WASHINGTON — As two companies prepare to begin or resume commercial suborbital human spaceflights, they are facing uncertainty about how the safety of the people on those flights will be regulated.
Virgin Galactic conducted its first commercial flight of its VSS Unity SpaceShipTwo vehicle June 29, flying three Italian payload specialists on a research mission designated Galactic 01. The company plans to begin monthly flights of private astronauts on that vehicle as soon as early August.
It joins Blue Origin, which started flying paying customers on its New Shepard suborbital vehicle in 2021. New Shepard has been grounded after an engine problem on a September 2022 payload-only flight, although Bob Smith, chief executive of Blue Origin, said at a June 6 conference that the company would be ready to resume flights “within the next few weeks.” The company has not provided any further updates on flight plans.
Both companies operate under a regulatory regime by the Federal Aviation Administration that focuses on the safety of the uninvolved public. Federal law sharply restricts the FAA’s ability to enact regulations for the safety of spaceflight participants on commercial vehicles. This restriction, called a “moratorium” by some in the field and a “learning period” by others, limits the FAA’s ability to enact such regulations to accidents that caused death or injury, or had the potential to cause death or injury.
That restriction was included in the Commercial Space Launch Amendments Act of 2004 and, at the time, was to last eight years, giving industry time to build up flight experience upon which regulations could be based. It has been extended several times and is now currently set to expire at the end of September.
Many in industry have been lobbying for another extension, arguing that companies are only now beginning to fly vehicles on a routine basis, allowing them to develop that experience the restriction was designed to foster.
“The issue of the learning period is, should the government be limited to only regulate if there is evidence requiring regulation or should they be allowed to regulate prospectively without data, without any specific reason to regulate?” said Jim Muncy of PoliSpace during a panel discussion on the topic by the Beyond Earth Institute in May.
A report by the RAND Corporation in April, though, recommended that the current restrictions be allowed to expire this year. It concluded that doing so would allow the FAA and industry to move forward on developing regulations in gradual, coordinated process.
“It doesn’t mean we’re recommending a large stockpile of regulations immediately. In fact, it’s just the opposite,” said Bruce McClintock, senior policy researcher at RAND, during the Beyond Earth webinar. “We would broadly call this expanding the learning period to include more tools and resources.”
It’s unclear if the current restriction can be extended. The House and Senate have been working on their versions of reauthorization legislation for the FAA, but neither currently includes any language about the learning period. The House Science Committee is working on a separate commercial space bill that could address the issue. However, any bill faces long odds of passage before Oct. 1.
“We have a divided Congress, so the ability to move an extension through may be a bit challenging this year,” said Caryn Schenewerk, president of CS Consulting who previously worked on regulatory issues for Relativity Space and SpaceX, during the webinar. Failure to achieve an extension, she said, may be less of an active decision by Congress than a side effect of broader debates between the Republican-led House and Democratic-led Senate.
Should the restriction expire on Oct. 1, FAA officials have said they do not have a set of regulations ready to be enacted, but are looking at ways of cooperating with industry to shorten the development time for spaceflight participant safety rules.
Mike Moses, president of spaceline missions and safety at Virgin Galactic, said in an interview after the Galactic 01 flight he has been encouraged about discussions his company, along with Blue Origin and SpaceX, have had with the FAA on how regulations could be developed.
“The idea would be to take the data we’ve learned and use that to craft very specific, focused development areas,” he said, emphasizing the need for performance-based regulations given the different technical approaches those three companies are taking for human spaceflight. “One set of regulations just won’t apply to all.”
He also played down any impact on the industry, or the debate on regulations, from the June 18 accident of a commercial deep-sea submersible, Titan, built and operated by OceanGate. That accident, which killed the five people on board, raised scrutiny about the level of regulation of that industry and parallels with commercial spaceflight, given both are forms of adventure tourism with similar clientele; one of the people killed on Titan, Hamish Harding, flew on Blue Origin’s New Shepard in 2022.
Moses said any comparison of that accident with commercial spaceflight is an “apples-to-oranges” one given that there is existing regulation of commercial spacecraft to protect the uninvolved public. “It certainly drives accountability. You’re not totally unsupervised,” he said. “It’s a very different thing in comparison to OceanGate.”