FAA Grants Safety Approval to Millennium Engineering and Integration

On Tuesday, February 20, 2018, which is tomorrow (I know, I’m confused, too.  I’m just a space lawyer and always find time travel stories fairly irritating.  Seriously, look at the top of the Federal Register page: it says the 20th.  It reached my inbox last week.  Someone has acquired serious temporal powers.), the Federal Register published/will publish a notice from the FAA containing the criteria the FAA used to issue a safety approval to Millennium Engineering and Integration Company.  The safety approval applies to Millennium’s “ability to provide its Flight Analyst Workstation (FAWS) as a component of the process to build flight rules, generate the Mission Data Load (MDL),and verify the MDL prior to loading it onto a launch vehicle’s autonomous flight safety unit (AFSU).”

The FAA’s rules in 14 C.F.R. 414.35 provide that when the FAA issues a safety approval it “will publish in the Federal Register a notice of the criteria that were used to evaluate the safety approval  application, and a description of the criteria.”  The FAA provides a list of the criteria by name.

What is a safety approval?  It is not an authorization.  It is neither a license nor a permit, and it does not authorize the conduct of any specific activity.  Instead, it provides a finding that whatever the safety approval applies to is acceptable to the FAA for licensing purposes.

The law that Congress passed and the FAA must implement states that the FAA

may establish procedures for safety approvals of launch vehicle, reentry vehicles, safety systems, processes, services, or personnel (including approval procedures for the purpose of protecting the health and safety of crew, government astronauts, and space flight participants, to the extent permitted by subsections (b) and (c)) that may be used in conducting licensed commercial space launch or reentry activities.

51 U.S.C. 50905(a)(2).  (If memory serves, safety approvals were given that name to avoid confusion with aviation certification processes.  Congress didn’t want the regulators to feel that they had to model safety approvals on aircraft or airmen certifications.)  Although the FAA does not say which category Millenium’s system falls under, it would appear that Millennium’s work station is part of a “safety system…that may be used in conducting licensed commercial space launch…activities.”

As background, recall that a launch or reentry operator must obtain an FAA license to launch or reenter a launch or reentry vehicle.  When the FAA reviews the operator’s license application it assesses a host of factors.  Those include the regulations that the FAA Notice announces Millennium satisfies.  One of those regulations, 14 C.F.R. § 417.309(h), requires a launch operator’s computing system, software or firmware that perform a safety critical function to undergo the analysis needed to ensure reliable operation and satisfy 14 C.F.R. § 417.123.  The FAA determined that the ability of Millennium’s workstation as a component of the process to build flight rules, and to generate and verify a mission data load can satisfy 14 C.F.R. § 417.123(b)(d) and (e). Those regulatory provisions  require  a launch operator to identify all safety-critical functions associated with its computing systems and software, and to develop and implement computing system and software development, validation, and verification plans.

There is one point of confusion.  Initially, the FAA states that Millennium received its safety approval for its ability to provide a workstation that performed the functions described.  Later, the FAA speaks of the safety approval applying to the workstation itself.  Since the statute lists, among other things, safety systems, as eligible for safety approvals, it seems most likely that the safety approval applies to the workstation as a part of a process, but that is supposition on my part.

Confusion aside, what all this means in terms of the big picture is that when a launch operator applies for a license for the launch of a launch vehicle with an autonomous flight safety unit that uses the elements identified in Millennium’s safety approval, the launch operator should not have to repeat to the FAA a demonstration that Millennium has already made.  The safety approval only applies to the identified elements and regulatory provisions.  A launch operator would still have to demonstrate satisfaction of the remainder of the FAA’s requirements.

A safety approval is not mandatory, but possessing one might save launch and reentry customers time and paperwork in the long run.

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Congress and the Human Settlement of Space

This is not new news, but it’s interesting to consider in the context of concerns anyone may have over whether human settlement would upend NASA’s planetary protection policy. The one is a law. The other is just a policy.

Congress has told NASA that the agency’s long-term goals must enable the extension of a human presence beyond low-Earth orbit and into the solar system, “including potential human habitation on another celestial body and a thriving space economy in the 21st Century.” 42 U.S.C. § 18312. More explicitly, Congress told NASA to work toward eventual “human habitation on the surface of Mars. 51 U.S.C. §70504(b). No, I don’t know why it has to be on the surface. Yes, underground might be safer, but linguistic overindulgence in the drafting of laws requires a separate analysis of its own.

As a science agency that is part of the U.S. Government, NASA has interpreted Article IX of the Outer Space Treaty to mean that the agency’s missions must not only avoid what the ordinary person might consider harmful contamination—no toxins, no Agent Orange, no peanuts on the aircraft—but microbial contamination as well. NASA tries to limit the presence of bacterial spores on any out-bound surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. The European Space Agency follows similar measures.

People are covered in bacteria, but the law says NASA must work to enable a human presence on Mars. It might be time to recognize that a Congressional mandate overrides an agency policy.

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SpaceX’s Starman’s Spacesuit

SpaceX’s entirely thrilling test launch of Falcon Heavy the other day placed a Tesla and its Starman, a test dummy, “otherwise in outer space,” as it says in 51 U.S.C. 50902.  The dummy was wearing a spacesuit, but does the FAA require spacesuits?

The FAA did not require SpaceX’s Starman’s spacesuit (say that three times fast without spitting).  A few reasons apply here.  The first and most obvious, of course, is that Starman is not a human who needs air or proper pressurization.  Even so, FAA regulations do not require pressure suits for space flight participants or even crew.  FAA regulations did apply to the launch of the Falcon Heavy because anyone launching a launch vehicle from the United States needs a launch license.  If you watched the launch you know it was a launch vehicle and it was definitely launched. And how. I wonder if the state of Florida sank just a little.

Hands off the safety of occupants.  When Congress clarified the FAA’s authority over human space flight it forbade the FAA from regulating to protect the safety of persons on board for a certain amount of time, but did not change the FAA’s authority for public safety.  (If there is a death, serious injury, or close call, then and only then may the FAA  issue regulations to protect the people on board.)  The FAA still has to protect the people on the ground from the hazards of launch.

Congress initially divided the people on board into two categories:  crew and space flight participants.  Crew work for the launch operator, that is, the entity that conducts the launch. In this case, SpaceX qualifies as the launch operator.  Space flight participants are what we might normally call “passengers” if they had some expectation of regulatorily mandated safety.  They don’t.  Not yet.  Instead, the law requires launch and reentry operators to tell crew and space flight participants how dangerous the flight is.

Coincidental safety.  Thus, barred from protecting the safety of people on board for their own sake, the FAA had to confront how it would protect the general public from the dangers of launch.  Because the crew may play an instrumental role in keeping the public safe the FAA found it necessary to impose a few requirements for crew safety, not on their own account–which Congress prohibited–but to protect the public.

The requirement relevant to use of a space or pressure suit is the one requiring a launch operator to provide a redundant means of preventing cabin depressurization or preventing incapacitation of the flight crew in the event of loss of cabin pressure.  As the FAA stated when it first proposed the requirement, a launch operator–

would have to provide a redundant means of preventing cabin depressurization or prevent incapacitation of the flight crew in the event of a loss of cabin pressure. If a loss of pressure were to occur, it could have serious physiological effects on the flight crew, including hypoxia, decompression sickness, hypothermia, and vaporization of tissue fluids. This performance standard could be satisfied by different means. For example, in addition to conducting ground tests and prelaunch cabin leak checks, Scaled Composites used dual pane windows, dual seals on cabin pass-throughs, dual door seals, and dual pressurization systems for SpaceShipOne. Use of a pressure suit to prevent incapacitation of the flight crew if there were a loss of cabin pressure could be another means to satisfy this performance standard.

After it received comments from the public on its proposal the FAA emphasized that it would not be requiring pressure suits for space flight participants because the law does not provide the FAA the authority to protect space flight participants absent a death, serious injury or close call.  That prohibition on the FAA regulating for occupant safety remains in effect into the next decade.

Thus, even if Starman had been a real live human traveling to Mars in a convertible as a space flight participant, the FAA would not have required a spacesuit.

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So I Wrote a Science Fiction Novel: Mercenary Calling

 

Long time readers of this blog may recall my reviews of a few science fiction novels. See, e.g., this (a carefully reasoned explanation of why Michael Flynn’s Firestar is alternate future history) and this (a cry from the heart). I assessed the accuracy of their space law. I am now wondering whether that was a good idea. You see, I have written a science fiction novel with lots of space lawyers. It’s called Mercenary Calling, and Calvin Tondini, our lawyer hero, has to defend a starship captain against charges of mutiny for leaving an unauthorized human settlement on a distant, Earth-like world.

True, that doesn’t sound like the space law we talk about here usually on this blog, but the book does have several mundane space-lawyer jobs, all of which I made up. The book itself takes place around the bicentennial of the Administrative Procedure Act. I will leave figuring out when exactly that is as an exercise for the astute administrative law expert. (Hint: it’s not this century).

The mundane legal jobs that I predict come in a few forms. At the start of the book, Calvin himself is a regulatory attorney at the Department of Energy, which I’ve decided is the proper place for the regulation of solar powersats. But see, Wallach, M. “Legal Issues for Space Based Solar Power.” Powersats will beam solar power to rectenna farms back on Earth by microwave or laser. I’m sure someone will want that regulated. For personal and objective reasons both, I am committed to the view that regulatory attorneys who work on the regulation of space activities are space lawyers. Thus, Calvin counts as someone gainfully employed as a space lawyer. The beautiful Sara Seastrom is also a space lawyer. She supports her client’s attempts to build a bubble drive for another interstellar journey. The book also has a couple of attorneys who work for the U.S. Administration for Colonial Development (USACD (pronounced u-SACK-dee because I made it up so I get to say how it’s pronounced)). One fellow is a friend of Calvin’s. The other one definitely isn’t, and it wouldn’t be inaccurate to say that he nurses a grudge. The friend and the malevolent fellow are both space lawyers.

It’s all very bourgeois. But with drama.

As the author, I feel a little stymied in reviewing any space law issues in the novel out of concern for spoilers. I will, however, note a space policy theme. Building on Congress’s direction to NASA in 42 U.S.C. 18312 that it should pursue, as a long term goal, the human habitation of the solar system, the book contains an undercurrent of the tension between space settlement and worries about harmful contamination. That is why there is a picture of corn on the cover. It’s symbolic and metaphorical. Also, it’s alien corn.

Anyway, this is all making it sound very serious and dull, when at heart the story is a light-hearted and frivolous work of bourgeois, legal science fiction. After all, it has–

Exoplanets. Terrorists. Lawyers…

Calvin Tondini has his first client, but he may be in over his head.

It’s the twenty-second century. Humanity’s first and only interstellar starship returns safely. Its mission to discover a habitable planet succeeded beyond all hopes, but there’s one problem. Captain Paolina Nigmatullin of the USS Aeneid left an unsanctioned human colony behind and now stands charged with mutiny.

Despite a somewhat spontaneous approach to his own career, life, and limb, Calvin intends to map a more cautious path for his new client. Captain Nigmatullin, however, shows an unnerving penchant for talk shows–appearing on them, that is–and otherwise ignoring her attorney’s sober counsel.
How can Calvin ensure his client’s freedom when death stalks the Aeneid‘s crew, and Nigmatullin herself hides secrets from everyone, even her lawyer?

To check it out, click here.

 

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ABA Interview

I participated in an American Bar Association round table discussion a few months ago with my friend and colleague Pamela Meredith, a fellow space lawyer.  The ABA captured the discussion in its publication The Air & Space Lawyer’s Winter 2017 edition.  If you are a member or subscriber, you can read it here.  The interviewer asked us about a range of topics, from the big issues in space law twenty years ago, to current issues, to our experiences as women in the field.  I am allowed to share what I said so long as it is clear that it may not be reprinted without permission from the ABA.

The Past. In response to questions about the FAA’s regulatory focus twenty years ago:

With geostationary and low Earth orbit satellites, the launch industry realized that expendable launch vehicles (ELVs) could be commercially viable. This was also after the Challenger accident, at a time when there was no more commercial activity on the space shuttle, which had forced industry to pivot back to ELVs. The Air Force also was very interested in fostering at least two ELVs so that there would be some competition. ELV companies, meanwhile, were attracted by the prospect of a market where not only the government but also commercial satellite operators would be their customers. This created considerable optimism about the industry’s commercial prospects and led to a significant infusion of capital in both satellite operators and the launch industry.

For the FAA, it was a time of great regulatory activity. We had previously relied so heavily on the Air Force for safety that the safety standards were rather nontransparent. The FAA sought to address this by publishing and codifying regulations. Not surprisingly, these regulations were similar to the Air Force’s practices and procedures. The FAA promulgated the so-called “launch rule” or core regulations governing launch vehicles. It took nine years to finalize those regulations.

The Present.  In response to a question about current issues:

The concept of space law has evolved from a rather academic focus on international treaties (dating back to the 1960s and 1970s) to the later emergence of national or domestic space laws. In the United States, this includes the regulatory roles and activities of the FAA, the FCC, and the National Oceanic and Atmospheric Administration (NOAA). As the focus has started to shift from expendable to reusable rockets, companies like SpaceX and Blue Origin are leading the way and hopefully will make space more accessible from an operational and cost perspective. Orbital debris, however, remains a significant and increasing concern. I was proud that the FAA was the first regulatory agency to issue debris rules, and the private sector is also attempting to address the problem (e.g., through the Space Data Association), which is appropriate because it is their property that would get destroyed if a collision occurs.

The Future.  In response to questions about what’s coming down the pike:

Looking to a future of people traveling to the Moon and Mars, property rights issues are likely to become critical, both with respect to moveable property and real property issues. In 2015, Congress recognized that space miners have property rights in the resources they extract. Congress did not, however, address questions regarding private ownership of land. Many academics think that the Outer Space Treaty prohibits private ownership of real property, but I do not agree. That question, however, is a live issue.

***

Pamela and I disagree on this, but there’s a provision in the Outer Space Treaty, Article VI, which says that each country must supervise and authorize the activities of its nongovernmental entities. This is not a self-executing provision, and the U.S. Supreme Court has held that a non-self-executing treaty is not domestically enforceable. This means that if someone wants to go play the harp on the Moon or brush her teeth in outer space, she doesn’t need a license. I use these frivolous examples intentionally to make the point that everything doesn’t need to be regulated just because you’re in outer space.

 

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Launch Spectrum from the FCC

The Federal Communications Commission released its semiannual Unified Agenda in the Federal Register on January 12, 2018.  A rulemaking that has been on the agenda for several years now addresses spectrum allocation for three space-related purposes.  The notice of proposed rulemaking, Federal Earth Stations—Non-Federal Fixed Satellite Service Space Stations; Spectrum for Non-Federal Space Launch Operations, came out July 1, 2013, but, over four and a half years later, the FCC has yet to release its final rule.  The Agenda, in fact, states that the Commission has not determined the next action, indicating that a final rule may no longer be in the works.

In 2013, the Commission proposed to change its Allocation Table to provide access to spectrum on an interference-protected basis to Commission licensees for use during the launch of launch vehicles. The Commission also sought comment broadly on the future spectrum needs of the commercial space sector.  The FCC allows commercial operators, whether of satellites or radio stations, access to spectrum for commercial uses. The National Telecommunications and Information Administration (NTIA) administers spectrum set aside for federal users.   Accordingly, for government launches taking place at federal ranges such as Cape Canaveral Air Force Station or NASA’s Wallops Flight Facility, the government operators use federal spectrum and don’t apply to the FCC for a license as commercial operators must.  Instead, they obtain access through the federal range.

For a few decades now, commercial launch operators have launched from federal launch sites such as the Cape and Wallops. The FCC has been issuing Special Temporary Authorizations under Part 5 of its experimental rules to allow commercial operators access to the ranges’ federal spectrum.  STAs do not provide an operator protection from interference from federal users, and each commercial proposal to use the federal spectrum must be granted on an individual basis.  As Commissioner Clyburn noted,

Given the high cost of launches and the safety concerns of manned spaceflights, relying on non-interference use of spectrum, is not a practical, long-term solution. Therefore, this NPRM offers well-defined application and coordination processes, to enable commercial operators, to directly acquire the optimal type of licenses needed, for communications during space launches. The Notice of Inquiry (NOI) section of the item properly tries to anticipate other communications needs of commercial space missions, such as re-entry, or the “on orbit” phase of a mission, that could require changes in spectrum allocations.

The safety system for a launch vehicle depends on signals to and from the rocket arriving at their intended destinations, so that the operator may know if the vehicle is off course and then transmit a signal to destroy it.  At a federal range, a federal safety officer transmits the destruct signal.  The FCC saw two possible factors that might require commercial access to the spectrum used for destruct signals:  a commercial operator seeking to use its own equipment, and the advent of commercial spaceports not operated by NASA or the Department of Defense.  In the meantime, it looks like commercial launch operators will continue to rely on the federal ranges for destruct actions.

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Incidental Harassment Authorization Issued to SpaceX

On December 26, 2017, the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration published a notice in the Federal Register that it had issued SpaceX an incidental harassment authorization for its sonic booms

to incidentally harass, by Level B harassment only, marine mammals during boost-back and landing of Falcon 9 rockets at Vandenberg Air Force Base in California, and at contingency landing locations in the Pacific Ocean.

People speak of the FAA having exclusive jurisdiction over regulating launches.  Section 50919(a) of the Commercial Space Launch Act states that, except as provided by the CSLA, “a person is not required to obtain from an executive agency a license, approval, waiver, or exemption to launch a launch vehicle … .”  So why did SpaceX need NOAA’s authorization for the landing of its first stage?

Arguably, SpaceX didn’t.  It needed NOAA authorization for something different, the harassment of marine mammals.  The FAA authorizes the launch, but the activity of harassing a marine mammal is different, and thus regulated by a different agency.  However, one might wonder whether NOAA isn’t regulating the noise of the launch.  If the aviation side of the FAA doesn’t regulate the noise of launch vehicles, how does NOAA get to?  Another thing a person might wonder is whether NOAA’s  marine fisheries service falls under 50919(b)’s exceptions to the statement that a launch operator need not obtain other approvals.  Paragraph (b) says “This chapter does not affect the authority of” the FCC or “the Secretary of Commerce under chapter 601 of this title.”  Yes, NOAA and the marine fisheries service are located within the Department of Commerce, but Chapter 601 of Title 51 applies to remote sensing, not to marine mammals.  Perhaps Congress did not grant the marine fisheries service an exception?

I’m about to start teaching space law at Catholic University’s law school in a couple days.  Accordingly, I am training myself to raise questions for discussion.  Who knows, this one could be on an exam.  The questions should provide only the beginning of the analysis.

 

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Guidance on Guidance from the Administrative Conference of the United States

By notice in the Federal Register, the Administrative Conference of the United States published five new recommendations for regulators.  ACUS is an independent federal agency charged with convening experts from the public and private sectors to recommend improvements to administrative process and procedure, including those of such space regulators as the Federal Aviation Administration, the Federal Communications Commission, and the National Oceanic and Atmospheric Administration. ACUS intends its initiatives to promote efficiency, participation, and fairness in federal regulations.  In that regard the recommendation regarding policy guidance is worth looking at more closely.  The rest encompass plain language, marketable permits, learning from experience, and waivers and exemptions.

Defined.  First, what is a policy statement and how does it relate to administrative law?  Quoting from the 1947 Attorney General’s Manual on the Administrative Procedure Act, ACUS says:

General statements of policy under the Administrative Procedure Act (hereinafter policy statements) are agency statements of general applicability, not binding on members of the public, ‘‘issued . . . to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.’’  Interpretive rules are defined as rules or ‘‘statements issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.’’

Neither policy statements nor interpretive rules require public notice and comment, and agencies often refer to them as guidance.  The ACUS recommendation applies only to policy statements.  The FAA’s guidance falls into this category.

Improper treatment of guidance as mandatory.  ACUS took pains to note the many benefits of policy statements, including their flexibility and how much easier they are to issue than are regulations.  However, one drawback is that policy statements, too, acquire an improper, but nonetheless present, mandatory patina of their own:

…modern regulatory schemes often have structural features that tend to lead regulated parties to follow the policy statement’s approach even if in theory they might be legally free to choose a different course, because the costs and risks associated with doing so are simply too high. This is often the case if statutes or regulations (a) require a regulated party to obtain prior approval from an agency to obtain essential permissions or benefits; (b) subject a regulated party to repeated agency evaluation under a legal regime with which perfect compliance is practically unachievable, incentivizing the party to cultivate a reputation with the agency as a good-faith actor by following even non-binding guidance; or (c) subject the regulated party to the possibility of enforcement proceedings that entail prohibitively high costs regardless of outcome, or can lead to sanctions so severe that the party will not risk forcing an adjudication of the accusation.

Both launch and satellite operators may feel the pressure to follow non-binding guidance given that they need licenses from the FAA, the FCC, and NOAA.  At the FAA, an operator must renew its license every five years, if not more frequently, thus placing it in the position of undergoing repeated regulatory review.  The FAA’s Office of Commercial Space Transportation issues guidance, some in the form of Advisory Circulars, some other under names.

ACUS goes on to note that internal agency incentives may cause agency officials to treat the “guidance” in a policy statement as mandatory:

Officials who behave inflexibly may be seeking to balance the importance of being flexible against stakeholder demands to honor other, competing values that officials would be remiss to ignore. For example, if one regulated firm argues for a different approach from that in a policy statement and the agency approves, this may prompt other firms to criticize the agency for not keeping a level playing field among competitors; may cause other firms to lose faith in the agency’s consistency and predictability, which may render them less likely to trust and cooperate with the agency; and may open the agency to accusations of favoritism from non-governmental organizations (NGOs), the media, and congressional overseers.

In principle, one way an agency might reconcile these understandable pressures would be to prepare and disseminate written reasons when it approves an approach different from that in a policy statement, thereby making the same reasoning available to all similarly situated parties going forward. This transparency helps level the playing field, makes agency behavior more predictable, and diminishes concerns about favoritism. But agencies might still find inflexibility the easier course and adopt it by default, because reason-giving requires agency resources. Besides this, there are additional organizational reasons for inflexibility: Some agency offices, by reason of their usual day-to-day business, are socialized to be less receptive to stakeholder requests than others; higher-level officials have institutional reasons to back the decisions of their subordinates; and the distinction between binding and nonbinding policies is counter-intuitive for many officials, at least without substantial training.

Opportunity for public comment.  ACUS recommends considering public participation in the formulation of a policy statement such as guidance.  One benefit of allowing the public to comment on a draft is that  participation may help those who lack the resources to fight an enforcement action brought for a violation of a purportedly non-binding guidance.

ACUS advises treating its recommendation for public participation with care, because it sees drawbacks to implementing it too widely.  Specifically,

a broad mandate applied to a resource-strapped agency may cause the agency to fail to process and incorporate comments and instead leave many policy statements in published ‘‘draft’’ form indefinitely, which may at least partly defeat the purpose of participation and cause stakeholder confusion. Second, a broad mandate may so legitimize policy statements in the eyes of the agency that such statements could end up largely supplanting legislative rulemaking.

Both possibilities are real risks, and ACUS identifies them because they happen.

Publication of acceptable alternatives for transparency.  The specific recommendations start on page 61736, but one in particular bears mention.  ACUS recommends something that should be standard practice.  Specifically, when the agency accepts a proposal for a lawful approach other than what the guidance of a policy statement says is acceptable, and the new approach seems likely to apply to other situations and persons, the agency should share its decision and the reasons for it with other persons who might benefit from it.  (This sharing should, of course, be subject to protections for confidential business or personal information.)  The best way to share this information is through the Federal Register, but an agency’s website can also help ensure that people actually see it.

 

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