Commercial Space Investigations
| Published date | 16 November 2021 |
| Record Number | 2021-24766 |
| Section | Proposed rules |
| Court | National Transportation Safety Board |
Federal Register, Volume 86 Issue 218 (Tuesday, November 16, 2021)
[Federal Register Volume 86, Number 218 (Tuesday, November 16, 2021)]
[Proposed Rules]
[Pages 63324-63328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24766]
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NATIONAL TRANSPORTATION SAFETY BOARD
49 CFR Part 831
[Docket No.: NTSB-2021-0008]
RIN 3147-AA19
Commercial Space Investigations
AGENCY: National Transportation Safety Board (NTSB).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: For transparency of the agency's commercial space safety
investigative authority, the NTSB is proposing adding Subpart F for
Commercial Space Investigations to supplement its Investigation
Procedures. By codifying its investigative role in commercial space
transportation, the NTSB anticipates that Subpart F 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.
DATES: Submit written comments regarding this NPRM by January 18, 2022.
ADDRESSES: You may send comments, identified by Docket Number (No.)
NTSB-2021-0008, by any of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov.
Email: [email protected].
Fax: 202-314-6090.
Mail/Hand Delivery/Courier: NTSB, Office of General
Counsel, 490 L'Enfant Plaza East SW, Washington, DC 20594.
Instructions: All submissions in response to this NPRM must include
Docket No. NTSB-2021-0008. All comments received will be posted without
change to https://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket, go to https://www.regulations.gov
and search Docket No. NTSB-2021-0008.
FOR FURTHER INFORMATION CONTACT: Kathleen Silbaugh, General Counsel,
(202) 314-6080, [email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
The NTSB is an independent investigatory agency charged with
determining the facts, circumstances, and causes of transportation
accidents and incidents. The NTSB's investigation procedures are
contained in part 831, which is divided into subparts. The procedures
applicable to all modes of transportation are contained in Subpart A of
49 CFR part 831. Subparts B-E are specific to the type of
transportation; Subpart B, for example, focuses on Aviation
Investigations. The agency notes that the commercial space industry is
a unique mode of transportation and the investigatory needs of a
commercial space accident and incident--such as the reporting of
commercial space accidents and incidents, and the preservation of
wreckage, evidence, and records--are distinct enough to warrant its own
subpart. Thus, the NTSB proposes the addition of Subpart F for
Commercial Space Investigations.
The agency's statutory authority to investigate commercial space
launch accidents derives from 49 U.S.C. 1131(a)(1)(F), which provides
in pertinent part that the NTSB shall investigate and establish the
facts, circumstances, and probable cause of any other accident related
to the transportation of any other individuals or property when the
Board decides the accident is catastrophic, the accident involves
problems of a recurring character, or investigating the accident would
carry out the NTSB's statutory mandate.
The NTSB has exercised this authority and both led and supported
commercial space launch and reentry investigations for more than 20
years. For example, the NTSB investigated the February 9, 1993,
procedural anomaly associated with the launch of an Orbital Sciences
Corporation Pegasus expendable launch vehicle. The NTSB investigated
the incident and issued safety recommendations to the U.S. Department
of Transportation (DOT), the National Aeronautics and Space
Administration (NASA), and Orbital Sciences Corporation.
[[Page 63325]]
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 NTSB's then Director of
Aviation Safety (Director) referenced the SpaceShipTwo investigation,
stating: ``[f]oremost 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 NASA's 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 vehicle's 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 NTSB's investigations focus on safety issues. Accordingly, the NTSB
is proposing Subpart F to clarify the extent of the agency's
involvement and the process that will be followed by all parties in an
NTSB-led commercial space investigation.
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.
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\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.
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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 differences--the 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
NTSB's authority to investigate other commercial space launch accidents
which, in the judgment of the NTSB, are subject to section 304(a)(1)(F)
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 FAA's Associate Administrator for
Commercial Space Transportation (AST).
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\3\ https://www.ntsb.gov/safety/safety-studies/Documents/SIR9302.pdf.
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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\
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\4\ https://www.faa.gov/space/legislation_regulation_guidance/media/mou_space_launch_accidents.pdf.
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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 DOT's 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. 50917(a) 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
[[Page 63326]]
independent authority to investigate commercial space accidents and
incidents. Introduced in the House of Representatives as the Commercial
Space Launch Act (Act) on June 5, 1984, Congressman Harold Lee Volkmer
clarified that the Act assigned the DOT the responsibility for issuing
and enforcing commercial launch licenses, and for encouraging private
sector use of government-developed space technology.\5\ He noted that
the purpose of the bill was to promote economic growth, simplify
licensing, and have the DOT oversee commercial launch operations and
issue licenses to conduct such activities.\6\ Based on the
deliberations of other representatives, it is evident that the intent
of the legislation was to encourage private sector participation in the
commercial space industry for the benefit of the U.S. economy. This
intent was further expressed by Senator Paul Seward Trible, Jr., who
explicitly stated that the central purpose of the legislation was to
encourage the growth of a commercial space launch capability.\7\ He
continued that the bill designated the DOT as the lead agency to
encourage and facilitate expendable launch vehicle commercialization.
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\5\ 98 Cong. Rec. H. 3942 (daily ed. June 5, 1984) (statement of
Rep. Volkmer).
\6\ Id.
\7\ 98 Cong. Rec. H. 3942 (daily ed. Oct. 9, 1984) (statement of
Sen. Trible).
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The NTSB further acknowledges that the Congress does not wish to
discourage development of this emerging industry and has charged the
FAA to primarily focus on protection of the public and that the
spaceflight participants are taking part in an inherently risky mode of
transportation. The NTSB recognizes the ``learning period'' is still in
effect that limits regulations ``restricting or prohibiting design
features or operating practices,'' and that there is a need to restrict
the release of certain sensitive information to safeguard critical
defense-related technologies in order to protect United States national
security and foreign policy objectives (International Traffic in Arms
Regulations (ITAR), and Export Administration Regulation (EAR)).
Consistent with this legislative history and the NTSB's statutory
authority, the Board believes that codifying NTSB's commercial space
safety investigations in Subpart F is warranted under 49 U.S.C.
1131(a)(1)(F). The Board notes that per 49 U.S.C. 1131(b), the NTSB has
statutory priority over any investigation by a U.S. department or
agency. The issuance of Subpart F would resolve the matters currently
addressed in Appendix H with the FAA.
II. Section-by-Section Analysis
831.70 Authority
Section 831.70 references the NTSB's statutory authority under 49
U.S.C. 1131(a)(1)(F), which provides that the NTSB shall investigate
and establish the facts, circumstances, and probable cause of any other
accident related to the transportation of any other individuals or
property when the Board decides that the accident is catastrophic; the
accident involves problems of a recurring character; or the
investigation of the accident would carry out the NTSB's statutory
authority.
831.71 Purpose
Section 831.71 specifies that Subpart F establishes the agency's
safety investigative procedures for commercial space accidents or
incidents.
831.72 Applicability
Section 831.72 clarifies that the NTSB would investigate a
commercial space launch or reentry accident, but may investigate a
commercial space launch or reentry incident licensed by FAA AST.
831.73 Definitions
Section 831.73 establishes the terminology used in Subpart F.
831.74 Immediate Notification
In the event of a commercial space launch or reentry accident or
incident, Sec. 831.74 requires that licensees and permittees
immediately call the NTSB's Response Operation Center.
831.75 Information To Be Given in Notification
Section 831.75 establishes what must be reported in the event of a
commercial space launch or reentry accident or incident.
831.76 Preservation of Commercial Space Launch or Reentry Vehicle
Wreckage, Payload, and Records
Section 831.76 addresses what a licensee or permittee must do when
preserving the wreckage, payload, and records. The preservation of
materials, documents, data, and wreckage is essential for the NTSB's
safety investigation and the accompanying safety recommendations.
831.77 Nature of Investigation
Section 831.77 clarifies why the NTSB conducts its safety
investigations, and that the agency determines probable cause and
issues safety recommendations. This section further clarifies that the
agency does not investigate all incidents; whether the NTSB
investigates a launch or reentry incident is contingent on the
circumstances of the mishap.
831.78 Relationships With Other Agencies
Section 831.78 allows for participation of other Federal agencies,
but establishes the limitations and expectations of the participants.
831.79 Request To Withhold Information
While Sec. 831.13 is applicable to Subpart F, the NTSB is adding
Sec. 831.79 to address the protection of defense-related technologies.
The regulation is intended to safeguard U.S. national security and
further U.S. foreign policy objectives.
831.80 Provision and Dissemination of Investigative Information
Section 831.80 provides that Sec. 831.13 applies to commercial
space investigations, but adds that the release of information will
comply with the applicable export control regulations.
831.81 Commercial Space Investigation Interviews
Section 831.81 supplements the provisions contained in Sec. 831.7,
but puts the public on notice that interviews or statements conducted
during an NTSB commercial space investigation will become part of the
public record subject to the applicable export control regulations.
III. Regulatory Analysis
Because the NTSB is an independent agency, this proposed rule does
not require an assessment of its potential costs and benefits under
section 6(a)(3) of Executive Order (E.O.) 12866, Regulatory Planning
and Review, 58 FR 51735 (Sept. 30, 1993). In addition, the NTSB has
considered whether this rule would have a significant economic impact
on a substantial number of small entities, under the Regulatory
Flexibility Act (5 U.S.C. 601-612). The NTSB certifies under 5 U.S.C.
605(b) that this rule would not have a significant economic impact on a
substantial number of small entities.
The NTSB does not anticipate this rule will have a substantial,
direct effect on state or local governments or will preempt state law;
as such, this rule does not have implications for federalism under E.O.
13132, Federalism, 64 FR 43255 (Aug. 4, 1999).
This rule complies with all applicable standards in sections 3(a)
and 3(b)(2) of E.O. 12988, Civil Justice Reform, 61 FR
[[Page 63327]]
4729 (Feb. 5, 1996), to minimize litigation, eliminate ambiguity, and
reduce burden. The NTSB has evaluated this rule under: E.O. 12898,
Federal Actions to Address Environmental Judice in Minority Populations
and Low-Income Populations, 59 FR 7629 (Feb. 16, 1994); E.O. 13045,
Protection of Children from Environmental Health Risks and Safety
Risks, 62 FR 19885 (Apr. 21, 1997); E.O. 13175, Consultation and
Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 6,
2000); E.O. 13211, Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 18, 2001);
and the National Environmental Policy Act, 42 U.S.C. 4321-47 The NTSB
has concluded that this proposed rule neither violates nor requires
further consideration under those orders, statutes, E.O.s, and acts.
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3507(d))
requires that the NTSB consider the impact of paperwork and other
information collection burdens imposed on the public. Here, proposed
rule 831.74 directs the public to call the agency's Response Operations
Center when reporting a commercial space accident or incident, and
provide the information enumerated in proposed 49 CFR 831.75. The NTSB
will use the information collected to determine whether to commence an
investigation into the commercial space accident or incident.
Additionally, the accuracy of the information collected will be used in
issuing safety recommendations to prevent future commercial space
accidents and incidents. However, because the NTSB anticipates that it
will receive less than one notification of a mishap accident/incident
per year, the agency will not submit an information collection request
to the Office of Management and Budget. In other words, the NTSB is not
imposing an information collection on ten or more persons to trigger
the PRA.
List of Subjects in 49 CFR Part 831
Accident, Commercial space launch, Commercial space reentry,
Incident, Mishap, Space transportation.
For the reasons set forth in the preamble, the NTSB proposes to add
49 CFR part 831 to read as follows:
PART 831--INVESTIGATION PROCEDURES
0
1. The general authority citation for part 831 continues to read as
follows:
Authority: 49 U.S.C. 1113(f).
0
2. Add subpart F to read as follows:
Subpart F--Commercial Space Investigations
Sec.
831.70 Authority.
831.71 Purpose.
831.72 Applicability.
831.73 Definitions.
831.74 Immediate notification.
831.75 Information to be given in notification.
831.76 Preservation of commercial space launch or reentry vehicle
wreckage, payload, and records.
831.77 Nature of investigation.
831.78 Relationships with other agencies.
831.79 Request to withhold information.
831.80 Provision and dissemination of investigative information.
831.81 Commercial space investigation interviews.
Authority: 49 U.S.C. 1113(f), 1116, 1131(a)(1)(F); 49 CFR
831.2(d).
Sec. 831.70 Authority.
The NTSB conducts commercial space investigations under 49 U.S.C.
1131(a)(1)(F) and works closely with parties to the investigation to
collect evidence related to a commercial launch or reentry accident. An
investigation conducted under the authority of the NTSB has priority
over any investigation conducted by another Federal agency, except
those conducted by a commission initiated by the President of the
United States.
Sec. 831.71 Purpose.
This subpart establishes investigative procedures specifically
related to commercial space accidents or incidents.
Sec. 831.72 Applicability.
The regulations in this subpart apply when the NTSB is leading an
investigation into a launch or reentry commercial space accident, or
has elected to investigate a launch or reentry incident. This subpart
pertains to:
(a) Initial notification and later reporting of commercial space
launch and reentry accidents licensed by Federal Aviation
Administration's (FAA) Associate Administrator for Commercial Space
Transportation (AST), as specified in this part, wherever they occur.
(b) Preservation of launch or reentry vehicles, as specified in
this part.
Sec. 831.73 Definitions.
As used in this subpart the following words or phrases are defined
as follows:
Commercial space launch means a launch authorized to be conducted
under a license or permit issued by the FAA.
Commercial space reentry means a reentry authorized to be conducted
under a license or permit issued by the FAA.
Fatal injury means any injury which results in death within 30 days
of the accident.
Launch or reentry accident means any mishap associated with an FAA-
licensed or permitted activity resulting in:
(1) A fatal injury or serious injury to any person as a result of
the operation of the vehicle; or
(2) The impact of hazardous debris outside the designated hazard
area or designated landing site (excluding unmanned vehicles that cause
no hazard to the public).
Launch or reentry incident means any mishap associated with an FAA-
licensed or permitted activity resulting in:
(1) A malfunction of a safety-critical system (i.e., flight
termination system, etc.);
(2) A failure of the licensee's or permittee's safety organization,
safety operations, or safety procedures; or
(3) A hazardous condition with increased likelihood of causing
serious or fatal injuries to any person (i.e., use of launch escape
system).
Mishap means a launch or reentry accident, launch or reentry
incident, failure to complete a launch or reentry as planned, or an
unplanned event or series of events resulting in a fatality or serious
injury.
Serious injury means an injury as defined under 49 CFR 830.2.
Sec. 831.74 Immediate notification.
In the event of a mishap, the licensee or permittee of any launch
or reentry vehicle shall immediately notify the NTSB's Response
Operations Center at 844-373-9922 or 202-314-6290.
Sec. 831.75 Information to be given in notification.
The notification required in Sec. 831.74 shall contain the
following information, if available:
(a) Date and time of the accident or incident;
(b) Launch vehicle;
(c) Launch/reentry licensee or permittee;
(d) Type of activity (launch, reentry, landing);
(e) Vehicle damage;
(f) Location of the launch or reentry vehicle with reference to
some easily-defined geographical point;
(g) Number of persons involved, number killed, and number seriously
injured; and
(h) Circumstances of the accident or incident.
[[Page 63328]]
Sec. 831.76 Preservation of commercial space launch or reentry
vehicle wreckage, payload, and records.
(a) The licensee or permittee of a commercial space launch or
reentry vehicle involved in an accident or incident for which
notification must be given, is responsible for preserving the following
until the Board takes custody thereof or a release is granted pursuant
to Sec. 831.12(b):
(1) Any wreckage and payload aboard the vehicle; and
(2) All records, including but not limited to all recording
mediums, maintenance, and voice and video recorders, pertaining to the
operation and maintenance of the launch or reentry vehicle.
(b) Prior to the time the Board or its authorized representative
takes custody of the wreckage or payload, such wreckage or payload may
not be disturbed or moved except to the extent necessary:
(1) To remove persons injured or trapped;
(2) To protect the wreckage from further damage; or
(3) To protect the public from injury.
(c) Where it is necessary to move the wreckage or payload,
sketches, descriptive notes, and photographs shall be made, if
possible, of the original positions and condition of the wreckage and
any significant impact marks.
(d) The licensee or permittee of a launch or reentry vehicle
involved in an accident or incident shall preserve and retain all
streamed and digital data that is on board the launch or reentry
vehicle, telemetered to an offsite location, or that is recorded
remotely (i.e., ground station, chase plane, etc.).
(e) The licensee or permittee of a launch or reentry vehicle
involved in an accident or incident shall retain all records, reports,
internal documents, and memoranda dealing with the accident or
incident, until the Board authorizes its release.
Sec. 831.77 Nature of investigation.
The NTSB conducts investigations to determine the facts,
conditions, and circumstances relating to a launch or reentry accident
or incident. The NTSB uses these results to determine one or more
probable causes, and to issue safety recommendations to prevent or
mitigate the effects of a similar commercial space casualty launch or
reentry accident or incident.
Sec. 831.78 Relationships with other agencies.
(a) The NTSB will provide for appropriate participation by other
Federal agencies in any NTSB investigation. Such agencies may not
participate in the NTSB's probable cause determination.
(b) Nothing in this section impairs the authority of any other
Federal agency to investigate a commercial launch or reentry accident
under applicable provisions of law. These agencies are expected to
coordinate with the NTSB Investigator-in-Charge (IIC) to avoid
interference with and duplication of the NTSB's investigative efforts.
Sec. 831.79 Request to withhold information.
In addition to the provisions established in Sec. 831.6, the NTSB
will not disclose any information subject to export control regulations
related to defense and military technologies. The NTSB will coordinate
with the appropriate government agencies to ensure all publicly-
released investigative reports or public meetings comply with
applicable regulations.
Sec. 831.80 Provision and dissemination of investigative information.
In addition to the provisions provided in Sec. 831.13, the release
of information will comply with the applicable export control
regulations.
Sec. 831.81 Commercial space investigation interviews.
In addition to the provisions set forth in Sec. 831.7, interviews
or statements conducted during an NTSB commercial space investigation
will become part of the public record subject to the applicable export
control regulations.
Jennifer Homendy,
Chair.
[FR Doc. 2021-24766 Filed 11-15-21; 8:45 am]
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