On May 24, 2018, President Trump signed National Space Policy Directive-2 to set a new direction for agencies that regulate commercial space activities. The Policy Directive specifically addresses the Secretaries of Transportation and Commerce. They oversee commercial space transportation and space remote sensing, respectively. The Policy Directive does not provide guidance to the Federal Communications Commission in its regulation of space satellites, perhaps because of the Commission’s status as an independent agency or perhaps because it needed none.
In 1995, the Secretary of Transportation delegated his authority over commercial launch and reentry under the Commercial Space Launch Act to the Federal Aviation Administration. As part of the Department of Transportation, the FAA answers to DOT for its oversight of the industry. Accordingly, any directions in the President’s Policy Directive to the Secretary constitute directions to the FAA.
The new Policy Directive is general in wording but clear in intent. The President directs the Secretary to review the FAA’s commercial space regulations governing launch and reentry by February 1, 2019 for whether they are consistent with the President’s goals . Those goals include 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 Unified Agenda shows that the FAA plans to publish a notice of proposed rulemaking (NPRM) in February 2019.
Additionally, the President requires the Secretary of Transportation to consider:
(i) requiring a single license for all types of commercial space flight launch and re-entry operations; and
(ii) replacing prescriptive requirements in the commercial space flight launch and re-entry licensing process with performance-based criteria.
A single license for launch and reentry. Under current FAA regulations an operator must obtain two different licenses for its launch and reentry activities. For example, SpaceX must obtain a launch license for the launch of its Falcon launch vehicles, and a reentry license for the reentries of its Dragon reentry vehicles. In my own view requiring two licenses is a matter of administrative convenience, not legal necessity. The FAA could issue a single piece of paper rather than two as long as it was clear that it applied just to launch and reentry, and not to activities on orbit. There could, however, be a problem with a single license for two different activities.
The regulatory yearning for jurisdictional creep raises its ugly head. If you have a license for leaving the planet and it’s the same as the one for coming back, people will start to think that, surely, the orbital transportation activity in the middle must be covered, too? If it didn’t, there’d be a “gap,” and lots of people think gaps are not ok–and, no, I don’t know why gaps are not ok. Regulators will want this expansive interpretation to expand their authority. Industry will want the expansion to extend the reach of the purported “indemnification” of the Commercial Space Launch Act. However, the “indemnification” won’t actually be there. Yes, this seems unlikely now while things are clear, but people do weird things, and they tell themselves even weirder things. Look at how the Office of Commercial Space Transportation issued licenses in the 1990’s that governed pre-launch activity on the ground even before the passage of the amendments that actually granted the Secretary that authority.
Prescriptive v performance-based regulations. A performance-based regulation requires outcomes. A prescriptive requirement tells a regulated entity how to achieve it by prescribing the means of compliance. For more explanation, see here. If you don’t want to follow the link, suffice to say that one of the big issues with performance-based standards is that regulators need to make clear what an acceptable means of demonstrating compliance looks like. I’ve seen regulations that merely say a regulated entity may demonstrate compliance through tests or analysis. How will an operator know how much testing will satisfy the regulator? How will an operator know when it may provide an analysis instead of testing? Will 9 hours of testing suffice? Or 99 hours? The demonstration requirements may contain large, hidden costs. It would be good to know them up front.
Excellent summary Laura.
Thanks, Ken. Much appreciated.