Politico recently published the results of its investigation of the gaps in government agencies’ legal authorities to investigate space tourism accidents and impose safety protections for space launch participants. Politico’s article detailing the results of its investigation is comprehensive and sobering (A “Wild Environment’: Uncertain safety rules await space tourists,” December 25, 2019, https://www.politico.com/news/2019/12/25/space-tourists-safety-rules-089681). There is one particular aspect of the article, however, that calls for clarification – the authority of the National Transportation Safety Board (NTSB) to investigate commercial space law accidents.

The article describes the “patchwork” and “confusing jumble” of legal and oversight authorities that exist to investigate private space launch accidents. This commercial space lunch industry safety oversight regime — such as it is — prevails today largely as a result of Congressional enactment and subsequently extensions of the so-called statutory “learning period” that precludes the Secretary of Transportation (and by subsequent delegation of authority, the Federal Aviation Administrator) from proposing regulations to ensure the safety of space flight participants prior to October 1, 2023. 51 U.S. C. § 50905(c)(9).

Congress intended the initial learning period and its subsequent extensions as a way to encourage growth and innovation in the nascent commercial space launch industry relatively unencumbered by government restrictions. Since no space tourism flights have not occurred to date, the learning period limitation has not had any impact on space flight participant safety. [51 U.S. C. § 50902(20) defines “space flight participant” as “an individual, who is not crew or a government astronaut, carried within a launch vehicle or reentry vehicle”].

Excepted from this “learning period” limitation on commercial space safety rulemaking are rulemakings that:

  • restrict or prohibit commercial space launch design features or operating practices that have resulted in a serious or fatal injury to crew, government astronauts, or space flight participants during a licensed or permitted commercial human space flight; or otherwise
  • contributed to an unplanned event or series of events during a licensed or permitted commercial human space flight that posed a high risk of causing a serious or fatal injury to crew, government astronauts, or space flight participants.

51 U.S. C. § 50905(c)(2)(C)(i) and (ii).

The Politico article describes a 2014 Memorandum of Understanding (MOU) between the Federal Aviation Administration (FAA), the NTSB, and the Department of the Air Force (AF) regarding space launch accidents. The article also references an appendix to the MOU that “stipulates that the NTSB will investigate only a commercial space accident that impacts people or property outside of the designated launch area.”

The appendix to the MOU is a separate 2000 agreement between the FAA Office of Commercial Space Transportation and the NTSB that spells out with greater specificity than the MOU the relationships, notification procedures, coordination requirements, and reporting responsibilities of the Office of Commercial Space and the NTSB during the course of the NTSB’s investigation of a commercial space law accident investigation. The MOU states that the MOU and the 2000 agreement between the Office of Commercial Space and the NTSB both “establish the relationship between the [three agencies] during space launch accidents, and guide [their] exchange of accident information and participation in an accident investigation.”

Curiously, the article does not mention an NTSB legal opinion that fully describes the NTSB’s legal authority to investigate commercial space launch accidents. The legal opinion was produced to settle questions concerning the NTSB’s authority to investigate inflight breakup during a test flight of Scaled Composites LLC’s SpaceShipTwo reusable suborbital rocket near Koehn Dry Lake, California, on October 31, 2014, resulting in the death of the copilot.

The opinion points to the NTSB’s longstanding experience in investigating commercial space accidents, starting with its lead of an investigation more than 25 years ago of a procedural anomaly associated with the launch of an Orbital Sciences Corporation Pegasus expendable launch vehicle. See NTSB Special Investigative Report: Commercial Space Launch Incident, Launch Procedural Anomaly, Orbital Sciences Corporation, Pegasus/SCD-1, 80 Nautical Miles East of Cape Canaveral, Florida, February 9, 1993.

The NTSB legal opinion concludes that the plain language in the NTSB’s enabling statute at 49 U.S.C. § 1131(a)(1)(F) “provides the basis for NTSB’s authority to determine what types of accidents, other than those specified in 49 U.S.C. § 1131(a)(1)(A-E) [namely, accidents involving either, non-commercial space launch civil aircraft; highway, rail, and pipeline accidents; and major marine casualties], it will investigate. Specifically, section 1131(a)(1)(F) provides:

(a) General.—(1) The National Transportation Safety Board shall         investigate or have investigated (in detail the Board prescribes) and establish the facts, circumstances, and cause or probable cause of—

(F) any other accident related to the transportation of individuals or property when the Board decides—

(i) the accident is catastrophic;

(ii) the accident involves problems of a recurring character; or

(iii) the investigation of the accident would carry out this chapter.

The NTSB’s July 1, 2015, legal opinion is included as Appendix A in the NTSB’s Aerospace Accident Report, Inflight Breakup During Test Flight, Scaled Composites SpaceShipTwo, N339SS, Near Koehn Dry Lake, California, October 31, 2014, NTSB/AAR-15/02. Also included in Appendix A are letters dated July 2, 2014, transmitting the NTSB General Counsel’s legal opinion to the Chairman and Ranking Members of the following Congressional committees: Committee on Science, Space, and Technology, U.S. House of Representatives; Committee on Transportation and Infrastructure, U.S. House of Representatives; and the Committee on Commerce, Science, and Transportation, U.S. Senate.

Despite the 2015 NTSB legal opinion, several members of Congress introduced a bill in Congress last March “to provide certain authority to the [NTSB] to investigate commercial space transportation accidents.” The bill, the Commercial Space Transportation Safety Act of 2019, H.R. 1562, would amend 49 U.S.C. § 1131(a)(1)(F) to authorize the NTSB to investigate a commercial space transportation accident in which there is:

(i) a known impact of a commercial launch vehicle, the payload of such vehicle, or any component thereof outside of the hazard area designated for the launch or reentry of such vehicle;

(ii) a fatality or significant injury of any individual, regardless of whether the individual was on board the commercial launch vehicle at the time of the accident; or

(iii) substantial damage to property that is not associated with commercial space launch activities and that is not located at the launch site.

After the bill’s introduction in the House of Representatives on March 6, 2019, it was referred to the Subcommittee on Aviation of the Committee on Transportation and Infrastructure. No further action has been taken on the bill and its prospects for enactment are remote.

Note: Plane-ly Spoken notes that David Tochen, the author of this post, was the General Counsel of the NTSB and issued the 2015 NTSB legal opinion.