Space Regulation

Glenn Reynolds has put together a short video.

A couple points: The FAA has only been regulating space since the mid-90s; prior to that it was done by a separate office that reported directly to the Secretary of Transportation. I recommended in my book that the office be taken out of the FAA and restored to its original place in DoT. Others (including NASA administrator nominee Jim Bridenstine, who told me in February that he read the book) have recommended this as well, as has the commercial industry, but they’re (unsurprisingly) getting pushback from the FAA. Over a year ago, I had an op-ed in The New Atlantis in which I said that the FAA should keep its head on the clouds, and hands off space.

If Elon really does build BFR, and wants to use it for point to point, it’s going to raise some very interesting regulatory issues. Under the current law, because it’s suborbital, it will be regulated by the Office of Commercial Space Transportation, not the aviation portion of the FAA. There will be no certification of the vehicles; they will operate under a standard launch license, and the spaceflight participants (aka “passengers”) will fly in an informed-consent regime, without the same expections of safety they’d have with an airliner. We’ll see how long some in Congress will find that acceptable.

18 thoughts on “Space Regulation”

  1. One point I don’t agree with is the statement that investors not liking regulatory uncertainty means they want regulation. I’ve started talking to investors about this, and they aren’t looking for the heavy-handed regulation proposed by the previous administration or the so-called “enhanced payload review.” Both those proposals would have given the regulators unlimited leeway to impose all sorts of conditions.

    A clear statement of the law would also provide regulatory certainty. Under the Supreme Court case Medellin, a non-self-executing treaty is not enforceable federal law. Therefore, the FAA should not be able to deny a commercial lunar mission access to space on the grounds of Article VI of the Outer Space Treaty. Article VI is not self-executing.

  2. ATC will be interesting in P2P BFR zones. Punch through cylinders as bisecting chords across all those TCA’s? Or maybe if multiple BFRs service a single terminal they’ll have to do controlled spirals instead of holding orbits like they do now for aircraft… Ahh the possibilities… Makes a geometer’s heart sing!

  3. Does anybody have a plausible answer for a launch escape system for the BFS?

    One answer is obviously, “It doesn’t need one because its reliability is good enough.” I find that answer unlikely to (ahem) fly, because it seems unlikely that a BFR core, with about 2900 tonnes of methalox that will be highly volatile if something punctures the tanks, and with about half a rocket engine per square meter hanging off its rear end, is going to come even close to the kind of reliability that would be required for an FAA commercial aviation license.

    Then, assuming that you load the BFS with only 15t of people (150 people @ 100 kg), and a SWAG of 100t of propellant, you’re going to have a mass of 200t = 1960 kN of weight.

    I doubt you can use the vacuum Raptors at sea level, so you’ve only got about 3400 kN of thrust, which will get you an acceleration of a leisurely 73% of one gee away from your 2900 tonnes of exploding propellant. Most launch escape systems assume something like a 6g acceleration.

    And of course even this assumes that you’ve chilled-in the engines and can magically start pump-fed combustion in something like 200 ms, which you can’t. And also that you can start them in an enclosed fairing, which seems pretty unlikely, too.

    I suppose you can build a version of the BFS that can generate 15 MN of thrust with oblique solid rockets, but how do you service those puppies? Or you could use large hypergolic engines, but then you’ve got passengers in close proximity to MMH and NTO, which doesn’t exactly sound like something the FAA’s gonna be real cool about.

    My guess is that the lack of launch escape will pretty much doom the earthbound point-to-point stuff.

        1. Under the Commercial Space Launch Act, which is what applies to suborbital launches, the people on board are called participants, not passengers, and until 2023, the FAA may not regulate the launch operator to protect the space flight participants absent a death, serious injury or event that could have led to a death or serious injury. Check out 51 USC 50905(c).

          Launch and reentry vehicles are not regulated as aircraft.

          1. But the point-to-point stuff would certainly be regulated as something close to aircraft. SpaceX would certainly get classified as a common carrier, and I don’t think they can hit the safety criteria without some kind of launch escape.

          2. Let’s turn to section (b)(4) instead:

            (4) The holder of a license or a permit under this chapter may launch or reenter crew only if—
            (A) the crew has received training and has satisfied medical or other standards specified in the license or permit in accordance with regulations promulgated by the Secretary;

            Does that sound like a definition of a “passenger”? I suppose it could–but only if the DOT secretary or FAA administrator has some kind of political death-wish, and decides not to regulate what is obviously a common carrier as a, you know, common carrier.

            There is absolutely no possibility that DOT/FAA is going to allow tens of thousands of pretty ordinary passengers to be subject to the same kinds of risks that your occasional millionaire enthusiast is willing to assume. They have a regulatory out, and they’ll use it.

            Frankly, I’d be pretty upset if they didn’t use it. I’m all for a few highly trained private individuals to assume the risks of spaceflight as they exist today. But the moment that SpaceX or one of its competitors kills a couple hundred people in one launch, the commercial space business model is pretty much over. I’d like that not to happen.

          3. DOT/FAA do not have statutory authority to do what you’re saying they must and will, and if they attempt it, they will be taken to court, and they will lose. Congress would have to change the law.

            But the moment that SpaceX or one of its competitors kills a couple hundred people in one launch, the commercial space business model is pretty much over.

            I always hear people say things like this, but people died in plane crashes for decades, and it never killed the industry.

          4. Rand–

            “I always hear people say things like this, but people died in plane crashes for decades, and it never killed the industry.”

            I should have restricted my assertion to surface-to-surface passenger launch. But I’ll stand by that case for three major reasons:

            1) Suborbital doesn’t revolutionize travel the same way that air travel did. In the 1930s, as passenger aviation was getting started, air travel chopped two days off cross-country travel time, weeks off of some intercontinental travel, and enabled domestic travel to a lot of places where, before, “you couldn’t get there from here” because they weren’t served by rail service or reasonable roads.

            Suborbital isn’t that kind of enabling technology. Is it nice to be able to get from New York to Shanghai in fo4r hours instead of 17 (I’m SWAGging staging/loading/unloading times here)? Sure. Does it enable new business and communication modalities? Probably not very much.

            So there’s not going to be a lot of public pressure to keep SpaceX flying. Think about what the Hindenburg did to airship travel, and you’ll get a sense of the dynamic that’ll be at work.

            2) Crash small, fail small. Crash big, fail big. In the 1930s, we killed passengers in groups of 20 at a time. If we had 1930’s accident rates with groups of 150 passengers, I’m not sure that passenger aviation would have survived. At the very least, it would have had to retrench, and the industry would have been retarded by decades.

            3) We have a mature aviation regulatory environment that makes accidents a big deal, with severe regulatory consequences for the carriers that have the accidents. Crashes put marginal carriers out of business all the time. The regulatory scrutiny that a BFR crash would generate (to say nothing of the media scrutiny) will shut SpaceX passenger operations down for months.

            We’re obviously going to have to agree to disagree on the regulatory landscape here, but I see absolutely no way that the media, public opinion shaped by sensationalism, and the civil aviation lobby will let SpaceX escape that regulation. I’m pretty sure that there’s enough wiggle room in the current law to allow the FAA to deny launch licenses already, but even if there isn’t, the pressure to change the law after the first accident will be overwhelming and, given that the current BFR architecture can’t survive in an aviation-like regulatory environment, that’ll be that.

            NB: The case for regulated surface-to-LEO passenger launches is somewhat weaker. At least in this case, SpaceX won’t be stepping on civil aviation’s toes, so they have less of a vested interest in destroying them. And I don’t think that the risk impacts SpaceX’s beyond-earth-orbit plans at all. If 100 people want to go to Mars and they sadly die getting there, nobody’s going to shed a tear, wring their hands, or certainly they’re not going to go gunning for the business model. But if there’s a way that the civil aviation business can defend its turf from the likes of SpaceX, it will. And there is.

          5. I’m pretty sure that there’s enough wiggle room in the current law to allow the FAA to deny launch licenses already

            They can deny a launch license. They cannot do so on the basis of safety of the spaceflight participants (which is what these “passengers” will be).

            But I think this discussion will be moot by the time they actually plan to start flying P2P, and there will have been many spaceflights, cargo and passenger, before they do so.

          6. No, they can’t. Now you’re just making things up.

            Laura Montgomery described the legal situation. Before she retired a couple years ago, she was legal counsel for FAA-AST. But if you think you know more than her, good luck with that.

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