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Private space companies avoid FAA oversight again, with Congress' blessing

Private space companies avoid FAA oversight again, with Congress' blessing


Plus: asteroid miners’ rights!

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This week, President Obama is expected to sign into law a critical bill for the commercial spaceflight sector — one that prevents the government from regulating private space travel for the next eight years. Under the legislation, the Federal Aviation Administration is restricted from issuing standards for commercial spacecraft, as it does for the commercial airline industry, until 2023 at the earliest. The new bill will also keep the International Space Station running through 2024, as well as give companies the rights to any items they’ve collected in space.

The Senate passed the bill H.R. 2262, also known as the US Commercial Space Launch Competitiveness Act, last week, and both the House and the Senate have expressed support for it. House Majority Leader Kevin McCarthy has scheduled the bill for final approval this afternoon. After it passes, it goes to the president for his official signature.

Private space travel is still considered young

Many prominent commercial space companies — including SpaceX, Blue Origin, and Virgin Galactic — have applauded H.R. 2262. The legislation means that private space travel is still considered young, and lawmakers have given the industry more time to experiment and gather data."It allows the industry to grow, to test, and to develop without this overshadow of the regulatory hammer coming down on them," Eric Stallmer, president of the Commercial Spaceflight Federation, a non-profit aimed at promoting commercial spaceflight development, told The Verge. It also means that people participating in private spaceflight do so at their own risks, and there are no government regulations in place specifically to keep them safe.

Space travel isn’t that safe, of course; nearly 1 in 10 rockets fail, though most vehicles that go into space these days don’t have crew members on board. The FAA is concerned about the spacecraft that will carry people, though, which is why the agency doesn’t seem supportive of the learning period extension. In February of 2014, George Nield, head of the FAA Office of Commercial Space Transportation, testified before the House Subcommittee on Space that he thinks it's time for the period to expire. Nield said he understands that many in the industry fear overregulation by the FAA, but that his office is more concerned with ensuring crew safety than issuing "burdensome" standards. "We want to enable safe and successful commercial operations," he testified.

Regulatory Learning Period

The advent of private spaceflight began in the 1960s, but the industry has only started growing rapidly this decade. To address this expansion, Congress passed the Commercial Space Launch Amendments Act in 2004. It granted the private sector a "learning period" free of regulation. The learning period was set to expire in December 2012 but was granted two short extensions. H.R. 2262 will extend the period for a further eight years, through September 30th, 2023.

The FAA still has some authority to regulate the commercial sector

During the learning period, the FAA still has some authority to regulate the commercial sector. The agency is responsible for issuing licenses for rocket launches and for vehicles re-entering Earth's atmosphere. The agency’s main concern is to ensure that launch vehicles aren’t immediate threats to the uninvolved public and property. Under this legislation, the FAA is restricted from issuing licenses specifically pertaining to the safety of a spacecraft's crew or passengers. Right now, people who participate in commercial spaceflight do so through "informed consent" — meaning they know that they're partaking in an endeavor that could easily kill them. Before these participants can fly, they must sign a document that says spaceflight is inherently dangerous and they understand the risks associated with it.

The end of the learning period would allow the FAA to issue standards related to crew safety — but it also means the agency could issue standards for anything else in relation to commercial spaceflight. For example, the agency could dictate specifically how engines or vehicles should be designed and built, similar to how the FAA oversees the commercial aviation industry.

NTSB investigators stand next to the crash site of SpaceShipTwo. (NTSB)

The FAA hasn't expressed interest in doing this, but Nield noted in his 2014 testimony that the agency wants to regulate spaceflight activities that take place in orbit; for instance, the FAA wants to issue standards for collision avoidance. The agency also hinted it might try to regulate commercial crew safety following last year's Virgin Galactic crash, in which a pilot was killed during a test flight of the company's SpaceShipTwo vehicle. The initial regulatory learning period allowed the FAA to issue regulations in direct response to a serious commercial space travel accident, and the SpaceShipTwo crash was the first commercial flight to result in a fatality. The FAA told Bloomberg that the agency may want additional regulations following an accident investigation, without saying what those might entail.

H.R. 2262 still maintains the FAA's ability to issue regulations in the event of a fatal accident, however those regulations must specifically address the accident itself and wouldn't apply to the entire industry. Stallmer, of the Commercial Spaceflight Federation, argued that there will be a time when more regulations are needed — after this learning period is over, without saying when that would be. He hopes that any new standards will stem from extensive dialogue between the government and commercial sectors, as companies continue to learn more about the business of rocket science. "And as the industry grows, we’ll have the knowledge we need so we can eventually have efficient and common sense regulations," said Stallmer.

Space Station and Asteroid Mining

The International Space Station (NASA)

H.R. 2262 also issues a number of other key provisions, which can be found here. For one, the bill officially extends operations of the International Space Station through 2024. President Obama had already approved this ISS extension, but Congress must sign off on it in order for it to be final. "A new president could come and say, 'To hell with this space station,'" said Stallmer. "This puts into law that the space station will continue to be a national laboratory."

And then there’s the asteroid mining. Under one provision of H.R. 2262 called the Space Resource Exploration and Utilization Act of 2015, commercial companies get the rights to any resources that they collect from celestial bodies. The provision is important for companies like the asteroid mining company Planetary Resources, which recently partnered with Virgin Galactic. "Now, if you go out somewhere in space and you pick [something] up, it’s yours," said Chris Lewicki, the president and chief engineer of Planetary Resources.

"If you go out somewhere in space and you pick [something] up, it’s yours."

The bill mostly refines what was originally laid out in the Outer Space Treaty, a document signed by 104 companies in 1967 that eventually became the basis for international space law. The treaty forbids anyone from claiming asteroids or planets as new government territories, but it does grant non-government entities the rights "explore and use" outer space. That means companies can go collect any space materials they can find and bring back home with them. Now, H.R. 2262 guarantees that they will own those materials.

The only caveat: H.R. 2262 doesn't grant companies the rights to any biological organisms they might stumble upon in space. That means that Planetary Resources won’t be bringing an alien pets home from their asteroid mining missions.

Correction: A previous version of this article suggested that H.R. 2262 restricted the FAA from issuing regulations in the event of an accident. The agency still has the authority to issue regulations in response to an accident that results in a fatality or serious injury, or one that causes more than $25,000 in property damage.