Captain’s Blog: Fly Me To The Moon

Sheppard Mullin Richter & Hampton LLP

On October 13, 2021, William Shatner (aka, Captain Kirk from Star Trek) flew where few have gone before, taking a ten minute jaunt to the edge of outer space.  The successful flight comes on the heels of other highly-publicized, successful commercial space flights, including the September 15, 2021, SpaceX mission dubbed “Inspiration4” that made history as the first orbital spaceflight with no professional astronauts onboard.  As the era of commercial spaceflight draws ever closer, the space industry is building toward expanded commercial opportunities in space, including private space stations, space hotels, and colonies on the moon and Mars.  So now, as we stand on the precipice of the commercial space revolution, it is important to reflect on the regulatory “learning period” that enabled U.S. commercial space flight to reach this juncture and consider the timing and substance of the regulatory framework necessary to spur our next great leap forward.

In 2004, Congress passed the Commercial Space Launch Amendments Act (CSLAA) regulating commercial spaceflight activities.  Chief among the bill’s significant achievements was (i) the decision to locate all regulatory authority for commercial human spaceflight in the FAA’s Office of Commercial Space Transportation (AST); (ii) the adoption of a regulatory regime for commercial human spaceflight that limited safety requirements for non-crew passengers—now known as “spaceflight participants”—to their informed, written consent to undertake the risks associated with participation; and (iii) the creation of a “learning period” for commercial spaceflight.  Under the “learning period,” the Secretary of Transportation was prohibited from issuing safety regulations beyond the informed consent regime established in the CSLAA.  The “learning period,” originally intended to sunset on September 30, 2015, was extended to October 1, 2023, by the U.S. Commercial Space Launch Competitiveness Act of 2015 (CSLCA).

The CSLCA directed the FAA to release periodic reports on the progress of the commercial space transportation industry towards developing voluntary industry consensus standards that “promote best practices to improve industry safety.”  The reports are intended to provide key industry metrics that might indicate the readiness of both the industry and the Department of Transportation to transition to a safety framework that would include regulations for occupant safety.  As the FAA explained in its first report, these metrics include the industry’s readiness for a formal safety framework (such as the reasons people are traveling in space, the size and complexity of the industry, and the safety of the industry), the industry’s progress in developing a safety framework, and the FAA’s expertise in human space flight safety and its ability to regulate it effectively.  As of the most recent report, issued on February 26, 2019, the FAA concluded the industry was not yet ready for regulation, noting the lack of commercial space flights that had taken place.

That all changed in 2021.  With Blue Origin having completed its second commercial human space flight, we can expect the FAA’s next report in 2022 will look a little different.

The level of government involvement, however, will depend in part on whether a successful industry-led safety framework emerges over the next year.

If the FAA concludes the commercial spaceflight industry has progressed beyond its “learning period,” Congress will likely begin to hold hearings and draft formal legislation to instruct the FAA to begin the process of developing unified safety standards, licensing procedures, and reporting requirements for commercial spaceflight participants.  Among the likely considerations will be whether to continue the informed consent regime or to adopt a more stringent regulatory regime for spaceflight participants more akin to that which is in place for professional astronauts and crew.  We expect Congress and the FAA will explore:

Informed consent: whether the definition of “informed consent” is static or should evolve with science’s understanding of the risks to human exposure to spaceflight.  Currently, the informed consent regime requires that operators disclose the known hazards of space travel to prospective spaceflight participants and receive their written consent.  Some hazards are not yet known or are continually evolving as we gain more experience with time in space, including how exposure to G forces or microgravity could affect spaceflight participants.  To manage liability risk exposure and tailor training guidelines, the industry will have to come to a consensus regarding what a sufficient disclosure to obtain “informed consent” really means.  As the FAA learns more about the risks of spaceflight, we can expect that it may require more detailed disclosures under its regulatory authority to protect human spaceflight participants.

Training guidelines: what level of pre-flight preparation is necessary to ensure the safety of human spaceflight participants.  Congress and the FAA are likely to look at the training regimes companies such as Virgin Galactic, Blue Origin, and SpaceX have voluntarily adopted to prepare their participants for suborbital and orbital flight.  For example, the crew of the Inspiration4 underwent months of training, such as mountain climbing, zero-G and altitude chamber training, and 60-hour week long sessions at SpaceX’s headquarters that included emergency simulations and classroom instruction.

Medical screening: whether there should be baseline health requirements for persons seeking to participate in spaceflight activities.  While there is much uncertainty regarding the medical consequences of space flight, in 2012 the FAA, NASA, and certain medical experts teamed up to draft recommendations for medical screening practices space tourism operators could voluntarily employ.  The resulting “Flight Crew Medical Standards and Spaceflight Participant Medical Acceptance Guidelines for Commercial Space Flight” suggests different screening procedures and risk mitigation techniques for different types of space flights.  This is the kind of report Congress may use to establish policies and regulations related to informed consent, training, and flight guidelines.

Commercial liability: whether and when the liability regime should be amended towards more of an airline liability regime.  The liability regime for accidents that occur during a spaceflight is not fully developed.  Assuming an operator complies with informed consent regulations, spaceflight participants generally cannot hold an operator liable for injuries or deaths that occur during the flight.  But these regulations may not apply to other parties, including the families of any injured party.  Additionally, the initial liability to a launch or reentry licensee for third-party death, bodily injury, or property damage is capped at $500 million.  The Government indemnifies the licensee, spaceflight participant, and other related parties against third party claims above this amount, up to roughly $3 billion.  If liability exceeds $3 billion it reverts back to the licensee.  The statutory requirement that a licensee maintain an insurance policy applicable to space flight participants to cover its first tier of liability is set to expire in 2025.

Accident investigation jurisdiction: whether to assign jurisdiction to investigate accidents that may occur on both private and Federal ranges to the National Transportation Safety Board (NTSB).  There is no clear delineation of jurisdiction for investigating an accident involving spaceflight participants.  The FAA, NTSB, and U.S. Air Force informally agreed the FAA and NTSB will investigate commercial space launch accidents, but that agreement is not binding.

The FAA’s next report is due March 31, 2022.  Given the success and publicity surrounding recent commercial human spaceflights, the industry should anticipate renewed interest in spaceflight legislation from Congress and the FAA and the potential final sunset of the “learning period.”  The commercial spaceflight industry should carefully monitor and track these developments, as new laws and regulations will have a significant impact on how companies operate in the coming years.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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