Delight Over ISS Extension, Debate Over Regulations Highlight 2014 FAA Commercial Space Conference

The FAA’s annual Commercial Space Transportation conference covered a lot of ground this week (February 5-6, 2014), but two topics were highlights:  the Obama Administration’s recent decision to extend operations of the International Space Station (ISS) by four more years and debate about the extent of government regulation of commercial human spaceflight.

Extending ISS to 2024.   NASA Associate Administrator for Human Exploration and Operations Bill Gerstenmaier opened the conference by noting progress in the commercial crew and cargo programs and how the business environment for those companies has improved with the decision to keep ISS operating through 2024.  Gerstenmaier praised that “tremendous decision” by the Obama Administration, announced last month, and the fact that it was made quickly rather than requiring independent reviews or extended debate.  Gerstenmaier acknowledged that it may take several years for the other partners in the ISS to decide if they will follow suit, but “I believe they will over time.”  (Editor’s Note:   As we pointed out in a recent editorial, SpacePolicyOnline.com does not share his enthusiasm for extending the ISS to 2024 without an independent technical review.)

He went on to praise Russia’s “innovative spirit … that pushes us in the right direction and helps us,” offering space tourism, the just-installed Earthkam, and the Olympic torch relay as examples:  “Think Russian, think commercial.”

Not surprisingly, the decision to extend ISS to 2024 was greeted warmly by the commercial crew and commercial cargo companies whose business plans benefit from the decision.   Representatives of Boeing, Orbital Sciences, SpaceX and Sierra Nevada participated in a panel discussion later that day along with Phil McAlister, NASA’s Director of Commercial Spaceflight.

McAlister said the decision took him by surprise, but he was delighted because “as of now we’ve never had a better business plan” for commercial crew.   Chris Ferguson, director of commercial crew for Boeing, praised the decision, but wondered what the industry will do after 2024.  “We really need to maintain this toehold” in low Earth orbit (LEO), he stressed, then asked rhetorically whether ISS will be extended to 2028 or will there be a market for commercial LEO stations.  “We have to have a destination in low Earth orbit or we’ll struggle to keep the business model going,” he concluded.

McAlister was asked why ISS was extended only to 2024 instead of 2028 (when the first ISS modules will be 30 years old, a timeframe NASA has been discussing for quite some time), but said he had no insight into that decision.

Regulating Commercial Human Spaceflight.  Another panel debated the regulatory environment for commercial human spaceflight.  Moderated by Wayne Hale, it had an interesting group of participants– a former astronaut, Ken Reightler; an economist with the Federal Trade Commission (FTC), Ken Heyer; a Boeing lawyer, Russ McMurry; and a commercial space industry political insider, Jim Muncy.  Collectively they offered a range of views on the issues of informed consent and the role, if any, for government regulation beyond what is already provided by the 2004 Commercial Space Launch Act Amendments (CSLAA).  Muncy was substituting for XCOR’s Jeff Greason.  All were speaking in their personal capacities.

The primary areas of contention were the need for government regulation versus voluntary industry standards and how to ensure spaceflight participants (passengers) really do have informed consent when deciding whether or not to step aboard an orbital or suborbital commercial human spaceflight vehicle.

Under the informed consent provisions of CSLAA, companies must explain the risks and provide information on their vehicle’s safety record.  Prospective passengers then make their own decisions on whether to board the flight.  CSLAA prohibits the FAA from adding more regulations for a fixed period of time except under certain conditions (like a fatal accident) and one of the debates is over whether this “moratorium” or “learning period” should be extended beyond its current expiration date of September 30, 2015.

Generally, Reightler and McMurry argued in favor of some level of government regulation, while Heyer and Muncy questioned the need for anything beyond current law.

Heyer, the economist, focused on whether or not there is a market failure that makes it essential for the government to step in.   He does not see one now.  McMurry took the position that the government is the repository of lessons learned from 50 years of human spaceflight and “the more we push government away” the more “we fail to avail ourselves of some valuable lessons learned.”   Muncy agreed that it would be “insane” to not take advantage of government help in developing space systems that are as safe as possible, but “there are a thousand ways” to do that “other than writing regulations.”

McMurry disagreed, worrying that companies who chafe at oversight by a government that has 50 years of experience in human spaceflight are exactly the ones that will “ruin the industry by creating a death that is avoidable” because they will adhere only to minimum safety standards.  Reightler agreed with McMurry, cautioning that a spaceflight accident will get more public attention than a train wreck, for example.

McMurry went further, arguing that industry self-regulation lends itself to manipulation of the rules in order to turn situations to a competitive advantage.  He likened it to the difference between a pick-up sports game versus a game with a referee: “If you really want fairness and … equality, you need regulations. To what extent?  Up for debate. But we need a referee.”  Heyer argued that in most industries consumers are the referees.  If they do not approve of a company, they take their business elsewhere.  He wondered why it would be different in this case.

At the end, the panelists were asked if they, personally, would fly on one of the commercial vehicles, which elicited some of the more entertaining answers of the day.   Reightler – who flew on two space shuttle missions – offered what he said was a good engineer’s answer:  “it depends.”   In this case, it would depend on the details, into which he would dive deeply.  Heyer asked “will it cost money?” evoking jokes that that was a good economist’s answer.  He added, however, “even if it was perfectly safe I still might not do it.”  More broadly, he said the question is whether the average person will fly.  He thinks the initial market will be wealthy thrill-seekers and scientists who have experiments to conduct, not the average person.   McMurry displayed company loyalty:   “If it ain’t Boeing, I ain’t going.”  Muncy said he would be delighted to go, “but I’m not paying for the ticket.”

Other Notable Notes from the Conference

• Congressional staffers for the Senate and House committees with jurisdiction over NASA authorizations and the Commercial Space Launch Act (CSLA) said that their committees hope to be able to move forward on a new NASA authorization bill and an update of CSLA this year.  Both committees marked up a NASA authorization bill last year, but neither was reported from committee.  Ann Zulkosky of the Senate Commerce Committee noted that this is an election year, so there will be little time legislatively to complete this work, so they hope to get action underway this spring.  The House Science, Space and Technology Committee held a hearing on CSLA the day before the conference that served to tee up the issues likely to arise in updating that law.  Tom Hammond of the House committee staff added that additional issues may also arise within his committee including topics in the SOARS bill (H.R. 3038), FCC’s role in spectrum management, NOAA’s commercial remote sensing policy, export controls, and authorization of FAA’s Office of Commercial Space Transportation.
• During his panel discussion, Wayne Hale asked about the panelists’ reactions to concern expressed by NASA’s Aerospace Safety Advisory Panel (ASAP) that safety is not the top priority in NASA’s next round of commercial crew bids.   The January 2014 ASAP report criticized the priorities in NASA’s selection criteria because the first factor that will determine who wins is cost, not safety.  Muncy said the issue is misunderstood.   He argued that to enter a responsible bid in the first place a company must meet NASA’s threshold requirements for safety.  “I don’t believe it’s fair to say that safety is less [important] than price, because you have to be safe … to even be under consideration.”  McMurry disagreed, saying to him it means companies are incentivized to meet only the “bare minimum safety standards.”
• McMurry was on a separate panel the next day explaining the activities of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC), where he is vice-chair of the Business/Legal working group.  Among the issues they plan to debate this year is the legal and regulatory regime for mining celestial bodies.  Interestingly, at Tuesday’s House hearing on CSLA, George Washington University professor Henry Hertzfeld argued for ensuring that agencies that are given authority to regulate space activities have requisite expertise.  He specifically mentioned asteroid mining and lunar resource extraction as areas when FAA does not have that expertise.
• Richard DalBello, Assistant Director for Space and Aeronautics at the White House Office of Science and Technology Policy, focused his comments on the Administration’s approach to innovation.   In response to a question, he lauded the flexibility possible under the “Other Transaction Authority” (OTA) provision of NASA’s organic act.  One of the weakest links between innovation and government contracting is a belief that the lawyers “won’t let us do that,” he said, but to the contrary he finds “all sorts of creativity can be brought by lawyers, you just have to ask the question. … Flexibility exists out there and people need to start using it.”
• FAA’s Associate Administrator for Commercial Space Transportation George Nield closed the conference by summarizing the testimony he gave at Tuesday’s hearing.  Among other topics, he reiterated —
  • FAA’s support of an Administration request for Congress to amend CSLAA to add a new category of occupants — government astronauts — on commercial spaceflights (in addition to the crew and spaceflight participants);
  • his request that his office be given authority to regulate in-orbit commercial activities in addition to launch and reentry; and
  • his position that the learning period for commercial human spaceflight not be extended past the current September 30, 2015 expiration date.  He said the FAA has three tools to oversee the safety of commercial spaceflight, and if one of them — regulations — is taken off the table, it is tying one hand behind their back.  In order to prevent “bad actors” from entering the marketplace who could have an accident and set back the entire industry, the FAA needs to be able to issue and enforce independent safety standards, regulations or other objective criteria against which to measure vehicle designs and operations, he stressed.