A couple of weeks ago the Government Accounting Office responded to a request from members of the House of Representatives that GAO review issues related to moving the FAA’s Office of Commercial Space Transportation (AST) back to the Department of Transportation. The FAA is part of DOT, and AST is part of the FAA. I will not address the whole report, just those concerns that would actually require a change in the law rather than a change in location to resolve. Additionally, it appears that the FAA plans to rely on the aviation community to advise on how to integrate space transportation into the navigable airspace.
AST is the specific part of the FAA that regulates and authorizes non-federal launch, reentry, and the operation of launch or reentry sites as carried out by U.S. citizens or within the United States under 51 U.S.C. ch. 509. The Secretary of Transportation originally located the space office within the Office of the Secretary at DOT before delegating the Secretary’s authority over space to the FAA in 1995.
GAO interviewed launch and reentry operators who have operated under FAA licenses and permits as well as operators of launch and reentry sites, commonly known as spaceports, for its report. Also, GAO interviewed employees of both the FAA and DOT, including at senior levels.
Airspace Issues. GAO reported that one company said that the lines of responsibility between AST and the FAA’s Air Traffic Organization (ATO) lack clear definition. Under 49 U.S.C. § 40103(b),
(1) The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administrator may modify or revoke an assignment when required in the public interest.
(2) The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for—
(A) navigating, protecting, and identifying aircraft;
(B) protecting individuals and property on the ground;
(C) using the navigable airspace efficiently; and
Moving AST out of the FAA would not change the rest of the FAA’s authority over the navigable airspace. Relocation would merely require Metro rides for meetings between DOT—which is located by the Navy Yard—and the FAA—which is located on the Mall—or telecons between people in different buildings rather than the same building. This does not seem like an effective cure for what is at heart a substantive question of legal authority. AST has authority over launch and reentry, but launch and reentry take place in navigable airspace, which is used by airlines and other persons operating aircraft.
The issue is also a question of weight. Aviation is a much larger industry than space. Whether the space regulator resides in the FAA or DOT, the aviation industry will continue to occupy the same dimensions. I fervently hope the space industry continues its growth, but the difference between the two sectors will still have the same political weight, regardless of whether AST resides in DOT or not. DOT itself indicated as much when, according to GAO’s report, “Officials from the Office of the Secretary of Transportation also said that even if the commercial space transportation office were moved to their office, they would still need to work with FAA on airspace access issues and that they would not necessarily favor the industry regarding airspace issues.” (emphasis added). Just as the space industry and AST must educate and persuade persons within the FAA, so would they have to persuade persons within DOT, and there they would be starting over again.
Advisory Committee. GAO reports a far more troubling comment from an Air Traffic Organization employee, who said that the “FAA plans to start an aviation rulemaking advisory committee that will help to determine airspace access priorities for all national airspace users.” To appreciate this, we need to understand that the FAA has several advisory committees: the referenced Aviation Rulemaking Advisory Committee (ARAC) and the Commercial Space Transportation Advisory Committee (COMSTAC). They each consist of industry members, and they address issues related to their respective industries. If the ARAC determines airspace access priorities it cannot help but be informed by its members, and its members are not commercial space operators. Again, the aviation community may outweigh the commercial space operators unless someone takes steps to ensure that commercial space has a voice at the ARAC table. Also, COMSTAC now has a renewed charter so perhaps it could play a role.
Spaceports and a One-Stop Shop. One spaceport operator stated an interest in a one-stop shop, meaning that the spaceport operator preferred to have just one point of contact within the FAA. This person said he had to work not just with AST but with the Office of Airports in the FAA to address the effects of spaceports on airports. Moving AST out of the FAA would not remove this requirement. If an airport wants to host commercial launches and reentries it need a license to operate a launch or reentry site. Many airports receive federal grant money, and the laws and regulations that apply to that grant money tend to restrict it to aviation uses. Space transportation does not fall under the category of aviation, so the Office of Airports tends to require insight into the new use proposed for the airport. Were AST moved to DOT, those laws and regulations would still apply to airports that had accepted federal grant money, and an airport that wanted to be a spaceport would still need to abide by those requirements and attend to the Office of Airports.