FAA Regulation of Commercial Space Transportation: Why it Matters to Space Entrepreneurs and Future Airline Passengers in the Aftermath of the Crash of Virgin Galactic’s SpaceShipTwo
Virgin Galactic's SpaceShipTwo accident brings into focus the regulatory environment governing the safety of both future commercial space flight and future airline operations that may utilize this technology. The Federal Aviation Administration (FAA) is responsible for promulgating and enforcing aviation safety regulations in the National Airspace System, which has been the mission of the FAA and its predecessor agencies since 1926. In 1982, Congress passed the Commercial Space Launch Act (CSLA) that created the Office of Commercial Space Transportation (OCST) within the Department of Transportation's (DOT) Office of the Secretary, giving the DOT authority to license commercial space launches. In 1995, Congress transferred the OCST into the FAA. The CSLA puts the FAA in charge of two seemingly distinct and distinguishable regulatory missions – that of aviation safety and commercial space transportation. The FAA's regulatory approach to the two missions has been very different because the two activities (air transportation and space launch) were, until recently, very different. From a futurist perspective, the Virgin Galactic SpaceShipTwo was as much an airliner as it was a space launch vehicle. Perhaps it is time for the FAA to consider treating it as such.
FAA's Approach to Aviation (Not Space Launch) Safety
To ensure aviation safety, the FAA regulates many of the entities, people, and equipment in aviation. First, the FAA regulates and certificates “aircraft,” which it defines as any device capable of sustained flight through the air. Second, it certificates airmen, mechanics, and airports, among other entities. Additionally, the FAA also promulgates air traffic control and general operating rules for “aircraft, ultralight vehicles, manned and unmanned free balloons, and amateur rockets.” To become certificated, the FAA Administrator issues a certificate to the aircraft, airmen, or aeronautical activity when the applicant shows, and the Administrator finds, that the applicant has complied with the applicable design, performance, or eligibility standards in the regulations. The applicable regulations are intended to provide the level of safety required to protect other aircraft and persons in the air as well as persons and property on the ground.
FAA's Approach to Commercial Space Launch and Transportation
Congress passed the CSLA to simplify federal government approval of commercial space launches. The Act was a result of the maturation of expendable launch vehicle technology developed for the National Aeronautics and Space Administration (NASA) and the Department of Defense (DOD) coupled with growing awareness that NASA's Space Shuttle could not reliably and affordably meet demands to place commercial satellites in low earth orbit or place payloads in medium and geosynchronous orbits.
Today, multiple government agencies in the U.S. are involved in authorizing a commercial space launch. NASA, DOD, and state governments determine and authorize the launch site, while the FAA navigates airspace and air traffic considerations. Further, the Federal Communications Commission (FCC) has regulatory authority over on-orbit spectrum and orbital slots, and the Department of Energy (DOE) oversees use of nuclear materials in satellite payloads or propulsion. Additionally, the Department of Commerce (DOC) enforces import/export controls on launch and satellite technology, while the Department of State (DOS) ensures compliance with international treaties on the uses of outer space. Amidst this existing alphabet soup of agencies with oversight in the space arena, the CSLA mandated that the DOT, and its sub agency the FAA, act as the sole federal agency responsible for licensing commercial space launch activities (including licensing for launch, launch site operators, reentry, and operating a reentry site).
Two Different Regulatory Structures
As a result of the CSLA, the FAA now has jurisdiction over licensing of commercial, unmanned space vehicles. Since manned aircraft and unmanned space launch vehicles are very different, and it is entirely appropriate to regulate them differently, one may ask why the difference in regulatory structures matters to future commercial airline travelers. The answer is fairly simple: because future commercial air travel may take place in hybrid “aircraft” capable of hypersonic “flight” at the upper fringes of Earth's atmosphere. When that takes place, the regulatory lines that once seemed clear become more complicated.
The FAA has adopted two different oversight regimes to ensure the safety of both commercial, manned aircraft and unmanned, space launch aircraft. The FAA's aviation safety certification standards required for manned aviation are intended to prevent accidents, or at least increase their survivability. In contrast, the FAA's space launch license regulations for commercial space vehicles are based on a range-safety approach, where the FAA seeks to minimize the risk of death or injury to persons within (1) the launch footprint – that is, from the launch pad through vehicle staging and orbital insertion – by ensuring it is below an established value for a normal launch, and (2) in the case of launch failure, the time of launch to the time of orbital insertion.
The FAA's Office of Commercial Space Transportation recently published a set of “recommended practices for human spaceflight occupant safety” as guidelines for space entrepreneurs to follow when developing industry consensus standards. Still, these guidelines are not comparable to the comprehensive and prescriptive regulations that have generated the present high level of safety for civil aviation operations in the U.S. 
In a nutshell, the FAA's approach to aviation certification is to prescribe design and performance standards to prevent failures and accidents, while the FAA's roadmap for launch licensing eschews design and performance standards, assumes a catastrophic failure, and seeks to protect others in the air and on the surface of the Earth.
Faced with the advent of civil space tourism, rather than tasking the FAA with expanding oversight of space launch passenger vehicles, Congress enacted a law forestalling the FAA from setting safety standards for civilian human space flight activities until there is a need for such standards, which will take place with the development of the commercial space tourism industry. As first-generation space tourism vehicles like Burt Rutan's X-Prize winning SpaceShipOne and Richard Branson's Virgin Galactic SpaceShipTwo take steps towards receiving approval to operate, the FAA is bringing these two regulatory regimes into conflict by issuing commercial space launch licenses, which blur the lines between the regulatory structures that govern traditional, commercial aviation and commercial space transportation.
The high level of safety in modern aviation results from technology and regulations informed by the fruits of decades of research and development test flights as well as probable cause findings from commercial aviation accidents. For example, on the commercial aviation side, modern transport category aircraft are not certified until they successfully complete thousands of hours of manufacturer and FAA testing. Similarly, NASA's manned space flight activities from the late-1950's until the current time have been characterized by a deliberate “crawl-walk-run” approach that methodically identifies risks and solves problems to “man-rate” – that is, make highly reliable –the boosters and the spacecraft. Such test programs are enormously expensive, and as a result, commercial space flight ventures proceed with lean, aggressive, truncated and relatively inexpensive test programs that involve far fewer test vehicles and test flights. Determining appropriate safety levels for commercial transportation is yet another regulatory area the FAA must grapple with as it regulates this new type of air transportation.
In the aftermath of the SpaceShipTwo accident, both the FAA and industry leaders will need to assess whether present regulatory approaches to new aerospace technologies and operations are adequate. Further, they will need to determine which approach will generate the level of safety necessary to sustain interest and investment in both space tourism and the associated airline passenger transports that may soon employ these new technologies.
The Bottom Line
In the not-too-distant future, commercial space flight will become a reality as passengers will line up to snag a seat on a vehicle headed for outer space – an experience that would likely fall within the FAA category of “licensed launch activities.” As explained above, this means that the predominant focus of FAA regulatory oversight will be to protect persons and property on the ground along the launch and re-entry flight paths, rather than those on the actual spaceship. For airlines considering the prospect of using hybrid aircraft capable of hypersonic flight on the edge of the earth's atmosphere, the differing regulatory regimes may be more significant than anticipated. Future air carrier operations may not be regulated the same way as present air travel, and airlines – and the FAA – will have to consider the implications of these two different regulatory structures on future aviation operations.
 See Aviation Week & Space Technology, Oct.29, 2014, p 31.