Informal Regulation of Space Activities

• Publication year: 2021

87 Nebraska L. Rev. 530. Informal Regulation of Space Activities

530

Informal Regulation of Space Activities

Rachel A. Yates(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 530 R
II. Design and Operations.................................. 531 R
III. Space Flight Participants.............................. 533 R
IV. Crew Training.......................................... 535 R
V. Industry Association .................................. 535 R
VI. Conclusion............................................. 537 R

I. INTRODUCTION

The most studied and academically debated laws regarding outer space consist of the five United Nations treaties, which were entered into force from 1967 to 1984. After this condensed period of treaty activity, United Nations resolutions and principles took the place of treaties on which consensus otherwise needed to be achieved. Hard space law developed primarily at the national level in the form of various acts or regulations adopted by individual nation states. Even though formal laws can typically be promulgated more quickly at the national level, such hard laws still may not be the most efficient method for governmental legal oversight. Formulation of laws can no longer keep pace with the technological innovations that drive the aerospace industry. Often informal laws, through industry self-regulation or contract, prove more effective in protecting the rights of those engaged in such activities and public safety. The informal regulation of space activities will likely supplant the role that formal laws once held except where targeted, formal laws are needed to fill gaps left through informal regulation.

In the United States, one example of a blend of informal and formal law is the regulation of the nascent space tourism industry. Until the design and engineering of launch, orbital, and reentry vehicles are validated, formal regulation of the industry must be flexible, liberal, and practical. The United States Federal Aviation Administration ("FAA") has recently followed this approach in the promulgation of

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regulations on human space flight. After weighing several competing interests and policies to avoid artificial or rigid barriers that might stifle innovation unnecessarily, the regulations intentionally impose the least restrictive requirements that encourage safety. The development of the regulations reflects a model for cooperation between the industry and its regulating agency. In response, the industry has begun regulating itself and, where needed, seeking formal laws to supplement its self-regulation.

In 1995, the Commercial Space Launch Activities Act ("CSLA") comprehensively legislated launch and reentry activities.(fn1) By delegation, it authorized the FAA to regulate launches, reentries, and the operation of sites.(fn2) Until 2004, the FAA had licensed only operators of expendable launch vehicles, but in that year, it issued two reusable launch vehicle ("RLV") licenses for missions involving an on-board pilot. Congress thereafter adopted amendments to the CSLA to address human space transportation for hire, mandating that the FAA promulgate regulations for human space flight.(fn3) The FAA issued a formal Notice of Proposed Rulemaking for human space flight requirements, setting out proposed regulations to address these areas.(fn4) The final rule was issued on December 15, 2006.(fn5) Simultaneously, the FAA received comments on its proposed regulations for experimental permits for reusable suborbital launch vehicles, which were finalized on April 6, 2007.(fn6)

Both the U.S. statute and the administrative regulations admirably balance protection of the affected public and government controls. Although such provisions constitute law promulgated through formal legislation and rulemaking, they rely heavily on a component of self- regulation by the industry.

II. DESIGN AND OPERATIONS

For instance, the regulations impose general safety requirements for human space flight, but nonetheless give companies substantial flexibility in the design and operation of spacecraft, subject only to narrow requirements for protection of crews and space flight partici-

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pants. Until 2012, the FAA may only restrict or prohibit design features that have resulted in serious or fatal injuries to crews or space flight participants during a licensed or commercial human space flight or contributed to an unplanned event that posed a high risk of causing serious or fatal injuries.(fn7) As the FAA stated in its comments on the final rule, "For the next six years, the FAA has to wait for harm to occur or almost occur before it can improve...