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April 10, 2024 Feature

The Investigation of Domestic Commercial Space Accidents by the United States

J. Steven Jarreau and Jeanne L. Amy

The commercial space industry in the United States, although still in its infancy, is rapidly establishing itself as a significant part of the domestic economy. Eighty-two orbital space vehicles were launched worldwide in 2013, with nineteen of those vehicles launched from the United States. By 2022, those numbers increased significantly with 182 launches worldwide, seventy-eight of which were from US spaceports. As private-sector spaceflight becomes commercially viable, there’s every indication that the launch of orbital vehicles and other spacecraft, accompanied by the risks associated with a burgeoning, innovative industry, will only increase.

“Space is a risky business,” according to Aaron Cohen, a former National Aeronautics and Space Administration (NASA) administrator, who “considered every launch a barely controlled explosion.” The “rapid unscheduled disassembly” of SpaceX’s Starship in April of 2023 is but the latest accident. As expressed by NASA Administrator James E. Webb after the Apollo 1 tragedy in 1967, “we’ve always known that something like this would happen.” As space and rocket technology attempts to keep up with our imagination of reaching for the stars, there will inevitability be future accidents, incidents, and mishaps, as they are often interchangeably characterized. Which federal commission, department, or agency will undertake the accident investigations to determine the probable cause and seek to prevent reoccurrences is a question without a definite answer. Currently, several federal offices have some degree of congressionally mandated and possibly overlapping authority to undertake those investigations, make probable cause determinations, and, in some cases, propose corrective actions.

Since the inception of space exploration by the United States, space accidents have been investigated by the federal government by several different methods. Understanding the evolution of space accident investigations provides a basis on which we can better appreciate the current landscape of federal agencies that will likely be engaged in future investigations and how the government might improve the fact-finding process.

An Historical Perspective of Space Accident Investigations

The Apollo 1 Fire

On January 27, 1967, as Apollo 1 astronauts Virgil I. “Gus” Grissom, Edward H. White, and Roger B. Chaffee were engaged in a launchpad ground test, a flash fire erupted in the command module. All three astronauts perished in the service of their country’s space ambitions.

Pursuant to the authority of NASA’s Administrator, the Apollo 204 Review Board was established. As set forth in NASA Management Instruction 8621.1 (April 14, 1966), it was “NASA policy to investigate and document the causes of all major mission failures which occur in the conduct of its space and aeronautical activities.” The review board, in its report on the accident, noted that there are inherent hazards in America’s space program and one of the board’s goals was to reduce those to a minimum. The review board consisted of nine individuals, comprised of six senior NASA officials, one academic from Cornell University, one high-ranking Air Force officer, and one representative of the prime contractor of the Apollo command module.

Space Shuttle Challenger: The Rogers Commission

Seventy-three seconds after the liftoff of the Space Shuttle Challenger on January 28, 1986, an O-ring on one of the orbiter’s solid fuel rockets failed, causing the external fuel tank to explode and the Challenger to break apart, resulting in the death of all seven crew members aboard. In accordance with the authority granted the President by the Federal Advisory Committee Act, the Presidential Commission on the Space Shuttle Challenger Accident (Rogers Commission) was established by Executive Order 12546 (Feb. 3, 1986).

The commission, chaired by William P. Rogers, a former Secretary of State and Attorney General, was similar to the Apollo 204 Review Board in that it was ad hoc. The Rogers Commission also included Neil Armstrong, the Commander of Apollo 11 and the first person to walk on the moon; Brigadier General Chuck Yeager, the first person to break the sound barrier; Dr. Sally Ride, the first American woman in space, who had previously flown on the Challenger; a private-sector physicist and member of the President’s Foreign Intelligence Advisory Board; an aerospace engineer and recipient of NASA’s Distinguished Public Service Medal; professors in the fields of physics and aeronautics from Stanford University, the Massachusetts Institute of Technology, and the California Institute of Technology, one of whom was a Nobel Prize recipient; an aviation and space journalist; an attorney and son of former Secretary of State Dean Acheson; and an Air Force Major General who was the Director of the Air Force Space Systems and Command, Control and Communications and had previously managed the Department of Defense space shuttle program. Although NASA had a Contingency Action Plan in place to undertake the investigation, that plan was ultimately never initiated as NASA correctly anticipated and awaited the establishment of the commission.

The Rogers Commission concluded that the loss of the Space Shuttle Challenger was “an accident rooted in history,” as both NASA and its contractor, Morton Thiokol, had been aware of the O-ring design flaw for many years. The commission offered nine recommendations, which included addressing the shuttle’s launch decision-making process.

Space Shuttle Columbia Accident Investigation Board

On February 1, 2003, eighty-two seconds after liftoff of the Space Shuttle Columbia, foam insulation from an area where the external fuel tank attaches to the shuttle broke free and struck the leading edge of the left wing of the shuttle. Upon striking the wing, the foam breached the orbiter’s thermal protection system. Sixteen minutes before touchdown, as the shuttle reentered Earth’s atmosphere traveling at Mach 2.46, superheated air penetrated the wing, causing it to fail and the shuttle to break up, resulting in the death of all seven astronauts onboard.

In response to the tragedy, NASA established the Columbia Accident Investigation Board (CAIB). The CAIB undertook its investigation from the perspective that “complex systems almost always fail in complex ways” and that it would be incorrect “to reduce the complexities and weaknesses associated with these systems to some simple explanation.” The CAIB looked beyond investigating the cause of the Columbia accident and examined NASA’s space shuttle operations, the agency’s organizational history and shuttle safety practices, and the impact of public expectations and national policymaking.

Similar to the Apollo 204 Review Board and the Rogers Commission, the CAIB was an ad hoc investigative body. The board’s thirteen members were appointed by the NASA Administrator. The CAIB included active and retired members of the military, employees of NASA and the Federal Aviation Administration (FAA), academics, and representatives of private industry. It was supported by approximately 120 staff investigators and 400 NASA engineers.

Scaled Composites’ SpaceShip Two Break Up

SpaceShip Two, permitted by the FAA Office of Commercial Space Transportation as an experimental vehicle, was designed to be a reusable, suborbital space tourism craft. It was carried to its release altitude of about 46,400 feet by Scaled Composites’ White Knight Two, a four-engine aircraft. SpaceShip Two broke up on October 31, 2014, during a rocket-powered test flight after release from its launch aircraft.

The National Transportation Safety Board (NTSB) investigated the SpaceShip Two accident. According to the NTSB, its authority to investigate the SpaceShip Two accident derived from 49 U.S.C. § 1131(a)(1)(F), granting it the general authority to investigate, establish facts and circumstances, and make probable causes determinations regarding transportation accidents. The NTSB, in Appendix A to its report on the accident, devoted considerable discussion to addressing the basis of and support for its authority to conduct the SpaceShip Two investigation.

Federal Investigation of Future Space Accidents

Although President John F. Kennedy’s objective of landing an American on the Moon and safely returning the astronaut was achieved more than fifty years ago, the means of human space travel is still very much in its early developmental phase. As a result, it is realistic to anticipate that as more powerful space transportation vehicles are developed, even by some of the brightest engineers and scientists, accidents will happen.

When future accidents occur, which federal commission, department, or agency, or which combination, will lead or participate in the investigation? The answer is far from straightforward. No single federal entity appears to have exclusive jurisdiction to investigate commercial space accidents. Congress should consider a better way to investigate the root causes of future commercial space incidents. A more effective investigative process would better serve the country and the domestic space industry.

Human Space Flight Independent Investigation Commission: Presidential Commissions Round II

The presidential commission that investigated the Space Shuttle Challenger accident, as addressed above, was established by executive order pursuant to the Federal Advisory Committee Act. Today, pursuant to statutory authority,

[t]the president shall establish an independent, nonpartisan Commission within the executive branch to investigate any incident that results in the loss of— . . . (3) any orbital or suborbital space vehicle carrying humans that is—(A) owned by the Federal Government; or (B) being used pursuant to a contract or Space Agreement Act with the Federal Government for carrying a government astronaut or a researcher funded by the Federal Government; or (4) a crew member or passenger or any space vehicle described in this section.

The Human Space Flight Independent Investigation Commission (Commission) is directed to investigate space-related incidents, determine the cause, identify contributing factors, make recommendations for corrective action, and report to Congress, the President, and the public. The Commission, which is mandated to be established within seven days of any incident, shall consist of fifteen members appointed by the President. The legislation that resulted in the enactment of the Commission was in response to concerns that the CAIB, which, as previously noted, investigated the Space Shuttle Columbia accident, was not sufficiently independent of NASA given that the CAIB was appointed by the NASA Administrator, reported to the Administrator, and was staffed by NASA employees. The Commission is empowered to hold hearings, subpoena witnesses and documents, enter into contracts to discharge it duties, and obtain support from other offices of the federal government; but beyond that, the Commission is left to decide how to best undertake its responsibilities.

The NTSB and the FAA

The NTSB and the FAA each assert that it has statutory authority to investigate commercial space accidents.

The NTSB has a general statutory mandate to investigate accidents, including civilian aircraft accidents, involving the transportation of individuals or property. This authority is particularly germane when the accident is catastrophic or could be recurring in nature. In those instances, the investigation by the NTSB takes priority over investigations by other federal agencies. Although the NTSB’s statutory directive specifically authorizes investigations, it does not expressly mention space mishaps or spacecraft accidents.

The FAA has general statutory authority to regulate commercial space launches, operations, and reentries, including uncrewed space launches and reentries. The FAA’s mission in this regard is one of safety—protecting crews, government astronauts, spaceflight participants, and the public in general. The FAA is tasked with issuing licenses for space launches and has the authority to modify, suspend, or revoke those licenses. While the FAA has clear statutory authority to undertake investigations to carry out its licensing mandate, its statutory authority does not specifically address the investigation of space accidents.

The NTSB published a notice of proposed rulemaking (NPRM) on November 16, 2021, that announced its intent to codify what it referred to as its “commercial space safety investigative authority.” The NTSB stated that the amendment to its regulations would “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.” (Emphasis added).

The statutory authority on which the NTSB based its NPRM is 49 U.S.C. § 1131(a)(1)(F). Section 1131(a)(1)(F) provides that

[t]he National Transportation Safety Board shall investigate or have investigated (in detail the Board prescribes) and establish the facts, circumstances, and cause or probable cause of— . . . (F) any other accident related to the transportation of individuals or property when the Board decides (i) the accident is catastrophic; (ii) the accident involves problems of a recurring character; or (iii) the investigation of the accident would carry out this chapter.

This is the same general statutory authority cited by the NTSB as the basis for investigating the Scaled Composites’ SpaceShip Two accident. The NTSB further specifically stated in the NPRM “that per 49 U.S.C. 1131(b), the NTSB has statutory priority of any investigation by a US department or agency.”

The FAA Administrator responded to the NTSB’s NPRM with correspondence directed to the Chair of the NTSB, maintaining that title 51 of the US Code provides the FAA with statutory authority over all aspects of commercial launch activities, including the investigation of launch mishaps. The Administrator’s correspondence noted historic collaboration between the FAA and the NTSB, and suggested that the agencies update their relationship agreements, clarify their respective investigative roles, and “send a unified message to the emerging commercial spaceflight industry about accident or mishap investigations by the US Government.”

The NTSB has a supplemental NPRM scheduled for October 2024; but subsequent to publishing the NPRM, it entered into a memorandum of understanding (MOU) with the FAA in September of 2022 concerning commercial space mishap investigations. The MOU is intended to “facilitate cooperative efforts of the NTSB and FAA in the area of commercial space mishap investigations.” The NTSB, in accordance with the MOU, “will be the lead investigative agency for FAA permitted, licensed, or otherwise FAA approved, commercial space launch and reentry mishaps” that result in “a fatality or serious injury (as defined in 49 C.F.R. § 830.2)” or “[d]amage to property from debris . . . that could reasonably be expected to cause death or serious injury, and the property is not associated with commercial space launch or reentry activities or the launch site.” The FAA will be the lead investigative agency for all other commercial space mishaps as defined in 14 C.F.R. § 401.7. Section 401.7 of the FAA’s regulations sets forth a detailed definition of mishap, which includes the malfunction of a safety-critical system; failure of an FAA licensee or permittee’s safety organization, operations, or procedures; a high risk of serious injury or fatality to a spaceflight participant, crew member, government astronaut, or the public; substantial damage to property not associated with the FAA-licensed or -permitted activity; unplanned substantial damage to property associated with the FAA-licensed or -permitted activity; unplanned permanent loss of a launch or reentry vehicle; the impact of hazardous debris outside the planned landing site or designated hazard area; or, lastly, the failure to complete a launch or reentry as planned. While the NTSB is the lead investigative agency for the most serious mishaps, only the FAA has authority to suspend or revoke an operator’s FAA-issued license or permit.

FAA-Required Mishap Plans and Operator Responsibilities

While the FAA may be the lead federal investigative agency for certain commercial space mishap investigations, when it comes to actually undertaking the boots-on-the-ground investigations of what happened and why, that responsibility rests, at the discretion of the FAA, on either the FAA or the FAA-licensed or -permitted operator. FAA regulations mandate that operators have an FAA-approved mishap plan and that operators who lead mishap investigations are responsible for reporting, responding to, and investigating the mishap in accordance with their plan. The operator is then accountable to the FAA for determining the root cause of a mishap and reporting that to the FAA, with the FAA providing oversight to ensure compliance with the mishap plan.

In light of the telemetry generally available to FAA operators, the operators likely will have an immediate understanding of the cause of a mishap and know what equipment or pieces of equipment to look for at the debris site. Significant for FAA-licensed or -permitted operators during a mishap investigation will be the need to protect proprietary property and information.

The Government Accountability Office (GAO), at the request of Congress, recently completed a review of FAA commercial space transportation safety and accident investigation oversight. The GAO concluded that the FAA’s practice of determining on a case-by-case basis whether it or the space company involved should lead an investigation lacked specific criteria, and as a result, the FAA could not ensure consistency in its decision-making process. It also concluded that the FAA had not evaluated the effectiveness or findings of its mishap investigation process. The GAO recommended, and the Department of Transportation concurred, that the FAA Administrator should direct the Office of Commercial Space Transportation to address the GAO recommendations.

National Aeronautics and Space Administration

NASA Procedural Requirements for Mishap and Close Call Reporting, Investigating, and Recordkeeping: NASA Procedural Requirements 8621.1D (NPR 8621.1D) sets forth the general particulars to report, investigate, and document NASA mishaps and close calls, and the corrective actions that may prevent similar injuries, property damage, or mission failures in the future. Chapter 7 of NPR 8621.1D addresses the requirements for commercial launch mishap and close call investigations that involve the use of rockets and spacecraft built by the private sector to resupply and transport crews to the International Space Station (ISS).

A “mishap,” as defined by NASA in chapter 1 of NPR 8621.1D, is an unplanned event that results in an occupational injury or illness to non-NASA or NASA personnel that is caused by NASA operations or NASA-funded research and development, property destruction or damage caused by the same, or a NASA mission failure before completion of the planned primary mission. NASA considers a matter to be a “close call” when resulting injuries require no medical attention or only first aid, the property damage is less than $20,000, or the mission is a failure and the direct costs are under $20,000. The seriousness of the injuries and the amount of direct costs determine how NASA classifies the mishap or close call. Classifications range from Type A mishaps to Type D, and then close calls. A Type A injury mishap involves a fatality or an injury that causes permanent total disability, while a Type A property mishap is one in which the direct cost of mission failure and property damage is in excess of $2 million and results in a crewed spacecraft hull loss or the unexpected departure from controlled flight of a spacecraft. How NASA responds to a mishap or close call depends on the classification level assigned.

Chapter 7 of NPR 8621.1D, pertaining to the commercial resupply of the ISS and crew transport to the ISS, addresses how commercial space launch accident investigations will be conducted. If the launch is licensed by the FAA, NPR 8621.1D provides that either the FAA or the NTSB will lead the investigation depending on the terms of agreement between the FAA and the NTSB. If the US Space Force or NASA certified the launch, then the certifying entity will lead the investigation. NPR 8621.1D also provides that the Air Force and NASA may participate as “Official Observers” or be offered “Party Status” in NTSB-led investigations.

US Coast Guard Involvement in Commercial Space Accident Investigations

In addition to securing safety zones for some land-based or water launch and recovery operations, the US Coast Guard is responsible for investigating marine casualties and accidents. A “marine casualty or accident,” pursuant to Coast Guard regulations, is a casualty or accident involving any “vessel” on navigable waters that involves, among other possibilities, a collision, explosion, fire, or significant harm to the environment. Vessel is broadly defined as “any vessel and includes both ships and barges.” If a launch operator uses a floating platform or a barge to launch a vehicle or to recover rocket boosters, for example on a SpaceX drone ship, and an accident occurs, the Coast Guard will be involved.


Certainty is a valued private-enterprise commodity. Providing the domestic commercial space industry with the certainty of knowing how a space accident will be investigated, should one occur, enables the company involved to more effectively support the investigation, identify the root cause, and more resourcefully implement improvements to prevent similar incidents.

With multiple federal commissions, departments, and agencies having differing authorities to investigate commercial space accidents, incidents, and mishaps, whatever the nomenclature used, Congress should consider a more efficient way to meet the objective of a safe domestic space industry. A more streamlined accident investigation process would better serve the US domestic space industry and might encourage foreign commercial space enterprises to relocate their operations to the United States. Now is the time to explore a more efficient governmental accident investigative process.

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    J. Steven Jarreau

    US Department of Justice

    J. Steven Jarreau is a trial attorney in the Aviation, Space & Admiralty Litigation Section for the US Department of Justice, Civil Division, Torts Branch, in Washington, DC. He is licensed to practice in Louisiana, New York, and Washington, DC. He holds an LL.M. in International and Comparative Law from the George Washington University School of Law and is pursuing an LL.M. in Air and Space Law at the Center for Air and Space Law at the University of Mississippi School of Law.  

    Jeanne L. Amy

    US Department of Justice

    Jeanne L. Amy is a trial attorney in the Aviation, Space & Admiralty Litigation Section for the US Department of Justice, Civil Division, Torts Branch, in Washington, DC. She is the chair of the Admiralty and Maritime Law Committee of the American Bar Association’s Tort, Trial and Insurance Practice Section and an adjunct faculty member at Tulane University Law School, where she teaches a course on space law. The opinions expressed by Mr. Jarreau and Ms. Amy are exclusively their own and do not necessarily represent the views of the United States or the US Department of Justice.