Should the FAA regulate all space activities?

Dale Skran is the National Space Society’s chief operating officer and senior vice president. Dale worked at Bell Labs for 17 years and held executive positions at Ascend Communications, Sonus Networks, and CMware, Inc. 

David Huntsman is a Space Frontier Foundation member who serves on the Alliance for Space Development’s board of directors.

The Outer Space Treaty (OST) requires nation-states to provide “authorization and continuing supervision” of the activities of their nationals in space. In recent months the National Space Council (NSpC), chaired by Vice President Kamala Harris, has asked federal agencies for their opinions on which agencies or departments should have this role for in-space activity. Here, “in-space activity” is basically everything other than launch and reentry operations, already regulated by the U.S. Department of Transportation’s Federal Aviation Administration (FAA); communications, regulated by the Federal Communications Commission; and Earth observation, regulated by the Commerce Department’s National Oceanic and Atmospheric Administration. The NSpC also accepted comments from the general public. Most of the input has centered around giving the additional authorization and continuing supervision role for all in-space activities to either the FAA or Commerce. 

Recently there has been considerable discussion of how “supervision” under the Outer Space Treaty might be implemented in the United States, with some arguing that this important enabling function for space commerce ought to reside in the Office of Space Commerce (OSC) or elsewhere within NOAA or the Department of Commerce. Others argue that the FAA, which regulates space launch, should have this wide-ranging responsibility.  

The FAA would be a bad fit for the Authorization and Continuing Supervision Role that nation-states are required to perform for their nationals for in-space regulation, particularly in these extremely early years of the initial development of whole new commercial space industries.

The implication of this new direction is that the FAA would assume the responsibility of “supervising” (i.e., regulating) all commercial activity in space, not just transportation through Earth’s atmosphere to and from space as is now the case, including but not limited to such uses as:

• Commercial low Earth orbit space stations being enabled by the NASA Commercial LEO Destinations program;
• Commercial LEO space stations being constructed by companies such as Vast and Gravitics that rotate to provide gravity;
• Commercial missions to and around the moon, as well as lunar bases;
• Any commercial lunar operations, including mining and tourism;
• Automated LEO factories such as those being developed by Varda Space Industries;
• Satellite servicing, refueling and relocation (e.g., space tugs) – whether around Earth, the moon, or Mars;
• In-space manufacturing of satellites such as those planned by Arkisys;
• All space hotels and tourist-related businesses in space;
• Commercial missions to Mars, such as those currently planned by Relativity Space and Impulse Space, as well as any commercial bases on Mars;
• Commercial missions to Venus, such as those currently planned by Rocket Lab;
• Communication, positioning and remote sensing satellites around the Moon and Mars; and
• Space Solar Power satellites in any orbit.

Besides its current role of regulating commercial space launches and reentries through Earth’s atmosphere, the FAA has other responsibilities, including:

• Regulating air navigation facilities and flight inspection standards; encouraging and developing civil aeronautics, including new aviation technology; 
• Issuing, suspending, or revoking pilot certificates;
• Regulating civil aviation to promote transportation safety in the United States, especially through local offices called Flight Standards District Offices;
• Developing and operating a system of air traffic control and navigation for both civil and military aircraft;
• Researching and developing the National Airspace System and civil aeronautics; 
• Developing and carrying out programs to control aircraft noise and other environmental effects of civil aviation.

As can be readily seen, the FAA has no experience with or responsibility for the general regulation of commercial activity on the Earth outside the realm of transportation. Thus, extending an FAA already straining to support the rapidly growing space launch business seems unwise in the extreme. It is akin to deciding that because the FAA regulates airlines flying to a new continent, the FAA should also regulate all business and activities on that new continent.

A possible source of this idea lies in the fact that many destinations in space continuously move in an orbit, allowing them to be confabulated with transportation systems. Just because a commercial LEO station orbits the Earth does not make it a “transportation system” subject to FAA regulation. It is a commercial facility at a location in space.

The Department of Transportation is a potential candidate to “supervise” the activities of space transportation companies, but extending this purview to everything in space would not follow established practice on the Earth. Novel commercial enterprises and industries need to be encouraged with a ‘light touch’ of regulation that encourages them to create, innovate, and grow with the relative presumption of encouragement and approval for practices that follow the intent of international law, as well as the intent of things like the Artemis Accords (both of which encourage deconfliction of space activities, for example). It would be far more logical for the Department of Commerce to authorize and supervise all new commercial activities in space that are not transportation, whether it be by expanding the current Office of Space Commerce, creating a new, higher-level Bureau of Commercial Space, or something in between. It would also help keep America competitive in commercial space vis a vis its strategic competitors. 

Inadequate resources have already been an issue, no matter which Department is referred to. Both the Office of Space Commerce and FAA’s Office of Commercial Space Transportation have been underfunded for the tasks both already have (such as by the record-setting level of commercial space launches the FAA needs to regulate). That must be fixed regardless of which agency gets the additional role of in-space authorization and continuing supervision of space activities. But, make no mistake: It is not about if this responsibility needs to be assigned to a part of the federal bureaucracy; just when, and to which part. The sooner the United States fixes this, the greater the chances are that the U.S. will continue to lead other nations in commercial space development. 

If the FAA is set up as the new “Emperor of Space,” the U.S. will be setting forth on a path that ignores history and threatens the nascent space commercial sector. The FAA is a bad fit to regulate in-space activities other than the up-and-down through the atmosphere launches and entries it currently oversees and potentially future in-space transportation. Since the risk environment for in-space transportation is fundamentally different than that involved when flying from ground to space, it can be argued that in-space transportation should be left to the Department of Commerce in the short to medium term. Regardless, the Department of Commerce is clearly the better place for the required authorization/supervision role for other commercial space activities. 

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