SASC Tees Up Extension of FAA Learning Period and Third Party Indemnification

The Senate Armed Services Committee released a collection of 93 amendments to the FY2025 National Defense Authorization Act today. The NDAA is considered one of a very few “must pass” bills for Congress to complete before the 118th Congress ends, making it an attractive legislative vehicle for a wide range of issues. In this case, it extends the deadlines for FAA regulations that would expire in January and September 2025 including the “learning period” for commercial human spaceflight and third-party indemnification for commercial space launches.

The package of 93 amendments introduced by the bipartisan leadership of SASC, Sen. Jack Reed (D-Rhode Island) and Sen. Roger Wicker (R-Mississippi), consumes 856 pages. Reed and Wicker say they “have been agreed to on a bipartisan basis by SASC leadership, all relevant committees of jurisdiction, and Senate leadership” meaning they are pretty certain to clear the Senate, at least.

Congress has passed an NDAA every year since the first in 1961 despite fraught political divisions and there is widespread expectation the FY2025 NDAA will be enacted. With the 118th Congress coming to an end on January 3, 2025, tacking amendments onto must-pass legislation like the NDAA is a common strategy.

The Department of Transportation was assigned regulatory responsibility for commercial space launches by President Reagan in 1983 and Congress passed the Commercial Space Launch Act (P.L. 98-55) the next year. To help incentivize the emergence of the industry, four years later it passed the Commercial Space Launch Amendments Act (P.L. 100-657). Among other things it granted government indemnification for certain amounts of financial claims for damages to third parties, like the public, in the event of an accident. The provision’s expiration date has been extended many times, most recently to September 30, 2025 in the 2015 Commercial Space Launch Competitiveness Act (P.L. 114-90).  This bill would give it another three years until September 2028.

In 2004 when it appeared a new commercial human spaceflight market was emerging, Congress passed more amendments. The law (P.L. 108-492) created an 8-year “learning period” or “moratorium” restricting what regulations the FAA could promulgate on the premise that the government should not stifle a nascent business. Crew members on such flights would have to meet certain qualifications, but passengers need only give “informed consent” that they understood the risks.

Commercial human spaceflight took much longer to materialize than expected and the learning period has been extended many times. The 2015 Commercial Space Launch Competitiveness Act extended it to September 2023 and several stop-gap bills since then pushed it out to January 1, 2025.

Commercial human spaceflight has finally gotten underway with suborbital flights of Blue Origin’s New Shepard and  Virgin Galactic’s SpaceShipTwo and orbital flights of SpaceX’s Crew Dragon. At a Senate Commerce, Science, and Transportation hearing last year, industry representatives argued the learning period should continue and offered varying proposals on exactly what to do. This bill would simply continue the existing language until January 1, 2028.