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.


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.


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.


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.