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Turning space policy into space regulation

Regulatory reform is intended to remove some of red tape involved in licensing commercial launches. (credit: SpaceX)

Sometimes people do want to watch the sausage get made.

More than five months ago, President Trump signed Space Policy Directive (SPD) 2, a policy document directing a series of regulatory reforms related to commercial space activities. That document, largely incorporating recommendations made at a February meeting of the National Space Council, was hailed by the space industry as a key step towards streamlining regulations and cutting red tape.

“While many details have yet to be worked out, we are a committed and constructive partner in revising and reducing cumbersome space regulations,” said Frank Slazer, vice president for space and workforce at the Aerospace Industries Association, in a statement after the signing of SPD-2 (see “A step towards a ‘one-stop shop’ for commercial space regulations”, The Space Review, May 29, 2018).

Now, though, is the time to work out those details. SPD-2 set schedules for some of those regulatory reform efforts, most notably reforms to launch licensing. The directive requires the Department of Transportation (through the FAA) to develop a formal, public draft of revised regulations for commercial launch and reentry regulations. Those changes, the directive states, would include unifying launch licenses and the use of “performance-based criteria” for licensing versus prescriptive requirements.

Industry had long sought streamlining of such regulations, such as the requirement that a vehicle have a separate launch license for each site it operates from. “I think it requires heroics when you make any changes to those launch licenses. When you have to change a launch pad from [Space Launch Complex] 40 to [Launch Complex] 39A or back to 40, you have to basically apply for a new license,” said Gwynne Shotwell, president of SpaceX, at the first National Space Council meeting in October 2017. That’s a reference to the two launch sites the company has several kilometers apart in Florida, but in separate jurisdictions: LC-39A at the Kennedy Space Center and SLC-40 at Cape Canaveral Air Force station.

Vice President Mike Pence picked up on that issue at the council’s second meeting in February. “You know, the government’s figured out how to honor driver’s licenses across state lines,” he said. “There’s no reason we can’t do the same for rockets.”

While the government and industry might be on the same page when it comes to the broad goals of the regulatory changes, how that gets converted into actual regulations is an ongoing process. It’s one that’s taking place at rapid speed—from a bureaucratic point of view—in order to meet the deadline in SPD-2.

“We’re moving at a rocket pace. We’re going as fast as we possibly can,” said Kelvin Coleman, the acting associate administrator for commercial space transportation at the FAA, during an October 31 meeting of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) in Washington.

A typical “rulemaking” process at the FAA can take four to five years to complete, he said. “It usually takes us a year or two, maybe three, even to get to a draft.”

Both Coleman and his deputy, Dorothy Reimold, said at the COMSTAC meeting that they intended to stick to the schedule in SPD-2. That would require the formal publication of the draft revised regulations, known as a notice of proposed rulemaking (NPRM), in less than three months. “The target and intent—and we view it not as anything less than an obligation to follow the requirements under SPD-2—is to publish an NPRM on February 1,” said Reimold.

That’s created some concerns in industry, though, that the process might actually be going too fast. For example, to support the development of the draft rule, the FAA established an Aviation Rulemaking Committee, or ARC, earlier this year to solicit industry input on how to revise existing launch and reentry regulations. That committee, though, hasn’t been given the opportunity to meet again with the FAA to follow up on its earlier input.

“Frankly, as we’ve said many times to individuals and to groups, time has not been on our side,” Reimold said. “We have not been able to bring the ARC back together to have the kind of venue that I think was being sought, not for lack of wanting to but simply because time has not allowed us to do that.”

Some on COMSTAC, whose members include representatives of major commercial launch providers and related companies, said they’re concerned about not knowing more about the development of the proposed rule. They said they’re worried that the FAA might release a draft rule next February with language that doesn’t match the intent of the regulatory reform.

“I want to really register a strong concern with how the FAA is approaching the upcoming NPRM,” said Brett Alexander, director of business development for Blue Origin, citing what he said was a “lack of dialogue, insight, transparency and engagement” by the FAA. “I think, frankly, after repeated calls for that engagement, it is of concern to me, and to a number of other members, that the FAA has decided not to do that.”

Reimold said there had been “internal discussions” about ways discuss the development of the rule and get additional industry input. “The pace that we’re at right now to pull this off is just extraordinary,” she said. “It frankly just didn’t allow any kind of natural opportunities” for discussion.

“It is not a lack of good intent or willingness. We’re not trying to hide anything,” she added. “We’re simply trying to get the job done.”

“The balance that we have to be careful of here is that we certainly want to get these out as quickly as humanly possible, and we don’t want to do anything that would delay that process,” said Mike Gold, chairman of COMSTAC. “At the same time, we want to get industry feedback in.”

Industry—and everyone else—will have a chance to comment once the NPRM is released in February. The details of how long the comment period would be, and how those comments will be incorporated into development of a final rule, haven’t been announced.

Coleman urged patience, emphasizing that the draft rule will be available in three months. “I want to almost say, ‘trust us.’ But we’re doing the best job that we can,” he said. “I’m going to ask for that favor: just trust us, we’ll get you there in three very short months from now.”

Regulatory reform has been a little less contentious in other areas. At the Commerce Department, a draft rule for revising commercial remote sensing regulations is in the final stages of development. That rule is intended to streamline the process where companies and other non-government organizations apply for licenses for remote sensing systems.

That rule “will revolutionize the way we regulate the use of cameras in space,” said Karen Dunn Kelley, the acting deputy secretary of commerce, at an October 23 meeting of the National Space Council. “This will replace outdated regulation that are slowing down industry achievements.”

Those changes, she said, could “exempt certain pre-approved activities” from a lengthy licensing review process, which currently treats all license applications the same. That might include, she hinted, webcams on rocket launches that require commercial remote sensing licenses from NOAA since they can see the Earth. That affected SpaceX when it had to cutoff live video of a launch early this year when notified—after broadcasting several hours of video from its Falcon Heavy launch—that it needed a NOAA license.

“SpaceX’s GoPro camera, that is used for marketing and shows customers that the payloads have successfully been separated, should not be treated in the same way as the highly technical camera that can see your shoelaces from space,” Kelley said.

That draft rule, she said, had just been submitted to the Office of Management and Budget, one of the final sets before publishing it as a formal NPRM. That public release should happen “very, very soon,” said Kevin O’Connell, director of the Office of Space Commerce, in an October 23 speech.

O’Connell, named to lead the office just in the last few months, offered more details about the underlying philosophy of the planned reforms. “It has a fundamentally different approach to how we think about companies that come forward for remote sensing licenses,” he said. “We tried to take a clean sheet of paper, acknowledge that the circumstances were completely different, and go from there.”

O’Connell added that the department has been busy on other aspects of SPD-2, such as radiofrequency spectrum. A report on “improving the global competitiveness of the United States space sector through radio frequency spectrum policies, regulation, and United States activities at the International Telecommunication Union and other multilateral forums” should be completed and released soon, he said.

The department has also been working on plans to make the Office of Space Commerce a “one-stop shop” for most commercial space regulatory issues, outside of launch and reentry licensing by the FAA and communications licenses from the FCC.

Kelley said at the council meeting last month that the Commerce Department has submitted a legislative proposal to Congress that would establish that office, which it calls the Bureau of Space Commerce, and led by an assistant secretary of commerce, replacing the existing Office of Space Commerce. “The agency will report directly to the secretary, coordinating all the department’s space efforts,” she said.

The proposed legislation—unlikely to be taken up by the current Congress in its remaining weeks—would also give the bureau the ability to oversee so-called “non-traditional” commercial space activities, like lunar landers and satellite servicing, not overseen by other agencies. That would fill a perceived regulatory gap and ensure that the US complies with the “authorization and continuing supervision” requirement of the Outer Space Treaty.

O’Connell said that the intent of the proposed “mission authorization” provision is not to overregulate the industry. “We really wanted to recognize that this is about commerce,” he said. “That doesn’t mean reckless. It doesn’t mean permissionless. It means that we’re sensible and fast and efficient in allowing companies to take a shot at some of these newer concepts that are out there.”

If that legislative proposal later becomes a bill, one thing will be clear: industry will be following its progress in great detail.


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