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.