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NTSB’s proposal to investigate spaceflight crashes sparks a row with the FAA and concern from the commercial space industry

The tension comes as companies like Elon Musk’s SpaceX and Jeff Bezos’ Blue Origin take off

The launch of the Blue Origin New Shepard rocket on Dec. 11, 2021, was the 13th human spaceflight mission that year — more than any other year. The increasing number of spaceflights is prompting a rule from the National Transportation Safety Board. (LM Otero/AP)

A proposed rule by the National Transportation Safety Board that would give it authority to investigate spaceflight crashes has raised concerns among commercial space companies that the freedom they enjoy may soon be curtailed and has touched off an unusually pointed rebuke from the Federal Aviation Administration, which licenses rocket launches and oversees the industry.

In its rule, the NTSB says it wants to investigate spaceflight crashes the way it does those in other forms of transportation, from aviation to railroads. It says it has broad authority to do so and simply wants to give the industry clarity about its role in investigating space incidents, which it has been doing for years when there is a fatality, injury or property damage.

“It’s really just to provide clarity and from our standpoint, we don’t think it’s doing anything different than how we’ve been operating,” Jennifer Homendy, the chair of the NTSB, said in an interview. The agency has long been involved in investigating crashes, including when Virgin Galactic’s space plane came apart during a 2014 test flight, killing one pilot and severely injuring the other.

The proposal comes as the space economy has been experiencing a growth spurt in recent years, fueled by investment that has produced new rockets and spacecraft and allowed a host of people getting the chance to exit the atmosphere.

SpaceX is flying NASA astronauts and cargo to the International Space Station and is eyeing dozens of launches this year for an array of customers, Jeff Bezos’s Blue Origin and Richard Branson’s Virgin Galactic are flying suborbital space tourism flights, and several other rocket companies are looking to fly as well. (Bezos owns The Washington Post.)

To get to this point, the industry has been lightly regulated, enjoying a mandate by Congress that commercial spaceflight is still in its infancy and therefore in a “learning period.” The emerging space companies should be allowed to innovate and grow, proponents say, before the government can impose strict rules that govern how they operate.

But the space industry says the proposed rule is written in a vague and overly broad way that could allow the NTSB to investigate even relatively minor mishaps that are the normal part of a rocket development program. And it says the investigations would duplicate what the FAA already does.

In a Jan. 14 letter to Homendy, FAA Administrator Steve Dickson wrote that the FAA “has statutory authority over all aspects of commercial space launch activities” and that its authority to “investigate commercial space launch mishaps is well established and codified.” He asked that the NTSB “reconsider” its proposed rule and instead “refocus on its current successful working relationship with the FAA.”

The two agencies should update the memorandum of understanding that governs the partnership, he wrote, “to avoid possible confusion and an unclear regulatory or safety regime for commercial spaceflight.”

Some members of Congress have said they have concerns as well. In a letter to the NTSB, Reps. Frank D. Lucas (R-Okla.) and Brian Babin (R-Tex.) wrote that the “NTSB’s attempts to expand its authority would alter the long-standing commercial space accident investigation process and significantly impact the commercial space launch industry, U.S. economic competitiveness, scientific discovery, space exploration, international cooperation, national security, and safety.”

Homendy said the agency is trying to be prepared in case the worst happens.

“When members of Congress and others ask us, ‘Are you prepared to deal with the challenges of the future?’ Yes, those are the actions we’re taking,” Homendy said. “Now we’re looking at people traveling for-hire in transportation. And so we have to make sure that as the industry expands, as there are more and more launches — and it’s an exciting time — that they understand what the reporting requirements are and what we would investigate.”

But there have also been concerns about the FAA’s oversight of the industry and calls to regulate it more strictly. With the learning period in place until 2023, “that means despite commercial human spaceflight and space tourism soon expected to become emerging markets, the FAA’s hands will be tied,” Rep. Peter A. DeFazio (D-Ore.), the chairman of the Transportation and Infrastructure Committee, said at a hearing last year. “They won’t be able to regulate for the safety of the flying public. And you know I have serious concerns that some parts of the industry are talking about yet another extension of the ‘learning period.’”

DeFazio has also criticized the FAA’s dual mandate to simultaneously regulate and promote the space industry, which he said is a conflict of interest that could endanger the public. The FAA, he said in an interview last year, “should not be promoting commercial space. NASA can promote commercial space. The Commerce Department can promote commercial space. The FAA’s job is to regulate in the public interest.”

In its response to the proposed rule, SpaceX, the venture founded by Elon Musk, said the industry is still young and growing and learning how best to innovate. The company, one of the government’s main rocket launch suppliers, has been developing a new rocket system it says will ultimately help save the government money.

The NTSB “incorrectly characterizes commercial spaceflight as a ‘mode of transportation’ similar to commercial aviation, road and maritime transportation. In fact, commercial spaceflight remains a nascent industrial sector that is still in development and is appropriately regulated as such.”

It said the FAA’s oversight is effective while “enabling the industry to innovate in launch system technologies, including important safety improvements that emerge with new technologies.”

In its response, Blue Origin said the proposed rule is so broadly written that it “may inadvertently lead to NTSB’s unlimited and nonstatutory authority to initiate incident investigations of commercial space launch providers, even without any vehicle damage or destruction, or serious injury or death.”

But Homendy said the concerns are overblown. The new rule “doesn’t mean we’re going to go to every mishap,” she said. “That doesn’t mean we’re going to investigate everything, just like every other mode of transportation where we have accident investigation authority. Once we get the report in, we evaluate whether we launch [an investigation] or not.”

And she said the agency is taking the comments seriously and could modify the proposal.

She said agency officials will “want to respond to a number of them, but also they’re looking at those comments to see whether they want to make any changes to our proposal” before moving ahead with the final rule.