FAA issues final regulations governing private spaceflight

Aviation International News » April 2007
March 27, 2007, 7:20 AM

For many years, companies such as Space Expeditions, Space Adventures and even some airlines have been seriously talking about lofting paying passengers into space on privately operated (non-governmental) vehicles. When Burt Rutan’s SpaceShipOne won the X-Prize on Oct. 5, 2004, it dawned on people that this idea was a real near-term probability.

First there was the matter of technological capability: was it possible? Liability and regulation are also critical pieces of the puzzle. Many feared that it would be regulations, rather than technological limitations, that would keep eager paying passengers in gravity’s shackles.

Fortunately, many people, including those in this fledgling industry, congressmen and some FAA employees who wanted to see these commercial spaceflights become a reality, tried to ensure that regulation would not impede this new form of personal exploration. On Dec. 23, 2004, President Bush signed the Commercial Space Launch Amendments Act of 2004, which declared that the U.S. would be a participant in this industry and that all concerned parties should work toward this common goal. The FAA would work with, and not against, future providers of these flights.

This was important, because something as simple as a rule prohibiting paying passengers from flying on experimental-category aircraft could kill the industry. Requiring the pilots to make multiple landings without passengers before taking them up could also be devastating.

Some form of regulation for this fledgling industry is clearly necessary to provide some degree of safety, not only for those who will be flying in the spacecraft but also for those on the ground. It would hardly help advance the cause to allow some backyard mechanics unschooled in aerodynamics, pressurization or stability and control to strap a person on top of a gigantic “bottle rocket.”

As with airlines and air-taxi operators, FARs are necessary to protect the public. Jay Edwards, director of government and regulatory affairs for Rocketplane-Kistler, elaborates: “We believe reasonable standards of safety are important to the development of our industry. Accidents as the result of poor engineering, inadequate planning, operational shortcuts [and] erroneous assumptions can be reduced and hopefully avoided by well thought-out safety rules, and we believe participation by our industry is essential.”

Striking the right balance between regulation and freedom is important for this industry. According to Edwards, “We have a great deal at stake in the final product: too stringent and we will be unable to meet them, too loose and the resulting accidents will delay acceptance by the public of the reasonableness of space travel.”

Writing the regulations at this time might seem to some as logical as writing FAR Part 121 shortly after the Wright brothers’ first flight. In this case, however, governments have already demonstrated that spaceflight is possible, so this
is more a matter of private enterprise providing safe, reliable trips into space relatively routinely. In addition, it is now a matter of “when” and not “if” these flights will be possible. With regulations in place, manufacturers and potential operators of these space vehicles can work toward a standard.

The proposed regulations were published in the Dec. 29, 2005 issue of the Federal Register. They provided for a two-month open comment period, and some 55 comments were submitted by individuals and organizations. The final ruling was supposed to have been published by June 23 last year, but it was not published until December 15.

The Regulations
The new regulations govern space launches that take place in the U.S. and those that take place outside the U.S. provided that the operator (or the controlling party, if there are multiple owners) is from the U.S. An exception would be in the case of the foreign country, where the operations would take place, having its own similar set of regulations.

Sea Launch, for example, conducts satellite launches in the Pacific Ocean from a former North Sea oil-drilling platform. It is owned by companies from several countries, but according to Kenneth Wong, deputy manager of the FAA’s Office of Commercial Space Transportation (AST) licensing and safety division, Sea Launch would fall under the U.S. regulations because Boeing is its major owner.

Space Adventures has been selling tickets for suborbital flights for quite some time, but Eric Anderson, president and CEO, said that the company “will market suborbital experiences without necessarily being the operator of those experiences.” While it expects to conduct operations in the U.S., the company’s first two launch sites will be in the UAE and Singapore. Whether these regs will apply to operations in the UAE or Singapore is to be determined.

The FAA issues various permits and licenses for these spaceflights. The differences between permits and licenses might seem confusing at first, but Wong compared them with permits for general aviation aircraft certified as “experimental.” It would generally take less time to secure a permit (within 120 days) than a license (within 180 days). A license is required for a company to carry paying passengers.

To get a permit or license, the operator must show the FAA that it is taking safety precautions, particularly in regard to third parties. It must also answer questions about “maximum probable loss” and the “probability threshold” for the determination of liability insurance requirements for commercial launch sites.
Unlike airplanes, spacecraft receive no FAA certification that they are safe. There are currently no requirements for airworthiness certificates or annual inspections.

The rules for safety inspectors for spaceflight also differ from those for the airlines. To be hired as an aviation safety inspector who would work in a FSDO or ACDO (Air Carrier District Office), a person must meet certain aviation experience requirements. That does not apply in this case because nobody (other than the SpaceShipOne pilots) currently has experience with civilian spaceflight.

All operators, employees and participants must sign documents acknowledging the fact that the FAA has not certified the operation or spacecraft as safe. They must agree that they will not sue the U.S. government if something goes wrong. Because this is a nascent industry, some hazards cannot be foreseen, and the rules are certain to change as the industry develops.

These regulations clearly state that operators are required to notify paying participants and the paid aircrew hired by the operator about the hazards of the vehicle and the flight.

The history of accidents of the vehicle type must be disclosed. Since every operator will conduct several days of training for its paying passengers, it is expected that these possible hazards will be discussed thoroughly.

Part 440 (Financial Responsibility) will probably be heavy-eyelids territory for those who are not attorneys or employees of insurance companies. This part delves into indemnification, reciprocal waiver of claims requirements, assumption of responsibility, release of claims and so on.

If the only types of space launch to be considered were like that of Virgin Galactic or Space Adventures, with a carrier aircraft launching the spacecraft, or that of Rocketplane-Kistler, where the spacecraft takes off and lands like an airplane from the former Clinton-Sherman AFB, Okla., there’s little doubt that the pilots would need to be licensed. These regulations, however, are meant to cover various types of space vehicle.

For the purposes of aircrew requirements, these regulations do not deal with the pilots of carrier aircraft, who will need to be licensed and governed by existing FARs.

In some cases, a remote operator will be in control. That is why the FAA did not
accept a suggestion that the pilots have test-pilot experience.

There were those, however, who took the opposite argument that the aircrew and remote operators need not be licensed pilots.

In regard to remote operators, the FAA pointed out that operators of USAF RPVs must be experienced combat pilots, while the U.S. Army does not require that its operators be pilots.

In the end, the FAA decided that the aircrew and remote operators must be licensed pilots with instrument ratings and experience operating in the National Airspace System (NAS), because the spacecraft will be operating in the NAS, and knowledge of the regulations for operating in it would be beneficial.

In regard to flight physicals, “Rather than specifying which crewmembers must have a medical certificate, the FAA requires that only crewmembers who have a safety-critical role must possess and carry a second-class airman medical certificate.”

The FAA says that for public safety reasons it “will not allow spaceflight participants (i.e. those paying to fly) to pilot launch or reentry vehicles at this time. A spaceflight participant who wants to pilot a launch or reentry vehicle would have to become an employee or independent contractor of the operator to acquire vehicle and mission-specific training.”

Industry Response to the New Rules
What does the industry think of these new regulations?
Space Adventures’ Anderson says his company “is pleased with the direction taken by the FAA in issuing the human spaceflight regulations and is encouraged by the changes the FAA made between the initial, proposed regulations and the final regulations after receiving input from the industry.”

Virgin Galactic “welcomes the FAA/AST (Office of Commercial Space Transportation) rule. Its content reflects the close interaction of the FAA with entities such as Virgin Galactic and other new space companies.” In his cap- acity as chairman of the Personal Spaceflight Federation, Virgin Galactic COO Alex Tai applauded the direction AST provided “in helping to build the foundations for personal spaceflight. The PSF welcomes the collaboration with industry that AST sought in creating these rules.”

Rocketplane-Kistler’s Edwards agreed. “We believe the Office of Commercial Space Transportation, as part of the FAA, within the DOT, is doing an excellent job of communicating and coordinating with our industry to help us proceed as safely as possible in developing a useful, prosperous and thriving approach to space transportation as a business.”   

FAA Plan for Spacecraft Separation

Space launches, like any other type of operation in the National Airspace System (NAS), present the potential for midair collisions. In fact, the speed, high rates of climb/descent and lack of maneuverability of the spacecraft increase this potential. As a result, the FAA must take some action to ensure the safety of everyone in the air.

According to FAA transportation analyst Shelia Helton-Ingram, the agency has not yet established separation standards for spacecraft, as it has for airplanes. Initially these flights will be infrequent, so the current plan is for TFRs, announced by notams, to clear the airspace in the area of spaceflights.

Due to the variety of spacecraft that could be involved, the size of the TFRs will vary. One size cannot be expected to fit all operations.

Helton-Ingram said there have been suggestions for the FAA to designate special-use airspace for spaceflights, but at this point the agency has deemed it unnecessary. “We’re trying to establish a basic foundation here. As operations become more routine and frequent, we might want to establish a ‘Space Transition Corridor’ that would be depicted on charts.”

Of course, any time one user of the NAS must deviate because of the operations of another user, opposition can arise. According to Helton-Ingram, “The FAA considers spaceflight another form of air transportation. We want to enable all users of the NAS, and we are hoping for a partnership of these users, to include general aviation and the airlines.” 

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