[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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