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Federal Register / Vol. 86, No. 218 / Tuesday, November 16, 2021 / Proposed Rules The NTSB also led the investigation of the SpaceShipTwo test flight breakup on October 31, 2014, involving one fatality and one serious injury. In testimony before the Subcommittee on Aviation, Committee on Transportation and Infrastructure, United States House of Representatives on February 27, 2018, the NTSBs then Director of Aviation Safety Director referenced the SpaceShipTwo investigation, stating:
foremost among the safety issues identified was the need to consider and protect against human error for safe manned spaceflight, which is the responsibility of designers, operators, and overseers. The Director further testified that there are circumstances within commercial space when the definition of accident or incident would not be met, and the NTSB would not be involved.
The NTSB was requested to assist several significant noncommercial space investigations; including those involving the Space Shuttle Columbia and NASA Genesis. On February 1, 2003, when the Space Shuttle Columbia fatally broke up while reentering Earth, NTSB investigators launched immediately to assist NASA and the Columbia Accident Investigation Board with the investigation. Several NTSB
performance engineers, radar specialists and weather experts conducted ballistic analysis of the vehicle debris and examined radar and weather data to define the wreckage area in order to locate debris. Six NTSB investigators also helped NASA engineers reassemble the shuttle at Cape Canaveral. Overall, more than 50 NTSB employees supported this investigation.
For the September 8, 2004, NASA
Genesis sample-return capsule crash in Tooele, Utah, an NTSB investigator launched to the accident scene with NASAs mishap investigation board to document the site and recover wreckage, and to set up the investigation and develop the investigation plan. The NTSB Systems and Materials Laboratory investigators also participated by examining and documenting the vehicles wiring harness, and by developing and reviewing portions of the final report.
As in all transportation modes, the NTSB neither regulates commercial space nor finds fault when investigating mishaps; instead, the NTSBs investigations focus on safety issues.
Accordingly, the NTSB is proposing Subpart F to clarify the extent of the agencys involvement and the process that will be followed by all parties in an NTSB-led commercial space investigation.

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In conducting commercial space investigations, the NTSB adheres to the terms memorialized in a Memorandum of Agreement Agreement with the Federal Aviation Administration FAA 1 and in a Memorandum of Understanding MOU with the FAA
and the United States Air Force USAF.2 It is important to note that the Agreement and MOU were developed before commercial human spaceflight, or reusable launch vehicles, was realistically foreseen and so only address cargo operations. The purpose of the Agreement and MOU was to specify when the NTSB would initiate an investigation into a commercial space mishap.
The 1975 Reimbursable Memorandum of Agreement between NTSB and DOT
establishes the relationships, notification procedures, coordination requirements, and reporting responsibilities of both agencies. The Agreement further identifies and describes the conditions and agreements that exist regarding the exchange of data, availability of resources, conduct of studies and other services, and reimbursement for services rendered.
Significantly, the Agreement acknowledges that while the objectives of both agencies investigations are similar, the Agreement expounds on the differencesthe NTSB investigates accidents to determine their probable cause and propose recommendations;
whereas the DOT investigates to determine compliance with its regulations, evaluate improvements that should be made to existing standards and regulations and/or the transportation system to improve safety, and take appropriate enforcement action for any regulatory violation.
The Agreement categorizes each mode of transportation into separate appendices that detail the investigative procedures for a specific area of transportation. Appendix H addresses commercial travel, which was added in 1985 and subsequently revised in 1999
with non-substantive edits. Appendix H
clarifies that the NTSB will investigate all commercial space launch accidents resulting in known impact of a commercial launch vehicle, its payload or any component thereof outside the impact limit lines designated by the launch range facility; or a fatality or serious injury as defined in 49 CFR
830.2 to any person who is not associated with commercial space
launch activities and not located on the launch range facility; or any damage estimated to exceed $25,000 to property which is not associated with commercial space launch activities and which is not located on the launch range facility. Appendix H notes that the agreement does not impair the NTSBs authority to investigate other commercial space launch accidents which, in the judgment of the NTSB, are subject to section 304a1F of the Independent Safety Board Act of 1974.3
Appendix H provides that any other investigations of commercial space launch accidents by the NTSB, other than those described, will be subject to the mutual agreement of the NTSB and the FAAs Associate Administrator for Commercial Space Transportation AST.
The MOU became effective in September 2004 and establishes the relationship among the NTSB, FAA, and USAF during space launch accidents and provides a guide to the exchange of information and participation in accident investigations.4
Both the Agreement and the MOU
remain in effect. Notably, at the time both documents were signed, commercial human space launches were not viable. With commercial human space flight now a reality, however, the NTSB believes codifying its authority to investigate commercial space safety accidents and incidents in Subpart F is necessary. By transitioning and updating the information from the Agreement and MOU to Subpart F, the commercial space industry would have better clarity on when the NTSB would initiate an investigation of a commercial space mishap. This process will also allow industry to provide feedback to the NTSB through the rulemaking process for any future updates as the industry develops.
The NTSB acknowledges that the DOTs authority to license commercial space transportation activities stems from 51 U.S.C. Chapter 509 for Commercial Space Launch Activities.
Significantly, that authority did not include the process for investigating commercial space accidents and incidents independent of any NTSB
intervention. While 51 U.S.C. 50917a does mention that in carrying out Chapter 509 the DOT Secretary may conduct investigations and inquiries, it does not appear that Chapter 509 was designed to give the DOT the
1 https www.faa.gov/documentLibrary/media/
Order/FAA_Order_8020.11D.pdf.
2 https www.faa.gov/space/legislation_
regulation_guidance/media/mou_space_launch_
accidents.pdf.

3 https www.ntsb.gov/safety/safety-studies/
Documents/SIR9302.pdf.
4 https www.faa.gov/space/legislation_
regulation_guidance/media/mou_space_launch_
accidents.pdf.

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