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Falcon Heavy launch
A SpaceX Falcon Heavy lifts off in April. SpaceX is among the companies concerned about provisions in a notice of proposed rulemaking intended to streamline commercial launch regulations. (credit: SpaceX)

Streamlining the space industry’s regulatory streamlining

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One of the hallmarks of the Trump Administration, for better or for worse, has been a zeal for regulatory reform. Throughout the government, the administration has sought to roll back regulations in a variety of areas, arguing that doing so will benefit the economy.

“It covered about 50 percent of what we asked for,” Stallmer said of the proposed launch regulations. “We’re working right now with the FAA and throughout industry to reform these, to get these right.”

Space is no exception to that. Space Policy Directive (SPD) 2, signed by President Trump a little more than a year ago, directed a variety of regulatory reforms, including for commercial launch and remote sensing, and a move towards consolidating more space regulatory work within the Commerce Department (see “A step towards a ‘one-stop shop’ for commercial space regulations”, The Space Review, May 29, 2018.) SPD-2 in particular called for publication, by February 2019, of proposed revisions to commercial launch and reentry regulations intended to make it easier for companies to carry out such operations.

The FAA missed that February 1 deadline, which it blamed on the partial government shutdown that all but closed its Office of Commercial Space Transportation for five weeks. It finally released that notice of proposed rulemaking, or NPRM, with formal publication in the Federal Register April 15, although it published a near-final draft of the nearly 580-page document on its website March 26.

Industry, though, might have wished that the FAA had taken longer. “We have a lot of problems with it,” said Eric Stallmer, president of the Commercial Spaceflight Federation, an industry group, in a speech last month at the Space Tech Expo conference in California.

“It covered about 50 percent of what we asked for,” he said. “We’re working right now with the FAA and throughout industry to reform these, to get these right.”

Stallmer was one of the members of an aviation rulemaking committee convened last year by the FAA to offer recommendations on what those revised launch regulations should contain. “We worked collectively to submit this product,” he said. “We provided them with what I think were great recommendations, about 90 pages worth of recommendations on launch and reentry regulations.” The NPRM the FAA published in April, he said, was sharply different from that committee’s recommendations.

Another issue was that the FAA was allowing only 60 days for public comment, with a June 14 deadline. That was insufficient, Stallmer and many others in the space industry argued, to review not just the 580-page NPRM but also FAA circulars it references. “We petitioned the White House on that, and I think they agree with us,” he said of an extension of that deadline.

Industry problems with the NPRM became a centerpiece of discussions at a May 30 meeting of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) at the Department of Transportation headquarters in Washington. “The comment period closes June 14, but a lot of people have asked for it to be extended, a suggestion that is being given serious consideration,” said Secretary of Transportation Elaine Chao in a video message at the beginning of the day-long meeting.

A short time later, Wayne Monteith, associate administrator for commercial space transportation at the FAA, spoke at the meeting. “We’ve heard your concerns about the NPRM comment period being too short,” he said. As a result, he said the FAA was extending the deadline for public comment from June 14 to July 30.

While the FAA was willing to give industry more time to respond—with the extension, industry now had a total of four months to review and react to the NPRM, going back to the release of the draft in late March—it rejected calls for doing more. At the COMSTAC meeting, some members called for a public meeting where members could ask FAA officials questions, or seek other clarifications about, provisions in the proposed rules.

“We can’t let the perfect be the enemy of good enough,” the FAA’s Monteith said.

Caryn Schenewerk, senior counsel at SpaceX, said at the COMSTAC meeting that she and representatives of other launch companies met recently to discuss the regulations, but still had questions about them. “It makes it very hard for us to provide substantive comment and feedback,” she said. “A public forum would offer an opportunity to have some sort of dialogue” to resolve those uncertainties.

Monteith and others at the FAA, though, resisted calls for a public meeting about the NPRM. They argued that doing so, including providing sufficient advance public notice, would be difficult to complete before the comment period expired.

Monteith said that such a public meeting could open the door to what he termed “rulemaking by negotiation” that could stretch out the finalization of the launch rules. “We can’t let the perfect be the enemy of good enough,” he said.

The FAA does have some industry support for its position. “The timeline is fine. We’ve reviewed the NPRM and think the job was well done,” said Robbie Sabathier, vice president of Washington operations for United Launch Alliance, at the COMSTAC meeting.

Those in industry seeking a public meeting or other changes to the rulemaking process are continuing to lobby the FAA. In a June 14 letter submitted to the public docket for the NPRM, the Commercial Spaceflight Federation’s Stallmer asked again for a public meeting “to provide an overview of how the agency expects the new rules will operate and engage in a dialogue with the public to answer questions.”

The industry is “eager for regulations that accommodate innovation and new entrants and avoid creating competitive advantages for certain segments of the industry,” he wrote. “The NPRM, however, does not achieve these goals, and may even represent a step backwards. Additionally, there are elements of the NPRM that have our members confused and concerned that resulting regulations may be difficult or even impracticable for licensees to follow.”

While the commercial launch industry has been grappling with one proposed streamlining of launch regulations, the commercial remote sensing industry is struggling with another. In May 14, NOAA released a long-awaited NPRM for revising licensing of commercial remote sensing systems. That revision is intended to reduce the timelines to receive such licenses, as well as the uncertainty that some applications face, as the number of licenses grows.

But at a June 4 meeting of NOAA’s Advisory Committee on Commercial Remote Sensing, or ACCRES, members warned the proposed rule falls short of what they were expecting. “I find, at the moment, that the draft rule is wanting across the board, and it’s not close,” said Gil Klinger, chair of ACCRES and a Raytheon vice president who spent most of his career in government in various national security space roles.

Members spent much of the meeting discussing various issues they had with the proposed rule. One issue is that the rule attempts to offer a “low-risk” classification for systems that would allow for streamlined consideration that meet its requirements. In practice, though, virtually all commercial systems would be considered “high-risk” and not benefit from streamlined consideration. “It puts you back into where we are now,” said Michelle Kley, an ACCRES member and lawyer.

The proposed rule would allow companies to perform what’s known as “non-Earth imaging,” or imaging of other satellites or debris. That’s essential to the business plans of companies that want to do satellite inspection, servicing, and life extension, but one that has previously posed regulatory challenges.

“I find, at the moment, that the draft rule is wanting across the board, and it’s not close,” said Klinger.

“We’re pleased to see that it says that companies can do non-Earth imaging, but we’re concerned that a lot of restrictions and conditions that we had expressed concerns about remained in the draft proposal,” said Brian Weeden of the Secure World Foundation at the ACCRES meeting.

Such concerns include provisions requiring prior approval from the government, and satellite owner, 30 days in advance of any imaging. That’s a problem for companies that want to quickly image another satellite that, say, has experienced an anomaly. It’s also an issue for imaging orbital debris. “If it’s a piece of space debris, how do you even know who to ask permission of?” Weeden asked.

Like the commercial launch NPRM, one of the problems with the proposed commercial remote sensing regulations is that they came as something as a surprise. ACCRES members were able to see a draft of the proposed rules last fall and provide comment on them, but when the final version of the proposed rules were released in May, after months of interagency review, they looked far different from that earlier draft.

For now, there’s no indication the Commerce Department, through NOAA, will provide an extension of the public comment deadline of July 15. “The deadline is going to stick,” Scott Pace, executive director of the National Space Council, said at the end of his remarks at the ACCRES meeting.

However, unlike the FAA, NOAA officials said they were willing to support additional meetings on the issue. When it became clear that the ACCRES meeting wouldn’t have enough time to cover all of the issues that members had with the NPRM, they quickly scheduled an additional meeting, tentatively set for July 11, for further discussion of the rule and agreement on committee positions for recommended changes.

Klinger used the meeting, though, to lobby for more than just revisions to the NPRM. He argued that the underlying commercial remote sensing policy, last updated by the George W. Bush Administration in 2003 and designated NSPD-27, was overdue for an update.

“NSPD-27 is out of date and it reflects a world that, more than not, no longer exists,” he said. “In my mind, there is nothing that the US policy community could do that would have greater impact on a more enduring basis” than up revise the policy.

There’s no sign that the White House is planning a revision to that policy, though, as it’s focused on a series of policy directives like SPD-2 that targeted specific changes or actions. The administration may revisit the overarching national space policy, last updated in 2010, at some point.

“We did not do a complete rewrite of the 2010 national space policy,” Pace said in a June 8 speech at the National Space Society’s International Space Development Conference. “In large part, most of it is fine. It’s perfectly stable. We will do an update at some point.”

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