The Biden administration’s legislative proposal for space mission authorization is worth another look. In addition to the breadth of its request that Congress grant the FAA authority to regulate in the “national interest,” it raises another question. Would it grant the FAA the ability to make commercial launches wait on government launches? Even when the commercial operator has a commitment from a federal launch site?
Under current law, the Commercial Space Launch Act at 51 USC 50910 provides that:
the Secretary of Transportation shall act to ensure that a launch or reentry of a payload is not preempted from access to a United States Government launch site, reentry site, or launch property, except for imperative national need, when a launch date commitment or reentry date commitment from the Government has been obtained for a launch or reentry licensed under this chapter.
In other words, if a licensed commercial launch is scheduled, the Secretary, through the FAA, will work to keep that launch scheduled rather than letting it to be bumped for a government launch, unless there is an “imperative national need.” In contrast, the administration’s explanation for its legislative proposal says that
Including “other national interests” would allow DOT to ensure U.S. interests other than national security and foreign policy interests are addressed in licensing, particularly those associated with the U.S. civil space program (those of the National Aeronautics and Space Administration (NASA), the National Oceanic and Atmospheric Administration, and the United States Geological Survey). This would include … de-confliction with NASA’s Artemis program.
Does this mean the FAA would get to decide whether a government or commercial mission took priority on a federal range? The new legislation appears to leave unchanged section 50910’s requirement that the FAA work on behalf of the commercial operator unless there is an imperative national need to do otherwise. What test would the FAA apply for deciding which mission took priority? How would the FAA resolve the apparent discrepancies when the proposal would leave section 50910 intact? Current law mandates that the FAA support a commercial launch or reentry operator when there are scheduling conflicts. Would the administration’s proposal change that?