Nomadic Launch Operators

This will be a post in two parts.  The first will address the launch operator.  The second will address the launch site operator.

Suppose you are building a rocket in your garage or factory and do not live near one of the coasts. You are not receiving money from the U.S. government or wealthy investors—which is only mentioned to demonstrate your need for frugality, not because the lack of federal funds matters to the legal analysis. You will want to conduct any test launches of your vehicle close to home. You may have a small, isolated airport near you, without a lot of traffic or nearby population, which would be happy to lease you some space for your low-altitude, suborbital launch. You may be near a large ranch, for that matter. The only problem is the airport or ranch doesn’t want to go through the trouble and expense of consulting with the FAA, conducting a costly environmental review, and waiting 180 days from the submission of its license application for just your few launches. You don’t want to wait either. If you’re the only prospective launch operator on the horizon of that airport or ranch, you might not have to. Armadillo Aerospace, which was looking at empty pieces of land as well as an airport from which to conduct launches, asked the FAA whether it had to obtain a license to operate a launch site. The FAA said it did not.

Chapter 509 of Title 51 of the United States Code (frequently referred to as the Commercial Space Launch Act) requires a person to obtain a license to “operate a launch site.” 51 U.S.C. § 50904(a). Chapter 509 defines a launch site as “the location on Earth from which a launch takes place (as defined in a license the Secretary issues or transfers under this chapter) and necessary facilities at that location.” 51 U.S.C. § 50902. Under the FAA’s rules, “operation of a launch site” means “the conduct of approved safety operations at a permanent site to support the launching of vehicles and payloads.” 14 C.F.R. § 401.5. When it issued this definition, the Department of Transportation observed, “the operation of a launch site involves continuing operations at a permanent location.” Licensing Regulations, 64 Fed. Reg. 11004, 11007 (Apr. 4, 1988). Accordingly, if a site is not permanent, then the person operating it is not operating a launch site under the FAA’s rules, and that person does not need an FAA license under 14 C.F.R. part 420, the FAA’s “spaceport” regulations.

In Armadillo’s case, it proposed to operate a vertical-takeoff and vertical landing rocket under an experimental permit. The FAA described Armadillo’s proposed operations as follows:

Armadillo would go to a site as many as two times per month for two or three days. The sites would require no infrastructure to support an Armadillo launch. Armadillo would transport its vehicle, fuel, and all personnel and equipment to the proposed site the day of or the day prior to its launches. Armadillo would remove any equipment or material used for the launches immediately afterwards. Neither Armadillo nor the landowner will prepare the site or engage in any permanent or temporary construction. Armadillo plans no permanent presence, now or in the future. With the exception of Las Cruces International Airport in New Mexico, the launch sites would not be used by other launch operators. In short, Armadillo would arrive at each site, launch and leave.

Under these circumstances, the FAA found that Armadillo did not require a license to operate a launch site because Armadillo’s proposed activities at the site lacked the necessary indicators of permanence. Specifically, neither Armadillo nor the landowners planned any construction, and Armadillo intended to leave no equipment, at any of its planned launch sites.  Armadillo would only spend two or three days at each site. The FAA compared Armadillo’s impermanence to that of Sea Launch, a launch operator which launched from the Pacific Ocean and left no facilities or personnel at the location after its launch took place. As the FAA said, “Even though Sea Launch returns to its site again and again, year after year, the FAA does not treat the site as permanent and thus requiring [] a license for its operation.”

Legal interpretations and license determinations may constitute precedent. Accordingly, the facts presented in these examples, if present elsewhere, may provide guidance on whether a launch operator needs to obtain a license to operate a launch site. Although the FAA reserved the question in its response to Armadillo, the reasoning should also provide guidance to anyone, such as an airport, who would like to offer a site to a launch operator on a temporary basis. That aspect will be discussed next week.