Space Licensing in the United States

The National Space Transportation Policy 2013 (USA), issued by President Obama on 21 November 2013, is the most recent policy document providing US federal departments and agencies guidance on the development and use of commercial and governmental space transportation systems. This policy updates the National Space Policy of 2010 (USA).

The main focus of the 2013 policy is to ensure that space remains accessible to the US, so as to enable its ongoing fulfilment of national space-related interests and security objectives. The 2013 policy is also designed to promote the ongoing development and operation of US launch industry by encouraging innovation, entrepreneurship, a closer relationship between government and private industry to surpass international competition.

The main legislative document which governs commercial space launch activities in the US is the Commercial Space Launch Activities – Title 51 of the US Code, Chapter 509 (USA).

This legislation covers a number of aspects relevant to space activities conducted in the US, including:

• licence and permit applications and requirements;
• liability insurance and financial responsibility requirements;
• effective periods, modifications, suspensions and revocations of licences; and
• restrictions on launches, operations and re-entries.

The Commercial Space Transportation Regulations – Title 14 Code of Federal Regulations (CFR), Chapter III (USA) is the key document which implements the Commercial Space Launch Activities – Title 51 of the US Code, Chapter 509 (USA) legislation.

Other relevant legislation include the following — enacted as amendments to the primary legislative instrument, the Commercial Space Launch Activities – Title 51 of the US Code, Chapter 509 (USA):

• Commercial Space Launch Competitiveness Act 2015 (USA)
• Commercial Space Launch Act 2011 (USA)
• Commercial Space Launch Amendments Act of 2004 (USA)

These documents are listed for historical reference.

The US has ratified the following international agreements:

• Convention on Registration of Objects Launched into Outer Space (‘Registration Convention’) 1976;
• Convention on International Liability for Damage Caused by Space Objects (‘Liability Convention’) (1972);
• Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (‘Outer Space Treaty’) 1967; and
• Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (‘Rescue and Return Agreement’) 1968.

For an overview of these international agreements, visit our Space Law Fundamentals page.

Relevant US regulatory bodies include the Federal Communications Commission (FCC), which regulates satellite communications; the National Oceanic and Atmospheric Administration (NOAA), which regulates remote sensing activities; and the Federal Aviation Administration (FAA) Office of Commercial Space Transportation, which regulates all aspects of satellite launch licensing. As this article intends to provide information regarding launch licensing in the US, the FAA is explored in more depth below.

In the context of space activities, the primary objective of the FAA is to ensure public safety, protect property, and maintain the national security and foreign policy interests of the US during commercial launch and re-entry activities. In addition to regulating the US commercial space transportation industry and ensuring compliance with international obligations and national interests; the FAA encourages, facilitates and promotes the US commercial space transportation industry.

The FAA conducts its licensing and regulatory work through the Office of the Associate Administrator and several divisions, including:

• Space Transportation Development Division
• Licensing and Evaluation Division
• Regulations and Analysis Division
• Safety Inspection Division
• Operations Integration Division

For more information about the FAA, visit faa.gov.

This process involves consultations between the applicant and the FAA prior to official submission of an application for a licence. The FAA will have an opportunity to inform you of the application process and you will have the opportunity to inform the FAA of your proposal or intended activities.

The FAA reviews your application to ensure that it is not contrary to US policy (e.g. public safety, national security or foreign policy). Your application will be reviewed by government agencies and the FAA will consult with a number of federal agencies authorised to address US policy issues.

The FAA conducts safety reviews to ensure that you are capable of launching a vehicle and its payload without putting public health and safety, or property, at risk of harm.

The FAA conducts payload reviews to ensure that you have obtained all the required licences, authorisations and permits.

The FAA requires the following information regarding a payload under review:

• Payload name;
• Payload class;
• Physical dimensions and weight of the payload;
• Payload owner and operator, if different from the person requesting payload review;
• Orbital parameters for parking, transfer and final orbits;
• Hazardous materials, and radioactive materials, and the amounts of each;
• Intended payload operations during the life of the payload; and
• Delivery point in flight at which the payload will no longer be under the licensee’s control.

In addition to complying with US regulations, an Australian entrepreneur is also required to hold an Australian Overseas Payload Permit in order to satisfy Australian legal requirements.

The permit covers the launch of space objects from a fixed or mobile launch facility or place outside Australia.

The FAA makes financial responsibility determinations to establish your financial responsibility, as well as to address the allocation of all risk requirements through insurance  or via a reciprocal waiver of claims.

Liability Insurance & Financial Responsibility

An Australian entrepreneur is required to obtain liability insurance or demonstrate financial responsibility in amounts to compensate for the maximum probable loss from claims by:

• third parties for death, bodily injury, or property damage resulting from an activity carried out under the license; and
• the US government against a person for damage or loss to government property resulting from an activity carried out under the license.

The FAA will prescribe the amount of insurance required based upon its determination of maximum probable loss, but it will not exceed the lesser of:

• $500,000,000 for third party claims;
• $100,000,000 for US government claims; or
• the maximum liability insurance available on the world market at reasonable cost.

Reciprocal Waiver of Claims

In addition to financial responsibility and insurance requirements, licence holders are required to make a reciprocal waiver of claims with the relevant parties involved in launch or re-entry services under which each party agrees to be responsible for personal injury to, death of, or property damage or loss sustained by it or its own employees resulting from an activity carried out under the applicable licence. The waiver applies only to the extent that claims are more than the amount of insurance or demonstration of financial responsibility as stated above.

These factors will have a strong influence on the assessment by the Australian Space Agency of the need for an Australian entrepreneur to have insurance, and in what amount.

The FAA requires you to provide information regarding all environmental impacts associated with your proposed launch.

The FAA monitors your compliance with the Commercial Space Launch Act the Commercial Space Transportation Licensing Regulations, and the terms and conditions attached to your licence.

It depends on a number of factors:

• the launch vehicle used
• size and destination of the payload
• market fluctuations
• insurance requirements
• contract terms and conditions

According to the FAA, launching a small payload into LEO could start at $7million, and a large satellite in GEO ranges from $60 to $90 million. 

There are a number of launch vehicle providers in the US, including:

• United Launch Alliance (Delta IV and Atlas V launch vehicles);
• SpaceX (Falcon series of launch vehicles);
• Orbital ATK / Northrop Grumman (Pegasus and Taurus launch vehicles); and
• Lockheed Martin (Atlas V and Athena launch vehicles).

One of the greatest challenges for Australian space entrepreneurs is actually getting their payload into space. Challenges can come in the form of exorbitant launch costs, unavailability of launch vehicles, and significant delays with scheduled launches. At present, launches are scheduled around only one or two major customers.

In the US there are launch service providers such as Spaceflight Industries which provide more cost-effective payload rideshare opportunities with the growing number of launch vehicle providers. The most recent development in rideshare opportunities in the US is SpaceX’s SmallSat Rideshare Program which will permit small satellite operators to book a place on regularly scheduled Falcon 9 rocket launches to sun synchronous orbit. The advantage of this service is that space entrepreneurs will not be tied to the success of the one or two big-ticket customer launches. If the scheduled launch is delayed, SpaceX will allow space entrepreneurs to reallocate the monies paid towards re-booking on a subsequent launch running on time.