In my blog, I have devoted quite a bit of attention to SpaceX. Don't get me wrong, while there are several other companies in the United States competing for launch contracts (e.g., United Launch Alliance, Blue Origin, Orbital ATK, and etc.), SpaceX has been having a remarkable year with a very high launch cadence. It is also making impressive progress in reaching its goal of one launch every two to three weeks. In fact, with a dozen successful launches so far this year, SpaceX has had more successful launches than any other competitor or country in 2017, making it very difficult not to write about SpaceX and it launches.
Speaking of launches, in one of my earlier posts, I focused on the rules and regulations surrounding satellite launches to geostationary orbit. But, with launches planned and occurring for many other orbits and SpaceX getting ready to test fly its Falcon Heavy rocket, I would be remised if I did not focus on the legal mechanisms surrounding the first step of every launch: getting clearance for the launch itself. With this post, I will explore this topic by focusing on the legal regime that governs space launches in the United States.
Legal Framework Surrounding Space Launches in the United States
As I have explored in the Mars Colony and Space Debris blog posts, the Outer Space Treaty of 1967 assigns international liability, via Article VII, to the nation that “launches or procures the launching of an object into outer space” along with the nation “whose territory or facility an object is launched [from].” So, whenever SpaceX conducts a launch in U.S. territory, United States would be liable to the international community for any harm that might result from such a launch. Hence, the U.S. Federal Government has laid out a specific set of procedures and regulations that all private entities launching from and/or on behalf of the United States must follow.
In the United States, the Office of Commercial Space Transportation (“AST”) in the Federal Aviation Administration (“FAA”) under the Department of Transportation (“DOT”) is in charge of “oversee[ing], authoriz[ing], and regulat[ing] both launches and reentries of launch and reentry vehicles, and the operation of launch and reentry sites when carried out by U.S. citizens or within the United States.” The Commercial Space Launch Act of 1984, as amended and re-codified at 51 U.S.C. 50901-50923, is the enabling statute that governs the AST. The AST implements the Commercial Space Launch Act through the FAA commercial space transportation regulations, which are located in Title 14 of the Code of Federal Regulations under Chapter III, parts 400 to 460.
So essentially, the United States Congress authorized AST’s creation and empowered the AST to regulate U.S. space launch activities through the Commercial Space Launch Act, which is a part of the U.S. Code. The AST then interprets and regulates Congressional mandates and principles related to U.S. launch activities through the FAA commercial space transportation regulations, which is a part of the Code of Federal Regulations. This interaction between the Code of Federal Regulations and the U.S. Code is due to a legal principle called doctrine of nondelegation, which, don’t worry, is a topic very much outside of this discussion.
Under these regulations, to date, the AST has issued 264 licensed launches (12 in calendar year 2017) and 44 permitted launches (with the difference between the two being licensed launches geared toward commercial activities and permitted launches geared toward experimental activities).
Oh, and just in case if you are curious, the AST does not govern amateur rocket activities, those are governed by FAA Air Traffic Organization under Title 14 of the Code of Federal Regulations under Chapter I, Subpart C. So no, you did not have to get AST clearance for your bottle rocket activities during middle school science class.
Overview of Licensing/Permitting Procedures for Space Launches in the United States
The AST licenses and permits procedures are separated into three categories: 1) Launch Vehicles, 2) Launch Sites, and 3) Experimental Permits.
AST can issue an one-time use launch licenses for both expendable single-use and reusable launch vehicles. AST will also issue operator licenses that will enable a private entity to conduct multiple launches of similar parameters from a single launch site.
A private entity seeking any of these types of licenses would initiate the process via a pre-application consultation. During this step, the private entity would introduce and describe its launch proposal to governmental officials and get educated about the licensing process, eventually culminating in the formal submission of a launch license application.
Then, AST would conduct: (i) a policy review to identify any issues related to national security, foreign policies, or other international obligations under regulations laid out in 14 CFR parts 415.21-27 (as applicable), (ii) a safety review to ensure that the launch can be safely operated under rules laid out in 14 CFR parts 415.31-47 (as applicable), (iii) a payload review to ensure that the payload has obtained all necessary authorizations (e.g., geostationary license as explored in this earlier post) under procedures laid out in 14 CFR parts 415.51-63 and 431.7 (as applicable), (iv) financial obligation review to ensure that the entity has adequate insurance coverage or financial reserves to cover the maximum financial loss that would be incurred in the event of an accident under criteria laid out in 14 CFR parts 440.7 and 450.7, and (v) environmental review to assess the environmental impact of the launch under the National Environmental Policy Act.
During this review, the AST might ask the applicant to submit additional data as necessary. Once the AST determines that the application passes all of these reviews, it will issue the launch license. However, the licensee will be subject to ongoing AST reviews for compliance.
An entity seeking a launch site license will follow the same pre-application consultation process as laid out above, which will culminate in the formal submission of a launch site license application.
Then, AST would conduct: (i) a similar policy review as described above using the regulations laid out in 14 CFR part 420,15(a)(3), (ii) a similar safety review as above using the procedures laid out in 14 CFR part 420.51-71, and (iii) the same environmental review as above. Once the launch site license is issued, the licensee is also under similar ongoing compliance obligations.
For both launch and launch site licenses, AST will issue a determination within 180 days of the submission date.
In order to promote experimental activities that could lead to innovations in reusable suborbital rockets, in 2004, Congress enacted the Commercial Space Launch Amendments Act, which is codified under 14 Code of Federal Regulations Part 437. Under these regulations, the AST can grant an experimental permit much quicker and with fewer requirements than it would for licenses. For instance, AST has a maximum of 120 days to review a permit application rather than the maximum of 180 days for license applications.
The applicant would start with a pre-application consultation that would end with the submission of a permit application. The AST would then conduct: (i) a hazard analysis to ensure the public safety, (ii) an operating area and procedures analysis to ensure that the experimental activities can be confined to a particular area, (iii) an environmental impact analysis that is similar to the one conducted for license applications, and (iv) a financial obligations review that is also similar to the one conducted for license applications.
Launching into the New Horizon
So, as you can see, the process surrounding launch licenses/permits in the United States is fairly streamlined and efficient. As commercial spaceflights become more common and with the rise of space tourism just around the corner, there is no doubt that AST will take on a more prominent role in a future filled with spaceports, space-shipping, and space-exploration.
FAA Commercial Space Transportation Regulations: https://www.ecfr.gov/cgi-bin/text-idx?gp=&SID=1f58495405665a030c05e44bca5a8591&mc=true&tpl=/ecfrbrowse/Title14/14chapterIII.tpl
Office of Commercial Space Transportation: https://www.faa.gov/about/office_org/headquarters_offices/ast/
The Commercial Space Launch Act of 1984: http://uscode.house.gov/view.xhtml?path=/prelim@title51/subtitle5/chapter509&edition=prelim
The Commercial Space Launch Amendments Act of 2004: https://www.faa.gov/about/office_org/headquarters_offices/ast/media/PL108-492.pdf