FAA Proposes Changes To Astronaut Classifications And Other Regulations

Editor’s note: The following is an excerpt from U.S. Commercial Space Launch Competitiveness Act Incorporation posted by the FAA in the Federal Register.

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SUMMARY: This proposed rule would incorporate various changes required by the United States Commercial Space Launch Competitiveness Act of November 2015. This proposed rule would provide regulatory clarity to applicants seeking licenses for space flight operations involving government astronauts by adding two new subparts to the human space flight regulations containing requirements for operators with government astronauts with and without safety-critical roles on board vehicles.

The proposed rule would also require an operator to demonstrate any government astronauts on board can perform their role in safety-critical tasks. This proposed requirement would maintain public safety by ensuring operators provide mission specific training on safety-critical tasks to government astronauts, as has been done in the NASA Commercial Crew Program.

The proposed rule would also update definitions relating to commercial space launch and reentry vehicles and occupants to reflect current legislative definitions, expand applicability of permitted operations for reusable suborbital rockets to include reusable launch vehicles that will be launched into a suborbital trajectory or reentered from a suborbital trajectory, as well as implement clarifications to financial responsibility requirements in accordance with the United States Commercial Space Launch Competitiveness Act. Finally, this proposed rule would move the templates for waiver of claims to an advisory circular.

II. Background

A. National Aeronautics and Space Administration’s Commercial Crew Program

The National Aeronautics and Space Administration (NASA) Commercial Crew Program provides human transportation between the U.S. and the International Space Station (ISS) through the purchase of transportation services from American commercial launch providers. It has resulted in NASA astronauts flying on board licensed commercial vehicles to or from the ISS since 2020.

A new generation of spacecraft and launch systems capable of carrying government astronauts to low- Earth orbit and the ISS provides expanded utility, additional research time, and broader opportunities for discovery on the ISS. The Commercial Crew Program represents a revolutionary approach to government and commercial collaborations for the advancement of space exploration. NASA–including Johnson Space Center and Kennedy Space Center–and the FAA have previously discussed the statutory and regulatory definitions that apply to NASA astronauts riding on board Commercial Crew Program-provided spacecraft and the associated roles and responsibilities of both agencies. These discussions led NASA and the FAA to establish the NASA-FAA Joint Legal Working Group in January 2012. This working group eventually contributed to a series of recommendations NASA provided to Congress in proposed legislation.

As detailed below, title 51 did not effectively accommodate NASA astronauts flying on commercially owned and operated spacecraft. NASA and the FAA jointly determined that the legal definitions for crew and space flight participants were insufficient to accommodate the role of government astronauts on board Commercial Crew missions. The agencies agreed that a change to legislation would be needed to support the success of its Commercial Crew Program and to support commercial human space flight endeavors in general.

B. Issues With Categorizing NASA Astronauts as “Space Flight Participants” or “Crew”

A “space flight participant” was defined as an individual, who is not crew, carried within a launch vehicle or reentry vehicle. FAA regulations mirror these two definitions. One of the NASA-FAA Joint Legal Working Group’s concerns in 2012 was that the professionally trained and experienced NASA astronauts could not be appropriately categorized either as “space flight participants” or “crew “as then defined in title 51.

Before passage of the CSLCA, government astronauts were categorized as space flight participants because they were not employees of the licensee or transferee or of a contractor or subcontractor of a licensee or transferee. The FAA could not categorize government astronauts as crew for the same reason. This categorization, however, presented multiple issues. First, 51 U.S.C. 50914(b) requires space flight participants to sign waivers of claims against the U.S. Government for personal injury, death, or property damage when participating in FAA-licensed launches and reentries. On the other hand, in Legal Interpretation to Courtney B. Graham (December 23, 2013), the FAA explained that NASA astronauts may not sign reciprocal waivers of claims because doing so would conflict with various federal statutes, including the Federal Employees Compensation Act and the Military Personnel and Civilian Employees Claims Act.

Second, NASA expressed concerns regarding the requirement in 51 U.S.C. 50905(b)(5) for operators to inform space flight participants of the risks of licensed activity and obtain written informed consent from space flight participants. However, unlike space flight participants, government astronauts are already familiar with the particular risks involved in space flight and should not need to provide informed consent. Nevertheless, because the informed consent requirements for space flight participants did not conflict with federal statutes, unlike reciprocal waivers of claims, the government astronauts would have been required to comply with the requirements. Accordingly, the FAA issued a legal interpretation stating that NASA and international partner astronauts are space flight participants and therefore must provide informed consent in accordance with the statute and 14 CFR 460.45; however, it was deemed not necessary when flying as a government astronaut.

Finally, NASA sought clarification on whether a government astronaut, as a space flight participant, could perform operational functions during a commercial space launch or reentry under license from the FAA. In 2013, the FAA issued a legal interpretation stating that, while the applicable statute and regulations did not limit a space flight participant’s conduct or operations during launch or reentry, the FAA was concerned with space flight participants interacting with a launch or reentry vehicle based on the possibility that space flight participants would not have the proper vehicle and mission-specific training. The interpretation noted, however, that NASA astronauts must meet rigorous medical and training requirements, which include training specific to each mission, launch vehicle, and reentry vehicle.

Full document: U.S. Commercial Space Launch Competitiveness Act Incorporation, FAA