House Hearing Reveals FAA-COMSTAC Rift on Learning Period for Commercial Human Spaceflight

George Nield, FAA’s Associate Administrator for Commercial Space Transportation, left no doubt today that he disagrees with a recommendation from his advisory committee, COMSTAC, to extend the “learning period” for commercial human spaceflight for eight years beyond when the first such spaceflight takes place.

In 2004, Congress passed a law strictly limiting the FAA’s authority to regulate the nascent commercial human spaceflight industry for eight years.  The idea was that the industry needed a learning period where it could fly people into space on a commercial basis without a heavy regulatory environment that might stifle their business.   Eight years later, however, not a single commercial human spaceflight had taken place, so Congress extended it for three more years, to September 30, 2015.

Now, Congress, the FAA and its Commercial Space Transportation Advisory Committee (COMSTAC) are debating whether there should be another extension considering that no commercial human spaceflights have taken place by now, either.

At a hearing before the Space Subcommittee of the House Science, Space and Technology Committee this afternoon (February 4, 2014), Nield was asked about his view on the possibility of extending the learning period.  Initially, he gave a careful answer to subcommittee chairman Rep. Steve Palazzo (R-MS) explaining the steps his office has been undertaking over the past year to solicit views, which culminated in circulation of a draft document and a request for comments.   His office is in the process of reviewing the comments that were received with a goal of trying to reach a consensus among industry, government and academia.

Later, though, Rep. Jim Bridenstine (R-OK) directly asked Nield if he agreed with COMSTAC’s recommendation that the learning period be set as eight years after the first flight carrying a spaceflight participant (a commercial passenger).  “No, I do not agree” Nield replied.  The United States has 50 years of human spaceflight experience, he explained, and “To put that aside and say ‘well, let’s start over’ without taking advantage of what we’ve learned I think is irresponsible.”  He added that he is “sensitive” to industry’s concern that government regulations might be “burdensome,” but that is not what his office desires.  “We want to enable safe and successful commercial operations,” he insisted.

George Washington University professor Henry Hertzfeld was cautious about the length of the learning period, saying it must be extended beyond 2015, but “there is no clear answer” as to when it should end.  He argued that an “arbitrary” period such as eight years was not advisable, but at “some point a judgment call” will be needed.

The hearing covered a wide array of other issues associated with updating the Commercial Space Launch Act (CSLA), which was enacted 30 years ago and has been amended several times since then.  Among them were the following.

• Whether CSLA should be amended to give FAA authority over on-orbit operations.  Currently the FAA regulates launch and reentry, but not what happens in orbit.   Nield argued that this “gap” should be filled by allowing FAA to regulate commercial space operations in orbit in addition to its current authority.
• Whether the scope of FAA’s authority to regulate commercial space activities should be restricted.   Hertzfeld pointed out that FAA does not have expertise in a number of commercial space activities now under discussion.   These include asteroid mining and lunar surface operations, yet some groups are looking to the FAA for guidance on what is allowed.   The United States is liable for activities of its non-governmental entities under the Outer Space Treaty, and Hertzfeld made the case for Congress to define the jurisdictional limits of CSLA and consider how to allocate regulatory authority to other agencies with appropriate expertise.
• How to enable more flexibility on the FAA’s part to allow companies with experimental permits to continue testing once they have a launch license.   Substantial discussion took place over the distinction between an experimental permit and a launch license and what companies can do with one or the other.
• Whether the federal government should preempt state governments regarding legal definition of the informed consent rules for spaceflight participants (passengers).  Several states have passed laws dictating what passengers must be told before boarding a flight, Hertzfeld said, but the wording is different.  He suggested the federal government might consider passing a national law that preempts state law to ensure adequate protection for passengers and that companies are competing in different states on a level playing field.

The hearing was more informational than decisive, discussing a range of areas where Congress might want to update CSLA, but with no clear agreement or disagreement on what is needed.  The top Democrat on the subcommittee, Rep. Donna Edwards (D-MD), called for “a thorough and thoughtful review” and this appears to be the opening step in that process.