authors and does not reflect the position of the COMSTAC or the FAA.