FAA rulemaking. By now* the FAA’s draft final rule for streamlining its space transportation regulations should be coming under review–if it hasn’t already–in the White House’s Office of Management and Budget (OMB). OMB reviews significant rulemakings.
In May, President Trump signed an Executive Order telling agencies to rescind or modify regulations that may inhibit the country’s economic recovery from the coronavirus lockdowns. The President’s Space Policy Directives (SPDs) from earlier in his term say something similar, but more explicitly, for space regulation. SPD-2 on Streamlining Regulations came out in May 2018 and was rapidly followed that June by SPD-3. Like the broader Executive Order from this May, the 2018 SPD-3 seeks to reduce regulatory burdens. To foster continued growth and innovation in the U.S. commercial space sector, “the U.S. Government should streamline processes and reduce regulatory burdens that could inhibit commercial sector growth and innovation.” SPD-2 directed that “regulations adopted and enforced by the executive branch promote economic growth; minimize uncertainty for taxpayers, investors, and private industry; protect national security, public-safety, and foreign policy interests; and encourage American leadership in space commerce.”
The FAA’s rulemaking is thus supposed to–in relevant part–streamline processes and minimize uncertainty.
Waxing philosophical. We know that when Congress, the public, or regulatory agencies get all concerned about an issue, they do what they are charged with doing and what is easy. They write more laws. They write more regulations. The President may sign an executive order or issue a policy directive.
But what is just as important as writing down that which is good, and prohibiting that which is bad, is the follow through. Most people are in favor of goodness. A majority are against badness. The question is what does one do about it? Does any follow through ensure agency compliance? Will OMB–perhaps with input from the National Space Council–ensure that the FAA’s streamlining rule satisfies the Space Policy Directives and the recent Executive Order?
ELV rules for RLVS? The FAA’s “streamlining” regulation was supposed to streamline by turning its prescriptive rules into performance-based requirements that would encompass both expendable and reusable vehicles. Instead, the FAA proposed something akin to requiring that all its existing requirements apply to everyone. Will OMB review industry comments raising these concerns? Will OMB allow the FAA to impose requirements designed for expendable launch vehicles on reusable launch vehicles?
Performance based regulations. Will OMB make sure that the FAA’s final rule is more performance based? SPD-2 asked for performance-based regulations. However, rather than always articulating a performance requirement, the FAA many times proposed to reserve to the FAA’s Administrator the ability to accept “other safeguards” without sharing the criteria by which the Administrator would judge those other safeguards. That is not a performance requirement. It’s a mystery. The FAA should have proposed the criteria for acceptability of other safeguards as the currently undisclosed performance requirements.
FAA orbital regulation. A final example of something OMB should oversee is the FAA’s attempt to get its nose under the tent of regulating on orbit. In the NPRM, the FAA proposes to require information about encryption for satellites on orbit, raising the question of whether this request for information is actually a disguised requirement and whether the FAA has exceeded the authority Congress granted it.
The FAA should not start down the road to subtly but effectively imposing requirements on payload operators over whom it does not have authority. Although couched as an information requirement, if the FAA uses a payload operator’s lack of encryption to stop a launch, the FAA is effectively requiring the operator to employ encryption on orbit.
If the FAA does not expect to do anything about the encryption information, then the proposed new burden appears to have no point. If the FAA would do something about a satellite operator’s encryption plans, the FAA may be attempting to regulate on orbit. The genuine and sincere interest of NASA and the Department of Defense in encryption information is not a grant of Congressional authority. Legislative authority does not come from NASA or DOD, but from Congress.
There are two other agencies who regulate satellites on orbit, the FCC and NOAA. If they have the authority to request information about encryption, NASA and DOD should make their requests of them. If they do not, NASA and DOD should raise their concerns with Congress. For more information on the statutory requirements and legislative history of this issue see here.
*If I recall correctly, the FAA was aiming to publish its final rule by this fall.
Laura, thanks for keeping an eye on this substantial rulemaking. I spent more than a few hours writing comments for the NPRM to address hybrid launch vehicles (those which include “airplane-like” vehicles in their configurations) and reentry vehicles with aerodynamic controls which make runway landings. The NPRM made some broad assumptions and generalizations about safety based on the presence of a airworthiness certificate – even if the vehicle has been highly modified or is operating in a flight regime which is outside its original certification. I like the idea underlying some of the proposed regulations that there can be cooperation and synergies between Aviation Safety and Commercial Space for airplane components of a hybrid vehicles – that’s smart and saves aeronautical engineering personnel resources AST will likely never be able to get. But the regulations in several sections gloss over the safety assurance necessary for horizontal takeoff/landing vehicles which spend a long time relatively speaking in the same airspace as other users and are not completely segregated from other users like ELV or RLV vertical launch systems. I hope the AST rule team and the AVS oversight of the rule process carefully considered the comments for an improved safety outcome.
It will be fascinating to see the end product. I know industry expressed a strong desire for a supplemental NPRM, but we’ll see if that happens. One possibility is that the FAA will have some portions go final and re-propose anything sufficiently new. If the FAA really changes something, allowing further comment would be appropriate.
I agree that AST is smart to leverage AVS.