Updated February 29, 2024
Commercial Human Spaceflight Safety Regulations
The Department of Transportation (DOT), acting through
allows FAA regulation of commercial operators when
the Federal Aviation Administration (FAA), has regulatory
restricting or prohibiting design features or operating
authority over commercial space launch and reentry,
practices that have resulted in serious or fatal injury or
including for spacecraft with human occupants. The FAA’s
contributed to an event posing a high risk of serious or fatal
authority allows the agency to regulate the safety of human
injury. The FAA is also able to impose requirements on
occupants, but a statutory moratorium—or learning
spacecraft crew in support of the agency’s mission to
period—limits the agency’s ability to do so until March 9,
protect public safety under 14 C.F.R. §460, as crew is
2024. This In Focus identifies considerations for Congress
considered by the agency to be part of the flight safety
as the end of the statutory learning period approaches.
system. As such, the FAA has created requirements that
focus on crew qualifications, medical screening, life
Currently, private companies hope to create a market for
support, and similar basic safety elements. Additionally,
commercial human spaceflight. In addition to contracts with
under 14 C.F.R §460.41-460.53 the FAA requires licensees
the National Aeronautics and Space Administration
to inform all human occupants of commercial spacecraft, in
(NASA) to support federal missions, companies such as
writing, of potential risks.
SpaceX plan to transport private citizens into space. Other
companies such as Axiom Space are developing orbital
The FAA Modernization and Reform of 2012 (P.L. 112-95)
platforms with the intent to host both government
extended the learning period to October 1, 2015; the
astronauts and tourists in space. Virgin Galactic and Blue
Commercial Space Launch Competitiveness Act (CSLCA)
Origin have carried tourists on suborbital launches, and
of 2015 (P.L. 114-90) extended it to October 1, 2023; the
SpaceX has launched both government astronauts and space
Continuing Appropriations Act, 2024 and Other Extensions
tourists to the International Space Station.
Act (P.L. 118-15) extended it to January 1, 2024; and the
Airport and Airway Extension Act of 2023, Part 11 (P.L.
No commercial spaceflight mission has yet resulted in a
118-34) extended it to March 9, 2024. Two bills in the 118th
fatality of a tourist or government astronaut. However, an
Congress—H.R. 5617 and H.R. 6131—would extend the
atmospheric test flight of a crewed commercial spacecraft
learning period to October 1, 2031.
in 2014 resulted in the death of one pilot and injuries to
another. Several uncrewed commercial launches have failed
The 2015 CSLCA directed the FAA and its Commercial
in the past decade. Given the potential risks, oversight for
Space Transportation Advisory Committee (COMSTAC) to
these missions may be an area of continued congressional
facilitate the development of voluntary industry consensus
concern.
safety standards and a safety framework that may include
regulation. It also directed FAA, in consultation with
Legislative Background
COMSTAC, to report on (1) the commercial space
The Commercial Space Launch Amendments Act of 2004
industry’s progress toward developing the aforementioned
(P.L. 108-492) gave DOT the authority to regulate the
standards and framework, (2) metrics that could indicate the
launch and re-entry of commercial spacecraft, including
readiness of industry and the FAA to transition to the new
those carrying humans, after the learning period noted
framework, and (3) a transition plan.
above. The FAA has authority to impose licensing
requirements after the learning period on commercial
The FAA was also directed to provide updates on progress
launches carrying humans in order to protect those
every 30 months and to provide 2 separate reports on a new
occupants. The authority is implemented by the FAA Office
safety framework and transition plan in both 2018 and
of Commercial Space Transportation (AST). Operations in
2022. The FAA was instructed by the 2015 CSLCA to take
orbit, following launch and prior to reentry, are not under
into consideration industry standards identified within these
FAA jurisdiction. For launch and reentry regulations, the
reports when developing regulations after the expiration of
Commercial Space Launch Amendments Act of 2004 set a
the learning period. The CSLCA also required the FAA to
statutory moratorium of eight years (the learning period)
provide Congress with an independent assessment of
before the FAA could promulgate commercial human
industry progress towards developing and adopting
spaceflight regulations, beyond its statuary authorities
voluntary consensus standards, industry and FAA readiness
described below under 51 U.S.C. §50905(c) and 14 C.F.R.
to transition to a new safety framework, and whether further
§460. The learning period moratorium was intended to
standards development or regulation would be appropriate.
allow the nascent commercial spaceflight industry to
develop without potential regulatory burdens.
In 2017, the FAA delivered a report to Congress that
identified possible safety framework features, including
FAA regulatory authority under 51 U.S.C. §50905(c) is not
standards, a voluntary reporting system, and compliance
subject to the learning period moratorium. This authority
mechanisms; detailed industry progress towards voluntary
https://crsreports.congress.gov
Commercial Human Spaceflight Safety Regulations
consensus standards development and adoption; and
How would industry input and voluntary consensus
identified several “readiness indicators” that could be used
standards be used in potential regulation? The FAA has
to assess industry and FAA readiness to transition to a new
a statutory mandate to “take into consideration the evolving
safety framework.
standards of the commercial space flight industry” (51
U.S.C. §50905(c)(9)). The FAA’s Human Space Flight
The FAA contracted with the RAND Corporation to
Occupant Safety Aerospace Rulemaking Committee will
conduct the independent assessment required by P.L. 114-
allow industry an opportunity to “provide information,
90. In its 2023 report, RAND noted that the commercial
concerns, opinions, and recommendations” to the FAA, per
spaceflight industry, working with standards development
the committee’s charter. FAA has a dual mandate to both
organizations, had made some progress toward standards
regulate and promote the commercial spaceflight industry
development, although “the consensus is that significant
(51 U.S.C. §50903(b)). This mandate would encourage the
work remains to be done.” RAND concluded that the
agency to carefully consider any regulation’s potential
learning period should be allowed to expire; the
impact on industry, but could create challenges in striking
development of voluntary consensus standards should
an appropriate balance between safety and progress.
continue; and the FAA should establish an Aerospace
Rulemaking Committee to solicit industry input. In April
What impact would benefit-cost analysis have? The FAA
2023, the FAA created the Human Space Flight Occupant
would be required to conduct a benefit-cost analysis of any
Safety Aerospace Rulemaking Committee.
proposed regulation of human spaceflight, per OMB
Circular A-4 and Executive Order 12866. Some
The FAA submitted its most recent report to Congress in
stakeholders have argued that such analyses could enable
September 2023, which stated that it “believes both the
them to understand the appropriateness of particular
industry and the agency are ready to develop and transition
proposed regulations and might be preferable to an
to a new safety framework.” It also reported that the FAA
assessment of industry readiness in the absence of
had tasked the Human Space Flight Occupant Safety
measurable metrics to do so.
Aerospace Rulemaking Committee with creating
recommendations to guide agency development of an initial
What is the status of the commercial spaceflight
set of rules after expiration of the learning period.
industry’s efforts to develop voluntary consensus
industry standards, with FAA participation? Proponents
Considerations for Congress
of extending the learning period argue that regulation
As the expiration of the learning period approaches,
should follow the creation of voluntary consensus industry
Congress may decide whether to extend the learning period
standards, as they will inform future regulations. In its 2023
again or allow it to lapse. There are several considerations
report to Congress, the FAA describes industry progress
that may inform this decision.
towards voluntary consensus standards as “not as advanced
as expected.” In 2023, the RAND Corporation found in a
Is the commercial human spaceflight industry ready for
congressionally mandated report (P.L. 114-90) that industry
regulation? Some stakeholders question whether the FAA
has not yet adopted voluntary consensus standards. Critics
is adequately informed to develop regulations and whether
point to a perceived lack of progress despite the
industry has the expertise to develop voluntary standards or
moratorium’s extensions in 2012 and 2015, arguing that
ability to respond to draft regulations. In its comments on
expiration of the learning period would encourage the FAA
the FAA’s 2023 draft report to Congress, COMSTAC
and industry to prioritize and devote resources to
asserted that the commercial human spaceflight operators
developing voluntary consensus standards.
within its membership “unanimously agree that the learning
period is crucial.” Although the FAA has described several
Is the FAA adequately resourced to begin preparing for
potential readiness indicators for industry in its reports to
regulations? In comments on the FAA’s 2023 draft report
Congress, it has acknowledged that these indicators do not
to Congress, COMSTAC said the agency may be unable to
have “specific and measurable metrics associated.”
sufficiently regulate commercial human spaceflight with its
existing resources, both in terms of funding and personnel.
Should the moratorium end, how quickly might
COMSTAC pointed to the agency’s backlog of launch and
regulations take effect? The FAA indicated in its 2023
reentry licensing applications, stating that additional
report to Congress that it will begin the process of
mandates or rulemaking activities could negatively impact
developing performance-based rules upon expiration of the
the FAA’s ability to manage its other statutory duties.
learning period. The FAA tasked the Human Space Flight
Occupant Safety Aerospace Rulemaking Committee with
Could a high-profile accident spur regulation,
developing recommendations by October 2024. The FAA
regardless of an extension to the moratorium? Even
anticipates final rules to come into effect around April
during the learning period, FAA is permitted to issue
2028. This rulemaking would be subject to the
regulations in response to a serious or fatal accident specific
Administrative Procedure Act (APA) (P.L. 79-404). The
to the health and safety of occupants. Such an accident
APA sets forth a structured process by which regulations
could generate external pressure, on both Congress and the
can be promulgated, with opportunities for stakeholder
FAA, to quickly create a regulatory regime, regardless of
input. In addition, regulations may be subject to
the readiness of the FAA or industry. Some stakeholders
congressional review before they can take effect.
argue that regulations that are methodically implemented
with stakeholder buy-in would be preferable to ones quickly
implemented as a reaction to an accident.
https://crsreports.congress.gov
Commercial Human Spaceflight Safety Regulations
Rachel Lindbergh, Analyst in Science and Technology
Policy
IF12508
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https://crsreports.congress.gov | IF12508 · VERSION 29 · UPDATED