Are There Two Regimes for Commercial Space Transportation?

I received a question in response to Monday’s post that raised foundational issues: why are there are two regimes to address commercial space transportation? The writer referred to the United States Code and the Code of Federal Regulations. Not everyone who reads this blog is a lawyer, and middle school civics doesn’t really cover the administrative state, so this post will go over fundamentals. The quick answer is that there are not two regimes. The regulatory regime is a subset of the legislative regime. The regulatory regime carries out Congress’s legislative directions.

The mechanics of it all

We all learned in school that there are three branches of government. Congress, which is the legislative branch, writes the laws. The executive branch, headed by the President and consisting of all the agencies, carries out the laws. And the judiciary tells the first two if they got anything wrong when someone complains. Things are, of course, more complicated than that.

In the last century the regulatory state arose. Congress delegated legislative powers to a host of regulatory agencies and charged them with ensuring that the industries they regulate abide by the laws that Congress enacted. The United States Code (USC) contains Congressionally enacted laws. We currently have three commercial space regulators: the Federal Aviation Administration regulates space transportation, the Federal Communications Commission regulates satellite operation and delivery of radio transmissions, and the National Oceanic and Atmospheric Administration regulates remote sensing. Congress tells the regulatory agencies, through legislation, how to regulate. Regulatory agencies such as the FAA must abide by the laws that Congress passes.

Congress enacted laws with varying degrees of specificity. For example, 51 U.S.C. chapter 509 charges the FAA with licensing launch, reentry, and the operation of launch and reentry sites consistent with, among other things, public health and safety. The U.S. Code does not provide safety details. It does not say when a launch operator must employ a flight termination system. It does not mandate mitigation measures for orbital debris. It does not mention system safety, hazard assessments, flight safety systems, or impact limit lines. It does charge the FAA with protecting the public. If we can hearken back to Monday’s post below, chapter 509 is pretty performance based.

This means that the FAA must flesh out the details of the safety mission with which Congress tasked it. There are different safety theories to choose between, and the engineers and technical and policy persons in the FAA must make those choices. Expendable launch vehicles possess a destruct system by which a person on the ground may stop the vehicle’s flight through the judicious application of explosive force. Much to the relief of all concerned, the FAA does not require a destruct system for launch vehicles with persons on board. The FAA publishes its more detailed requirements in the Code of Federal Regulations, a compilation of the regulations of all U.S. regulatory agencies.

The FAA must conduct rulemaking to implement its requirements. For rulemaking, the FAA must first issue a notice of proposed rulemaking (an NPRM in the common parlance) containing the proposed requirements. The NPRM appears in the Federal Register, and allows a typical comment period of 60 days (but no less than 30). The agency must address the comments in the preamble to its final rule, and then send the final version of the new regulations to the Code of Federal Regulations for publication.

One thing to know about new regulations is that they become effective on the date stated in the notice containing the final rules. That date may precede publication in the physical version of the CFR by many months or more. You may wait over a year for the requirements—even though they are already in effect—to show up in the books. Before the Internet, that meant you had to know to check the Federal Register, Lexis, or Westlaw. Now, the updating is quicker, of course, because it’s online.

Legal aside

The above description, while accurate, does not capture all the legal oddities of the situation. In administrative law, which applies not only to regulated entities such as launch operators and spaceports but to regulatory agencies such as the FAA, many questions have had to be answered by the courts, like, what’s the executive branch doing writing laws? What are the constraints on Congress delegating its legislative power? Also, if our system relies on a separation of powers, how is it that a regulatory agency can be both the writer and enforcer of rules? The courts have answered these questions with rules about rules. Some of the rules protect the regulated industries. Some protect the agencies and their interests.   Other than that, it’s all pretty straightforward.