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A SpaceX Falcon 9 lifts off on one of 13 FAA-licensed commercial launches so far this year as of March 14. (credit: SpaceX)

Regulatory issues for a growing launch industry

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Nearly every presentation about the commercial launch industry today mentions the just how much more active it is than a decade ago. In 2012, the FAA’s Office of Commercial Space Transportation, or AST, licensed seven commercial launches. At the time of publication of this article, there had been 13 FAA-licensed commercial launches so far this calendar year, mostly by SpaceX but also including Astra, Rocket Lab, and Virgin Orbit.

“There will probably be some applications that are denied,” Monteith said. “We’ll continue to work with companies, but you may get to an outcome that’s a denial.”

In a talk at the FAA’s annual Commercial Space Transportation Conference last month, Wayne Monteith, the FAA associate administrator for commercial space transportation, noted there were more FAA-licensed human spaceflight launches in 2021—eight—than launches overall in 2012. He projected as many as 19 licensed launches by the end of March, a figure that may include crewed launches by Blue Origin and SpaceX.

The FAA and the launch industry, anticipating that surge in launches for years, worked to streamline launch licensing regulations. Those revised regulations, called Part 450 by the FAA, took effect a year ago. The FAA has started to issue new licenses under those revised regulations, starting with Astra’s license for Rocket 3.3 launches from Cape Canaveral earlier year. (Existing licenses that predate Part 450 remain in effect but will shift over to the next regulations over the next few years.)

But at the conference, Monteith warned that alone may not be enough. “Part of what we’re doing under Part 450 is tightening up the way we do business as well,” he said. That includes how to define what’s known as a “sufficiently complete” or “complete enough” application for the FAA to begin a 180-day formal review. That is too subjective, he said, with different definitions of what that means among companies and even among FAA/AST personnel.

The FAA is working with its industry advisory group, COMSTAC, for a more objective definition, but that could have downsides for the industry. “The way our ‘complete enough’ evaluation has grown up over the last three decades is that it’s always geared towards getting to yes,” he said. “At this pace that we have, we can’t do that any more.”

That means that the FAA may review applications it deems sufficiently complete but decline to issue a license. “There will probably be some applications that are denied,” he said. “We’ll continue to work with companies, but you may get to an outcome that’s a denial.” Companies that submit a license for a launch less than six months away may also find their schedule “at risk,” he said.

Streamlining the launch regulations, while a major milestone for industry, is only the start of a broader regulatory reform effort at FAA/AST. Besides filling in technical details for Part 450 with a series of advisory circulars, the office is working to update orbital debris mitigation regulations that are “pretty much done,” Monteith said. That will be followed by updates to regulations for financial responsibility for launch accidents and for spaceports.

Another update is for human spaceflight regulations. The FAA is currently limited in its ability to regulate safety of spaceflight participants under what the industry called the “learning period” for the industry, which has been extended several times and now runs through September 2023. Monteith said the FAA has to at least start planning for what kinds of regulations should be in place assuming the learning period is not extended again.

It's unclear if Congress will extend the learning period again. “There are camps that want to just indefinitely extend the deadline,” said Chirag Parikh, executive secretary of the National Space Council, at the conference. “There are others who say that we have a date certain, and let’s go forward.”

“At some point in the future… the learning period will end,” said Presti. “What does a post-learning-period regulatory environment look like?”

What’s more important that the deadline, he said, is government and industry sitting down and discussing what the content of such regulations should be. “This can help inform a date certain. This can help inform what are best practices,” he said. “This type of effort can ensure safety of passengers, and also ensure passenger confidence.”

A panel of Congressional staffers at the conference said the future of the learning period will depend on exactly what industry and the FAA have learned and what they are still learning. That could come up as part of an overall reauthorization of the FAA next year.

“At some point in the future, whether it’s October 1, 2023, October 1, 2030, whatever it is, the learning period will end,” said Hunter Presti of the House Transportation Committee’s aviation subcommittee. “What does a post-learning-period regulatory environment look like?”

“No one wants the FAA to kick in your doors on October 1 and start throwing books at you. No one wants that and I don’t think it’s happening,” he said. “What process do we want to go through in order to make sure that whatever the post-learning-period regulatory environment looks like, it’s something that works for everyone?”

Congress has another issue related to commercial spaceflight regulations to deal with. Last fall, the National Transportation Safety Board issued a notice of proposed rulemaking (NPRM) to update its role in investigating commercial spaceflight accidents. That role had previously been governed by memoranda of understanding (MOUs) with the FAA and the US Air Force, allowing NTSB to participate in investigations such as the fatal SpaceShipTwo crash in 2014.

Much of the industry thought the NTSB’s proposal constituted overreach. The regulations would require companies conducting a launch or reentry under an FAA license or experimental permit to immediately notify the NTSB in the event of a mishap. The NTSB would conduct an investigation to determine the probable cause and provide recommendations to avoid similar events in the future.

Companies argued that the NTSB’s proposed regulation would duplicate investigations overseen by the FAA. “The NRPM would effectively create duplicative and conflicting incident investigation authorities between the FAA and NTSB, creating regulatory uncertainty for the commercial space launch industry,” wrote Blue Origin in its response to the proposal. That could “inadvertently lead to NTSB’s unlimited and non-statutory authority to initiate incident investigations of commercial space launch providers, even without any vehicle damage or destruction, or serious injury or death.” [emphasis in original]

The FAA itself weighed in against the NTSB’s proposal. FAA administrator Steve Dickson said the existing agreement with NTSB worked well and “with some updates, should continue to serve effectively.” Those changes, he said, would include consolidating existing agreements and updating them to reflect changes in federal law since 2004. ““I encourage the NTSB to instead refocus on its current successful working relationship with the FAA and build on past successes to create an improved and unified effort moving forward.”

The NTSB is reviewing that feedback, but Congress may wade into the issue. “We sent a letter to the NTSB asking for additional information about their NPRM,” recalled Tom Hammond of the House Science Committee staff. “They sent a very nice letter back saying they’re not going to respond to us. We anticipate following up.”

“We have questions about the whole statutory authority issue,” said Pam Whitney ,also of the House Science Committee. “To go from an MOU in place today to regulatory action is a big step.”

“We have significant concerns about how NTSB did this,” said Joel Graham of the Senate Commerce Committee. “It’s an agency charging off in one direction without consulting its partners.” He favored updating the existing agreements rather than making new rules.

“If you think about it, there’s a chance the Motel 6 down the street will have more health and safety regulations than a hotel on orbit,” said Monteith.

Presti said his committee would likely introduce legislation to “clarify” the NTSB’s roles in commercial space transportation accidents. However, he said the final rule, assuming it is improved by the public comments, would be preferable to updating the MOUs, as those have no public comment period.

But new and (hopefully) improved regulations are a fact of life for a growing industry. Monteith, who is retiring from the FAA at the end of the month, envisioned new regulations in the future to cover new commercial space activities, from spacewalks to space hotels, all to provide an assurance of safety.

Such regulations, he noted, are a fact of life on Earth. “I don’t know who should regulate them and I don’t know when they should be regulated,” he said of space habitats. “If you think about it, there’s a chance the Motel 6 down the street will have more health and safety regulations than a hotel on orbit. These are not easy problems.”

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