Keep the FAA’s Head in the Clouds

Why the Agency Should Not Be Regulating Space
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We are on the cusp of a new era in commercial spaceflight, one much more ambitious than anything that has come before in private-sector spaceflight. There have been commercial communications satellites for decades, but now we are seeing a profusion of plans for commercial remote sensing, satellite Internet, and even — with a recent announcement of the planned launch of private habitats in 2020 by Bigelow Aerospace — commercial human spaceflight. But at this critical early moment, as these new space businesses are planning and designing and building and scheduling, and as they are seeking investors and customers, they now face a worrisome problem: regulatory uncertainty.

Why does this new industry need regulation at all? For one thing, there is growing recognition in Washington of a general need to regulate the new commercial orbital activity, in accordance with our national obligations under Article VI of the Outer Space Treaty, which holds our government responsible for the country’s activities in space, “whether such activities are carried on by governmental agencies or by non-governmental entities.” In addition, much of the new commercial activity will occur in low Earth orbit, and will dramatically increase the number of objects there — meaning that there will be a higher possibility of collisions and a greater need for “space traffic control,” a task today managed by the Joint Space Operations Center of the U.S. Air Force. If civilian firms start venturing into space, it will no longer be appropriate for the Air Force to handle this task by itself, and there are hints that the Air Force would like to hand off the role to another entity to better focus on its defense mission. It appears likely that this responsibility will be transferred to some other governmental agency. But which one?

The Federal Aviation Administration’s Office of Commercial Space Transportation (OCST) might at first seem like a good fit for the job. After all, the OCST has been licensing American space launches for decades, and the FAA has maintained air traffic control in the United States for much longer than that. Accordingly, it might appear natural simply to extend its role from regulating flight in the atmosphere to regulating flight in the vacuum of space.

But it’s not that simple. Space traffic control is not exactly analogous to air traffic control over sovereign territory, and the FAA is poorly suited for the challenges of regulating this new industry. Indeed, the agency’s present involvement in licensing space launches is just an accident of history. In the early 1980s, as now, the commercial space-launch industry faced worrisome regulatory uncertainty — a problem solved with the passage of the Commercial Space Launch Act in 1984, which assigned the Department of Transportation responsibility for both regulating and promoting the industry. A new office within the department — the OCST — was created to do this work. But in 1993, the OCST was demoted: as part of Vice President Al Gore’s “streamlining government” initiative, it was folded into the FAA purely by executive action, and its head was made a civil-service position rather than a politically appointed one.

For at least two reasons, this 1993 decision should be reversed and the OCST should be detached from the FAA, reporting instead directly to the Secretary of Transportation again. First, doing so would elevate the importance of the office and therefore of commercial space, and give it more clout in annual budget battles. And second, doing so would resolve a fundamental culture clash between the FAA and the OCST. As mentioned above, the OCST is charged with both regulating and promoting the space-launch industry. But the FAA sees itself strictly as a regulatory agency; it formerly had an additional role of promoting the airline industry but that was dropped in the 1990s. Restoring the OCST to its original location in the department would help ensure that the office’s industry-promoting work is not hampered by the FAA’s current safety-first approach.

Legislation currently pending before Congress, the American Space Renaissance Act, proposes important first steps toward fixing some of the problems facing the new space industry. Its sponsor, Representative James Bridenstine (R.-Okla.), deserves praise for helping to start a public conversation about the kinds of reforms the moment calls for. Among its many provisions, the bill would once again make the head of the OCST a political appointee — even elevating the position to the rank of assistant secretary, a significant step up in the department’s “org chart.” And the bill would prohibit the office within the FAA that’s responsible for air traffic control from performing space traffic control. But the bill does not go far enough: it does not separate the OCST and the FAA. In debating the bill and considering how it might be improved and amended, Congress should move to restore the OCST’s independence of the FAA. (This could also be done by the executive branch acting without congressional approval, since the merger of OCST and FAA was originally an executive action.)

Yet even that should be understood to be just a partial measure. The OCST regulates only launch and entry, but there are many other activities that the new space businesses are planning to engage in — activities between launch and entry, activities that will not have anything to do with transportation per se. Future businesses may wish to undertake activities that aren’t even anticipated today. Extending the regulatory reach of the OCST to include all these activities is not as simple as it might seem. For example, should the OCST — or any part of the Department of Transportation — be involved in overseeing alcohol or other intoxicant use on U.S. registered space vessels? What about gambling? What about firearms? And what is a U.S. registered vessel in this context? Who would register it? On the face of it, the Department of Transportation does not seem to be the appropriate authority to regulate these activities.

And it becomes even harder to imagine any part of the Department of Transportation playing a productive role in space traffic control (including space situational awareness) in the statutory equivalent of international waters. Neither OCST nor any other part of the department should be entrusted to take over this responsibility from the Air Force: not only does the department lack the necessary expertise and equipment, but extending OCST’s writ in this manner could dilute its ability to continue to carry out its critical launch-licensing functions.

A better regulatory approach would involve creating a new agency — one that can be both a uniformed service entrusted with high-level classified information and an agency relied on to carry out regulatory tasks in a user-friendly, transparent setting. Fortunately, we have such a model: the Coast Guard. As James C. Bennett argued in The New Atlantis in 2011, a new U.S. Space Guard would be well suited to handle the diverse range of technical, regulatory, constabulary, and operational tasks up to and including space rescue, required as our nation moves seriously into space. Such an entity, with its own service academy, would also be more trusted to interact with related agencies of other nations (as the Coast Guard does) than either the Air Force or the FAA.

This proposal — creating a new agency to help regulate a major new field of human endeavor — may seem an insurmountable challenge for our political system, which nowadays has trouble passing even routine legislation, and which seems capable of acting swiftly only in an emergency. (And the last time the federal government undertook a major reorganization of executive agencies, the result was the Department of Homeland Security — hardly a shining example of our ability to experiment with functional and flexible modern bureaucracy.) But creating the Space Guard is, as Bennett argues, a practical, modest, and fiscally prudent solution to problems that will soon be on our doorstep, as part of a broader effort to retool our antiquated Cold War space policy for the twenty-first century. The entrepreneurs and business leaders now working to create a future in space should encourage our policymakers to give this idea serious consideration.

Rand Simberg, “Keep the FAA’s Head in the Clouds: Why the Agency Should Not Be Regulating Space,”, June 10, 2016.

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