Space Transportation Regulation: What Does the Future Hold?
Space Transportation! No field of transportation technology offers greater potential for the future; no field is more vulnerable to being screwed up by a flawed regulatory strategy.
Twenty years ago the vision (and OCST’s motto) was” Blue skies. Not red tape”. The regulatory process wasn’t perfect; I’ll gladly accept all criticism from industry about the licensing process in those days. Everyone, including we regulators, was learning. We knew from experiences with Starstruck how vulnerable companies could be to insensitive regulators. We learned how NASA’s and USAF’s perception of risk could dry up an insurance market and we changed that. We discovered how poorly designed launch range agreements could crush companies and we changed that. When rockets were thought to be the most dangerous objects around we showed the world that airplanes, rail tank cars, and semi-trucks laden with hazardous materials posed far greater dangers. We built a licensing process based on real risks, not imaginary ones. Finally, we learned that the government could not select the winners and losers, and so we had to accept whatever launch concepts came our way. We had learned that just because we, the government, had chosen to design and operate our space vehicles one way, the private sector would not necessarily choose the same path.
After ten years of growing up together in the same playground, OCST was very finely attuned to the peculiarities, needs, and vulnerabilities of this industry. Even then we still made mistakes. In the licensing process, we asked some companies for too much information, but we asked some for too little. We were growing quickly and spread thin, so veteran staff members knew more than the newcomers, and companies could get a mix of answers to the same question. However, throughout all the intense action of that era, we knew one thing: the public risks were low so we had to keep moving toward even smarter regulatory approaches, like industry self-regulation and voluntary standards.
There’s one question that can be posed over and over, with multiple answers.
What does the future hold? It depends; are we willing to study history? As a Nation, we need to go back in history to remember how we got to where we are today with modern transportation. Risk is part of the game in the evolution of technologies, especially transportation.
Risk used to be routinely accepted as a price of advancement.
Automobiles had been on the road for 60+ years and hundreds of thousands of Americans died before the federal government started regulating automobile safety. However, during that time, automotive technology advanced rapidly. New design after new design emerged and new engineering techniques were applied. The automobile industry grew healthy and financially strong. When regulation started, its impact on companies was relatively small.
The charts to the right show highway deaths and miles traveled. Notice it was a little after 60 years that the government starts regulating highway transportation. Deaths are in the 50,000 range per year. We started regulating commercial space transportation when deaths were at ZERO. This is not an argument for not doing anything, but whatever is done today should be proportional.
The pattern was the same for aviation. It was a risky business and people accepted the risks. Charles Lindbergh flew mail for the US Post Office before he decided to try crossing the Atlantic Ocean non-stop. 35 pilots died flying US mail between 1919 and 1926, and never once did the US Post Office stop flying. In the early days of commercial aviation, so many passenger planes crashed that it wasn’t considered a unique event. Yet commercial aviation grew, and airplanes continued to improve and become safer. Aviation passenger safety wasn’t seriously regulated by the government until 1958. Most people don’t know what it was like to fly in the 1950s. Take a look at the chart to the right to see. During this unregulated era, innovation flourished as companies and engineers experimented with different concepts. The ability to exploit trial and error promoted rapid aircraft improvements. Airplane designs were not static because they were in a constant state of evolution. When the FAA was created, aviation safety improved but the innovation process slowed.
By the time regulators arrived on the scene for aviation, rail and automobiles, the industries were large and well established. The companies knew what they were doing and had been focusing on safety issues themselves, if for no other reason than to hang onto their customers. The companies were financially strong and could push back against the regulators. Further, there was enough room for improvement that the companies themselves benefitted when regulatory programs started.
In space, it was the other way around. The regulators came before the industry. The industry was in such a vulnerable, infant state that the regulators had to pull it along. With a weak industry that can’t push back or that doesn’t know to push back, it is easy for a regulator to get carried away.
We need to put the risks and need to regulate space transportation back into perspective. When examined by itself, maybe it looks like the government needs to do a lot. But when considered in the context of the transportation risks and the huge number of other areas in which we face risks, commercial space transportation does not warrant tight, controlled government oversight. Consider the greatest technological wonder of today, the internet. It’s only been a little more than 20 years since AOL created a customer friendly interface that allowed the public to access the world wide web. In the days since then, the internet has created great and wonderful opportunities and tens of thousands of jobs. However, it also has brought/permitted the destruction of retail jobs, cyberbullying, endless new forms of white-collar crime. The personal data of 3 billion people was stolen from a hack of Yahoo; probably every single reader of this website had their personal and financial data stolen from a hack of Equifax. National security secrets have been hacked, stolen, published on the web and American operatives have died. More lives will be ruined from identity theft, children will commit suicide because of bullying, and lives will be lost by the darker effects of the internet than will ever be affected by the commercial space transportation industry for the next 50 years. Yet, we have not taken a single measure to regulate the internet, because it offers so much promise, we want it to grow. If there were no regulations governing space launches, I doubt there would have been any public or 3rd party deaths from launches. So how much should space launches be regulated based on what we have seen with autos, aviation, and the internet? (In order to see all transportation fatalities by year, click here.)
SpaceX and the licensing process should be so advanced by now that the only time SpaceX should need to come back to the regulators is when it needs renewals or is doing something radically beyond the range of the framework of its license. A trucking company gets its operating permit, and then it is off on its own. I got my pilot’s license, and that was the last time FAA saw me until I wanted to get an instrument rating or I wanted to use ATC services. A huge shipping company meets its US Coast Guard certifications, and then it sails the open seas.
What does the future hold? It depends. It depends on how much the Administration, Congress, and industry want to go back and find the point where licensing processes began to change. Regulatory processes have layers; one only has to look at each time requirements were changed; new requirements were added; more information was required.
Perhaps a reevaluation could determine when the direction the program moved got off track. Did the NASA safety expert introduce some NASA regulatory practices when he assumed oversight of the regulatory program? When did FAA concepts get added? Companies should determine whether they are being treated as an operator or a subject. Operators are supposed to be fully knowledgeable and able to carry on without supervision. Occasional inspections should suffice to know whether an operator is operating according to its manuals. If SpaceX, or any company, is being micromanaged, perhaps the regulatory program is t00 much in the weeds. Has OCST moved into ground operations? That was an area that early OCST specifically chose to stay out of. American industries’ hazardous ground operations, from refineries to LNG storage to fertilizer manufacturing, are so well regulated by EPA, OSHA, DOE and other agencies that DOT adds no value by regulating ground operations. What did OCST do when SpaceShipOne crashed? Other than being an interested observer, there should have been no regulatory role since there was no public safety impact. The long stand down that Virgin Galactic experienced following the crash of its test vehicle should have resulted from its own concerns, the concerns of investors and its insurers, and any other party that had some economic or future use interest but none of the governments’ business.
What will the future bring? It depends in part, on how large this program is becoming. How many people staff OCST today? In 1993 the licensing program had 9 people total; was the workload substantially less than today? In 1993, OCST had several spaceport applications approaching, a first time ever re-entry vehicle, an airborne launch system anomaly, a large number of operator license applications, and, on top of that, OCST was on the cusp of accelerated learning, conducting research, paving the way for the new commercial space industry, exploring voluntary standards, and even beginning to figure out how to build the case for regulation-free human passenger flight. EVERYTHING WAS A FIRST!! It was short-staffed but still expected to handle all licenses; learning; developing; testing; correcting; implementing; and preparing for the next totally new thing.
As a regulatory expert and former regulator, I am amazed at the size of regulatory agencies today. If one is a regulator, and one just completed regulations for an industry, what work is left? Provided the initial regulations were effective in achieving the goal they set out to do, why do regulatory organizations grow bigger today than when they were originally created? Why, if they solved the biggest problems and found all the low hanging fruit, are they issuing regulations at a faster pace than in the very beginning? There are very few regulatory programs today that have fewer people or issue fewer regulations than when they started. When self-driving cars reduce traffic deaths by 1/2 or 1/3 current levels, will NHTSA decline in size commensurately? It follows that if the Administration cuts back or streamlines OCST regulatory requirements, the organization should follow in size.
While preparing this website, I looked at OCST’s work and came across this document to the right; it begs the question of appropriate government role. In the past, companies would complain to DOT when DOT agencies would issue data or reports that the industry was willing to produce.
The question is why should the government pay to create something the private sector could produce and in the process pay the US government taxes on the profits? One day, American Rocket Company came to OCST and complained that NASA was going to put them out of business because a NASA center was about to start doing research on hybrid rocket motors. This was AmRoc’s bread and butter. We took the issue to the National Space Council as an anti-commercial practice. This resulted in the center changing the nature of its research so as not to compete with AmRoc.
What does the future hold? I don’t know much about today’s OCST regulatory program. So other than the questions I asked above and the fact that I have seen SpaceX’s complaint, I am in no position to criticize. However, I was there at the beginning and I started this program. The regulatory imperative demanding a light touch in 1984 is no different today. The potential for this industry did not change. The optimal regulatory path then was extremely narrow; it has not widened with time.
After reading this website, if the Administration, DOT or Congress believe the regulatory program is off track, here are some recommendations:
- Use the revitalized National Space Council to start a national dialogue on what Americans want and expect a commercial space industry to produce, especially the transportation component. If the all the private sector’s investments in commercial space and space transportation programs were to be tallied, they probably would be close in total to what the US government is spending. After all, as Leif Erickson, Columbus, or Shackleton would tell us, “Exploration is nothing more than transportation.” With that vision, then the Administration and Congress will know how to direct the future regulatory environment so as not to stifle commercial development.
- The Administration should devise a method to evaluate the regulatory impacts of existing OCST regulations in the context of the limited risk. A starting point might be a cost/benefit methodology to compare regulating space with other transportation modes. Space should not cost more relative to the benefit of regulating the other industries.
- OCST isn’t entirely the problem. Industry (including launch companies, investors, and insurers) should assess whether it has the willingness, resources and will to take on self-regulation and develop voluntary standards. It is a complex setting because if it is to be successful, then its standards cannot be designed to exclude new entrants. If shipbuilders could do it, then surely spaceship builders can.
- The Administration and Congress should consider issuing policies, and/or laws that defining commercial human spaceflight to be a pioneering and exploration field and to establish restrictions on lawsuits and caps on compensation for loss-of-life related to human commercial space travel. The US government took the extraordinary measure of providing indemnification above 3rd party insurance requirements even though there was little risk evidence to justify indemnification. There is, however, ample justification for reducing the risk for companies willing to lead the way for commercial passenger travel.
- The Administration/DOT and Congress need to move the space regulatory program out of FAA. It may seem that air and space are connected, but they are not. Having the two combined is merely an administrative convenience. Space and aviation have little in common, except that they both use airspace. What might confuse the issue is that both use air traffic control; however, having air traffic control part of the same agency is also an administrative convenience. In most other transportation modes, the organizations that regulate the safety of the industry are not usually the traffic managers. We need to recognize that what is administratively convenient may not be in the public good. Since 1966, DOT has gone through an evolution which proves that many organizational combinations that at first appeared to make sense were arbitrary. In 1967, the US Coast Guard (USCG) was moved from the Department of Treasury because the President and Congress thought it related more to transportation than smuggling. Then in 2003, the USCG was moved to the new Department of Homeland Security because it was deemed more related to security than transportation. Maritime Administration was moved to DOT in 1981 after having been an independent organization. The Bureau of Motor Carrier Safety was moved out of Federal Highways Administration. No one thought it was appropriate to combine it with the National Highway Traffic Safety Administration even though cars and trucks share the same roads. As one can see, organizational structures are fluid and somewhat arbitrary. DOT gained responsibility for commercial space transportation only after Elizabeth Dole said it would not be placed in the FAA. Today, it is in FAA.
Conclusion
Nothing has changed in the past 30 years to warrant a heavy government regulatory hand on commercial space transportation. Today more than ever we need to remember the motto “Blue skies. Not red tape.” If we don’t realize that this is still a vulnerable industry and that what we need to protect the most is innovation itself in commercial space transportation, we may smother the industry with needless regulation and end up with no industry at all! Our Nation needs to heed the lessons of the past and recognize that we do not need to seriously start regulating until after the industry is strong and there is a proven need. As the data presented here have shown, those days are yet far away. We just need to remember a simple little exchange that took place a long time ago between a little girl and a Cheshire cat:
“Where should I go? Alice
“That depends on where you want to end up.” Cheshire Cat