Op-ed | It’s time for a 21st century licensing system for space
This op-ed originally appeared in the Aug. 19, 2019 issue of SpaceNews magazine.
Earlier this year, the U.S. Federal Aviation Administration (FAA) issued a Notice of Proposed Rulemaking (NPRM) on the topic of Streamlined Launch and Reentry Licensing Requirements. Although I recognize that a lot of time and effort has gone into preparation of the NPRM, based on the responses that have so far been posted to the docket, it is clear that many in industry do not believe that the proposed rule accomplishes the stated objective of streamlining existing launch and reentry licensing requirements.
If the FAA is confident that its proposal does indeed improve the licensing process, and would lessen the burden on industry rather than increasing it, then it should revisit Department of Transportation policies concerning oral communications with the public during rulemaking, and find a way to continue engaging with industry through an Aviation Rulemaking Committee (ARC), public meeting, or special session of the Commercial Space Transportation Advisory Committee (COMSTAC), in order to more fully explain its rationale and its implementation plans.
In the meantime, rather than focusing on specific provisions of the NPRM, I would like to describe what I think a 21st century licensing system should look like — at the very top level — and offer some ideas on the best way to implement such a regime. Ideally, the end result would be an updated regulatory framework that would be clear, concise, flexible and performance-based, that would support the use of advanced technologies and innovative approaches, while still ensuring public safety.
At the same time, there is no need for a “one-size-fits-all” process. Companies should have the option to base their license application upon following “time-tested” but more detailed hardware and software design specifications, such as those typically required by the U.S. Air Force, or to follow a process-based approach that would offer more flexibility in terms of the actual vehicle design. Transitioning to the 21st century licensing system could be accomplished with a three-step approach.
Step 1: Begin the transition to a performance-based regulatory approach by taking full advantage of existing authorities.
As noted in the NPRM preamble, “the regulations for ELV launches in parts 415 and 417 have proven to be too prescriptive and one-size-fits-all, and the significant detail has caused the regulations to become obsolete in many instances.” In contrast, the regulations for RLV launches in part 431 are much shorter (20 pages versus 413 pages), more process-based and much more flexible. The FAA stated in the NPRM preamble that “the regulations for RLV launches have proven to be too general, lacking regulatory clarity.” However, the best way to provide such clarity would be for the FAA to publish Advisory Circulars containing acceptable means of compliance, or better yet, to adopt industry consensus standards as they are developed, rather than for the FAA to apply prescriptive requirements from part 417 to RLV operators.
Under current regulations, the definition of a reusable launch vehicle includes systems that contain vehicle stages that may be recovered by a launch operator for future use. For example, both the Falcon 9 and the Falcon Heavy launch vehicles, developed by SpaceX, would qualify for licensing under part 431. Using this approach could provide a significant degree of flexibility in meeting public safety requirements during future launches, even without any changes to the regulations, assuming both the FAA and the launch operator would agree to such an approach. Although transitioning from a part 415 license to a part 431 license would necessitate some near-term effort by both the FAA and the launch operator, it would also provide an opportunity to gain valuable experience with a performance-based regulatory approach that could pay major dividends in the future.
Another opportunity to increase launch operator flexibility with the current regulatory regime involves more extensive use of Safety Approvals. Under current law and regulation, the FAA is authorized to issue Safety Approvals for entire launch or reentry vehicles, as well as for safety systems, processes, services or personnel. The applicant is allowed to propose an appropriate performance standard to measure the system’s performance. Potential standards could include military specifications, NASA standards, industry consensus standards or even company-developed standards.
Once a Safety Approval is granted, a launch operator would be allowed to use that system or element in future launches without the FAA reexamining the safety element’s performance characteristics. That could significantly simplify the licensing process for future launches. In addition, as new technologies are developed or new approaches are identified, it would be relatively easy to update the appropriate standards as needed, instead of having to follow the full-up government rulemaking process in order to modify the regulations.
Step 2: Add a provision to the NPRM that would allow the use of an alternate process for obtaining launch or reentry licenses based on the “Safety Case” methodology.
A description of one approach for how such a process could be structured is provided in the report recently prepared for the FAA by A-P-T Research, Inc., titled “A New Path to Launch Licenses.” The safety case methodology is already being used by the United Kingdom’s Ministry of Defence, which defines a safety case as “A structured argument, supported by a body of evidence that provides a compelling, comprehensible, and valid case that a system is safe for a given application in a given environment.” License applicants could choose to comply with existing regulations, or to follow the alternate process, which fully implements a performance-based regulatory philosophy, along with the requirement that launch operators accept the responsibility for operating safely, and the necessity to advocate for safety. The alternate process would consist of a voluntary audit of the applicant’s safety and risk management program, followed by the development of a safety case in which the applicant would present evidence, in the form of engineering analysis and test data, showing how public safety would be protected.
Step 3: Institutionalize the performance-based regulatory framework, and eliminate duplicative range requirements, through the establishment of a Space Safety Institute.
The Space Safety Institute would be a nonprofit, public-private partnership that would provide space safety expertise and support to both government and industry. Participation would be open to all interested stakeholders, including vehicle developers and operators, insurance underwriters, professional society representatives, researchers and academia. The Institute would be administered by a Federally Funded Research and Development Center (FFRDC), which could also provide subject matter experts on an as-needed basis. At least some of the necessary funding would come from the government.
A Space Safety Institute would provide three major benefits to stakeholders:
- First, it would serve as an objective third party auditor and evaluator in reviewing “Safety Case” proposals prepared by launch license applicants.In addition to providing feedback to the applicant, the Institute would also provide its assessments to the FAA, which would remain the final decision authority on whether to grant a license. This would lessen the need for the FAA to maintain a large staff with state-of-the-art knowledge and experience in every space-related technical discipline. It would also facilitate the sharing of lessons learned and best practices with industry in a way that would be much more likely to be well-received than if the information were to come from the government regulator.
- Second, a Space Safety Institute would provide a collaborative framework that could support the development of much-needed industry consensus standards, and on a much faster pace than is possible today.Although the Commercial Spaceflight Federation and others have recently begun working on the development of voluntary standards with ASTM International, progress has been slow, since the companies involved are busy with other priorities, and reaching a consensus on complex, safety-related issues can be extremely challenging. It is important to recognize that once the basic industry consensus standards for commercial launches and reentries have been developed and accepted, the FAA will be able to quickly incorporate those standards into its regulatory framework. With the support of both government and industry, a Space Safety Institute could greatly accelerate that process.
- Third, and perhaps most importantly, establishing a Space Safety Institute under the administration of an FFRDC has the potential to expedite the elimination of duplicative range requirements between the FAA, the Air Force and NASA. Minimizing duplicative requirements has been a longtime goal of industry. Recently, support for such an effort has been clearly articulated both by the administration (in Space Policy Directive 2), and by Congress (in the 2015 Commercial Space Launch Competitiveness Act and the 2019 National Defense Authorization Act).
Although there have reportedly been a number of discussions on this topic, each organization apparently feels an obligation to do what it can to ensure public safety as part of its assigned mission, with the end result being that commercial launch operators must deal with a multitude of often conflicting requirements. The existence of a Space Safety Institute would allow credible safety assessments to be conducted by a trusted, respected and independent entity, thus making it more likely that other government stakeholders would be willing to defer to the FAA as the lead regulatory agency in protecting public safety during commercial launches and reentries, given that the appropriate safety assessments were being performed by the institute.
With the extraordinary pace of commercial spaceflight activities today, and the many challenging tasks ahead of us, it is vitally important that government and industry quickly come together to agree on an updated regulatory framework; one that would offer increased flexibility to industry, while continuing to ensure public safety. I strongly encourage the FAA to reach out to and partner with industry in achieving this goal.
George C. Nield is the president of Commercial Space Technologies, LLC. He is part of a team studying potential benefits of a Space Safety Institute. He served as the FAA administrator for commercial space transportation from 2008-2018.