Former Top Federal Regulator to Fly on Unregulated Spaceship

by Douglas Messier
Managing Editor

The first three passenger flights of Blue Origin’s New Shepard have been long on symbolism. On the first one, Jeff Bezos invited Wally Funk, who in 1960 was one of 13 women who underwent the same medical checks as the Original Seven Mercury astronauts. NASA wasn’t accepting female pilots at the time, so Funk had to wait 51 years to reach space.

New Shepard’s second flight included starship Capt. James T. Kirk, or more precisely, the actor who played the “Star Trek” captain, William Shatner. The third flight had Laura Shepard Churchley, the daughter of America’s first astronaut to fly to space, who launched aboard a vehicle named after her father, Alan.

The fourth flight, scheduled for Thursday morning, also features a highly symbolic passenger. Until 2018, Dr. George Nield headed up the Federal Aviation Administration Office of Commercial Space Transportation (FAA AST), the agency that regulates the commercial spaceflight industry.

A successful flight will serve as a powerful endorsement of Blue Origin’s vehicle and the nascent space tourism industry. If the government’s former top regulator is willing to risk his neck on a commercial spaceflight, then it must be pretty safe. Right? Right?

Well, yes and no. New Shepard’s 19 flights have been successful thus far. The only major known failure occurred on the first flight when the booster crashed as it descended toward a landing. The capsule touched down safely under parachutes. On a later flight, the booster proved its robustness by unexpectedly survived a planned in-flight abort and landing safely.

So, New Shepard has been well tested by now. However, Nield and his fellow passengers will still be riding a controlled explosion into the vacuum of space without pressure suits. Space is risky, no matter how many precautions one takes.

In one sense, Nield’s presence on the flight is paradoxical: he is a symbol of a federal regulatory agency that has never written a single regulation designed to protect the wealthy passengers flying on commercial space vehicles. The six NS-20 spaceflight participants will be flying at their own risk, utterly dependent upon Blue Origin to keep them safe. And if the company doesn’t? The passengers will have limited options, having been required to sign away most of their right to sue in order to fly.

FAA AST’s narrow safety mandate is limited to protecting everyone who is not involved in a flight. The office’s shortcomings in this area during Nield’s tenure contributed to the industry’s most high-profile fatal accident, one that dealt a severe setback to Blue Origin’s chief rival, Virgin Galactic.

The Learning Period

The origin of the current situation goes back to 2004. In the afterglow of the success of Burt Rutan’s privately built suborbital vehicle, SpaceShipOne, Congress passed a commercial space law that prohibited the FAA from formulating safety regulations for eight years. The learning period was designed to allow companies to experiment with different designs and approaches before regulators came in with mandatory requirements that might be burdensome to the companies. FAA AST could step in before the learning period expired if there was a near miss or serious accident on a flight.

Under current laws, companies provide a document to passengers laying out the risks involved. Anyone who wanted to fly would sign a waiver before flying aboard a spaceship. New Mexico, which will host Virgin Galactic flights at Spaceport America, and Texas — where New Shepard flies — passed state laws limiting lawsuits except in cases of gross negligence or intentional harm.

Crew members are likewise left uncovered by any federal or state safety regulations. Blue Origin’s New Shepard is a fully automated ride. While passenger undergo training, they don’t control the vehicle. Virgin Galactic’s SpaceShipTwo has two pilots. SpaceX trains pilots to fly its Crew Dragon vehicle on commercial orbital flights.

The FAA’s main safety mandate is to protect people and property on the ground, otherwise known as the uninvolved public. Basically, FAA AST doesn’t want a rocket crashing into an elementary school in the middle of recess. That’s a fairly straightforward thing to do when you’re launching over the ocean; make sure the range is clear of any wayward boats, and blow up the damn thing if it starts heading toward Cocoa Beach.

For rocket flights taking place over land like New Shepard and SpaceShipTwo, protecting people on the ground is more complicated. New Shepard flies on an enormous company-owned ranch miles from the closest residences. SpaceShipTwo flights have taken place over sparsely populated areas. We’ll get to the near miss that caused in a moment.

A Long Time Coming

With Richard Branson promising commercial flights on SpaceShipTwo beginning as early as 2007, Congress figured that eight years would be sufficient even allowing for the usual delays that inevitably result when highly complex space projects meet overly optimistic schedules set by people with no idea what they’re talking about.

Both Branson and Congress figured wrong. When neither Virgin Galactic nor any of the other companies developing vehicles flew passengers by 2012, legislators renewed the ban for another three years.

By February 2014, SpaceShipTwo powered flight tests had begun, and Virgin Galactic was projecting it would fly Branson on the first commercial flight later that year. With solid progress at last, Nield publicly advocated letting the learning period expire in 2015. He argued that more than 50 years of human spaceflight provided sufficient knowledge for the agency to formulate some basic safety regulations to protect passengers and crew.

Nield’s effort went nowhere in the face of industry opposition. Congress would renew the learning period the following year; it’s now set to expire in 2023. Instead, industry and the government developed a set of voluntary safety standards.

Even if Nield had prevailed at the time, any regulations FAA AST could have formulated would have come too late to prevent an accident that lay only months ahead in Fall 2014. It was one that Nield’s office would play an unfortunate role in.

A Flawed Analysis

In early 2012, Scaled Composites applied to FAA AST for an experimental permit to begin powered flight tests on the first SpaceShipTwo, VSS Enterprise. The Mojave-based company was building the spacecraft for Virgin Galactic, which planned to provide suborbital space tourism flights once testing was completed.

As part of the application, Scaled submitted a hazard analysis that covered different ways in which the vehicle could potentially fail and endanger people and property not involved in the flight. The analysis didn’t meet the FAA’s requirements, but the agency determined it was good enough and issued a renewable one-year permit, according an accident investigation report and documents from the National Transportation Safety Board (NTSB).

In the months that followed, FAA AST safety experts — some of whom had come over from NASA’s recently ended space shuttle program — realized that the hazard analysis was seriously deficient in multiple areas, the documents said. These experts pushed their superiors to require a new analysis, which would have delayed the flight test program.

However, they were overruled by FAA AST management. There were several reasons given, including that it would be unfair to the company to suddenly change the rules after granting a permit. Some officials felt the dangers were minimal because flight tests were being done in the middle of nowhere so the deficiencies wouldn’t matter even if there was an accident. The FAA renewed the one-year permit in May 2013, and again a year later.

Instead of addressing the deficiencies, FAA AST issued a waiver for pilot and software errors two months after the first renewal. The document said Scaled had put in place mitigations to guard against a catastrophic failure that could endanger others. Measures included having two chase planes in the sky and running pilot simulations at 1.4 times faster than normal speed, among other things.

The Crash

Fifteen months after the waiver was published, pilot error brought down VSS Enterprise during its fourth powered flight test on Oct. 31, 2014. Ironically, the accident involved SpaceShipTwo’s unique and most heavily publicized safety feature.

SpaceShipTwo has moveable twin tail booms known as the feather that reconfigured the vehicle into a shuttlecock shape in order to ease reentry into the Earth’s atmosphere. The ship couldn’t survive a reentry if the feather mechanism didn’t deploy. In order to ensure the tail booms would do so, co-pilot Mike Alsbury was to disengage the locks that held the system in place when the ship hit Mach 1.4 during powered ascent. If the locks stuck, he and pilot Pete Siebold would need to immediately abort the flight and glide back to the Mojave Air and Space Port.

Tragically, Alsbury unlocked the feather prematurely at about Mach 0.9. Aerodynamic forces caused the tail booms to reconfigure the ship while the hybrid engine continued to propel the vehicle upward. VSS Enterprise broke up due to excessive stresses, spilling a cloud of nitrous oxide into the sky.

Alsbury was killed in the breakup. Siebold managed to parachute to safety; he was hospitalized with serious but non-life threatening injuries. The cockpit with Alsbury’s body slammed into a road on the desert floor, narrowly missing a pair of truck drivers going about their business on a Friday morning. Debris was spread over more than 30 miles of desert; a piece landed near a school in Ridgecrest.

In the end, there were no injuries or property damage on the ground. FAA AST had succeeding in protecting the uninvolved public. But, not by much. They got lucky.

Dysfunctional Oversight

The subsequent NTSB investigation concluded “the probable cause of this accident was Scaled Composites’ failure to consider and protect against the possibility that a single human error could result in a catastrophic hazard to the SpaceShipTwo vehicle. This failure set the stage for the copilot’s premature unlocking of the feather system as a result of time pressure and vibration and loads that he had not recently experienced, which led to uncommanded feather extension and the subsequent aerodynamic overload and in-flight breakup of the vehicle.”

VSS Enterprise was hand flown by the two pilots; it had very little automation. The investigation found that the Siebold and Alsbury were extremely busy during the powered ascent. One safety expert told the NTSB that it was the highest pilot workload he had seen anywhere for any flying vehicle ever.

The final report called FAA AST’s work on the experimental permit “deficient because the evaluations failed to recognize that Scaled Composites’ hazard analysis did not meet regulatory requirements to identify hazards caused by human error.”

Tom Martin, FAA AST’s lead technical system safety engineer, opposed issuing the waiver. He said the office’s managed discouraged him from discussing it.

“In fact, when I brought up the waiver, this is really interesting because I had some experience at NASA with this. When I brought up the waiver, I was pulled in by one of the managers, a guy by the name of Glenn Rizner, and he told me specifically that Dr. Nield does not want you to raise that issue about the waiver,” Martin said, according an interview transcript.

Martin recounted his amazement about how his superiors subsequently went about formulating the waiver.

“Management decided that they were going to write the waiver. I offered my assistance. They said, you know, we don’t need it. I said, let me get this straight. I’m telling you they didn’t meet the regulations; they’re deficient. That means the residual risk is going up. We don’t have enough verification. We don’t — they don’t document all the mitigation, so, you know, that makes me uncomfortable. You don’t want me involved in the waiver process? And they said that’s correct. I said, okay, I’ll watch how they document it. The next time I saw the waiver was when it was published,” he told investigators.

NTSB concluded that FAA AST’s management didn’t put much effort into ensure the waiver was actually useful.

“The Federal Aviation Administration Office of Commercial Space Transportation did not ensure that Scaled Composites was in compliance with the mitigations cited in the waiver from regulatory requirements or determine whether those mitigations would adequately address human errors with catastrophic consequences,” the accident report said.

In their NTSB interviews, Martin and other safety officials said there was pressure to approve tests and issue approvals within tight deadlines despite not always having all the technical information they needed to do so. They said pressure was applied across the board, not just in the case of SpaceShipTwo.

“And in discussions at the technical meeting, you know, everybody would say, yeah, we know there’s a lot of risk but management wants – and this is common statement — management wants us to issue the permit,” Martin said.

A key problem was that FAA AST’s technical staff couldn’t communicate with their counterparts at Scaled Composites. Instead, their questions were submitted to their superiors, who would decide whether to submit them to the company. Some questions were not sent, others rewritten. Sometimes the answers the technical staff got back would have nothing to do with the original questions.

The approach had two purposes. The first was not to have FAA AST technical staff constantly calling Scaled with questions. The other was to try to separate questions needed to fulfill the mandate to protect the uninvolved public from ones that related to the ability of Scaled Composites to safely complete a flight. However, the line between the two areas was not very well defined.

Ray Jenkins, an official in FAA AST’s Licensing and Evaluation Division, felt that the office’s management was overly concerned with maintaining good relations with Scaled Composites than in doing proper safety oversight.

“And again, the problem being you have to have people with the appropriate background to truly know what they’re looking at and not say I’m afraid of our relationship. It just makes no sense to me, as a space caring individual, why questions would get scrubbed because we’re afraid of relationships,” Jenkins said.

NTSB concluded that a combination of factors discussed above prevented FAA AST from doing its job properly.

“The lack of direct communications between Federal Aviation Administration (FAA) Office of Commercial Space Transportation technical staff and Scaled Composites technical staff, the pressure to approve experimental permit applications within a 120-day review period, and the lack of a defined line between public safety and mission safety assurance interfered with the FAA’s ability to thoroughly evaluate the SpaceShipTwo experimental permit applications,” the NTSB report said.

In the end, Scaled Composites failed to meet even the minimum requirements for conducting powered flights of SpaceShipTwo. And they paid the price for it. Some felt even meeting the minimum standards would have been insufficient.

“I must emphasize this, forget the intensity, but again being a pilot, it’s one thing to meet the minimum regulation. Human space flight, space flight does not recognize these minimums. There is danger above, gang,” Jenkins said. “Above 50,000 feet, the game changes. It just does. We can sit here and say people meet the minimum regulations all you want, but are you really willing to accept that flying humans into space? Minimum doesn’t cut it. That’s my opinion.”

The loss of SpaceShipTwo did not trigger the provision that FAA could begin writing safety rules after an accident. Congress renewed the learning period, which is set to expire next year unless it is extended again.

It’s Off to Space We Go….

The announcement that Nield would be aboard the next New Shepard flight was greeted with enthusiasm in the NewSpace community where he is a popular figure for his work in advancing commercial space activities. The revelations in the NSTB report about shortcomings in the office he ran do not seem to have affected his status.

Who wouldn’t want to go? Presumably, anyone familiar with the risks of rocket launches, the lack of mandatory safety regulations, the limits on one’s ability to sue, and FAA AST’s poor oversight of SpaceShipTwo might think twice before signing up. Of course, it’s a moot point for most people who can’t afford it; Virgin Galactic charges $450,000 per seat, Blue Origin’s tickets are rumored to start at $400,000 and go up from there.

This is rocket science. It’s not like getting on an airplane. Air travel is heavily regulated, with mydaid safety rules “written in blood” as a result of lessons learned in numerous fatal accidents. Even with all that experience, mistakes are made and people die; witness what Boeing did with the 737 MAX with the acquiesce of the FAA. Our institutions are far from perfect.

FAA AST hasn’t even started regulating the commercial spaceflight industry. It has only a narrow safety mandate to protect everyone except those who are paying a small fortune to fly to space. The office also has a mandate to promote the industry. The failure to balance those competing priorities contributed to an accident that resulted in a dead pilot, a wrecked ship and years of delays.

It’s nice that Nield is getting a chance to go to space. But, it’s a mistake to read too much into his joy ride into the cosmos.