Updated March 12, 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 May 11,
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 learning period has been extended several times, most
platforms with the intent to host both government
recently until May 11, 2024, by the Airport and Airway
astronauts and tourists in space. Virgin Galactic and Blue
Extension Act of 2024 (P.L. 118-41). Two bills in the 118th
Origin have carried tourists on suborbital launches, and
Congress—H.R. 5617 and H.R. 6131—would extend the
SpaceX has launched both government astronauts and space
learning period to October 1, 2031.
tourists to the International Space Station.
The 2015 CSLCA directed the FAA and its Commercial
No commercial spaceflight mission has yet resulted in a
Space Transportation Advisory Committee (COMSTAC) to
fatality of a tourist or government astronaut. However, an
facilitate the development of voluntary industry consensus
atmospheric test flight of a crewed commercial spacecraft
safety standards and a safety framework that may include
in 2014 resulted in the death of one pilot and injuries to
regulation. It also directed FAA, in consultation with
another. Several uncrewed commercial launches have failed
COMSTAC, to report on (1) the commercial space
in the past decade. Given the potential risks, oversight for
industry’s progress toward developing the aforementioned
these missions may be an area of continued congressional
standards and framework, (2) metrics that could indicate the
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 30 months and to provide 2 separate reports on a new
launch and re-entry of commercial spacecraft, including
safety framework and transition plan in both 2018 and
those carrying humans, after the learning period noted
2022. The FAA was instructed by the 2015 CSLCA to take
above. The FAA has authority to impose licensing
into consideration industry standards identified within these
requirements after the learning period on commercial
reports when developing regulations after the expiration of
launches carrying humans in order to protect those
the learning period. The CSLCA also required the FAA to
occupants. The authority is implemented by the FAA Office
provide Congress with an independent assessment of
of Commercial Space Transportation (AST). Operations in
industry progress towards developing and adopting
orbit, following launch and prior to reentry, are not under
voluntary consensus standards, industry and FAA readiness
FAA jurisdiction. For launch and reentry regulations, the
to transition to a new safety framework, and whether further
Commercial Space Launch Amendments Act of 2004 set a
standards development or regulation would be appropriate.
statutory moratorium of eight years (the learning period)
before the FAA could promulgate commercial human
In 2017, the FAA delivered a report to Congress that
spaceflight regulations, beyond its statuary authorities
identified possible safety framework features, including
described below under 51 U.S.C. §50905(c) and 14 C.F.R.
standards, a voluntary reporting system, and compliance
§460. The learning period moratorium was intended to
mechanisms; detailed industry progress towards voluntary
allow the nascent commercial spaceflight industry to
consensus standards development and adoption; and
develop without potential regulatory burdens.
identified several “readiness indicators” that could be used
to assess industry and FAA readiness to transition to a new
FAA regulatory authority under 51 U.S.C. §50905(c) is not
safety framework.
subject to the learning period moratorium. This authority
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Commercial Human Spaceflight Safety Regulations
The FAA contracted with the RAND Corporation to
allow industry an opportunity to “provide information,
conduct the independent assessment required by P.L. 114-
concerns, opinions, and recommendations” to the FAA, per
90. In its 2023 report, RAND noted that the commercial
the committee’s charter. FAA has a dual mandate to both
spaceflight industry, working with standards development
regulate and promote the commercial spaceflight industry
organizations, had made some progress toward standards
(51 U.S.C. §50903(b)). This mandate would encourage the
development, although “the consensus is that significant
agency to carefully consider any regulation’s potential
work remains to be done.” RAND concluded that the
impact on industry, but could create challenges in striking
learning period should be allowed to expire; the
an appropriate balance between safety and progress.
development of voluntary consensus standards should
continue; and the FAA should establish an Aerospace
What impact would benefit-cost analysis have? The FAA
Rulemaking Committee to solicit industry input. In April
would be required to conduct a benefit-cost analysis of any
2023, the FAA created the Human Space Flight Occupant
proposed regulation of human spaceflight, per OMB
Safety Aerospace Rulemaking Committee.
Circular A-4 and Executive Order 12866. Some
stakeholders have argued that such analyses could enable
The FAA submitted its most recent report to Congress in
them to understand the appropriateness of particular
September 2023, which stated that it “believes both the
proposed regulations and might be preferable to an
industry and the agency are ready to develop and transition
assessment of industry readiness in the absence of
to a new safety framework.” It also reported that the FAA
measurable metrics to do so.
had tasked the Human Space Flight Occupant Safety
Aerospace Rulemaking Committee with creating
What is the status of the commercial spaceflight
recommendations to guide agency development of an initial
industry’s efforts to develop voluntary consensus
set of rules after expiration of the learning period.
industry standards, with FAA participation? Proponents
of extending the learning period argue that regulation
Considerations for Congress
should follow the creation of voluntary consensus industry
As the expiration of the learning period approaches,
standards, as they will inform future regulations. In its 2023
Congress may decide whether to extend the learning period
report to Congress, the FAA describes industry progress
again or allow it to lapse. There are several considerations
towards voluntary consensus standards as “not as advanced
that may inform this decision.
as expected.” In 2023, the RAND Corporation found in a
congressionally mandated report (P.L. 114-90) that industry
Is the commercial human spaceflight industry ready for
has not yet adopted voluntary consensus standards. Critics
regulation? Some stakeholders question whether the FAA
point to a perceived lack of progress despite the
is adequately informed to develop regulations and whether
moratorium’s extensions in 2012 and 2015, arguing that
industry has the expertise to develop voluntary standards or
expiration of the learning period would encourage the FAA
ability to respond to draft regulations. In its comments on
and industry to prioritize and devote resources to
the FAA’s 2023 draft report to Congress, COMSTAC
developing voluntary consensus standards.
asserted that the commercial human spaceflight operators
within its membership “unanimously agree that the learning
Is the FAA adequately resourced to begin preparing for
period is crucial.” Although the FAA has described several
regulations? In comments on the FAA’s 2023 draft report
potential readiness indicators for industry in its reports to
to Congress, COMSTAC said the agency may be unable to
Congress, it has acknowledged that these indicators do not
sufficiently regulate commercial human spaceflight with its
have “specific and measurable metrics associated.”
existing resources, both in terms of funding and personnel.
COMSTAC pointed to the agency’s backlog of launch and
Should the moratorium end, how quickly might
reentry licensing applications, stating that additional
regulations take effect? The FAA indicated in its 2023
mandates or rulemaking activities could negatively impact
report to Congress that it will begin the process of
the FAA’s ability to manage its other statutory duties.
developing performance-based rules upon expiration of the
learning period. The FAA tasked the Human Space Flight
Could a high-profile accident spur regulation,
Occupant Safety Aerospace Rulemaking Committee with
regardless of an extension to the moratorium? Even
developing recommendations by October 2024. The FAA
during the learning period, FAA is permitted to issue
anticipates final rules to come into effect around April
regulations in response to a serious or fatal accident specific
2028. This rulemaking would be subject to the
to the health and safety of occupants. Such an accident
Administrative Procedure Act (APA) (P.L. 79-404). The
could generate external pressure, on both Congress and the
APA sets forth a structured process by which regulations
FAA, to quickly create a regulatory regime, regardless of
can be promulgated, with opportunities for stakeholder
the readiness of the FAA or industry. Some stakeholders
input. In addition, regulations may be subject to
argue that regulations that are methodically implemented
congressional review before they can take effect.
with stakeholder buy-in would be preferable to ones quickly
implemented as a reaction to an accident.
How would industry input and voluntary consensus
standards be used in potential regulation? The FAA has
Rachel Lindbergh, Analyst in Science and Technology
a statutory mandate to “take into consideration the evolving
Policy
standards of the commercial space flight industry” (51
U.S.C. §50905(c)(9)). The FAA’s Human Space Flight
IF12508
Occupant Safety Aerospace Rulemaking Committee will
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Commercial Human Spaceflight Safety Regulations
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https://crsreports.congress.gov | IF12508 · VERSION 30 · UPDATED