FAA Reauthorization Clears Congress, Extends Learning Period

The House has passed the 5-year FAA Reauthorization bill, clearing it for the President who is expected to sign it before a temporary authorization expires on Friday. One provision extends the so-called learning period until January 1, 2025. Until then, the FAA is prohibited from promulgating new regulations for commercial human spaceflight, a restriction in place since 2004.

The FAA must be reauthorized every 5 years. The agency has been operating under a series of temporary measures since the last authorization expired on September 30. House passage of H.R. 3935 yesterday, as amended by the Senate last week, gives it another 5 years.

The learning period, or moratorium, for commercial human spaceflight regulations usually is dealt with in commercial space legislation. The most recent commercial space bill, enacted in 2015, set September 30, 2023 as the expiration date for the restriction, with the Secretary of Transportation allowed to propose new regulations starting October 1, 2023.

The House and Senate have new bills under consideration, but nothing has passed either chamber. The FAA bills are being used to bridge the gap. The House committee-approved commercial space bill (H.R. 6131) would extend the learning period until 2031. A Senate bill has been introduced (S. 4064) that would extend it for 5 years from whenever the bill is enacted, but also includes a sunset provision. New regulations are permitted after that.

For now, Section 1111 of this 1083-page FAA Reauthorization Act prevents the FAA from issuing new regulations until January 1, 2025.

Congress created the learning period in the Commercial Space Launch Amendments Act of 2004 when commercial human spaceflights were expected to begin soon. The premise was that Congress should not stifle this nascent business with a heavy hand of regulation, but instead wait until a sufficient number of flights took place to discern what regulations might be needed. They chose 8 years as that period of time. Until then, crew members must meet certain qualifications, but passengers need only give their “informed consent” that they understand the risks.

It took much longer than expected for the first commercial human spaceflight so the prohibition has been repeatedly extended, most recently in the 2015 Commercial Space Launch Competitiveness Act (P.L. 114-90). That law encouraged the development of voluntary consensus industry standards, but little progress has been made.

Last year the FAA created an Aerospace Rulemaking Committee, or SpARC, co-chaired by representatives of the FAA and the commercial human spaceflight industry to “solicit information, concerns, opinions, and recommendations about potential commercial human space flight occupant safety regulations from industry.”

The first U.S. commercial human spaceflight arguably was Blue Origin’s suborbital New Shepard-16 (NS-16) launch in July 2021, although some count SpaceX’s 2020 Crew Dragon test flight, Demo-2, as the first. Crew Dragon was developed through a NASA-SpaceX Public-Private Partnership where the two shared development costs, but the company designed the vehicle and retains ownership of it while NASA simply purchases services once it was certified as safe for NASA astronauts. Boeing is developing its own commercial crew system, Starliner, under a similar agreement.

Crew Dragon now routinely launches astronauts to the International Space Station for NASA and also is used for what might be considered more traditional commercial missions as well. SpaceX itself and Axiom Space sell orbital flights aboard Crew Dragon. The first, Inspiration4, arranged between billionaire Jared Isaacman and SpaceX, spent three days in Earth orbit in 2022. Three Axiom flights have docked with the International Space Station. Isaacman and Axiom have more private astronaut flights planned.

In the suborbital market, Blue Origin’s competitor is Virgin Galactic. It flew company employees, including founder Richard Branson, on test flights before New Shepard-16, but they were not commercial. Virgin Galactic’s first commercial flight was in June 2023, Galactic-01.

Blue Origin suspended passenger flights after a launch failure in September 2022 on a mission that did not carry any people, only science experiments. New Shepard returned to flight in December 2023 without anyone onboard.  The first post-failure launch with six passengers is scheduled for this coming Sunday.