Elon Musk just announced that SpaceX’s BFR will take Japanese fashion designer Yusaku Maezawa and several artists on a one-week journey around the moon. This is exciting, inspirational, and fun–even better than the Tesla on its way to Mars. Naturally, one’s mind immediately turns to thoughts of informed consent and liability.

Will Mr. Maezawa have to sign anything under the FAA’s regulations? Yes, he will. He and his friends will have to sign statements of informed consent and reciprocal waivers of claims. Also, they will not be able to count on the FAA regulating SpaceX to ensure their safety.

Informed Consent. The FAA’s space regulations establish requirements for space flight participants on board a launch or reentry vehicle whose operator is licensed by the FAA. A U.S. entity or anyone launching from the United States must obtain an FAA license, so it looks like part 460 applies to the SpaceX launch of its BFR. Mr. Maezawa is a space flight participant because a space flight participant is “an individual, who is not crew or a government astronaut, carried within a launch vehicle or reentry vehicle.” Mr. Maezawa will be paying SpaceX for the ride, so he is not crew. Nor is he a government astronaut. He is a fashion designer. Therefore, he is a space flight participant.

The FAA regulations require SpaceX to inform Mr. Maezawa and his companions of the risks. SpaceX has to provide all the space flight participants informed consent in writing by telling them the safety record of the BFR and other vehicles like it, that the government has not certified it as safe, and that they could be hurt or die. The regulations get very specific:

An operator must inform each space flight participant in writing about the risks of the launch and reentry, including the safety record of the launch or reentry vehicle type. An operator must present this information in a manner that can be readily understood by a space flight participant with no specialized education or training, and must disclose in writing – (1) For each mission, each known hazard and risk that could result in a serious injury, death, disability, or total or partial loss of physical and mental function; (2) That there are hazards that are not known; and (3) That participation in space flight may result in death, serious injury, or total or partial loss of physical or mental function. (b) An operator must inform each space flight participant that the United States Government has not certified the launch vehicle and any reentry vehicle as safe for carrying crew or space flight participants. (c) An operator must inform each space flight participant of the safety record of all launch or reentry vehicles that have carried one or more persons on board, including both U.S. government and private sector vehicles. This information must include – (1) The total number of people who have been on a suborbital or orbital space flight and the total number of people who have died or been seriously injured on these flights; and (2) The total number of launches and reentries conducted with people on board and the number of catastrophic failures of those launches and reentries. (d) An operator must describe the safety record of its vehicle to each space flight participant. The operator’s safety record must cover launch and reentry accidents and human space flight incidents that occurred during and after vehicle verification performed in accordance with § 460.17, and include – (1) The number of vehicle flights; (2) The number of accidents and human space flight incidents as defined by section 401.5; and (3) Whether any corrective actions were taken to resolve these accidents and human space flight incidents. (e) An operator must inform a space flight participant that he or she may request additional information regarding any accidents and human space flight incidents reported. (f) Before flight, an operator must provide each space flight participant an opportunity to ask questions orally to acquire a better understanding of the hazards and risks of the mission, and each space flight participant must then provide consent in writing to participate in a launch or reentry. The consent must – (1) Identify the specific launch vehicle the consent covers; (2) State that the space flight participant understands the risk, and his or her presence on board the launch vehicle is voluntary; and (3) Be signed and dated by the space flight participant.

Waivers of claims. Mr. Maezawa will have to sign waivers of claims with the U.S. government and with SpaceX, agreeing to waive claims against them for his death or serious injury. They, in turn, will waive claims against him.

FAA’s Safety Role. The FAA isn’t allowed to regulate how SpaceX designs or operates its rocket to protect the people on board until October 2023, unless there has been a death, serious injury, or a close call. Because the crew are part of the flight safety system, the FAA determined it could have regulations in place to protect the crew. That those requirements might also protect space flight participants is purely a coincidence.

Additionally, because the FAA has jurisdiction only for launch and reentry, it would not be able to impose safety requirements for the lunar orbit in any event. I can see the FAA arguing that the launch isn’t over, but that’s a discussion for another day.

Interestingly, news reports describe the journey as taking place in 2023. If the FAA decided it wanted to issue regulations to protect space flight participants, it would not have enough time. Rulemakings tend to average about five years. Even if the FAA published a notice of proposed rulemaking on October 1, 2023, finalizing the requirements would take another 18 to 24 months at the least, and the requirements would apply to launches that took place after the effective date of the new regulations.