NASA Request for Information on Liability Framework for Regular People in Space

NASA extended its deadline last week for interested parties such as launch companies, insurance carriers, and you and me to comment on its proposed liability framework.  The new response date is now September 1, 2020, and NASA may modify its framework in response to your comments.

In its plan for commercial development in low-Earth orbit, NASA sought to enable further visits by “private astronauts” to the International Space Station (ISS).  In order to make this plan work, NASA wants to create a liability framework that would apply to launch and reentry operators, which the agency calls Private Astronaut Mission providers in the interest of creating the mysterious acronym PAM.

One of the assumptions that NASA states underlies the proposed framework is that a launch provider carrying people who are not government astronauts “will be subject to all statutory and regulatory requirements, including 51 U.S.C. § 50914, Liability insurance and financial responsibility requirements and other requirements imposed by the [Federal Aviation Administration] under the Commercial Space Launch Act, 51 U.S.C. § 50901, et seq.”

The FAA requirements apply during launch and reentry, because that is where Congress gave the FAA authority, and not on the ISS.  As required by Congress through the Commercial Space Launch Act, the FAA requires space flight participants to waive claims against the U.S. Government and the launch and reentry operator for certain types of harm, including death and bodily injury, arising out of FAA licensed activities–in other words, arising out of launch or reentry.  Not on orbit.

Thus, NASA’s framework would apply where the FAA’s does not.

NASA summarizes its requirements for launch operators, reentry operators, and “private astronauts” as follows:

For waivers of claims.

• The PAM provider must agree to the IGA cross-waiver, deviated as follows:
  •  Private Astronauts are considered Related Entities and must agree to IGA cross-waiver language (Required)
  • Subject to the limitations outlined below, the Government and the PAM provider will also agree to a reciprocal waiver of claims between each other.
  • The Government will not waive claims
    • Arising out of or relating to the contractor’s failure to perform its obligations under the agreement;
    • For U.S. Government property that is covered by PAM provider’s insurance or financial capability required by the agreement; or
    • Against Private Astronauts or commercial contractor cargo or payload owners.
• The PAM provider must provide certification to NASA that the cross-waiver was flown down to Related Entities. (Required)

For insurance:

• The PAM provider must obtain the following insurance, in TBD amounts:
  • (1) Liability insurance to cover all phases of the mission and all Damage, as defined in the IGA cross-waiver;
  • (2) Insurance in the maximum amounts available on the market at reasonable premiums for damage to U.S. Government property, except for damage to all on orbit ISS structures, modules, and systems required for ISS functionality during Launch Services, Reentry Services, or transportation to, from, in proximity of, or docking with the ISS as part of activities under the agreement and damage resulting from willful misconduct of Government/employees
  •  (3)  Insurance for claims by Third Parties for Damages arising in connection with Hazardous Activities under the contract
  • (4)  Insurance covering damage to or loss of any property or injury or death of any person on the ISS or other third parties, resulting from any action, negligence, or failure to act by the Private Astronaut (provider may obtain or require Private Astronaut to obtain)
• The PAM provider must require each Private Astronaut to obtain life insurance in, at a minimum, an amount (if any) required by the International Partners (Required), or such higher amount as may be required by the Government, as the Private Astronaut’s sole source of recovery.