October 13, 2023
Commercial Human Spaceflight Safety Regulations
The Department of Transportation (DOT), acting through
mission to protect public safety under 14 C.F.R. §460, as
the Federal Aviation Administration (FAA), has regulatory
crew is considered by the agency to be part of the flight
authority over commercial space launch and reentry,
safety system. As such, the FAA has created requirements
including for spacecraft with human occupants. The FAA’s
that focus on crew qualifications, medical screening, life
authority allows the agency to regulate the safety of human
support, and similar basic safety elements. Additionally,
occupants, but a statutory moratorium—or learning
under 14 C.F.R §460.41-460.53 the FAA requires licensees
period—limits the agency’s ability to do so until January 1,
to inform all human occupants of commercial spacecraft, in
2024. This In Focus identifies considerations for Congress
writing, of potential risks.
as the end of the statutory learning period approaches.
The FAA Modernization and Reform of 2012 (P.L. 112-95)
Currently, private companies hope to create a market for
extended the learning period to October 1, 2015; the
commercial human spaceflight. In addition to contracts with
Commercial Space Launch Competitiveness Act (CSLCA)
NASA to support federal missions, companies such as
of 2015 (P.L. 114-90) extended it to October 1, 2023; and
SpaceX and Virgin Galactic plan to transport private
the Continuing Appropriations Act, 2024 and Other
citizens into space. Other companies such as Axiom Space
Extensions Act (P.L. 118-15) extended it most recently to
and Blue Origin are developing orbital platforms with the
January 1, 2024. On September 21, 2023, Representative
intent to host both government astronauts and tourists in
Kevin McCarthy (R-CA-20) introduced the Space
space. Virgin Galactic and Blue Origin have carried tourists
Transformation And Reliability (STAR) Act (H.R. 5617)
on suborbital commercial launches, and SpaceX has
that would extend the learning period to October 1, 2031.
launched both government astronauts and space tourists to
the International Space Station.
The 2015 CSLCA directed the FAA and its Commercial
Space Transportation Advisory Committee (COMSTAC) to
No commercial spaceflight mission has yet resulted in a
facilitate the development of voluntary industry consensus
fatality of a tourist or government astronaut. However, an
safety standards and a safety framework that may include
atmospheric test flight of a crewed commercial spacecraft
regulation. It also directed FAA, in consultation with
in 2014 resulted in the death of one pilot and injuries to
COMSTAC, to report on (1) the commercial space
another. Several uncrewed commercial launches have failed
industry’s progress toward developing the aforementioned
in the past decade. Given the potential risks, oversight for
standards and framework, (2) metrics that could indicate the
these missions may be an area of congressional concern.
readiness of industry and the FAA to transition to the new
framework, and (3) a transition plan.
Legislative Background
The Commercial Space Launch Amendments Act of 2004
The FAA was also directed to provide updates on progress
(P.L. 108-492) gave DOT the authority to regulate the
every thirty months and to provide two separate reports on a
launch and re-entry of commercial spacecraft, including
new safety framework and transition plan in both 2018 and
those carrying humans. The FAA has authority to impose
2022. The FAA was instructed by the 2015 CSLCA to take
licensing requirements on commercial launches carrying
into consideration industry standards identified within these
human in order to protects those occupants. The authority is
reports when developing regulations after the expiration of
implemented by the FAA Office of Commercial Space
the learning period. The CSLCA also required the FAA to
Transportation (AST). Operations on orbit, following
provide Congress with an independent assessment of
launch and prior to reentry, are not under FAA jurisdiction.
industry progress towards developing and adopting
The Commercial Space Launch Amendments Act of 2004
voluntary consensus standards, industry and FAA readiness
set a statutory moratorium of eight years before the FAA
to transition to a new safety framework, and whether further
could promulgate commercial human spaceflight
standards development or regulation would be appropriate.
regulations, beyond its statuary authorities under 51 U.S.C.
§50905(c) and 14 C.F.R. §460. The moratorium was
In 2017, the FAA delivered a report to Congress that
intended to allow the nascent commercial spaceflight
identified possible safety framework features, including
industry to develop without potential regulatory burdens.
standards, a voluntary reporting system, and compliance
mechanisms; detailed industry progress towards voluntary
51 U.S.C. §50905(c) allows FAA regulation of commercial
consensus standards development and adoption; and
operators when restricting or prohibiting design features or
identified several “readiness indicators” that could be used
operating practices that have resulted in serious or fatal
to assess whether industry and FAA readiness to transition
injury or contributed to an event posing a high risk of
to a new safety framework.
serious or fatal injury. The FAA is also able to impose
requirements on spacecraft crew in support of the agency’s
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Commercial Human Spaceflight Safety Regulations
The FAA contracted with the RAND Corporation to
standards of the commercial space flight industry” (51
conduct the independent assessment required by P.L. 114-
U.S.C. §50905(c)(9)). The FAA’s Human Space Flight
90. In its 2023 report, RAND noted that the commercial
Occupant Safety Aerospace Rulemaking Committee would
spaceflight industry, working with standards development
allow industry an opportunity to “provide information,
organizations, had made some progress toward standards
concerns, opinions, and recommendations” to the FAA, per
development, although “the consensus is that significant
the committee’s charter. FAA has a dual mandate to both
work remains to be done.” RAND concluded that the
regulate and promote the commercial spaceflight industry
learning period should be allowed to expire; the
(51 U.S.C. §50903(b)). This mandate would likely serve as
development of voluntary consensus standards should
an incentive for the agency to carefully consider any
continue; and the FAA should establish an Aerospace
regulation’s potential impact on industry, but could create
Rulemaking Committee to solicit industry input. In April
challenges in striking an appropriate balance between safety
2023, the FAA created the Human Space Flight Occupant
and progress.
Safety Aerospace Rulemaking Committee.
What impact would benefit-cost analysis have? The FAA
The FAA submitted its most recent report to Congress in
would be required to conduct a benefit-cost analysis of and
September 2023, which stated that it “believes both the
proposed regulation of human spaceflight, per OMB
industry and the agency are ready to develop and transition
Circular A-4 and Executive Order 12866. Some
to a new safety framework.” It also reported that the FAA
stakeholders have argued that such analyses could enable
had tasked the Human Space Flight Occupant Safety
them to understand the appropriateness of particular
Aerospace Rulemaking Committee with creating
proposed regulations and might be preferable to an
recommendations to guide agency development of an initial
assessment of industry readiness in the absence of
set of rules after expiration of the learning period.
measurable metrics to do so.
Considerations for Congress
What is the status of the commercial spaceflight
As the expiration of the learning period approaches,
industry’s efforts to develop voluntary consensus
Congress may decide whether to extend the learning period
industry standards, with FAA participation? Proponents
again or allow it to lapse. There are several considerations
of extending the learning period argue that regulation
that may inform this decision.
should follow the creation of voluntary consensus industry
standards, as they will inform future regulations. In its 2023
Is the commercial human spaceflight industry ready for
report to Congress, the FAA describes industry progress
regulation? Some stakeholders question whether the FAA
towards voluntary consensus standards as “not as advanced
is adequately informed to develop regulations and whether
as expected.” In 2023, the RAND Corporation found in a
industry has the expertise to develop voluntary standards or
congressionally mandated report (P.L. 114-90) that industry
ability to respond to draft regulations. In its comments on
has not yet adopted voluntary consensus standards. Critics
the FAA’s 2023 draft report to Congress, COMSTAC
point to a perceived lack of progress despite the
asserted that the commercial human spaceflight operators
moratorium’s extensions in 2012 and 2015, arguing that
within its membership “unanimously agree that the learning
expiration of the learning period would encourage the FAA
period is crucial.” Although the FAA has described several
and industry to prioritize and devote resources to
potential readiness indicators for industry in its reports to
developing voluntary consensus standards.
Congress—such as size of the industry and purpose of
people visiting space—it has acknowledged that these
Is the FAA adequately resourced to begin preparing for
indicators do not have “specific and measurable metrics
regulations? In comments on the FAA’s 2023 draft report
associated.” As such, it may be challenging to concretely
to Congress, COMSTAC noted that the agency may be
assess industry readiness.
unable to sufficiently regulate commercial human
spaceflight with its existing resources, both in terms of
Should the moratorium end, how quickly might
funding and personnel. COMSTAC pointed to the agency’s
regulations take effect? The FAA indicated in its 2023
backlog of launch and reentry licensing applications, stating
report to Congress that it will begin the process of
that additional mandates or rulemaking activities could
developing performance-based rules upon expiration of the
negatively impact the FAA’s ability to manage their other
learning period. The FAA tasked the Human Space Flight
statutory duties.
Occupant Safety Aerospace Rulemaking Committee with
developing recommendations by October 2024. The FAA
Could a high-profile accident spur regulation,
anticipates final rules to come into effect around April
regardless of an extension to the moratorium? Even
2028. This rulemaking would be subject to the
during the learning period, FAA is permitted to issue
Administrative Procedure Act (APA) (P.L. 79-404). The
regulations in response to a serious or fatal accident specific
APA sets forth a structured process by which regulations
to the health and safety of occupants. Such an accident
can be promulgated, with opportunities for stakeholder
could generate external pressure, on both Congress and the
input. In addition, regulations may be subject to
FAA, to quickly create a regulatory regime, regardless of
congressional review before they can take effect.
the readiness of the FAA or industry. Some stakeholders
argue that regulations that are methodically implemented
How would industry input and voluntary consensus
with stakeholder buy-in would be preferable to ones quickly
standards be used in potential regulation? The FAA has
implemented as a reaction to an accident.
a statutory mandate to “take into consideration the evolving
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Commercial Human Spaceflight Safety Regulations

Rachel Lindbergh, Analyst in Science and Technology
Policy
IF12508


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https://crsreports.congress.gov | IF12508 · VERSION 27 · NEW

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