Big US-Euro Divide on Commercial Spaceflight Regulations

The United States and Europe are taking very different approaches to regulating the emerging commercial human spaceflight industry, a divergence that could cause headaches for spacecraft operators forced to operate in very different regulatory environments.

The European Aviation Safety Administration (EASA) plans to certify winged vehicles that will fly into space under its authority to regulate aircraft.The FAA is taking a less strict approach of licensing vehicle launches without a costly certification process.

According to EASA’s regulations

“An aircraft is ‘any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.’ Thus, Suborbital Aeroplanes (SoA) generating aerodynamic lift during the atmospheric part of their flight are considered to be aircraft.”

Certifying aircraft is an expensive and time consuming process that many commercial space operators would like to avoid during the formative period of the industry. The FAA agrees and has adopted a “learn as you go” approach in which it would issue launch licenses to commercial operators but not certify their vehicles. The agency believes that early regulatory decisions by the government could hinder the development of the industry. Commercial operators would fly for a number of years before the FAA would formulate stricter regulations based on the experience gained.

In a presentation to the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) this week, Brett Alexander of the RLV Working Group urged the FAA to reject the European approach to regulation. The working group proposed two findings that it wanted adopted.

Proposed Finding # 1

COMSTAC finds that adoption of regulations worldwide that are consistent with the U.S. regulatory approach is important to the long-term success of the industry and commends the FAA/AST effort to promote the U.S. regulatory framework for licensing of space transportation to the international community.

Proposed Finding # 2

COMSTAC finds that aircraft-like certification of winged space vehicles is premature and, if imposed, could be detrimental to the early development of the suborbital space transportation industry.  COMSTAC is particularly concerned about the European Aviation Safety Agency (EASA) proposal for aircraft-like certification.

Assuming that neither side budges, where does this leave commercial space operators trying to fly their vehicles on both sides of the pond? Just how much of an impact would it have on them?

Virgin Galactic would be affected by Europe’s stricter regulatory standards. It will operate SpaceShipTwo vehicles in New Mexico under FAA rules and in Kiruna, Sweden under EASA’s regulations. The company is also considering flying from Scotland which is also subject to the European regulatory body.

SpaceLinq, a new company using Rocketplane Global’s design for a suborbital space plane, would also be impacted by Europe’s strict standards because it plans to fly out of The Netherlands.

XCOR Aerospace, which has “wet lease” agreements for its Lynx vehicle with organizations in South Korea and Curacao, would not be impacted. Curacao, which is a constituent country within the The Netherlands, is not subject to EASA’s regulations and is free to put in place its own standards, said XCOR COO Andrew Nelson.

Curacao Airport Holdings, which runs the facility out of which Lynx would fly, has commissioned a study by Professor Frans van der Dunk on the regulatory regime it should adopt for commercial spaceflights, he added.

“I’m fairly certain it will be reasonable, they understand the issue,” Nelson said.

To try to breach the gap, the FAA is promoting the concept of “interoperability” vs. “harmonization” for spaceflight regulations. The FAA defines interoperability as “the ability to operate a vehicle in multiple regulatory regimes without major changes.”

In a COMSTAC presentation, FAA officials John Sloan and Megan Mitchell said that a U.S. company wanting to launch a U.S.-operated commercial vehicle aboard would require an FAA launch license and would need to comply with foreign safety regulations.

“Therefore, it is possible some kind of memorandum of understanding would be useful between the FAA and the host country,” they said in the presentation. “Because of U.S. export policy restrictions on space technology transfer, the U.S. cannot cooperate in space transportation to the level it can with aviation.”

They also listed a number of “trigger events” that could require harmonized regulations, including:

  • An operational vehicle wanting to operate in two different regulatory regimes
  • An orbital reentry to a country that is different from the launch site country
  • An orbital reentry to an unplanned location
  • A point-to-point intercontinental vehicle
  • An accident.

It will be interesting to see which approach works best. Time will tell.

  • Siena Anton

    Dear Mr Messier

    Where did you obtain the information that EASA is planning to certify winged concept vehicles that fly into space?
    All I can find is information relating to sub-orbital flight not any proposals to regulate a vehicle that enters orbit.
    Many thanks
    Siena