The last post showed that a launch operator, even if launching from a site it doesn’t own, might not need a license to operate a launch site if its presence at the site is temporary. This post addresses the launch site operator.
Suppose you are an airport with no interest in the lengthy and costly process of obtaining a license from the Federal Aviation Administration to operate a launch site (referred to as a “spaceport license” for brevity). One day a launch operator approaches you about using some portion of your airport to conduct three test launches. The operator will bring its own launch vehicle, launch, and leave. No one else has ever expressed an interest in using your airport for such purposes, but you would like to accommodate this prospective customer. Do you need an FAA spaceport license? Based on these very attractive facts, probably not.
The same logic that applies to Armadillo’s request for a legal interpretation should apply here. Although the FAA has not addressed this in a public determination as it did with Armadillo, the regulations and precedent provide a basis for figuring it out.
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. On its face, an airport’s circumstances appear materially different than those of Armadillo and Sea Launch. Airports do have permanent infrastructure in the form of runways and buildings, and an airport’s location itself is pretty permanent.
The FAA, however, did not require one airport to acquire a spaceport license when it hosted a number of launch operators. In 2008, Armadillo won the Northrup Grumman Lunar Lander Challenge at Las Cruces International Airport, which hosted the Challenge over a few days. Las Cruces did not obtain a spaceport license. Although there is no published analysis from the FAA, we can, perhaps, reverse engineer the reasoning. Las Cruces continues to operate as an airport. It is not impermanent. The FAA must therefore have construed something else as impermanent. The regulation says “operation of a launch site” means “the conduct of approved safety operations at a permanent site to support the launching of vehicles and payloads.” Perhaps it is the support of launch that must be permanent before a spaceport license is required. Alternatively, perhaps the safety operations must be permanent to trigger a license requirement. The fact that the Challenge only lasted a weekend would support either hypothesis. Las Cruces had supported the Challenge in an earlier year, so, like with Sea Launch, the presence of a launch operator more than once did not render the site permanent. Perhaps a site must be permanent as a spaceport? If an airport only has one or two launch customers a year, the FAA might not consider it a permanent launch site. In that case, an airport might not worry about spaceport licensing until it is sure that there is demand for its services as a spaceport.
If an airport sought certainty on this question, it might ask the FAA for an explanation of the decision in Las Cruces. Under the Administrative Procedure Act, an agency should make publicly available its final opinions made in the adjudication of cases. Under case law, licensing constitutes an adjudication. Additionally, depending on how many launch operator customers it foresees, an airport might consider seeking a legal interpretation from the FAA to ensure it does not run afoul of the FAA’s rules.