House committee leaders ask White House to withdraw proposed NTSB regulations on commercial launch investigations

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WASHINGTON — The leaders of the House Science Committee have asked the Biden administration to withdraw a controversial proposed rule regarding commercial spaceflight investigations, calling it “plainly unlawful.”

In an April 6 letter to President Biden, Reps. Eddie Bernice Johnson (D-Texas) and Frank Lucas (R-Okla.), the chair and ranking member, respectively, of the House Science Committee, called on the administration to withdraw proposed regulations by the National Transportation Safety Board (NTSB) that would give the board new authority to investigate launch failures.

The notice of proposed rulemaking (NPRM), published in November, would require companies to notify the NTSB in the event of a failure of launch licensed by the Federal Aviation Administration, and give the board the authority to investigate such accidents. During a public comment period that closed in January, many companies and industry groups sharply criticized the proposed regulations, calling them duplicative with existing FAA regulations and warning that they could create “a chilling effect” on industry.

In their letter, Johnson and Lucas argue that NTSB overstepped its bounds by proposing to take a role in commercial spaceflight investigations. “Responsibilities and authorities for space accident investigation are to be determined by congressional action, as reflected in Title 51 of the United States Code, not through proposed regulations that are outside of established authorities,” they wrote. “The NTSB’s proposed rulemaking is inconsistent with statutory authorities, existing interagency agreements and regulations, and it is plainly unlawful.”

The letter is not the first time that members and staff of the committee have raised their concerns about the NTSB proposal. “We sent a letter to the NTSB asking for additional information about their NPRM,” recalled Tom Hammond of the House Science Committee staff during a panel discussion at the FAA Commercial Space Transportation conference in February. “They sent a very nice letter back saying they’re not going to respond to us. We anticipate following up.”

Other staffers from House and Senate committees on that panel also objected to the NTSB rule. “We have significant concerns about how NTSB did this,” said Joel Graham of the Senate Commerce Committee. “It’s an agency charging off in one direction without consulting its partners.”

The NTSB has not commented on its progress reviewing the comments it received on its draft rule, including whether it will move ahead with a final rule or instead publish a revised draft for additional comment. However, Johnson and Lucas stated the proposed regulations featured “fundamental conflicts” that could not be resolved with an updated draft. The letter included an eight-page appendix discussing in detail how Congress, in federal law, assigned authority to the Secretary of Transportation, not NTSB, to conduct investigations.

“We reiterate that this rulemaking is plainly unlawful and we urge you to terminate any further action and rescind the proposed rule,” they write in the letter to Biden.