By: Barbara Lichman, Ph.D.

September 22, 2015

In a strange twist on the normal relationship between federal regulatory agencies, the National Transportation Safety Board (“NTSB”) has found the Federal Aviation Administration (“FAA”) a primary culprit in the October 31, 2014 disastrous test flight of Virgin Galactic’s SpaceShipTwo, in which one of the two pilots was killed, and debris was spread over a 33 mile area in San Bernardino County, northeast of Los Angeles.

The issue appears to be the grant of a waiver by FAA from the existing rules governing safety of interplanetary vehicles, despite FAA’s own safety consultant’s warning that Virgin Galactic was violating those rules.  The claim is that, while Congress did not delegate to FAA the authority to implement regulations as stringent as those applicable to commercial aircraft, FAA managers specifically ignored the repeated advice of safety engineers that Virgin Galactic had not fully complied with the regulations that do exist.  Specifically, FAA safety personnel claim that FAA managers based their decision to grant the waiver on the remoteness of the Town of Mojave where the aircraft’s launch company, Scaled, is based, and on the surrounding area where the company planned its test flights.
In the end, the NTSB found that, although the co-pilot had erred by prematurely unlocking the rocketship’s movable tail, the FAA and the launch company bear a disproportionate share of the responsibility.  On the one hand, the launch company had failed to ascertain that a single error by an operator could lead to the ship’s destruction.  On the other hand, the FAA, acceding to pressure to approve the permit quickly, had failed to ensure that the company took this lack of redundancy into account.  Exacerbating the issue is the fact that SpaceShipTwo is one of three commercial rockets to crash in the span of eight months.
FAA safety engineers attribute the agency lapses to a struggle between a duty to protect the public, usually implemented through complex regulations governing everything from aircraft construction to pilot qualification, and its congressionally mandated mission to “encourage, facilitate and promote” American commercial space travel.  In the case of the latter, however, FAA has not been granted the same broad powers as it has over conventional air travel, or as its stated mission would seem to indicate.  To compensate for this absence of oversight, any person flying on a commercial spacecraft must sign a waiver of liability, stating that the passenger has been advised of the risks and accepts them.
Predictably, the fur has started to fly between Scaled and FAA.  FAA asserts that it told Scaled it was not meeting the regulations.  Scaled executives claim that FAA led them to believe that the company was complying with all applicable regulations.  In 2013, however, FAA granted Scaled a waiver from the rules, even though the company claims it never asked for one.
In summary, the ongoing debate is not good for FAA’s persistent position that “safety is our business, our only business.”  Perhaps to stem the erosion of its position caused by the recent spacecraft crashes, FAA plans to issue an official response to Scaled’s accusations and the NTSB’s report by November 21.
From the Aviation & Airport Law News Blog