Incidental Harassment Authorization Issued to SpaceX

On December 26, 2017, the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration published a notice in the Federal Register that it had issued SpaceX an incidental harassment authorization for its sonic booms

to incidentally harass, by Level B harassment only, marine mammals during boost-back and landing of Falcon 9 rockets at Vandenberg Air Force Base in California, and at contingency landing locations in the Pacific Ocean.

People speak of the FAA having exclusive jurisdiction over regulating launches.  Section 50919(a) of the Commercial Space Launch Act states that, except as provided by the CSLA, “a person is not required to obtain from an executive agency a license, approval, waiver, or exemption to launch a launch vehicle … .”  So why did SpaceX need NOAA’s authorization for the landing of its first stage?

Arguably, SpaceX didn’t.  It needed NOAA authorization for something different, the harassment of marine mammals.  The FAA authorizes the launch, but the activity of harassing a marine mammal is different, and thus regulated by a different agency.  However, one might wonder whether NOAA isn’t regulating the noise of the launch.  If the aviation side of the FAA doesn’t regulate the noise of launch vehicles, how does NOAA get to?  Another thing a person might wonder is whether NOAA’s  marine fisheries service falls under 50919(b)’s exceptions to the statement that a launch operator need not obtain other approvals.  Paragraph (b) says “This chapter does not affect the authority of” the FCC or “the Secretary of Commerce under chapter 601 of this title.”  Yes, NOAA and the marine fisheries service are located within the Department of Commerce, but Chapter 601 of Title 51 applies to remote sensing, not to marine mammals.  Perhaps Congress did not grant the marine fisheries service an exception?

I’m about to start teaching space law at Catholic University’s law school in a couple days.  Accordingly, I am training myself to raise questions for discussion.  Who knows, this one could be on an exam.  The questions should provide only the beginning of the analysis.



Commercial Space in Draft DOT Strategic Plan. Opportunity for Comment.

By Federal Register notice, the Department of Transportation released for public comment a draft of its Strategic Plan for FY 2018-2022.  Comments are due November 13, 2017.  Although the draft focuses on trains, planes, drones, and automobiles, it also touches upon commercial space transportation, and some of its more general points have implications for commercial space.

Safety.  The plan mentions commercial space transportation as an example of a mode of transportation that poses new and poorly understood hazards:

Regulatory agencies must reimagine existing regulations and develop flexible regulations that do not create unnecessary barriers while promoting safe and efficient deployment of private transportation service.  For instance, unmanned aircraft systems and commercial space flights pose new and poorly understood hazards into the national air space, requiring more collaborative, data informed and risk-based safety management approach to emerging safety risks. Public agencies need to find avenues for collaboration that benefit both parties, … .

The concern over commercial space flight could arise out of two points.  As it was decades ago, commercial space flight is still new, and the technologies range from pointy-end-up expendable launch vehicles to rockets launched from carrier aircraft to reentry capsules.  This makes more difficult to implement the typical approach of standardizing a regulatory response. The second is the lack of data.  Although the space sector has a good understanding of the hazards, the flight rate for launch and reentry offers nothing close to the kind of data available to DOT for aviation and automobiles.

International: On the international front we see that “The DOT will promote exports by providing technical assistance to encourage international adoption of U.S. transportation standards and regulations.”  The FAA’s Office of Commercial Space Transportation has been engaged in similar efforts for years, and it’s good to see official support for that endeavor.

Regulation:  On the regulatory front, the plan states that DOT will implement the President’s executive orders on regulatory reform. Additionally, “DOT will also identify opportunities to facilitate, improve, and expedite the exemption and special permit processes to support deployment of innovative technologies and practices.”  This could bode well for aircraft operators who wish to receive exemptions from aviation regulations in order to participate in commercial space activities.

Environmental reviews.  Although the following sets out a plan to improve the environmental review process for infrastructure grants, the National Environmental Policy Act (NEPA) also applies to other major federal actions.  Major federal actions include the licensing of launches, reentries, and the operation of launch and reentry sites.  The proposed streamlining could aid commercial space environmental reviews:

The environmental review and permitting process in the United States is fragmented, inefficient, and unpredictable. Existing statutes have important and laudable objectives, but the lack of cohesiveness in their execution make the delivery of infrastructure projects more costly, unpredictable, and time-consuming, all while adding little environmental protection. The median time to complete an environmental impact statement (EIS) is approximately four years or more. The full environmental review process on complex projects can exceed 10 years. More efficient and effective Federal infrastructure decisions can transform our economy, so the Federal Government, as a whole, must change the way it processes environmental reviews and authorization decisions. DOT will be a leader in implementing Executive Order 13807 and other White House directives on speeding the permitting process, meeting a two-year deadline for Federal infrastructure projects.

Operators might consider filing comments to highlight the need for streamlining the NEPA review in the licensing context, too.

Comments due:  November 13, 2017.