Cleared for Launch: Department of Commerce Releases Space Commerce Certification Framework for Novel Space Activities

On March 24, 2026, the Office of Space Commerce (OSC) at the Department of Commerce (Commerce) published a proposed process to authorize novel space activities not currently or directly addressed by existing regulatory frameworks (Proposal).  Although the Proposal will enable novel commercial space activities, the process that Commerce purports to use is also novel because it appears to circumvent the Administrative Procedure Act (APA). It is unlikely that the beneficiaries of this expedited process would object to the opportunity to receive authorization for their novel activities without waiting for the rulemaking process to take place; however, if this framework stands unchallenged, it may be a tipping point for other so-called “voluntary” certification frameworks to exist outside of the regulatory process in other industries. 

The existing regulatory framework for space activities requires obtaining authority from (1) the Federal Aviation Administration (FAA) for launch and reentry, including an interagency payload review; (2) the Federal Communications Commission (FCC) for radiofrequency communications, including space debris rules; and (3) OSC for remote sensing, where remote sensing is involved. The Proposal purports to create a mechanism to propose and certify additional activities not currently contemplated by regulation, such as in-space manufacturing, commercial inhabitable space stations, and satellite servicing. However, the notion that the Proposal covers only novel activities unable to be addressed by the existing regulatory framework seems to conflict with the description of how the “voluntary, opt-in” process manages to avoid APA rulemaking.

The Proposal contains repeated references to the new process being non-mandatory, and the choice of language is intentional – OSC relies on the assumption that the process is “voluntary” to evade rulemaking. However, most regulatory frameworks – for example, FAA’s—are premised on the notion that the regulatory framework provides a process to engage in voluntary activities. The Proposal sets forth exactly that – a process to engage in voluntary activities, but without accompanying regulations. Although industry participants will likely not object to an opportunity for an expedited approval process, a company that does not successfully obtain approval for its space activities could argue that the entire process should have been subject to public comment and the APA. 

Commerce would likely respond that the voluntary nature of participation means that entities could instead default to existing regulatory processes, but this seems to conflict with its statement earlier in the document that the Proposal is intended to cover areas not already subject to regulation by other agencies. For example, on page 5, the Proposal states:

It would be impractical to articulate rules for each of these novel activities immediately. Some activities have years of heritage and well-developed best practices, while others have never been done either by private companies or at all. Likewise, some activities are early-stage concepts, while others are critical industry contributions to major USG programs (e.g., the Artemis Program). Even if OSC could develop rules, the current regulatory challenges cannot continue unresolved for the months or years it would take to develop them.

This justification for urgent, extra-regulatory action is in direct opposition to the statement about the voluntary nature of the program on page 8, which states:

The decision to seek a Space Commerce Certification is voluntary. U.S. entities may choose to use the existing, traditional regulatory processes to license their space activities through the Federal Aviation Administration (FAA), Federal Communications Commission (FCC), and the Office of Space Commerce’s Commercial Remote Sensing Regulatory Affairs Division (OSC/CRSRA), as applicable.

Despite the apparent contradiction, the purpose behind the novel process is compelling, and regulatory barriers can, of course, be stifling to nascent industries. However, for agency actions relating to industries such as aerospace, where safety is paramount, and accordingly, there is little margin for error, entities and individuals who have a stake in the action may oppose the lack of a formal opportunity for notice and comment on comprehensive regulations. Regardless of the Proposal’s avoidance of the APA, if OSC issues a document finalizing the Proposal, affected members of the public also could petition for review as a final agency action. And, if no formal document is issued finalizing the Proposal and OSC begins processing certifications, the Proposal itself could be viewed as a final agency action and subject to judicial review.

How this Proposal might be used as a blueprint for agencies in the future or, if it is memorialized by Congress in legislation as an APA exception, remains to be seen. Either could jolt standard agency practice for authorizing novel and nascent industries. The Proposal argues that its existing statutory authority is sufficient to warrant an extra-regulatory process, describing Commerce and OSC’s “wide-ranging authorities ‘to foster the conditions for the economic growth and technological advancement of the United States space commerce industry[.]’”  It also cites the statutory tasking for the OSC Director to “[seek] the removal of legal, policy, and institutional impediments to space commerce.” However, many other agencies have broad safety authorities and one could argue that, in the wake of Loper Bright, specific authorization for such a process by Congress would be more appropriate than the agency undertaking such a process under broad statutory authority.  Commerce may seek such authorization from Congress to further support the statutory underpinnings for the process.

OSC is accepting comments on its Proposal by email. Segments of industry interested in influencing the process should develop targeted comments, though a deadline was not given for providing comments.

About Our Author

Courtney Freeman is a leading member of the Adams & Reese Aviation & Aerospace Team. Prior to joining Adams & Reese, Courtney was a senior member of the Office of the Chief Counsel at the FAA, where she led the teams that provided the legal architecture for emerging aviation technologies, including drone operations, Advanced Air Mobility (AAM), and other initiatives. Courtney’s prior experience affords direct insight into complex legal, operational, and commercial issues, which she applies to help clients navigate risks, solve problems, and capitalize on opportunities.

FOOTNOTES

1. Proposal, Space Commerce Certification, available at https://space.commerce.gov/osc-releases-updated-mission-authorization-proposal/. This Proposal was published in response to a mandate to the Department of Commerce contained in Executive Order (“EO”) 14335, Enabling Competition in the Commercial Space Industry, which required, within 150 days of the order, that Commerce propose a process for individualized mission authorizations, excluding human spaceflight. See Sec. 5 of EO 14335, Enabling Competition in the Commercial Space Industry, available at https://www.whitehouse.gov/presidential-actions/2025/08/enabling-competition-in-the-commercial-space-industry/.
2. See page 5 of Proposal.
3. Loper Bright Enterprises, Inc. v. Raimondo, 603 U.S. 369 (2024).