For Whom the Clock Starts, For Whom it Stops, and Tolling

When a launch or reentry operator applies for a launch or reentry license from the Federal Aviation Administration, the FAA has 180 days to determine whether to grant the license or not. This time limit comes from  the Commercial Space Launch Act (CSLA), 51 U.S.C. ch. 509, and the FAA has to follow it. This sounds very simple, but, of course, it isn’t. Because Congress did not specify how the FAA is to count the days, the FAA’s regulations, which it must follow under Supreme Court case law, start and stop the clock based on whether the FAA has enough information in the application to start working on it.

The clock starts. When does the clock start counting down? Might an applicant submit its name and address and have the clock start running? No.

Under the FAA’s rules the clock starts when an applicant submits an accepted application.  An accepted license application is one that is “complete enough for the FAA to start its review.” In other words, the applicant has to provide enough information for the FAA to start figuring out if the operator can satisfy, among other things, the FAA’s safety and financial requirements. That’s when the clock starts ticking.

The FAA can afford this approach because it has the ability to “toll” its review: it can stop the clock. As the regulations note, “[t]he FAA’s acceptance of an application does not mean it has determined that the application is complete.”

The clock stops. If the FAA has an application that does not contain all the necessary information, the FAA will toll the review period under section 413.15(b). To do that, the FAA writes to the applicant and requests the missing information. Although this part is not in the rules, the FAA’s notification of the applicant that the agency needs more information will contain a date by which the applicant should submit the information to avoid tolling. If the applicant provides the information before that date, the clock does not stop. If the FAA does not receive the requested information, the clock stops on the specified date. For example, let’s say that on Day 50 of the review period the FAA writes the applicant requesting information about an applicant’s safety official because the applicant doesn’t seem to have one. The FAA requests the information by April 5, which is Day 60. The applicant does not provide the information. Although the FAA may keep working on the application, it will toll the review period, and the clock doesn’t start again until May 1, when the applicant finally provides the FAA the identity of its safety official.

This system is actually a great benefit to the applicant. If tolling were unavailable, the FAA would have to deny the license application at 180 days for missing information, and the clock would reset to Day 0.

Another interesting point is that both the CSLA and the FAA’s regulations state that the FAA must inform the applicant in writing of any additional information the agency needs if it hasn’t made its final determination at 120 days.

Thus we see that the FAA, in accordance with Congressional direction and expectations, structured its regulations on this topic to allow an applicant to submit an incomplete application, albeit one that is “complete enough” for the FAA to start its review. Were the FAA to change this approach it would have to change its regulations.