Effect of New Regulatory Freeze on FAA Space Rules

This past Tuesday’s Federal Register contains a Memorandum for the Heads of Executive Agencies and Departments; Regulatory Freeze Pending Review, 82 Fed. Reg. 8346 (Jan. 24, 2017). In it, the President’s Chief of Staff directs agency heads that, unless there is an emergency or other urgent circumstances, or a judicial or statutory deadline applies, no agency should send a regulation to the Federal Register until a department or agency head appointed or designated by President Trump reviews and approves the regulation. The agency head may delegate this power of review and approval to another agency head appointed or designated by the president. This restrictions in this Memorandum apply to notices of inquiry, advanced notices of proposed rulemaking, notices of proposed rulemaking, final rules, and any agency statement of general and future effect that “sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.”

Additionally, and as consistent with applicable law:

  • An agency must immediately withdraw any regulation it has already sent to the Federal Register but which has not yet been published so that it may undergo the review and approval described above.
  • An agency must postpone by 60 days the effective date of any regulation already published so that the rule may undergo review for questions of fact, law, and policy. If the rule raises no questions of fact, law, or policy, the Memorandum states that no further action need be taken, but if a rule raises any such questions, agencies must notify and consult with the Office of Management and Budget.

What does all this mean in practice for the FAA’s space regulations?

Space Regulations: As noted in an earlier post, the FAA’s not-always-reliable Unified Agenda list should tell us what the FAA intends in the way of rulemaking. Going by the Unified Agenda, we see that the FAA released an NPRM in June 2016 on procedural changes and an expansion in the availability of equivalent level of safety determinations as relief from FAA requirements. Under the requirement that the FAA publish its final rules within sixteen months of the close of the comment period, the final rule is not due until 2018, so will likely not be affected by this week’s Memorandum.

The other space rulemaking in the FAA’s queue applies to orbital debris. The agenda states that the NPRM will be released in July 2017, which is when the public would be able to comment on it. The abstract states that “[t]his rulemaking would update current orbital debris mitigation regulations to more closely align them with the U.S. Government Orbital Debris Mitigation Standard Practices and to update the current launch collision avoidance regulations to match U.S. Strategic Command (USSTRATCOM) practice.” It seems possible that this week’s Memorandum will still apply this summer.

Legal Interpretations: The one question I have about the applicability of the Memorandum regards FAA legal interpretations from the FAA’s Office of the Chief Counsel. Members of the public, including regulated entities such as launch operators, may write to the FAA’s attorneys and ask how an unclear regulation applies to his or her particular circumstance. On the one hand, the Memorandum defines regulations to include “interpretations of a statutory or regulatory issue.” On the other hand, it must be of general applicability and future effect.

Typically, a legal interpretation applies to one person’s particular circumstances. This suggests that they are not of general applicability. However, they do have precedential value, which imbues them with some general effect. Moreover, especially when the interpretation addresses confusing or conflicting regulations, it can have general effect for anyone in a situation similar to that of the person who asked for the legal interpretation initially. For example, as discussed here, when a launch operator wanted to know if it needed a license to operate a launch site, it requested a legal interpretation. That interpretation still provides guidance to other launch operators who want to temporarily set up shop to launch their rockets. Thus, interpretations, even though they appear on their face to apply individually rather than generally, may be covered by this Memorandum as well.