Peering Through the Celestial Looking-Glass: The Legal State of Play for Working in Space

Vol. 13 No. 2

By

Christopher M. Hearsey (chearsey@bigelowaerospace.com) is the Director of Legislative Affairs and Ryan T. Noble (rnoble@bigelowaerospace.com) handles business development and government outreach for Bigelow Aerospace, LLC. This article contains only the personal views of the authors.

Do you want to work on a space station, on Mars, or possibly on an asteroid? Yeah, that would be pretty cool. But whether you aspire to be an artist, a scientist, or an engineer, if you want to work in space someday, then you should know that some national laws and regulations will follow you there. If you want to work in an environment inches away from a vacuum or an unforgiving planetary body, then there will be some standards and practices that will follow you just as closely as your radiation counter.1 Some of these rules will be legally mandated and others will arise voluntarily. The types and levels of regulation will vary, but safety will be the cornerstone of rules that will govern one’s daily life in space. So what types of rules are we talking about?

Under current U.S. law, a person’s legal status to venture into outer space is defined relative to the type of authorization granted to leave the Earth on a launch vehicle and the person’s job description. The Commercial Space Launch Amendments Act of 2004 (CSLAA) establishes the legal regime for commercial human space flight.2 The CSLAA defines “crew” as an employee or contractor of an entity that holds the launch license who performs activities directly in the course of his or her employment relating to the operation of a launch vehicle that carries humans.3 Recent amendments to the CSLAA define the terms “government astronaut” and “international partner astronaut” to distinguish between classes of astronauts employed by a nation-state.4 If you are neither a member of the crew nor a government or international partner astronaut, then you are a “space flight participant.” The CSLAA defines a space flight participant as an “individual, who is not crew or a government astronaut, carried within a launch vehicle or reentry vehicle.”5 Crew, government astronauts (but not necessarily international partner astronauts), and space flight participants are subject to federal criminal and civil jurisdiction under the territorial and nationality principles.6 However, the applicability of national employment laws and regulations to crew, government and international partner astronauts, and space flight participants will likely be established through nationality due to the extraterritorial nature of activities in space.

The space environment presents many more hazards than one would find in a typical work setting. The ability of the commercial space industry to provide jobs in space requires a targeted approach to occupational health and safety. The CSLAA provides the foundation for this approach by vesting authority in the Secretary of the Department of Transportation (DOT) to regulate the health and safety of crew and occupants on commercial space vehicles.7

The Secretary has delegated its authority to the Federal Aviation Administration’s Office of Commercial Space Transportation (FAA/AST), which directly regulates licensing and permitting of launches and reentries.8 Centralizing federal government review of a proposed launch or reentry in the DOT is an important goal of the CSLAA.9 The CSLAA vests final authority over commercial launches, reentries, and their crew and occupants, mandating that “only 1 license or permit is required from the [FAA/AST] to conduct activities involving crew, government astronauts, or space flight participants, including launch and reentry.”10 The CSLAA also vests authority in the DOT to promulgate “regulations governing the design or operation of a launch vehicle to protect the health and safety of crew, government astronauts, and space flight participants.”11 The CSLAA provides specifically that crew must receive training, satisfy medical standards, and be informed in writing that the U.S. government has not certified the launch vehicle as safe.12

FAA/AST has promulgated regulations providing more detail on the requirements of the CSLAA. Crew training must focus on operating the vehicle to avoid harm to the public and include emergency operations and abort scenarios.13 Crew must demonstrate the physical ability to safely carry out their duties, such as performing during high acceleration and deceleration phases and performing in the microgravity environment.14 Those crew members performing safety-critical roles must also pass annual health checkups performed by an aviation medical examiner, a physician trained to evaluate a person’s physical fitness for the flight environment.15

FAA/AST has also promulgated regulations on human factors design and environmental controls. The vehicle environment must be monitored and controlled, including composition of the atmosphere, which contains oxygen and carbon dioxide, and any revitalization; pressure, temperature, and humidity; contaminants that include particulates and any harmful or hazardous concentrations of gases, or vapors; and ventilation and circulation.16 Furthermore, an operator must provide an adequate redundant or secondary oxygen supply for the flight crew, and detect smoke and suppress cabin fire.17 Additionally, vehicle operators must account for human factors in design and layout of displays and controls; mission planning, which includes analyzing tasks and allocating functions between humans and equipment; restraint or stowage of all individuals and objects in a vehicle; and vehicle operation, so that the vehicle will be operated in a manner that flight crew can withstand any physical stress factors, such as acceleration, vibration, and noise.18

These regulations provide the foundation of FAA/AST’s efforts to protect the health and safety of space vehicle crew and occupants. While such rules may appear general in nature, that is very much the point—as the CSLAA recognizes “the regulatory standards governing human space flight must evolve as the industry matures so that regulations neither stifle technology development nor expose crew [or occupants] to avoidable risks as the public comes to expect greater safety for crew [and occupants] from the industry.”19 Accordingly, FAA/AST exercises a light regulatory touch to allow the various vehicle developers the freedom to innovate new, safer ways to conduct human space flight. However, the CSLAA acknowledges that serious injuries, or a high risk of serious injury, authorizes FAA/AST to restrict the underlying design features or operating practices that contributed to such injuries.20

While FAA/AST has the authority to promulgate rules regarding the health and safety of crew and occupants within a commercial space vehicle, generally the Occupational Safety and Health Act of 1970 (OSHA) provides for the regulation of workplace health and safety. Congress enacted OSHA “to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.”21 OSHA’s general duty clause under section 5 states that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”22

Prior to the enactment of the CSLAA and during the beginning of the space shuttle program, NASA and the Department of Labor negotiated a waiver to the ionizing radiation worker regulations that otherwise would have applied to NASA astronauts.23 The assertion of OSHA jurisdiction practically necessitated the grant of a waiver to the fellow federal agency because NASA could not practically comply with radiation worker regulations that were never designed or envisaged for application to a space vehicle.24 The necessity to similarly avoid radiation worker regulations for commercial employees in space is just as important for the commercial space industry as it is for NASA.

Moreover, the OSHA general duty clause poses paralyzing vagueness considering the many recognized hazards of the space environment that are not, with current technology, entirely correctable. A general duty clause violation arises where (1) the employer fails to keep the workplace free of a hazard to which its employees were exposed; (2) the hazard was recognized; (3) the hazard was causing, or was likely to cause, death or serious physical harm; or (4) there was a feasible and useful method to correct the hazard.25 The inquiry posed by the fourth element is what the CSLAA warns against: second-guessing of developmental phase designs and operations of commercial space companies chills innovation and forecloses experimentation by imposing standards prematurely. The purpose of CSLAA is to allow for innovation, not to codify NASA practices.

Fortunately, the CSLAA has likely preempted OSHA requirements when it comes to workplace health and safety for crew and occupants. OSHA limits its applicability to working conditions that are not otherwise regulated by other federal agencies affecting occupational safety or health.26 Because FAA/AST exercises statutory authority to proscribe and enforce regulations affecting the occupational safety and health of space vehicle crew, OSHA would likely be preempted insofar as it applies to licensed or permitted launches. The necessity of vesting workplace health and safety authority in an agency with specialized expertise in space flight becomes self-evident considering that ionizing radiation is only one of many hazards unique to the space environment. Crew and occupants will also incur physiological and psychological stressors from launch and reentry, prolonged exposure to microgravity, temperature extremes, risks posed by orbital debris and micrometeorites, prepackaged food, recycled water, odors, etc.27 If you plan to work in space, you are definitely on notice that your workplace is on the frontier of both safety and exploration.

FAA/AST encourages the commercial space industry to develop industry consensus standards.28 The commercial space industry has begun to look at such standards and practices to improve the safety of commercial human space flight. Recently, the American Society for Testing and Materials International (ASTM) has taken the lead with commercial space industry partners to develop such standards and practices relating to crew, occupant, and public safety. These standards augment the legal rights and obligations established between employers and employees under employment contracts. Developing standards and practices that can evolve with the growth and experience of working in space will ensure that the promise of the CSLAA remains. The commercial space industry must have a seat at the table to inform those workplace health and safety rules to obtain the highest level of safety feasible for a space vehicle system. Who best to know than the space vehicle developer?

The role of FAA/AST is to promote a new way of conducting space flight, not to merely codify NASA’s practices. As commercial space companies explore new ways to live and work in space, they will need the same freedom over in-space operations that the commercial launch industry has enjoyed, and that has enabled market changing advancements in space launch systems. Recruitment, selection, contracts, wages, employee benefits, discrimination, sexual harassment, privacy, labor relations, safety and health, and discipline and termination are all areas well known in labor law practice developed terrestrially on Earth. The policy goals of these areas of law remain just as important for protecting space workers, but will require adaptation to the unique eccentricities of the space environment. Preserving industry’s ability to innovate, while dispensing with recognized flaws in design or operation, is perhaps the only means to enhance the health and safety record of human space flight. Commercial space companies are pursuing ambitious goals of democratizing access to space, the routine reuse of space vehicle systems, in-space manufacturing and servicing of spacecraft, and sustaining a low Earth orbit (LEO) economy. Increasing the scale and frequency of space activities provides the experience and pathways necessary to improve safety for all of those working in space. ◆

Endnotes

1. See Alyssa Megan Sieffert, Astronaut Health and Safety Regulations: Ionizing Radiation, 10 SciTech Law., no. 4, Summer 2014, at 20.

2. Pub. L. No. 108-492, 118 Stat. 3974.

3. 51 U.S.C. § 50902(2).

4. Id. § 50902(4), (5); see Steven A. Mirmina, Astronauts Redefined: The Commercial Carriage of Humans to Space and the Changing Concepts of Astronauts under International and U.S. Law, 10 FIU L. Rev. 669 (2015).

5. 51 U.S.C. § 50902(20).

6. See 18 U.S.C. § 7(6), (7); U.S. Commercial Space Launch Competitiveness Act of 2015, Pub. L. No. 114-90, 129 Stat. 704.

7. 51 U.S.C. § 50903.

8. Commercial Space Transportation Licensing Regulations, 64 Fed. Reg. 19,586, 19,586 (Apr. 21, 1999) (“The Secretary delegated the statutory authority over the regulation of commercial space transportation to the Administrator of the Federal Aviation Administration, and the Administrator redelegated this authority to the Associate Administrator.”).

9. See 51 U.S.C. § 50901(b)(3) (“The purposes of this chapter are . . . to provide that the Secretary of Transportation is to oversee and coordinate the conduct of commercial launch and reentry operations, issue permits and commercial licenses and transfer commercial licenses authorizing those operations, and protect the public health and safety, safety of property, and national security and foreign policy interests of the United States . . . .”).

10. Id. § 50904(d).

11. Id. § 50905(c)(1).

12. Id. § 50905(b)(4).

13. 14 C.F.R § 460.5(a).

14. Id. § 460.5(b).

15. Id. § 460.5(e).

16. Id. § 460.11.

17. Id. § 460.13.

18. Id. § 460.15.

19. 51 U.S.C. § 50901(a)(15).

20. Id. § 50905(c).

21. About OSHA, U.S. Dep’t of Labor, https://www.osha.gov/about.html (last visited Feb. 14, 2017); see Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590.

22. 29 U.S.C. § 654.

23. Mark Weyland & Michael Golightly, Monitoring and Modeling Astronaut Occupational Radiation Exposures in Space: Recent Advances, in Proceedings from the 1998 NASA Occupational Health Conference: Benchmarking for Excellence 200, 200 (1999), available at https://ntrs.nasa.gov/archive/nasa/casi.ntrs.nasa.gov/19990040967.pdf (“In 1982 astronauts were declared to be radiation workers by OSHA, and as such were subject to the rules and regulations applied to that group. NASA was already aware that space radiation was a hazard to crewmembers and had been studying and monitoring astronaut doses since 1962 at the Johnson Space Center. It was quickly realized NASA would not be able to accomplish all of its goals if the astronauts were subject to the ground based radiation worker limits, and thus received a waiver from OSHA to establish independent limits. As part of the stipulation attached to setting new limits, OSHA included a requirement to perform preflight dose projections for each crew and inform them of the associated risks. Additional requirements included measuring doses from various sources during the flight, making every effort to prevent a crewmember from exceeding the new limits, and keeping all exposures As Low As Reasonably Achievable . . . .”).

24. Id.

25. Jim Stanley, OSHA’s “General Duty” Clause—Often Used and Frequently Misunderstood, FDRsafety (May 6, 2011), http://www.fdrsafety.com/oshas-general-duty-clause-often-used-and-frequently-misunderstood/.

26. 29 U.S.C. § 653(b)(1).

27. See, e.g., A-P-T Research Inc., Study on Informed Consent for Spaceflight Participants, Doc. No. APT-CFA-230-0001-02F (2008), available at http://www.faa.gov/about/office_org/ headquarters_offices/ast/reports_studies/library/media/Informed_Consent_for_Spaceflight_Participants.doc; Rebecca S. Blue et al., Tolerance of Centrifuge-Simulated Suborbital Spaceflight by Medical Condition, 85 Aviation Space & Envtl. Med. 721 (2014), available at http://commercialspace.pbworks.com/w/file/fetch/87182095/Blue,%20et%20al%202014.pdf.

28. See, e.g., Commercial Space Transportation Advisory Committee (COMSTAC) Meeting Minutes 3 (May 10, 2012), http://www.faa.gov/about/office_org/headquarters_offices/ast/media/May_2012_COMSTAC_Minutes.pdf (remarks of Dr. George Nield, Assoc. Adm’r for Commercial Space Transp., FAA) (“At the same time, Congress directed the FAA to work with industry to prepare for eventual regulations. While the FAA cannot show industry an idea for a proposed regulation, industry can certainly express the kinds of basic regulations and standards it believes would be appropriate for human spaceflight. The FAA wants to know industry’s thoughts on this subject.”).

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