The NTSB has been receiving serious pushback on its Notice of Proposed Rulemaking (NPRM) that would “codify[ ] its investigative role in commercial space transportation.”  In its proposal, published on November 16, 2021, the NTSB asserts that the codification “will enhance transportation safety by enabling the agency to carry out its statutory mission of conducting safety investigations, identifying necessary corrective actions, and preventing future space transportation accidents and incidents.”  It is clear, however, that not everyone sees it that way.

Most significantly, the Chairwoman and Ranking Member of the House of Representatives’ Committee on Science, Space, and Technology, in an April 6, 2022, letter to President Biden stated that the “rulemaking is plainly unlawful” and urged the President “to terminate any further action and rescind the proposed rule.”  The letter further stated the Committee’s concern “that the NTSB’s proposed rulemaking … contravenes existing agreements [between the Department of the Air Force, the FAA, and NTSB] and statutory authorities including those related to commercial space launch and reentry activities . . . .”

Public comments to the NPRM did not fare much better.  Similar overarching concerns with the NTSB’s statutory authority in this area were expressed by many of the commenters, including those submitted by the FAA, Blue Origin, the Commercial Spaceflight Federation, and Space Exploration Technologies Corp. (“SpaceX”).  In contrast, Virgin Orbit Holdings, Inc. did not articulate overall objections to the proposal but recommended changes to avoid reporting and notification requirements that duplicate FAA requirements and recommended that the NTSB’s investigative authority be limited to only the most severe commercial space launch accidents.  Standing apart from all other commenters, Airlines for American endorsed the proposed rule in its entirety.

The NTSB’s authority to investigate commercial space launch accidents is not a new issue.  The agency first investigated a commercial space launch procedural anomaly involving an expendable launch vehicle in 1993.  Most significantly, the NTSB was involved in investigating the aftermath of the in-flight breakup of a reusable suborbital rocket that occurred on October 31, 2014, in Mojave, California.  While that investigation was underway, the Committee on Science, Space, and Technology requested the NTSB to provide a legal analysis of its investigative authority in this area.  The NTSB’s legal analysis in response to the Committee’s request was included as an appendix to the NTSB’s July 2015 Aerospace Accident Report for this accident.  In short, NTSB relied heavily on its statutory authority to “investigate …any … accident[s] related to the transportation of individuals or property when the Board decides- (i) the accident is catastrophic; [or] (ii) the accident involves problems of a recurring character.”  49 U.S.C. § 1131(a)(1)(F).

The Committee’s April 6 letter to the President takes issues with that analysis, and  includes an attachment entitled “Unambiguous Statutory Authority,” that further describes the relevant statutory provisions in title 51 of the United States Code (“National and Commercial Space Programs”) and questions the NTSB’s assertions of its authorities to investigate commercial space launch accidents in its 2015 legal analysis and its preamble to the November 2021 NPRM.

So, what comes next?  In NTSB Chair Jennifer Homendy’s April 6, 2022 testimony before the House of Representatives’ Committee on Transportation on the NTSB’s Reauthorization proposal, she  indicated that the agency has been meeting with commercial space launch industry stakeholders and the FAA to better understand their concerns with the NPRM and address them.  She also indicated that it is possible that the agency will issue a Supplemental Notice of Proposed Rulemaking to further refine the regulatory proposal.  The Committee on Science, Space, and Technology’s letter on the same date of her testimony certainly raises the stakes concerning this issue and the future of the rulemaking efforts.