During president Donald Trump's discussion about drinking processed urine on the International Space Station with duration record-setter Peggy Whitson, the exchange turned to a mission to Mars.
Reminded that his own agenda calls for a 2030s NASA Mars mention, Trump asserted:
"We want to do it during my first term and at worst during my second term so we want to speed that up, OK?"
People like Elon Musk, Jeff Bezos and Richard Branson keep Mars and human flight in the news and public imagination.
Alongside such Mars hopes, Congress is revisiting commercial space activity with vigor and an eye toward free enterprise. There are numerous Ted Talks and conferences like The Atlantic's On the Launchpad: Return to Deep Space (Sen. Ted Cruz and acting NASA administrator Robert Lightfoot will be on hand). Energy companies and international consortia are plotting asteroid prospecting (they're worth quintillions) for platinum and other elements and minerals.
The 1967 Outer Space Treaty actually puts significant restrictions on activities and ownership out there.
But along with either eight or nine planets in the Solar System, there are at least 180 moons beyond our own, a couple of them (Ganymede and Titan) even larger than the planet Mercury.
And there are more that two million asteroids larger than a half-mile in diameter .
So resources in space are infinite as far as humanity is concerned.
There's a lot of room, and little concern about bumping into one another. Just go walk the scale model of the solar system in front of the Smithsonian Air and Space Museum in Washington, D.C.. The model of the Sun is less than volleyball sized, and on that scale, the plaque that tells you where the nearest star Proxima Centauri would be in relation might shock.
However I'm not sure how many folks, or even members of Congress outside its House Committee on Science, Space and Technology, realize just how thoroughly commercial space activities like asteroid mining are apt to be regulated.
The backstory is that the Federal Aviation Administration (FAA), at Congress's request by way of the 2015 U.S. Commercial Space Launch Competitiveness Act (more specifically its Section 108 on “Space Authority”), recently submitted to Congress its "Mission Authorization Proposal" for regulating future commercial activities in space.
It's highly regulatory, a repeat of the first flying cars being halted by automobile regulations.
The House Space Subcommittee held a March hearing on "Regulating Space: Innovation, Liberty, and International Obligations." Witnesses disagreed over national regulation vs. a state patchwork, and over what it means or should mean to secure authorization for space activities in compliance with the Treaty. There are good points and valid concerns all around.
But sometimes, the devil isn’t just in the details, but in the premise. Good intentions notwithstanding, and faith in FAA by Congress notwithstanding, the FAA’s recent track record shows that it does not participate in the business of streamlining regulations, but will rather expand them on operation and certification.
Any FAA propensity toward a regulatory light touch for mission authorizations seems nonexistent.
Simply consider FAA's drone regulations and approach to airspace allocation and permitted activities, and their implications for FAA regulation of private space missions.
Ten years ago, before drones deeply entered the public consciousness, there was a 2007 FAA rule interpretation on drones via a Notice of Policy that actually temporarily outlawed commercial activity (in violation of the Administrative Procedure Act), before a reversal by the National Transportation Safety Board.
Then the 2012 FAA Modernization and Reform Act (unwisely in my view) certified FAA authority to regulate drones with its section on “Integration of Civil Unmanned Aircraft Systems Into National Airspace System.” Like the CSLCA for space activities, it included a Section 332(a) call for a “Comprehensive Plan” complete with mandatory reports and a “roadmap.”
Then in June 2016 issued a 624-page final rule, “Operation and Certification of Small Unmanned Aircraft Systems.” The rulemaking contained “excessively precautionary approaches,” such as stipulating line-of-sight operational requirements, and a ban on night-time operations—ignoring the ability of technological and contractual solutions to address risk. The agency also refused to stand down to local law enforcement solutions to routine problems (likely things such as buzzing or trespass).
The final rule also contains declarations from FAA regarding case-by-case waivers and blessings. It also foretells a large quantity of future significant guidance (not new laws, not even new APA-based regulations, but unpredictable guidance) on issues including:
- Industry best practices;
- Risk assessment;
- External load operations;
- Guidance associated with not dropping objects in ways that damage persons or property;
- Advisories on training and direction to air traffic control facilities;
- Preflight checks for safe operation;
- Vehicle conditions for safe operations;
- Guidance “on topics such as aeromedical factors and visual scanning techniques.”
Consider, just for one example from this assortment, FAA’s conclusion with respect to the seemingly ordinary freedom to operate multiple drones without asking permission:
"The FAA also acknowledges the benefits of research and development associated with the simultaneous operation of multiple unmanned aircraft and agrees that additional flexibility is called for in this rule so that the agency can administratively allow these types of operations based on operation-specific mitigations. Accordingly, the FAA has made the prohibition on the simultaneous operation of multiple small unmanned aircraft waivable on a case-by-case basis. To obtain a waiver, a person will have to demonstrate that his or her simultaneous operation of more than one small unmanned aircraft can safely be conducted under the terms of a certificate of waiver."
So one must get a waiver. This approach could put us on a path to getting a handful of licensed, dominant operators controlling, for example, the national drone package-delivery market, instead of exploiting modern technologies that now conceivably allow us to divvy airspace up and use it more efficiently by orders of magnitude. This is typical, mirroring how 100 years ago, competitive electricity and communications services were eliminated in favor of monopoly franchises and a perpetual regulatory superstructure to manage it all.
At this point it would come as no surprise to know that the FAA tried to halt a flight-sharing airborne “Uber”-style air venture. If such a Mother May I, case-by-case approach causes drones to fly into a restrictive regulatory black hole, or keeps the sector dominated by a handful of players, it'll doubtless keep mining missions grounded, too. And the agency will be largely unaccountable, shielded by the presence of a regulatory coalition that agrees with it. Amazon and the will have an easier time working a Stone-Age-in-the-sky system compared to lesser entities.
Parallel developments in land-based autonomous vehicle operations also foretell what's in store for commercial space activities.
In September 2016, the National Highway Traffic Safety Administration (NHTSA is an arm of the Department of Transportation just as the FAA is) issued its Federal Automated Vehicles Policy guidelines. These purport “to speed the delivery of an initial regulatory framework and best practices to guide manufacturers and other entities in the safe design, development, testing, and deployment of highly automated vehicles.” This guidance offered some worthy proposals, minding, however, the caveat that “NHTSA must work to limit its precautionary impulses, which have the potential to delay and increase the cost of automated vehicle deployment—meaning more preventable crashes, more injuries, and more deaths.”
More troublesome is Washington’s recent foray, as my colleague Marc Scribner has noted, into certain vehicle-to-vehicle (V2V) communications standardization mandates, and even vehicle to infrastructure (V2I) guidance newly emergent from the Federal Highway Administration.
These are some of the areas where important cross-fertilization could occur with unmanned vehicles and space data awareness technologies—yet they are already being blanketed with Department of Transportation regulation.
There are so many variables, so many technologies. It is clear that the unpredictable and precautionary regulatory model that FAA employs poses grave threats to space commercialization. In the works today are marvels like supersonic jets, NASA’s own megarocket and proposed private alternatives, and even the long-awaited space elevator, despite that “key players have distanced themselves from the concept”.
Decades-old airspace models and fixations are not where today's industries and technologies are. These regulatory approaches derail the thinking needed to address issues of property rights in airspace/airsheds simply by ignoring them and imposing rules instead.
Originally published to Forbes.