Commercial Space Launch and the April 2023 Starship Mishap

Commercial Space Launch and the April 2023 Starship Mishap

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May 19, 2023
Commercial Space Launch and the April 2023 Starship Mishap
The commercial space industry, including the launch sector,
As part of the licensing process, AST also conducts a
has been expanding rapidly (see Figure 1). A mishap
payload review and an environmental review. The payload
during a test of a new rocket in April 2023 has drawn
review is to make sure that payloads carried by the launch
congressional attention to issues such as federal regulation
vehicle have all the required licenses and approvals from
and licensing of commercial space launch, safety and
other agencies, such as the Federal Communications
liability, and the use of commercial space capabilities by
Commission and the Department of Commerce. The
the National Aeronautics and Space Administration
environmental review is to ensure compliance with the
(NASA) and other federal agencies.
National Environmental Policy Act and other requirements
(for more information, see CRS In Focus IF11549, The
The April 2023 Mishap
Legal Framework of the National Environmental Policy
Space Exploration Technologies Corporation (SpaceX) is
Act).
developing a new, very large rocket called Starship. It is
designed to be the most powerful rocket ever built.
The FAA license under which SpaceX conducted the April
2023 test is valid for five years, but only for one flight (the
On April 20, 2023, a test flight of Starship from a SpaceX-
one in which the mishap occurred) unless the FAA modifies
owned launch site in Boca Chica, TX, flew for about 4
it to allow additional flights. Under 14 C.F.R. §450.9, “the
minutes, reaching an altitude of about 24 miles. At that
FAA may modify a vehicle operator license at any time by
point, problems with several of the engines caused SpaceX
modifying or adding license terms and conditions to ensure
to order the rocket to self-destruct.
compliance with the Act and regulations.” In the case of
Starship, the FAA has said it will not allow a return to flight
SpaceX collected a significant amount of data from the test
until it determines that “any system, process, or procedure
flight, and from that perspective the test was at least a
related to the mishap does not affect public safety.”
partial success. However, not everything went according to
plan. Along with the early termination of the flight, the
Figure 1. Launches Licensed by the FAA, 2012-2023
rocket engines caused extensive damage to the launch pad,
a fire was started on parkland near the launch site, and
debris from both the destroyed rocket and the damaged
launch pad was scattered over a wide area, raising concerns
about both safety and environmental impact.
Shortly after the mishap, a group of environmental and
cultural-heritage organizations filed a lawsuit against the
Federal Aviation Administration (FAA), which has the
responsibility for regulation and licensing of commercial
space launch, for authorizing the Starship launch. The
lawsuit seeks to revoke the Starship launch license and
require the preparation of an environmental impact
statement before a new license can be issued.

How Does the Federal Government
Regulate and License Commercial Space Source: CRS, based on FAA data.
Launch?
Notes: Data for 2023 are for launches through May 18. Licensed
In 1984, the Commercial Space Launch Act (P.L. 98-575)
launches only (excludes launches under experimental permits).
assigned responsibility for commercial space launch
regulation and licensing to the Department of
How Are Mishaps Investigated?
Transportation (DOT). That act, as amended, is codified at
The details of commercial space launch mishap
51 U.S.C. Chapter 509. DOT has delegated these
investigations depend somewhat on the nature of the
responsibilities to the FAA Office of Commercial Space
mishap. In most cases, the launch company itself has the
Transportation (AST). Companies must obtain a launch
primary responsibility to investigate what happened and
license from the FAA and comply with the regulations it
why, but the FAA oversees and participates in that
issues with respect to safety, financial responsibility,
investigation and generally does not allow further launches
oversight, and other topics (see 14 C.F.R. Chapter III).
until the company has identified and resolved the root cause
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Commercial Space Launch and the April 2023 Starship Mishap
of the mishap. If another federal agency was involved in the
in commercial spaceflight may soon look quite different,
launch—for example, if NASA or another agency was a
but if so, the details of a new framework are not yet clear.
customer for the launch—then it may participate in the
investigation as an observer.
What Are the Implications of Possible
Delays in the Development of Starship?
In some circumstances, the National Transportation Safety
The April 2023 mishap could delay the development of
Board (NTSB) also has a role. In 2022, the FAA and the
Starship, either because of technical challenges in resolving
NTSB signed an updated memorandum of understanding
the cause of the mishap or perhaps because of legal action
that determines when the NTSB is the lead agency instead
to block the license modification that additional launch
of the FAA. That occurs when there is a fatality or a serious
attempts would require. If the delays are extensive, they
injury to a person, or when there is damage from debris that
could have business consequences for SpaceX. Among
could reasonably be expected to cause death or serious
other things, the company intends to use Starship to launch
injury. Those circumstances do not appear to have
commercial satellites, including its own Starlink broadband
happened in the April 2023 Starship mishap.
internet satellites, at lower cost and higher volume than the
Falcon Heavy rockets it currently uses for that purpose.
Who Is Liable If a Launch Mishap Causes
Damage in the Surrounding Community? For the federal government, there could also be
Liability questions are potentially up to a court to decide.
consequences for NASA’s Artemis program to return
That said, part of the FAA licensing process is a calculation
humans to the Moon. For the first Artemis Moon landing
of the “maximum probable loss” from third party liability—
mission, known as Artemis 3, NASA plans to use a variant
that is, liability for harm to anyone other than the launch
of Starship called the Human Landing System to carry
provider and the owners of payloads carried by the launch.
astronauts from lunar orbit to the lunar surface and back.
The launch provider is then required, by the terms of its
The Artemis 3 mission is currently scheduled for December
license, to carry insurance for the maximum probable loss
2025. NASA has stated that it expects Starship to return to
amount, up to a cap of $500 million.
flight within a couple of months. If that timeline ends up
slipping, it could affect the schedule for Artemis 3.
If a mishap were to result in liability above the required
insurance amount—which has never yet happened—the
Is It Common for Federal Agencies to
federal government would cover the next $3 billion. The
Rely on Commercial Space Service
authorization for that federal indemnification (51 U.S.C.
Providers?
§50915) expires on September 30, 2025. It was enacted in
Federal space programs have always relied on commercial
the Commercial Space Launch Act Amendments of 1988
contractors to provide hardware like rockets and satellites.
(P.L. 100-657) and was initially only effective through
A newer development is the purchase of commercial space
1993, but Congress has extended the expiration date several
services, such as launch or transport to the lunar surface,
times and may consider whether to extend it again.
using hardware that is owned and operated by the
commercial company, not by the government.
How Is Safety Handled Differently if a
Commercial Launch Carries Humans?
As well as the Human Landing System, for example,
The April 2023 Starship test flight did not carry human
NASA now uses commercial providers to transport
occupants, but there have been several other commercial
astronauts and cargo to and from the International Space
launches with humans on board (for more information, see
Station. That used to be the job of the NASA-owned space
CRS In Focus IF11940, Commercial Human Spaceflight).
shuttles. Now the companies providing those services use
In addition, once Starship is operational, SpaceX intends it
their own rockets and capsules and operate under FAA
to carry humans on some of its potential missions.
commercial launch licenses.
Under 51 U.S.C. §50905(c), the FAA may issue regulations
Other agencies, such as the Department of Defense, use
to address the safety of human occupants aboard
commercial providers to launch their satellites and to
commercial space launches, but only in response to actual
provide space-based services such as satellite broadband
incidents that have resulted in, or posed a high risk of,
communications and satellite surveillance imagery.
serious or fatal injuries. Those constraints on the FAA’s
authority to issue human safety regulations are scheduled to
Increasing federal reliance on commercial space services,
expire on October 1, 2023. In the past, Congress has
rather than government-owned hardware, has become a
extended the expiration date several times, calling it a
trend over the past decade or so. It has sometimes created
“learning period” for the space launch industry. This time,
controversy in Congress. Advocates argue that the
however, there are a number of voices calling for the
commercial approach may stimulate innovation,
learning period to be allowed to expire.
competition, and cost reductions. Skeptics counter that it
gives agencies less control and may limit their insight into
Whether to let the learning period expire, extend it again, or
factors such as development timelines and safety.
create some compromise position, may be an active
question for debate and legislation during the 118th
Daniel Morgan, Specialist in Science and Technology
Congress. It is possible that the regulation of human safety
Policy
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Commercial Space Launch and the April 2023 Starship Mishap

IF12403

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