Global Space Law Center,
Cleveland-Marshall College of Law
By Aimee Fanter
On September 30, 2020, the Administrator of the Federal Aviation Administration issued the “Streamlined Launch and Reentry Licensing Requirements” for publication in the Federal Register. The Department of Transportation released these updated and streamlined regulations for the commercial space launch and reentry industry in response to the Space Policy Directive-2 (SPD-2). SPD-2 instructed the Secretary of Transportation to devise a new regulatory regime for launch and re-entry activities, and also considered what type of license was needed for commercial space operations.
SPD-2 received heavy criticism by those in the commercial space industry, and the FAA took notice when reviewing comments in the Notice of Proposed Rulemaking (NPRM). Many comments from the NPRM stated the policy fell short in streamlining certain rules and procedures. Received comments continuously pointed out that the proposal of obtaining launch licenses would be too difficult or expensive for small companies, because they required legal or technical experts for small, low-risk launches. We see this as a common concern in the commercial space industry – the burden of regulation stifling innovation and growth.
To give an example, in the NPRM the FAA proposed to set the scope of activity authorized by a vehicle operator license by identifying the beginning and end of launch and reentry. This was changed in the final rule, and now provides operators the flexibility to scale the beginning of launch to the operation. Specifically, the FAA will identify the beginning and end of launch on a case-by-case basis and in consultation with an applicant.
After reviewing the 785 page final rule, we see it is very different from the proposed rule. It is clear the FAA took consideration of the comments, and took them to heart. We see their reaction is filled with caution regarding a performance based approach. Monteith, the Federal Aviation Administration’s Associate Administrator for Commercial Space Transportation, gave a statement regarding the final rule. Monteith made the following statement:
We took parts that were prescriptive, we made them far more performance-based. In many cases, what we did was we shifted some of the prescriptive nature into an Advisory Circular. Now, an Advisory Circular is not regulatory in and of itself, but it is a means to satisfy a safety requirement. And it is only one means. If industry comes up with a better means, that we can accept and all agree on, then that becomes a means.
To make this streamlined rule, the FAA consolidated four parts of the Code of Federal Regulations (14 CFR Parts 415, 417, 431, and 435) under a single umbrella – a new Part 450. The goal of this approach is to afford the industry and the FAA the added flexibility of using new methods to better enable future innovative concepts and operations.
To summarize, the “Streamlined Launch and Reentry Licensing Requirements” increases flexibility in the FAA’s commercial space launch and reentry regulations by becoming a more performance based set of regulations. It also consolidates and revises multiple parts of the regulations. Among the more noteworthy changes, a single operator’s license can now be used to support multiple launches or reentries from multiple launch sites. The major parts of the rule set forth the requirements to obtain a vehicle operator license, the safety requirements, and the terms and conditions of a vehicle operator license. The rule replaces many formerly prescriptive regulations with performance-based rules, which gives the commercial space industry greater flexibility to develop means of compliance that maximizes their objectives while maintaining public safety.
It’s important to note, the focus on safety has not changed in the commercial space industry. What has changed is the FAA taking a performance-based approach. Companies will still have to meet the safety requirements, and the major question now becomes how flexible the government will be in their case-by-case standards. The difficulty of a performance-based regulation stems from its reliance on advisory circulars to identify opportunities to capture means of compliance. Not every operator has the time nor staff to undertake those efforts. After the final rule goes into effect 90 days after it is published in the Federal Register, it is critical to note this is not the end. Next, a three-day industry workshop from November 4-6 will be held where FAA experts will go through the regulation page-by-page with industry representatives to explain the intent behind each passage. There is a lot to digest from the 785 page rule, and many questions remain concerning the impact on the commercial industry.
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