Commercial Human Spaceflight Industry Lightly Regulated

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by Douglas Messier
Managing Editor

U.S. regulations for commercial human spaceflight give the wide latitude to develop and fly their launch systems while providing substantial protections about being sued for injuries and deaths resulting from accidents. What follows is is a brief summary of the provisions, most of which have been in place since December 2004.

Pre-application Consultations. Applicants can work with FAA AST staff prior to submitting license and permit applications to review plans and regulations.

Dual Mandate. FAA AST has a dual mandate to both regulate and promote the emerging commercial space sector.

During the National Transportation Safety Board’s investigation into the crash of SpaceShipTwo in October 2014, some FAA AST officials complained that manager prioritized promoting the industry over safety. They cited political pressure to issue experimental permits and licenses within the time frames required even when there were issues with the applications.

Permits. Vehicles are tested under experimental permits issued by the Federal Aviation Administration’s Office of Commercial Space Transportation (FAA AST). The office has 120 days from the date that an application is deemed complete to issue or deny a permit.

The Secretary of Transportation must notify the House and Senate science committees within 15 days if the office has not acted on a permit within the 120-day limit. The review process can be tolled — suspended — if more time is required to work out issues.

Licenses Not Certifications. The FAA will license spacecraft to carry passengers, but they will not undergo aircraft-like certification. FAA AST has 180 days from the date that a license application is deemed complete to make a decision.

The Secretary of Transportation must notify the House and Senate science committees within 30 days if the office has not acted on a permit within the 180-day limit. The review process can be tolled — suspended — if more time is required to work out issues.

Protecting the Public. The agency’s main regulatory role is “to protect the public health and safety, safety of property, and national security and foreign policy interests of the United States.” In short, the goal is to make sure members of the “uninvolved public” — those not connected with a flight — are not injured or killed if a flight goes awry.

There was a close call when SpaceShipTwo broke up during a test flight near Koehn Lake, Calif. Two truck drivers just missed getting hit by the cockpit, which slammed into a spot on a road they had just driven past.

Learning Period. An eight-year moratorium was placed on FAA regulations governing the safety of pilots and passengers in December 2004. With the subsequent lack of commercial spaceflights, the moratorium was extended by three years in 2012. Last year, Congress approved an eight-year extension to 2023.

The goal of the learning period is to allow companies to experiment with different vehicle designs and flight operations before the government steps in with strict safety regulations.

The moratorium is not a hard and fast prohibition. FAA AST could step in after a fatal accident or a close call to address specific safety issues raised by an incident.

In 2014, FAA AST Associate Administrator George Nield proposed allowing the learning period to expire as planned at the end of September 2015.

“Talking about a learning period makes it sound like we have never had any human spaceflights, and that we need to try it before we know what to do,” Nield said. “In reality, the U.S. has more than 50 years of experience in human spaceflight going all the way to Alan Shepard’s suborbital flight…

“Now, while it is true that none of those flights carried a spaceflight participant who had to buy a ticket, the data that was gathered, the problems that were experienced, and the lessons that have learned over the last five decades were all pretty much independent of who was on board. For us to ignore all of that data, and all of those lessons, would be, I think, irresponsible,” he added.

Nield’s efforts went nowhere. Working with allies in Congress that include House Majority Leader Kevin McCarthy (R-Calif.) and Rep. Steve Knight (R-Calif.), the industry got an eight-year extension approved last year.

Reciprocal Waivers of Claims. Spaceflight participants — i.e., passengers — fly under an informed consent regime under which they acknowledge that spaceflight is dangerous and they accept the risks. A number of states have passed legislation prohibiting injured space tourists and their heirs from suing except in cases of gross negligence or intentional harm.

In the SPACE Act of 2015, Congress went even further by added space flight participants to the list of parties that are required to sign reciprocal waivers of claims with spaceflight providers “under which each party to the waiver agrees to be responsible for personal injury to, death of, or property damage or loss sustained by it or its own employees resulting from an activity carried out under the applicable license.”

Rep. Donna Edwards (D-Md.), a member of the House Science Committee, called it “quite an indefensible provision” that is “basically providing the launch industry with complete immunity from any civil action.”

The American Association for Justice, which represents the nation’s trial lawyers, echoed these sentiments in a statement.

“If private space travel corporations were to cause any kind of crash or disaster, this bill would immunize those at fault and leave victims and taxpayers stuck footing the bill for the tragedy,” CEO Linda Lipsen said.

“The bill jeopardizes both civilians on the ground and the passengers, whose right to hold anyone accountable would be eliminated. Industries that lobby for immunity from accountability might as well hang up a sign saying they don’t trust themselves to be safe,” she added.

“This bill is terrifying because it says certain corporations can’t be held accountable if they cause any kind of harm to others. That’s just dangerous. Companies that get blanket immunity are a threat to the public. No corporation should be unaccountable, and Congress should stop this bill.”

Federal Jurisdiction. The SPACE ACT of 2015 also gives federal courts “exclusive jursdiction over “any claim by a third party or space flight participant for death, bodily injury, or property damage or loss resulting from an activity carried out under the license.’’

The Series

  • ThomasLMatula

    One of the mistakes New Mexico spaceport advocates made was assuming space commerce would be held to the same safety standards as govern launches at WSMR and so selected a location that would provide safe flight testing and development to third parties. If we had known that the FAA AST would be so lax it could have been located at Las Cruces International Airport for a fraction of the cost to the state taxpayers.

    That said I suspect that the lax safety standards of the FAA AST will come back to haunt the industry with an over reaction in the other direction when the first accidents involving third parties occur. Likely many of the new airport spaceports will lose their licenses as they will not be able to meet the strict new standards, or are simply forced to drop their spaceport designations from public opposition.