THE AUTHORITY BEING INVOKED

The Federal Aviation Administration has published a Notice of Proposed Rulemaking under Docket No. FAA-2026-8614, Notice No. 26-11, RIN 2120-AM51, proposing to amend its commercial space licensing regulations across 14 CFR Parts 400, 420, 433, 437 and 450. The proposal was signed by Secretary of Transportation Sean P. Duffy and will be submitted for publication in the Federal Register.

The statutory mechanism is specific and long-standing. Under 51 U.S.C. 50905(b)(2)(C), the Secretary of Transportation may prescribe by regulation that a requirement of a law of the United States shall not be a requirement for a commercial space licence or permit, provided the Secretary — after consulting the head of the appropriate executive agency — decides the requirement is not necessary to protect public health and safety, safety of property, and the national security and foreign policy interests of the United States. That authority derives from the Commercial Space Launch Act of 1984, codified at 51 U.S.C. 50901–50924, which also directs the Secretary at section 50903 to encourage, facilitate and promote commercial launches and reentries. The FAA states it is exercising this authority pursuant to section 3(a) of Executive Order 14335, ‘Enabling Competition in the Commercial Space Industry’, signed on 13 August 2025 and published at 90 FR 40219.

WHAT IS ACTUALLY BEING WAIVED, AND WHAT IS NOT

The distinction between the preamble and the proposed regulatory text is material and has been widely elided in early coverage. The preamble lists 13 laws in general terms. The operative provision — proposed 14 CFR 400.3(b) — disapplies named sections rather than entire statutes in most cases. Only NEPA is listed at 42 U.S.C. 4321 et seq., that is, in full. The remaining twelve are cited to specific provisions:

• 49 U.S.C. 303(f) — the Section 4(f) protection for parks, recreation areas, wildlife refuges and historic sites under the US Department of Transportation Act
• 16 U.S.C. 1536 — Section 7 consultation under the Endangered Species Act
• 33 U.S.C. 1341 and 1344 — Section 401 water quality certification and Section 404 dredge-and-fill permitting under the Clean Water Act
• 16 U.S.C. 1456 — federal consistency under the Coastal Zone Management Act
• 42 U.S.C. 7506(c) — general conformity under the Clean Air Act
• 54 U.S.C. 306108 — Section 106 review under the National Historic Preservation Act
• 16 U.S.C. 1371 and 1374 — the take moratorium and permit provisions of the Marine Mammal Protection Act
• 16 U.S.C. 1855(b)(2) — essential fish habitat consultation under the Magnuson-Stevens Act
• 16 U.S.C. 1276(d)(1) and 1283(a) — Wild and Scenic Rivers Act
• 42 U.S.C. 4903 — Noise Control Act of 1972
• 33 U.S.C. 403 — Section 10 of the Rivers and Harbors Act
• 16 U.S.C. 1434(d) — National Marine Sanctuaries Act

The practical effect is nonetheless substantial, because the named provisions are in each case the consultation, certification or permitting mechanism through which the statute bites on a federal action. Disapplying Section 7 of the Endangered Species Act, for example, removes the requirement to consult the Fish and Wildlife Service or the National Marine Fisheries Service on effects to listed species, even though the Act’s other provisions remain. The FAA states that requirements necessary to protect public health and safety, safety of property, national security or foreign policy interests would not be affected.

THE SCOPE EXTENDS BEYOND FAA LICENSING ITSELF

The element of the proposal with the widest reach is proposed 14 CFR 400.3(c), which applies the same disapplication to four categories of action extending outside the FAA’s own licensing decisions. These are: the issuance, renewal or modification of Chapter 509 licences and experimental permits; the authorisation of airspace closures under FAA Order 7400.2R; unconditional or mixed Airport Layout Plan approvals where the FAA holds approval authority under 49 U.S.C. 47107(a)(16) and 47107(x); and the lease of land to an operator from a Federal site.

The FAA sets out its reasoning for the fourth category directly. Many commercial launch and reentry operations take place at federally owned or operated sites — NASA and Department of the Air Force ranges among them — and an operator must first enter into a real property agreement with the federal custodian. The execution of such an agreement is itself frequently a major federal action subject to NEPA. The agency states that waiving NEPA only for the licensing actions under Chapter 509 would merely shift responsibility for leading the environmental review from one executive agency to another. Extending the waiver to the site lease is therefore presented as necessary for the primary waiver to have practical effect — and it is the mechanism by which the proposal reaches beyond the FAA’s own jurisdiction into the property decisions of other federal agencies.

EIGHT FURTHER STATUTES ARE ON THE TABLE

The FAA is not only inviting comment on the 13 laws named. It expressly invites comment on other requirements ‘that are not necessary’ and lists eight candidates by name: the Ocean Dumping Act, the Comprehensive Environmental Response, Compensation, and Liability Act, the Safe Drinking Water Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, and the National Wildlife Refuge System Administration Act. The scope of any final rule could therefore be broader than the current proposal rather than narrower.

The agency also poses six specific questions for comment, which indicate where it regards the proposal as least settled. It asks whether applicability should be scoped to specific federal sites, licensed launch and reentry sites, or exclusive use sites; whether any particular sites are so differently situated as to warrant different treatment; and how the 13 identified laws have, in the launch and reentry context, operated to reduce a legally cognisable environmental harm — expressly encouraging quantifiable technical data in response. The remaining three ask how the waivers would further the statutory purposes of promoting economic growth through use of the space environment, simplifying and expediting licence issuance, and strengthening United States space transportation infrastructure.

CONSULTATION REQUIREMENTS AND THE AGENCIES INVOLVED

Because 51 U.S.C. 50905(b)(2)(C) requires consultation with the head of the appropriate executive agency, the FAA states that during the pendency of the rulemaking it will consult the Council on Environmental Quality, the Environmental Protection Agency, the Department of the Interior, the Department of Commerce, NASA, the Department of War and the Advisory Council on Historic Preservation, as applicable. Separately, under Executive Order 13175 and FAA Order 1210.20, the agency states it will identify any unique or significant effects on Federally Recognised Tribes during the comment period and engage as necessary — a commitment of particular relevance given that the proposal would disapply the National Historic Preservation Act Section 106 process through which tribal consultation on historic properties ordinarily runs.

THE SUPREME COURT REASONING THE FAA RELIES ON

The proposal rests its policy case substantially on Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168 (2025). The FAA quotes the Court’s observation that NEPA has transformed from a modest procedural requirement into a tool employed by project opponents to stop or slow new infrastructure and construction projects, leading to more analysis, more consideration of attenuated effects, more litigation and delay — with the result that fewer projects reach completion and those that do cost more. The agency states that just as the Court recognised a need for a course correction in judicial review of NEPA, the Department of Transportation and the FAA have identified a need for course correction in the application of NEPA and related laws to commercial space licensing.

REGULATORY DETERMINATIONS AND THE VOLUME CASE

The FAA expects the proposal would significantly reduce the time required to obtain commercial space licences and permits, alongside reductions in the cost and time to prepare Environmental Assessments and Environmental Impact Statements, and invites comment on the expected savings. The Office of Management and Budget has determined the rulemaking to be a significant regulatory action under Executive Order 12866. The agency has certified under the Regulatory Flexibility Act that the rule would not have a significant economic impact on a substantial number of small entities, determined that it falls below the $193 million Unfunded Mandates Reform Act threshold, and identified it as an anticipated deregulatory action under Executive Order 14192.

Supporting the case, the FAA’s accompanying announcement notes that over the past five years the agency authorised more commercial space operations than in the previous three decades combined, including a record 204 in Fiscal Year 2025, and that its commercial space forecast projects up to 4,288 operations over the next decade, rising from 214 this year to 507 in 2036.

HOW TO COMMENT

Comments are due within 30 days of publication in the Federal Register and should reference docket number FAA-2026-8614. They may be submitted through the Federal eRulemaking Portal at regulations.gov, by mail to Docket Operations at the US Department of Transportation, 1200 New Jersey Avenue SE, Washington DC 20590-0001, by hand delivery to Room W58-213 of the West Building, or by fax to (202) 493-2251. The FAA states that the most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change and include supporting data. Commenters submitting confidential business information should mark each relevant page ‘PROPIN’ and send it directly to the contact named in the notice — Randy Repcheck, telephone (202) 267-9677, email 9-FAA-Waiver-NPRM@faa.gov — rather than to the public docket.