The Commercial Space Launch Act of 1984, codified as amended in chapter 509 of title 51 of the U.S. Code, authorizes the FAA to issue licenses for nongovernmental space activities. Such licenses include licenses to operate a launch site, launch vehicles into space, and reenter vehicles from space into Earth’s atmosphere. The relevant regulations issued pursuant to the Launch Act are codified at 14 C.F.R. ch. III, parts 415, 420, 431, and 435 (hereinafter the Regulations).
The U.S. Department of Transportation is the lead agency for regulatory guidance pertaining to commercial space transportation activities. The Secretary of Transportation delegated commercial space licensing authority to the FAA. As a result, the FAA, through its Office of Commercial Space Transportation, licenses commercial launches, reentries, and the operation of launch and reentry sites pursuant to the Launch Act.
While the FAA has jurisdiction over the launch and reentry of space vehicles, it does not have jurisdiction over in-orbit activities. This is significant because activities subject to the FAA’s jurisdiction enjoy the benefits of the Regulations’ financial risk-sharing regime. The FAA’s lack of jurisdiction over in-orbit activities means that the risk-sharing regime would not extend to cover an accident that occurred in orbit. In that case, the spaceflight operator could be liable for damages under traditional tort laws without the benefit of U.S. government indemnification, while the U.S. government could also be separately responsible for compensating other States under the Outer Space Treaty and the Liability Convention.
Obtaining an FAA License
The FAA has different procedures for issuing licenses for various types of launch and reentry activities and for launch and reentry sites. Most of the procedures are similar, so we will use the procedures for licensing a reusable launch vehicle (RLV) as an example.
An RLV operator may apply for either a mission-specific license or an operator license. A mission-specific license “authorizes a licensee to launch and reenter, or otherwise land, one model or type of RLV from a launch site approved for the mission to a reentry site or other location approved for the mission.” An operator license “authorizes a licensee to launch and reenter, or otherwise land, any of a designated family of RLVs within authorized parameters, including launch sites and trajectories, transporting specified classes of payloads to any reentry site or other location designated in the license.” For either type of license, the FAA licensing process for launching and reentering an RLV has six steps: (1) preliminary consultation, (2) policy review, (3) safety review, (4) environmental review, (5) demonstration of financial responsibility, and (6) postlicensing requirements. The FAA also typically requires a separate payload review for the launch and reentry of any payload that will be carried by an RLV.
The FAA must complete its review 180 days after accepting a completed application. The agency must notify the applicant of any pending issue and action required to resolve the issue if the FAA has not made its licensing decision within 120 days after accepting the application. The FAA may toll the review period if the applicant does not provide the FAA all required information.