SPD-6, National Strategy for Space Nuclear Power and Propulsion (SNPP), appeared in the Federal Register on December 21, 2020. It states the U.S. goals for developing and making safe use of nuclear power and propulsion in space. One area of concern is that it creates confusion over whether the FAA’s authority extends than what Congress granted allows. Congress gave the FAA the authority to license and regulate, in relevant part, launch and reentry. The FAA does not have the authority to regulate activities elsewhere.
Section 3(a)(ii) of SPD-6 addresses launch safety:
NSPM–20 established safety guidelines and safety analysis and review processes for Federal Government launches of spacecraft containing space nuclear systems, including SNPP systems, and for launches for which the Department of Transportation has statutory authority to license as commercial space launch activities (commercial launches). These guidelines and processes address launch and any subsequent stages during which accidents may result in radiological effects on the public or the environment—for instance, in an unplanned reentry from Earth orbit or during an Earth flyby. Launch activities shall be conducted in accordance with these guidelines and processes.
The Federal Aviation Administration is the part of the Department of Transportation with authority over commercial and other non-federal launches. However, the FAA only authorizes launch and reentry, and may not license on-orbit or interplanetary activities, including–presumably–Earth flybys. A flyby is not a launch or reentry. Instead, according to Northwestern, it is “a path a spacecraft follows past a planet or other body in space to get information about it. In a flyby, the spacecraft passes close, but isn’t “captured” into an orbit by gravity.”
Reading SPD-6, I wondered whether the administration considers the FAA’s payload authority broad enough to regulate flybys?
Reading on, however, it looks like the President views the FAA’s payload authority as limited to launch safety:
The Secretary of Transportation’s statutory authority includes licensing commercial launches and reentries, including vehicles containing SNPP systems. Within this capacity, the Secretary of Transportation shall, when appropriate, facilitate private-sector engagement in the launch or reentry aspect of SNPP development and use activities, in support of United States science, exploration, national security, and commercial objectives. To help ensure the launch safety of an SNPP payload, and consistent with 51 U.S.C. 50904, a payload review may be conducted as part of a license application review or may be requested by a payload owner or operator in advance of or apart from a license application.
In other words, the FAA may review an SNPP payload on the launch vehicle it regulates to ascertain whether it affects the safety of the launch–but not for more far reaching activities. This latter statement is consistent with the statute at 51 USC ch. 509, but does not appear consistent with the directive’s earlier claim that the FAA can regulate an Earth flyby.
When faced with inconsistent assertions such as these, it is, of course, better to rely on the one consistent with the law that Congress passed.
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In other nuclear news, yesterday’s Federal Register contains the President’s January 5, 2021 Executive Order Promoting Small Modular Reactors for National Defense and Space Exploration. Specifically, Section 5 notes:
(a) Nuclear power sources that use uranium fuel or plutonium heat sources are essential to deep space exploration and in areas where solar power is not practical. NASA uses radioisotope power systems, such as radioisotope thermoelectric generators and radioisotope heater units, to provide power and heat for deep space robotic missions. Nuclear power sources in the kilowatt range may be needed for demonstrating In-situ Resource Utilization (ISRU) and robotic exploration of permanently shadowed craters on the Moon that contain frozen water. Nuclear reactors up to 100 kilowatts may be needed to support human habitats, ISRU, other facilities, and rovers on both the Moon and Mars. Power sources in the megawatt range would be necessary for efficient, long-duration deep space propulsion. Affordable, lightweight nuclear power sources in space would enable new opportunities for scientific discovery. The sustainable exploration of the Moon, Mars, and other locations will be enhanced if small modular reactors can be deployed and operated remotely from Earth.
(b) Within 180 days of the date of this order, the NASA Administrator, in consultation with heads of other executive departments and agencies (agencies), as appropriate, shall define requirements for NASA utilization of nuclear energy systems for human and robotic exploration missions through 2040 . . .