[Federal Register Volume 80, Number 8 (Tuesday, January 13, 2015)]
[Proposed Rules]
[Pages 1590-1608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00252]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 /
Proposed Rules
[[Page 1590]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 440
[Docket No.: FAA-2014-1012; Notice No. 14-10]
RIN 2120-AK44
Reciprocal Waivers of Claims for Licensed or Permitted Launch and
Reentry Activities
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA proposes to amend the reciprocal waivers of claims
regulations so that customers would waive claims against all the
customers involved in a launch or reentry, including those signing a
different set of reciprocal waivers. Also, customers of any customer
contracting directly with a licensee or permittee would not have to
sign a waiver directly with the licensee or permittee, other customers,
or the FAA. The FAA also proposes to add an appendix to provide
permittees with an example of a Waiver of Claims and Assumption of
Responsibility for Permitted Activities with No Customer. The proposed
rule would incorporate the reciprocal waiver of claims requirements in
the regulatory text, ensure that customers would waive claims against
all other customers involved in a launch or reentry, including those
signing different reciprocal waivers, reduce the need for licensees and
permittees to request a partial waiver of the reciprocal waiver of
claims requirements and for the FAA to process those requests, and
provide a reciprocal waiver template for permittees with no customers,
reducing the need for the FAA to assist such a permittee in drafting
its cross waivers.
DATES: Send comments on or before March 16, 2015.
ADDRESSES: Send comments identified by docket number FAA-2014-1012
using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at (202) 493-2251.
Privacy: The FAA will post all comments it receives, without
change, to http://www.regulations.gov, including any personal
information the commenter provides. Using the search function of the
docket Web site, anyone can find and read the electronic form of all
comments received into any FAA dockets, including the name of the
individual sending the comment (or signing the comment for an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement can be found in the Federal Register published on April 11,
2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.
Docket: Background documents or comments received may be read at
http://www.regulations.gov at any time. Follow the online instructions
for accessing the docket or Docket Operations in Room W12-140 of the
West Building Ground Floor at 1200 New Jersey Avenue SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this proposed rule, contact Shirley McBride, Regulations Program Lead,
Commercial Space Transportation, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
7470; email [email protected].
For legal questions concerning this proposed rule, contact Sabrina
Jawed, Attorney, AGC-200, Office of the Chief Counsel, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591;
telephone (202) 267-8839; email [email protected].
SUPPLEMENTARY INFORMATION: See the ``Additional Information'' section
for information on how to comment on this proposal and how the FAA will
handle comments received. The ``Additional Information'' section also
contains related information about the docket, privacy, the handling of
proprietary or confidential business information. In addition, there is
information on obtaining copies of related rulemaking documents.
Authority for This Rulemaking
The Commercial Space Launch Act of 1984, as amended at 51 U.S.C.
50901-50923 (the Act), authorizes the Department of Transportation and
thus the FAA, through delegations, to oversee, license, and regulate
commercial launch and reentry activities, and the operation of launch
and reentry sites as carried out by U.S. citizens or within the United
States. 51 U.S.C. 50904, 50905. The Act directs the FAA to exercise
this responsibility consistent with public health and safety, safety of
property, and the national security and foreign policy interests of the
United States. 51 U.S.C. 50905. Section 50901(a)(7) directs the FAA to
regulate only to the extent necessary, in relevant part, to protect the
public health and safety and safety of property. The FAA is also
responsible for encouraging, facilitating, and promoting commercial
space launches by the private sector. 51 U.S.C. 50903.
The statute under which the Secretary of Transportation regulates
commercial space transportation, 51 U.S.C. subtitle V, chapter 509,
sections 50901-50923 (chapter 509), requires that, for each commercial
space launch or reentry, the Department of Transportation (DOT) and,
through delegation, the Federal Aviation Administration (FAA) enter
into a reciprocal waiver of claims agreement with ``the licensee or
transferee, contractors, subcontractors, crew, space flight
participants, and customers of the licensee or transferee, and
contractors and subcontractors of the customers. . . .'' 51 U.S.C.
50914(b)(2). This requirement also applies to permittees under 51
U.S.C. 50906(i). This rule changes Title 14, Code of Federal
Regulations (14 CFR) 440.3, 440.17 and appendices B and C
[[Page 1591]]
to address new scenarios involving hosted payloads.
I. Background
The FAA first promulgated regulations regarding reciprocal waivers
of claims agreements in 1998 \1\ at 14 CFR part 440, and included
appendix B as an example of an Agreement of Waiver of Claims and
Assumption of Responsibility for Licensed Activities. In 2000 and 2006,
respectively, the FAA amended its regulations to include these same
requirements for licensed reentries \2\ and permitted launches.\3\ The
2006 final rule also added appendix C as an example of an Agreement for
Waiver of Claims and Assumption of Responsibility for Permitted
Activities. In the original requirements, the FAA referenced the
reciprocal waiver of claims as a ``three-party agreement'' (i.e.,
between the licensee or permittee, its customer, and the FAA). The term
``three-party'' created confusion and caused some customers of
commercial space launches to believe that only three parties were
necessary to complete a waiver, even if there were multiple customers
associated with a single launch. In other words, according to some, one
customer could sign the reciprocal waiver with the licensee or
permittee and the U.S. Government and by so doing waive not only its
own claims but also the claims of all other customers to the launch.
Appendices B and C defined ``Customer'' as ``the above-named customer
on behalf of the Customer and any person described in Sec. 440.3 of
the Regulations.'' Again, some customers construed this language to
mean one customer could sign on behalf of all other customers.
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\1\ See Financial Responsibility Requirements for Licensed
Launch Activities, Final Rule, 63 FR 45592 (Aug. 26, 1998).
\2\ See Financial Responsibility Requirements for Licensed
Reentry Activities, Final Rule, 65 FR 56670 (Sept. 19, 2000).
\3\ See Human Space Flight Requirements for Crew and Space
Flight Participants, Final Rule, 71 FR 75616 (Dec. 5, 2006).
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In 2011, the FAA amended Sec. 440.17 and the appendices to part
440 to clarify that each individual customer must enter into the
reciprocal waiver of claims, and a customer does not sign on behalf of
other customers. In doing so, the FAA removed the term ``three-party''
from Sec. 440.17(c) and from paragraph 5(d) of the appendices to
dispel the notions that only three parties had to sign the reciprocal
waivers and that one customer could sign on behalf of the remaining
customers in a multi-customer launch.\4\
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\4\ See Clarification of Reciprocal Waivers of Claims for
Multiple-Customer Commercial Space Launch and Reentry, Technical
Amendment, 76 FR 8629 (Feb. 15, 2011).
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In 2012, the FAA became aware of a new scenario where the U.S.
Government is a customer of a licensee, and the Government provides its
customers' payloads to the licensee. This scenario makes compliance
with part 440 challenging for the licensee because the licensee is not
contracting directly with all its customers, and there are a large
number of total customers. Since 2012, the FAA has licensed additional
launches that raised similar issues, and it expects to continue to see
increasingly complex scenarios. The FAA briefly describes the first of
these launches below to provide a better understanding of the issues it
would address with this proposed rule.
On October 7, 2012, SpaceX launched a Falcon 9 rocket carrying its
Dragon spacecraft as part of NASA's first contracted cargo delivery
flight to the International Space Station (ISS). In addition to
providing supplies to the ISS, Dragon carried a number of student
experiments as part of NASA's Student Spaceflight Experiments Program
(SSEP). NASA described SSEP as a national science, technology,
engineering, and mathematics education initiative.\5\ NanoRacks, LLC
(``NanoRacks''), contracted with NASA and arranged to carry the student
experiments on a locker insert to put into an experimental locker
onboard the ISS. Under the FAA's definitions, NanoRacks and each
student who placed a payload onboard the NanoRacks insert qualified as
a ``customer''. Section 440.3 defines a customer, in relevant part, as
any person with rights in the payload or any part of the payload, or
any person who has placed property onboard the payload for launch,
reentry, or payload services.\6\ Accordingly, because NanoRacks and the
students were persons who had rights in their respective payloads, the
locker insert and the experiments, due to their ownership of those
objects, and because they placed property onboard the Dragon, they were
customers. Therefore, Sec. 440.17 required their signatures as
customers on the reciprocal waivers of claims along with the licensee
(SpaceX), and the FAA.
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\5\ Space Station--Here we Come! NASA Press Release: http://www.nasa.gov/audience/foreducators/station-here-we-come.html (last
visited February 2, 2014).
\6\ A person is an individual or an entity organized or
existing under the laws of a State or country. 51 U.S.C. 50901(12),
14 CFR 401.5. The students and NanoRacks were persons because the
students are individuals and NanoRacks is an entity, a limited
liability corporation.
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SpaceX had a contract with NASA, but was not in a contractual
relationship with NanoRacks or any of the students placing experiments
onboard Dragon. On September 20, 2012, SpaceX submitted a petition to
the FAA requesting a partial waiver of Sec. 440.17, which requires a
licensee to enter into a reciprocal waiver of claims with each of its
customers.\7\ To be in compliance with Sec. 440.17, SpaceX would have
first had to determine who its customers were, and then obtain each of
their signatures. To avoid this burdensome process, SpaceX instead
requested a partial waiver from the FAA of Sec. 440.17.
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\7\ Waiver of Requirement to Enter Into a Reciprocal Waiver of
Claims Agreement With All Customers, Notice of Waiver, 77 FR 63221
(Oct. 16, 2012).
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Thereafter, both SpaceX and Orbital Sciences, Corp. have requested
partial waivers for missions in which NASA was a customer.\8\ Since
October 2012, the FAA has published three partial waivers to part 440
requirements in the Federal Register, and has issued three letters of
waiver. Issuing a waiver is costly and time-consuming to the FAA, while
requesting a waiver is costly and time-consuming for industry.
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\8\ Waiver of Requirement to Enter Into a Reciprocal Waiver of
Claims Agreement With All Customers for Orbital Sciences
Corporation, Notice of Waiver, 78 FR 70392 (Nov. 25, 2013); Waiver
of Requirement to Enter Into a Reciprocal Waiver of Claims Agreement
With All Customers for Orbital Sciences Corporation, Notice of
Waiver, 78 FR 57215 (Sept. 17, 2013). The FAA has also granted
waivers that it did not publish in the Federal Register because they
did not present any novel issues.
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II. Overview of Proposed Rule
This NRPM proposes to revise part 440 in the following ways: (1)
Amend Sec. 440.17 to state the reciprocal waiver of claims
requirements; (2) amend Sec. 440.17 and appendices B and C so that
customers of any customer contracting directly with a licensee or
permittee would not have to sign a waiver directly with the licensee or
permittee, other customers, or the FAA; (3) amend appendices B and C of
part 440 so that customers would waive claims, as required by statute,
against all the customers involved in the launch or reentry, including
those signing a different set of reciprocal waivers; (4) amend Sec.
440.3 to add a definition of ``first-tier customer'' and ``part 440
customer''; and (5) add an appendix to provide licensees with an
example of a Waiver of Claims and Assumption of Responsibility for
Permitted Activities with No Customer.
These changes would result in cost savings to the licensee,
government and customers and minimal cost to any customer in a direct
contractual relationship with the licensee or
[[Page 1592]]
permittee if it has customers to the launch.
III. Discussion of the Proposal
A. Amend Sec. 440.17 To State the Reciprocal Waiver of Claims
Requirements
The FAA proposes to amend Sec. 440.17 to describe the requirements
for the reciprocal waiver of claims agreement. Currently, those
requirements are detailed in part 440 appendices, but are not all
reflected in Sec. 440.17. This proposed change would locate the cross-
waiver requirements in the regulatory text rather than just the
appendices. Section 440.17(c) would describe the requirements for each
party to the reciprocal waiver of claims, to the extent provided in
appendices B and C, to (i) waive and release claims for its property
damage and its employees' bodily injury or property damage; (ii) assume
responsibility for its property damage and its employees' bodily injury
or property damage; (iii) extend its assumption of responsibility and
waiver and release of claims to its contractors and subcontractors, and
customers in the case of a first-tier customer; \9\ and (iv) hold
harmless and indemnify each other party from bodily injury or property
damage sustained by its employees. Sections 440.17(d) and (e) would
require each party to the reciprocal waiver of claims, to the extent
described in appendices D and E, to (i) waive and release claims for
bodily injury or property damage; (ii) assume responsibility for bodily
injury or property damage; and (iii) hold harmless and indemnify the
United States and its agencies, servants, agents, subsidiaries,
employees and assignees against claims for property damage or bodily
injury.
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\9\ This requirement would be new to both the regulatory text
and the appendices and is discussed in detail in Section B of this
preamble.
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Section 440.17 does not currently detail the reciprocal waiver of
claims requirements in full. Rather, the section currently uses
appendices, as incorporated through sub-sections, to detail the scope
of the reciprocal waiver of claims. At the same time, subsection (c)
currently qualifies the use of appendices with the additional clause
``or in a form that satisfies the requirements.'' The FAA believes that
this qualification could lead to uncertain expectations for launch
participants because the appendices are more comprehensive than what
Sec. 440.17 contains. Section 440.17 only includes general references
to requirements such as assumption of responsibility, hold harmless,
and indemnification clauses.
To address this deficiency, the FAA proposes that Sec. 440.17 list
the specific requirements that should be included in the reciprocal
waiver of claims agreement. This proposed change would serve to locate
the requirements in one place within the regulation for clarity and
ease of use.
B. Amend Sec. 440.17 and Appendices B and C so That Only First-Tier
Customers Sign the Statutorily Mandated Waiver of Claims, and Amend
Sec. 440.3 To Define ``First-Tier Customer'' and ``Part 440 Customer''
This rulemaking would amend the part 440 requirement describing
which entities are required to sign the statutorily-mandated waiver of
claims. Specifically, this rulemaking would no longer require a first-
tier customer's customer to sign reciprocal waivers with the licensee
and the Government, and would require that a first-tier customer obtain
its customers' agreement but indemnify the other parties for any
failure to properly apply the requirements of the waiver to its
customers. The FAA proposes defining first-tier customer as a customer
as defined in Sec. 440.3 who has a contractual relationship with the
licensee or permittee to obtain launch or reentry services. In other
words, a first-tier customer would be one who met the FAA's regulatory
definition of a customer, and was in a contractual relationship with
the licensee. The FAA proposes defining part 440 customer as a customer
defined by Sec. 440.3 of the Regulations, other than a first-tier
customer. The FAA would add these definitions because they are a
concise way to differentiate between a customer who is a direct
contractual relationship with the licensee or permittee, and a customer
who is not. The FAA would also revise the wording in the definition of
contractors and subcontractors throughout the appendices, for greater
specificity.
The FAA will discuss the proposed requirements in the following
order: (1) First-tier customers would flow down the reciprocal waiver
requirements to their customers; and (2) first-tier customers would
indemnify other parties against claims brought by their customers.
The FAA would revise Sec. 440.17(c) to require each first-tier
customer to apply the requirements of Sec. 440.17 to each of its
customers, and would amend appendices B and C to reflect this
requirement. Currently, part 440 requires all customers, as defined by
Sec. 440.3, to sign reciprocal waivers with the licensee and the U.S.
Government, even those not contracting directly with a licensee or
permittee. This rulemaking would relieve licensees or permittees of
having to obtain signatures of their part 440 customers, i.e., any
customer who is not contracting directly with the licensee or
permittee. The FAA proposes to use its current practice of requiring
that launch participants extend reciprocal waiver requirements to their
contractors and subcontractors as a model. A first-tier customer
currently extends the reciprocal waiver provisions to its contractors
and subcontractors. The FAA proposes similarly requiring a first-tier
customer to extend the reciprocal waiver provisions to its customers,
assuming its customers are not also first-tier customers. Consistent
with current practice, the agency leaves implementation of these
provisions to the licensee or permittee and does not intend to monitor
compliance with the requirement to extend the reciprocal waiver
provisions.\10\ The indemnification, discussed later in this section,
provides its own incentives.
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\10\ See 63 FR at 45607.
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The result of requiring first-tier customers to extend the FAA
reciprocal waiver requirements to their own customers, would be that
the licensee or permittee would only be responsible for signing
reciprocal waivers with customers with whom it is in a direct
contractual relationship. The FAA notes that the Commercial Space
Launch Act specifies that the reciprocal waivers of claims requirement
applies only to customers involved in launch or reentry services. 51
U.S.C. 50914(b). Thus, part 440 customers are limited to customers
involved in launch or reentry services. As the FAA has stated
previously, ``[t]he term ``customer'' does not include the ultimate
beneficiary of the payload services, as opposed to launch services,
because doing so could theoretically include any person who uses a
television or makes a long-distance telephone call, and goes beyond the
intended scope of the Act.'' \11\
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\11\ See 61 FR at 39012.
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The FAA offers three examples to illustrate the effects of this
proposed change. First, this proposed change would not affect launches
in which a licensee or permittee contracted directly with all its
customers. For example, if Licensee Launcher was launching a payload
owned by ToyCo, then Licensee Launcher, ToyCo and the FAA would sign
the part 440 reciprocal waivers. This straightforward scenario is what
the FAA contemplated when it originally drafted part 440.
In the second example, involving a hosted payload situation, if
Licensee
[[Page 1593]]
Launcher was launching a payload provided by LockerCo that included
property owned by WatchCo and CologneCo, under the current rules,
Licensee Launcher, LockerCo, WatchCo, and CologneCo would be required
to sign the reciprocal waivers with the FAA. In this scenario, Licensee
Launcher contracted with LockerCo for the launch, and LockerCo
contracted with WatchCo and CologneCo. Even though Licensee Launcher
had no contractual relationship with any of the customers other than
LockerCo, he is still required to obtain signatures for all the
customers of the launch to comply with part 440. This proposed rule
would allow Licensee Launcher to sign a reciprocal waiver with only
LockerCo and the FAA. LockerCo would then be required to flow down the
reciprocal waiver requirements to its customers: WatchCo and CologneCo.
LockerCo would be free to choose the method by which it extended these
requirements down, so long as the end effect was that LockerCo's
customers waived all claims they would have waived had they signed the
original waiver with Licensee Launcher and the FAA.
The third example involves a hosted payload with a U.S. Government
customer. If Licensee Launcher were launching a payload provided by
NASA that included cubesats owned by South University, North
University, and Jane Doe, under the current rules Licensee Launcher,
South University, North University, Jane Doe, and the FAA would be
required to sign reciprocal waivers. In this scenario, Licensee
Launcher contracted with NASA for the launch, and NASA contracted with
South University, North University, and Jane Doe. Besides NASA,
Licensee Launcher had no contractual relationship with any of the
customers. However, as in the examples above, Licensee Launcher is
currently required to obtain signatures from all the customers of the
launch to comply with part 440. This proposed rule would allow Licensee
Launcher to sign a reciprocal waiver with only the FAA. The FAA would
sign on behalf of the U.S. Government,\12\ which would include NASA,
even though NASA is also a customer. Under part 440, NASA, as a
Government customer, currently already accepts responsibility for
property damage to its payload.\13\ Under the proposed amendments, NASA
would be required to extend the reciprocal waiver requirements to its
customers: South University, North University, and Jane Doe. NASA would
be free to choose the method by which it extended these requirements
down, as long as the end effect was that NASA's customers waived all
claims they would have waived had they signed the original waiver with
Licensee Launcher and the FAA.
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\12\ The FAA, through delegation from the Department of
Transportation, is required by 51 U.S.C. 50914(b)(2) to make
reciprocal waiver of claims for the Government.
\13\ Financial Responsibility Requirements for Licensed Launch
Activities, Final Rule, 63 FR 45592, 45601 (Aug. 26, 1998).
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The proposal to require a first-tier customer to extend the
reciprocal waiver requirements does not conflict with previous
positions the FAA has taken on this issue. In its 2011 Technical
Amendment, the FAA stated that ``a plain language reading of the
[Commercial Space Launch Act] makes it clear that Congress intended the
government to enter into a reciprocal waiver of claims with all
customers.'' This proposal is consistent with what the FAA has stated
before, even though the FAA would only require customers contracting
directly with the licensee or permittee to sign with the Government and
the licensee or permittee. The intent of the statute would be preserved
because first-tier customers would extend the part 440 requirements to
any customers they had that met the definition of customer in Sec.
440.3. Thus, customers who did not sign with the Government and the
licensee, but who still met the FAA's definition of customer, would
waive claims against all the relevant parties, namely the Government,
the licensee or permittee, all other part 440 customers, and the
relevant parties' contractors. In this way, the protections Congress
intended the statute to afford would be preserved even though the
result would be that all customers would no longer have to sign
directly with the Government and the licensee or permittee. As the FAA
contemplated, in cases with more than one customer's payload on the
manifest for a single launch, executing separate but appropriately
modified agreements to ensure that all parties are protected would
satisfy the statute's mandate. \14\ All customers would still have to
enter into a waiver of claims agreement; however, the licensee or
permittee would no longer be responsible for obtaining a part 440
customer's signature on its reciprocal waiver with the FAA.
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\14\ See Financial Responsibility Requirement for Licensed
Launch Activities Proposed Rule, 61 FR at 39012.
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The FAA also modeled its proposal regarding indemnification on the
current practice for contractors and subcontractors. In the context of
a party requiring its contractors and subcontractors to agree to abide
by the requirements of part 440, the FAA has stated previously that
indemnification provides a strong incentive for parties to correctly
extend reciprocal waiver requirements. This incentive provides a remedy
for parties who sustain loss due to another party's failure to extend
the reciprocal waiver requirements.\15\ The FAA would apply the same
reasoning to customers of a first-tier customer. Each customer would be
required to indemnify the Government, the licensee or permittee, and
any other customer not its own, against claims brought by its
contractors, subcontractors, and customers that are not also in a
direct contractual relationship with the licensee or permittee.
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\15\ Financial Responsibility Requirements for Licensed Launch
Activities, Notice of Proposed Rulemaking, 61 FR 38992, 39012 (July
25, 1996).
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This proposal similarly does not conflict with the 2011 Technical
Amendment, where the FAA stated that in no case was any one customer
required to indemnify against claims brought by another customer, or to
extend the reciprocal waiver of claims to other customers. At that
time, the FAA was not contemplating a scenario in which a customer's
customer would have a payload on the launch manifest, but would not be
in a direct contractual relationship with the licensee or permittee.
Instead, in 2011 the FAA meant only to clarify that unrelated customers
could not waive claims on behalf of each other. The FAA envisioned a
scenario in which the licensee or permittee itself contracted with
various customers. In such a scenario, each customer would sign the
reciprocal waiver of claims and could not sign for any other customer,
or indemnify other signatories to the waiver of claims against a non-
signing customers' claims.
Although the FAA removed language stating that a customer must
provide indemnification on behalf of another customer,\16\ the intent
was to clarify that a customer could not sign on behalf of another
customer and indemnify a signatory to the reciprocal waiver against
that customer's claim in a scenario where the signing customer was not
in a relationship with the non-signing customer. The effect of allowing
a customer to sign on behalf of a different customer it has no
relationship with and indemnify against that customer's claims is the
non-signing customer effectively receives the benefits of the
reciprocal waiver of claims without the obligations.
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\16\ See 76 FR 8629 at 8630.
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[[Page 1594]]
In contrast, this proposal would require not only that a customer
in a contractual relationship with the licensee or permittee extend the
cross waiver requirements to its customers, but also that it indemnify
the other parties against claims brought by its own customers. In this
scenario, all customers would be aware of the claims they were waiving,
and, if a customer failed to extend the reciprocal waiver requirements,
it would be required to indemnify. Therefore, it would be in a
customer's best interests to correctly extend the reciprocal waiver
requirements so that its customers would not bring claims against the
other parties. To accomplish this, the FAA would recommend using the
forms provided in part 440 appendices B and C.
C. Amend Appendices B and C of Part 440 so That Customers of Any
Customer Contracting Directly With a Licensee or Permittee Would Not
Have To Sign a Waiver Directly With the Licensee or Permittee, Other
Customers, or the FAA
The FAA proposes requiring that customers waive claims against all
other customers involved in a launch or reentry. This change would
obviate launch participants re-signing reciprocal waivers if a new
customer was added close to the launch date.
The FAA proposes amending the waivers of claims agreements in
appendices B and C so that customers waive claims, as required by the
statute, against all the customers involved in the launch or reentry,
including those signing a different set of reciprocal waivers. In the
2011 Technical Amendment, the FAA inadvertently removed from the
definition of ``customer'' in appendices B and C the phrase ``and any
person described in Sec. 440.3 of the Regulations.'' By removing this
phrase, it became unclear that the customer signing the waiver with the
licensee or permittee and the FAA was waiving any claims it had against
all other customers.
Correcting this omission is important in order to ease the
administrative burden on the FAA, customers, licensees, and permittees
in instances where a new customer is added to a launch only a short
time before the scheduled launch date. As the rule currently stands,
all of the parties involved would need to re-sign the original waiver
of claims because the protection only extends to those customers who
have signed the specific waiver. This could be an onerous process were
there to be many entities as customers for a single launch. The
proposed amendment would clarify that a signing customer waived any
claims against all other customers currently or to be involved in a
launch, and would allow a customer who was added at the last minute to
sign a new and separate waiver of claims with the FAA and the licensee
or permittee, while still waiving claims against any other customers
who have signed a separate waiver of claims. This correction should not
be construed to allow a customer to sign an indemnification agreement
on behalf of another customer. Each customer in a contractual
relationship with the licensee or permittee would still sign a waiver
of claims on its own behalf.
Although it may look contradictory to include the clause ``and any
other customer as defined by 14 CFR 440.3'' in the reciprocal waiver
with one customer found in appendices B and C, the clause is necessary
to meet the intent of allowing a last-minute customer to sign a new and
separate waiver of claims with the FAA and the licensee or permittee,
while also waiving claims against any customers on a launch who have
signed a previous waiver of claims. Reciprocal waiver of claims with
one customer found in appendices B and C would be used when one
customer signed, and reciprocal waiver of claims with multiple
customers found in appendices B and C would be used when multiple
customers signed the same reciprocal waiver.
For example, Licensee Launcher is conducting a launch, and has one
customer (WatchCo). WatchCo signs the ``Waiver of Claims and Assumption
of Responsibility for Licensed Launch, Including Suborbital Launch,
With One Customer,'' located in appendix B to part 440, with the FAA
and Licensee Launcher. Two months later, Licensee Launcher acquires
customer CologneCo. CologneCo is not a customer of WatchCo. Licensee
Launcher now has two customers for its launch. Under the proposed rule,
CologneCo would sign reciprocal waivers with Licensee Launcher and the
FAA, but it would not need to sign with WatchCo because WatchCo waived
and released claims it may have against any other customers as defined
by Sec. 440.3 and their contractors and subcontractors.
Thus, a licensee with multiple customers for a launch or reentry
may sign one cross-waiver with multiple customers, or may sign multiple
cross-waivers with each individual customer. Under the proposed rule,
the outcome would be the same.
D. Add an Appendix for Waiver of Claims and Assumption of
Responsibility for Permitted Activities With No Customer
Finally, this rulemaking would add a waiver of claims to appendix C
that accounts for scenarios in which a permitted activity does not
involve any customer. Permitted activities are launches or reentries of
a reusable suborbital rocket for the purpose of research and
development, demonstrating compliance with requirements in order to
obtain a license, or crew training, and often do not involve a
customer. Permittees may not receive compensation for carrying any
property or human being. 51 U.S.C. 50906(h). Accordingly, although the
FAA contemplated nonpaying customers, permittees may regularly conduct
launches without any customer.
Currently, when a permittee plans to conduct permitted activities
without any customer, the FAA and permittee modify the existing waivers
of claims forms in appendix C in order to create a two-party agreement
between the U.S. Government and the permittee. The FAA permits No. EP
07-003 issued to Armadillo Aerospace, L.P. in 2007, No. EP 12-007
issued to Scaled Composites in 2012, and No. EP 12-008 issued to SpaceX
in 2012 all involved such a modified waiver of claims. This process led
to additional coordination between the FAA and the permittees, and the
permittees typically sought confirmation from the FAA that the modified
waiver of claims agreement complied with part 440. With the addition of
a separate waiver of claims template in appendix C for permitted
activities with no customer, the FAA would be able to provide a uniform
and compliant waiver of claims that would make the permitting process
more efficient.
IV. Regulatory Notices and Analyses
A. Regulatory Evaluation
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
that each Federal agency shall propose or adopt a regulation only upon
a reasoned determination that the benefits of the intended regulation
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub.
L. 96-354) requires agencies to analyze the economic impact of
regulatory changes on small entities. Third, the Trade Agreements Act
(Pub. L. 96-39) prohibits agencies from setting standards that create
unnecessary obstacles to the foreign
[[Page 1595]]
commerce of the United States. In developing U.S. standards, this Trade
Act requires agencies to consider international standards and, where
appropriate, that they be the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies
to prepare a written assessment of the costs, benefits, and other
effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation with base year of
1995). This portion of the preamble summarizes the FAA's analysis of
the economic impacts of this proposed rule. We suggest readers seeking
greater detail read the full regulatory evaluation, a copy of which we
have placed in the docket for this rulemaking.
In conducting these analyses, FAA has determined that this proposed
rule: (1) Has benefits that justify its costs, (2) is not an
economically ``significant regulatory action'' as defined in section
3(f) of Executive Order 12866, (3) is not ``significant'' as defined in
DOT's Regulatory Policies and Procedures; (4) would not have a
significant economic impact on a substantial number of small entities;
(5) would not create unnecessary obstacles to the foreign commerce of
the United States; and (6) would not impose an unfunded mandate on
State, local, or tribal governments, or on the private sector by
exceeding the threshold identified above. These analyses are summarized
below.
Total Benefits and Costs of This Rule
These changes would result in cost savings to the licensee,
government and customers and minimal cost to the first-tier customer if
it has customers to the launch.
Cost savings are presented in the table below, which are discussed
in more detail in the paragraphs that follow.
[GRAPHIC] [TIFF OMITTED] TP13JA15.003
Minor Rounding Occurs in Summation
The proposal might result in minimal costs to first-tier customers
who would be responsible for implementing cross-waivers with their
customers.
Who is potentially affected by this rule?
Launch Licensees and Permittees
Federal Government
Customers of the Launch Licensees and Permittees
Assumptions:
The following assumptions apply to the analysis.
Ten year time horizon
2013 dollars
Without the rule FAA would issue 4 partial waivers to the
reciprocal cross waiver requirement per year
Without the rule the licensee would have to obtain some
signatures from sub-tier customers on launches unless waivers have been
issued.
Benefits of This Rule
The proposal would result in cost savings because licensees would
no longer have to obtain signatures of sub-tier customers on the cross-
waiver. Cost savings may result because licensees would not have to
incur expenses to obtain sub-tier signatures or licensees would not
seek waivers from the FAA to the requirement that sub-tier customers
sign the cross-waiver. The estimated cost savings to the licensee and
the Federal Government that would result were indicated in the table
above.
Also, the FAA estimated a small cost savings due to the proposal to
allow a customer added at the last minute to sign a new and separate
waiver of claims agreement.
Finally, the FAA expects minimal cost savings with the proposed
addition of a template for permitted activities with no customer.
Costs of This Rule
The responsibility to obtain signatures of customers who are not in
a direct contractual relationship (i.e. sub-tier customers) with the
licensee would shift under the proposal, from the licensee to the
appropriate first-tier customer. The FAA expects the costs the first-
tier customer would incur under the rule to implement the cross-waiver
would be minimal because the first-tier customer could modify the
templates provided in Appendices B and C to part 440 and add it to the
contract that it has with its customers. In addition, customers are
currently required to extend the FAA cross-waiver obligations to their
respective contractors and subcontractors. The FAA thinks that this
would be a one-time cost that could be accomplished in a short period
of time by the company's in-house lawyers.
B. Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide-range of small entities,
including small businesses, not-for-
[[Page 1596]]
profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to
have a significant economic impact on a substantial number of small
entities, section 605(b) of the RFA provides that the head of the
agency may so certify and a regulatory flexibility analysis is not
required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be
clear.
The FAA believes that this proposed rule would not have a
significant impact on a substantial number of entities because the rule
would result in cost savings and some minimal costs as described below.
Cost savings are expected because the licensee would no longer have
to request waivers or obtain sub-tier signatures, nor have to obtain
signatures if a party is added to the launch at the last minute.
However, there might be minimal costs to first-tier customers. The
responsibility to obtain signatures of customers who are not in a
direct contractual relationship (i.e., sub-tier customers) with the
licensee would shift under the proposal, from the licensee to the
appropriate first-tier customer. This would be a new requirement on the
first-tier customer.
Under the proposal, the first-tier customer would be responsible,
as described above, to implement the cross-waiver with their customers.
These costs would be minimal because the first-tier customer could
modify the templates provided in Appendices B and C to part 440 and add
it to the contract that it has with its customers. The FAA thinks that
this would be a one-time cost that could be accomplished in a short
period of time by the company's in-house lawyers at an estimated cost
of $185.
It is not clear whether this minimal cost would impact a
substantial number of small entities. To date, the only entities that
the FAA is aware of currently that fly hosted payloads are NASA and the
Air Force. We do not know whether in the future there might be small
entities which would have to implement a cross-waiver with their
customers, but even if there were a substantial number of small
entities, the proposal would not have a significant impact on these
entities.
Therefore, as provided in section 605(b), the head of the FAA
certifies that this rulemaking will not result in a significant
economic impact on a substantial number of small entities.
The FAA solicits comments regarding this determination.
C. International Trade Impact Assessment
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. The FAA has
assessed the potential effect of this proposed rule and determined that
it would impose the same costs on domestic and international entities
and thus has a neutral trade impact.
D. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $151.0 million in lieu of $100
million. This proposed rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there would be no new requirement for information collection associated
with this proposed rule.
F. International Compatibility and Cooperation
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.
G. Environmental Analysis
FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 312f and involves no extraordinary
circumstances.
V. Executive Order Determinations
A. Executive Order 12866
See the ``Regulatory Evaluation'' discussion in the ``Regulatory
Notices and Analyses'' section elsewhere in this preamble.
B. Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. The agency has
determined that this action would not have a substantial direct effect
on the States, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government, and, therefore, would not have
Federalism implications.
C. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
would not be a ``significant energy action'' under the executive order
and would not be likely to have a significant adverse effect on the
supply, distribution, or use of energy.
VI. Additional Information
A. Comments Invited
The FAA invites interested persons to participate in this
rulemaking by
[[Page 1597]]
submitting written comments, data, or views. The agency also invites
comments relating to the economic, environmental, energy, or federalism
impacts that might result from adopting the proposals in this document.
The most helpful comments reference a specific portion of the proposal,
explain the reason for any recommended change, and include supporting
data. To ensure the docket does not contain duplicate comments,
commenters should send only one copy of written comments, or if
comments are filed electronically, commenters should submit only one
time.
The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The agency may change this proposal in
light of the comments it receives.
B. Availability of Rulemaking Documents
An electronic copy of rulemaking documents may be obtained from the
Internet by--
1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies or
3. Accessing the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed from
the Internet through the Federal eRulemaking Portal referenced in item
(1) above.
List of Subjects in 14 CFR Part 440
Indemnity payments, Insurance, Reporting and recordkeeping
requirements, Space transportation and exploration.
The Amendments
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter III of title 14, Code of
Federal Regulations as follows:
PART 440--FINANCIAL RESPONSIBILITY
0
1. The authority citation for part 440 continues to read as follows:
Authority: 51 U.S.C. 50901-50923.
0
2. Amend Sec. 440.3 to add the definition of first-tier customer and
part 440 customer in alphabetical order to read as follows:
Sec. 440.3 Definitions.
* * * * *
First-tier customer means a customer as defined in this section,
and who has a contractual relationship with a license or permit holder
to obtain launch or reentry services.
* * * * *
Part 440 customer means a customer as defined in this section,
other than a first-tier customer.
* * * * *
0
3. Revise Sec. 440.17 to read as follows:
Sec. 440.17 Reciprocal waiver of claims requirements.
(a) As a condition of each license or permit, the licensee or
permittee must comply with the reciprocal waiver of claims requirements
of this section.
(b) The licensee or permittee must implement a reciprocal waiver of
claims with each of its contractors and subcontractors, each first-tier
customer and each of the first-tier customer's contractors and
subcontractors, under which each party waives and releases claims
against all the other parties to the waiver and against any other
customer, and agrees to assume financial responsibility for property
damage it sustains and for bodily injury or property damage sustained
by its own employees, and to hold harmless and indemnify each other
from bodily injury or property damage sustained by its employees,
resulting from a licensed or permitted activity, regardless of fault.
(c) For each licensed or permitted activity in which the U.S.
Government, any agency, or its contractors and subcontractors is
involved or where property insurance is required under section
440.9(d), the Federal Aviation Administration of the Department of
Transportation, the licensee or permittee, and each first-tier customer
must enter into a reciprocal waiver of claims agreement. The reciprocal
waiver of claims must be in the form set forth in Appendix B of this
part for licensed activity, in Appendix C of this part for permitted
activity, or in a form that otherwise provides all the same obligations
and benefits. The reciprocal waiver of claims must provide that:
(1) Each party, including the United States but only to the extent
provided in legislation:
(i) Waives and releases claims it may have against each other
party, any customer, and against their respective contractors and
subcontractors, for property damage it sustains and for bodily injury
or property damage sustained by its own employees, resulting from
licensed activities, regardless of fault;
(ii) Assumes responsibility for property damage it sustains and for
bodily injury or property damage sustained by its own employees,
resulting from licensed activities, regardless of fault. Licensee and
first-tier customer shall each hold harmless and indemnify each other,
the United States, any other customer, and the contractors and
subcontractors of each for bodily injury or property damage sustained
by its own employees, resulting from Licensed Activities, regardless of
fault; and
(iii) Extends the requirements of the waiver and release of claims,
and the assumption of responsibility, hold harmless, and
indemnification, to its contractors and subcontractors and, for first-
tier customer its customers, by requiring them to waive and release all
claims they may have against:
(A) For the contractors and subcontractors of the licensee or
permittee, all claims against any customer, the United States, and each
of their respective contractors and subcontractors, and to agree to be
responsible, for property damage they sustain and to be responsible,
hold harmless and indemnify any customer, the United States, and each
of their respective contractors and subcontractors, for bodily injury
or property damage sustained by their own employees, resulting from
licensed activities, regardless of fault;
(B) For the contractors and subcontractors of first-tier customer,
all claims against the licensee or permittee, any other customer, the
United States, and each of their respective contractors and
subcontractors, and to agree to be responsible, for property damage
they sustain and to be responsible, hold harmless and indemnify the
licensee or permittee, any other customer, the United States, and each
of their respective contractors and subcontractors, for bodily injury
or property damage sustained by their own employees, resulting from
licensed activities, regardless of fault;
(C) For the contractors and subcontractors of the United States,
all
[[Page 1598]]
claims against the licensee or permittee, any customer, and each of
their respective contractors and subcontractors, and to agree to be
responsible, for property damage they sustain and to be responsible,
hold harmless and indemnify the licensee or permittee, any other
customer, the United States, and each of their respective contractors
and subcontractors, for bodily injury or property damage sustained by
their own employees, resulting from licensed activities, regardless of
fault to the extent that claims they would otherwise have for such
damage or injury exceed the amount of insurance or demonstration of
financial responsibility required under sections 440.9(c) and (e) of
this part; and
(2) For the following parties--
(i) The licensee or permittee must hold harmless and indemnify each
first-tier customer and its directors, officers, servants, agents,
subsidiaries, employees and assignees, or any of them; the United
States and its agencies, servants, agents, subsidiaries, employees and
assignees, or any of them; and any part 440 customer and its directors,
officers, servants, agents, subsidiaries, employees and assignees, or
any of them from and against liability, loss or damage arising out of
claims that any of licensee's or permittee's contractors and
subcontractors may have for property damage sustained by them and for
bodily injury or property damage sustained by their employees,
resulting from licensed or permitted activities. The requirement of
(c)(2)(i) of this section to hold harmless and indemnify the United
States and its agencies, servants, agents, subsidiaries, employees and
assignees, or any of them, does not apply when:
(A) Claims result from willful misconduct of the United States or
its agents;
(B) Claims for property damage sustained by the United States or
its contractors and subcontractors exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(e) of this part;
(C) Claims by a third party for bodily injury or property damage
exceed the amount of insurance or demonstration of financial
responsibility required under section 440.9(c) of this part, and do not
exceed $1,500,000,000 (as adjusted for inflation after January 1, 1989)
above such amount, and are payable pursuant to the provisions of 51
U.S.C. 50915 and section 440.19 of this part; or
(D) Licensee or permittee has no liability for claims exceeding
$1,500,000,000 (as adjusted for inflation after January 1, 1989) above
the amount of insurance or demonstration of financial responsibility
required under section 440.9(c) of this part.
(ii) Each first-tier customer must hold harmless and indemnify the
licensee or permitee and its directors, officers, servants, agents,
subsidiaries, employees and assignees, or any of them; the United
States and its agencies, servants, agents, subsidiaries, employees and
assignees, or any of them; and any part 440 customer and its directors,
officers, servants, agents, subsidiaries, employees and assignees, or
any of them, from and against liability, loss or damage arising out of
claims that any of first-tier customer's contractors, subcontractors,
or customers may have for property damage sustained by them and for
bodily injury or property damage sustained by their employees,
resulting from licensed or permitted activities.
(iii) The Federal Aviation Administration of the Department of
Transportation on behalf of the United States and its agencies, but
only to the extent provided in legislation, must hold harmless and
indemnify the licensee or permitee, each first-tier customer, any part
440 customer, and their respective directors, officers, servants,
agents, subsidiaries, employees and assignees, or any of them, from and
against liability, loss or damage arising out of claims that
contractors and subcontractors of the United States may have for
property damage sustained by them and for bodily injury or property
damage sustained by their employees, resulting from licensed or
permitted activities to the extent that claims they would otherwise
have for such damage or injury exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(c) and (e) of this part.
(d) For each licensed or permitted activity in which the U.S.
Government, any of its agencies, or its contractors and subcontractors
are involved, the Federal Aviation Administration of the Department of
Transportation and each space flight participant must enter into or
have in place a reciprocal waiver of claims agreement. The reciprocal
waiver of claims must be in the form set forth in Appendix E, or in a
form that otherwise provides all the same obligations and benefits.
(1) The reciprocal waiver of claims must provide that each space
flight participant:
(i) Waive and release claims he or she may have against the United
States, and against each of its contractors and subcontractors, for
bodily injury, including death, or property damage sustained by space
flight participant, resulting from licensed or permitted activities,
regardless of fault;
(ii) Assume responsibility for bodily injury, including death, or
property damage, sustained by space flight participant, resulting from
licensed or permitted activities, regardless of fault;
(iii) Hold harmless the United States, and its contractors and
subcontractors, for bodily injury, including death, or property damage,
sustained by space flight participant, resulting from licensed or
permitted activities, regardless of fault;
(iv) Hold harmless and indemnify the United States and its
agencies, servants, agents, subsidiaries, employees and assignees, or
any of them, from and against liability, loss, or damage arising out of
claims brought by anyone for property damage or bodily injury,
including death, sustained by space flight participant, resulting from
licensed or permitted activities; and
(v) Hold harmless the United States and its agencies, servants,
agents, employees and assignees, or any of them, from and against
liability, loss or damage arising out of claims for bodily injury,
including death, or property damage, sustained by space flight
participant, resulting from licensed or permitted activities,
regardless of fault, except to the extent that claims result from
willful misconduct of the United States or its agents.
(2) The reciprocal waiver of claims must provide that the United
States:
(i) Waive and release claims it may have against space flight
participant for property damage it sustains, and for bodily injury,
including death, or property damage sustained by its own employees,
resulting from licensed or permitted activities, regardless of fault;
(ii) Assume responsibility for property damage it sustains, and for
bodily injury, including death, or property damage sustained by its own
employees, resulting from licensed activities, regardless of fault, to
the extent that claims it would otherwise have for such damage or
injury exceed the amount of insurance or demonstration of financial
responsibility required under sections 440.9(c) and (e), respectively,
of this part;
(iii) Assume responsibility for property damage it sustains,
resulting from permitted activities, regardless of fault, to the extent
that claims it would otherwise have for such damage exceed the amount
of insurance or
[[Page 1599]]
demonstration of financial responsibility required under section
440.9(e) of this part;
(iv) Extend the requirements of the waiver and release of claims,
and the assumption of responsibility to its contractors and
subcontractors by requiring them to waive and release all claims they
may have against space flight participant, and to agree to be
responsible, for any property damage they sustain and for any bodily
injury, including death, or property damage sustained by their own
employees, resulting from licensed activities, regardless of fault; and
(v) Extend the requirements of the waiver and release of claims,
and the assumption of responsibility to its contractors and
subcontractors by requiring them to waive and release all claims they
may have against space flight participant, and to agree to be
responsible, for any property damage they sustain, resulting from
permitted activities, regardless of fault.
(e) For each licensed or permitted activity in which the U.S.
Government, any of its agencies, or its contractors and subcontractors
is involved, the Federal Aviation Administration of the Department of
Transportation and each crew member must enter into or have in place a
reciprocal waiver of claims agreement. The reciprocal waiver of claims
must be in the form set forth in appendix D, or in a form that
otherwise provides all the same obligations and benefits.
(1) The reciprocal waiver of claims must provide that each crew
member:
(i) Waive and release claims he or she may have against the United
States, and against each of its contractors and subcontractors, for
bodily injury, including death, or property damage sustained by crew
member, resulting from licensed or permitted activities, regardless of
fault;
(ii) Assume responsibility for bodily injury, including death, or
property damage, sustained by crew member, resulting from licensed or
permitted activities, regardless of fault;
(iii) Hold harmless the United States, and its contractors and
subcontractors, for bodily injury, including death, or property damage,
sustained by crew member, resulting from licensed or permitted
activities, regardless of fault;
(iv) Hold harmless and indemnify the United States and its
agencies, servants, agents, subsidiaries, employees and assignees, or
any of them, from and against liability, loss, or damage arising out of
claims brought by anyone for property damage or bodily injury,
including death, sustained by crew member, resulting from licensed or
permitted activities; and
(v) Hold harmless the United States and its agencies, servants,
agents, employees and assignees, or any of them, from and against
liability, loss or damage arising out of claims for bodily injury,
including death, or property damage, sustained by crew member,
resulting from licensed or permitted activities, regardless of fault,
except to the extent that claims result from willful misconduct of the
United States or its agents.
(2) The reciprocal waiver of claims must provide that the United
States:
(i) Waive and release claims it may have against the crew member
for property damage it sustains, and for bodily injury, including
death, or property damage sustained by its own employees, resulting
from licensed or permitted activities, regardless of fault;
(ii) Assume responsibility for property damage it sustains, and for
bodily injury, including death, or property damage sustained by its own
employees, resulting from licensed activities, regardless of fault, to
the extent that claims it would otherwise have for such damage or
injury exceed the amount of insurance or demonstration of financial
responsibility required under sections 440.9(c) and (e), respectively,
of this part;
(iii) Assume responsibility for property damage it sustains,
resulting from permitted activities, regardless of fault, to the extent
that claims it would otherwise have for such damage exceed the amount
of insurance or demonstration of financial responsibility required
under section 440.9(e) of this part;
(iv) Extend the requirements of the waiver and release of claims,
and the assumption of responsibility to its contractors and
subcontractors by requiring them to waive and release all claims they
may have against crew member and to agree to be responsible, for any
property damage they sustain and for any bodily injury, including
death, or property damage sustained by their own employees, resulting
from licensed activities, regardless of fault; and
(v) Extend the requirements of the waiver and release of claims,
and the assumption of responsibility to its contractors and
subcontractors by requiring them to waive and release all claims they
may have against crew member and to agree to be responsible, for any
property damage they sustain, resulting from permitted activities,
regardless of fault.
0
4. Revise Appendix B to part 440 to read as follows:
Appendix B to Part 440--Agreement for Waiver of Claims and Assumption
of Responsibility for Licensed Activities
Part 1--Waiver of Claims and Assumption of Responsibility for Licensed
Launch, Including Suborbital Launch
Subpart A--Waiver of Claims and Assumption of Responsibility for
Licensed Launch, Including Suborbital Launch, With One Customer
This agreement is entered into this __ day of __, by and among
[Licensee] (the ``Licensee''), [Customer] (the ``Customer'') and the
Federal Aviation Administration of the Department of Transportation,
on behalf of the United States Government (collectively, the
``Parties''), to implement the provisions of section 440.17(c) of
the Commercial Space Transportation Licensing Regulations, 14 CFR
Ch. III (the ``Regulations''). This agreement applies to the launch
of [Payload] payload on a [Launch Vehicle] vehicle at [Location of
Launch Site]. In consideration of the mutual releases and promises
contained herein, the Parties hereby agree as follows:
1. Definitions
Contractors and Subcontractors means entities defined by Sec.
440.3 of the Regulations.
Customer means the above-named Customer.
Part 440 customer means a customer defined by Sec. 440.3 of the
Regulations, other than the above-named Customer.
License means License No. ___ issued on ___, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Licensee,
including all license orders issued in connection with the License.
Licensee means the Licensee and any transferee of the Licensee
under 51 U.S.C. Subtitle V, ch. 509.
United States means the United States and its agencies involved
in Licensed Activities. Except as otherwise defined herein, terms
used in this Agreement and defined in 51 U.S.C. Subtitle V, ch.
509--Commercial Space Launch Activities, or in the Regulations,
shall have the same meaning as contained in 51 U.S.C. Subtitle V,
ch. 509, or the Regulations, respectively.
2. Waiver and Release of Claims
(a) Licensee hereby waives and releases claims it may have
against Customer, the United States, any part 440 customer, and each
of their respective Contractors and Subcontractors, for Property
Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault.
(b) Customer hereby waives and releases claims it may have
against Licensee, the United States, any part 440 customer, and each
of their respective Contractors and Subcontractors, for Property
damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault.
(c) The United States hereby waives and releases claims it may
have against Licensee,
[[Page 1600]]
Customer, any part 440 customer, and each of their respective
Contractors and Subcontractors, for Property Damage it sustains, and
for Bodily Injury or Property Damage sustained by its own employees,
resulting from Licensed Activities, regardless of fault, to the
extent that claims it would otherwise have for such damage or injury
exceed the amount of insurance or demonstration of financial
responsibility required under sections 440.9(c) and (e),
respectively, of the Regulations.
3. Assumption of Responsibility
(a) Licensee and Customer shall each be responsible for Property
Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault. Licensee and Customer shall each hold harmless
and indemnify each other, the United States, any part 440 customer,
and the Contractors and Subcontractors of each, for Bodily Injury or
Property Damage sustained by its own employees, resulting from
Licensed Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage
it sustains, and for Bodily Injury or Property Damage sustained by
its own employees, resulting from Licensed Activities, regardless of
fault, to the extent that claims it would otherwise have for such
damage or injury exceed the amount of insurance or demonstration of
financial responsibility required under sections 440.9(c) and (e),
respectively, of the Regulations.
4. Extension of Assumption of Responsibility and Waiver and Release of
Claims
(a) Licensee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(a) and
3(a), respectively, to its Contractors and Subcontractors by
requiring them to waive and release all claims they may have against
Customer, the United States, any part 440 customer, and each of
their respective Contractors and Subcontractors, and to agree to be
responsible, for Property Damage they sustain and to be responsible,
hold harmless and indemnify Customer, the United States, any part
440 customer, and each of their respective Contractors and
Subcontractors, for Bodily Injury or Property Damage sustained by
their own employees, resulting from Licensed Activities, regardless
of fault.
(b) Customer shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(b) and
3(a), respectively, to its customers, Contractors, and
Subcontractors, by requiring them to waive and release all claims
they may have against Licensee, the United States, and part 440
customers, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for Property Damage
they sustain and to be responsible, hold harmless and indemnify
Licensee, the United States, and part 440 customers, and each of
their respective Contractors and Subcontractors for Bodily Injury or
Property Damage sustained by their own employees, resulting from
Licensed Activities, regardless of fault.
(c) The United States shall extend the requirements of the
waiver and release of claims, and the assumption of responsibility
as set forth in paragraphs 2(c) and 3(b), respectively, to its
Contractors and Subcontractors by requiring them to waive and
release all claims they may have against Licensee, Customer, any
part 440 customer, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for any Property
Damage they sustain and for any Bodily Injury or Property Damage
sustained by their own employees, resulting from Licensed
Activities, regardless of fault, to the extent that claims they
would otherwise have for such damage or injury exceed the amount of
insurance or demonstration of financial responsibility required
under sections 440.9(c) and (e), respectively, of the Regulations.
5. Indemnification
(a) Licensee shall hold harmless and indemnify Customer and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them; the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them; and any part 440 customer and its directors, officers,
servants, agents, subsidiaries, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims that Licensee's Contractors and Subcontractors may have for
Property Damage sustained by them and for Bodily Injury or Property
Damage sustained by their employees, resulting from Licensed
Activities.
(b) Customer shall hold harmless and indemnify Licensee and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them; the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them; and any part 440 customer and its directors, officers,
servants, agents, subsidiaries, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims that Customer's Contractors, Subcontractors, or customers,
may have for Property Damage sustained by them and for Bodily Injury
or Property Damage sustained by their employees, resulting from
Licensed Activities.
(c) To the extent provided in advance in an appropriations law
or to the extent there is enacted additional legislative authority
providing for the payment of claims, the United States shall hold
harmless and indemnify Licensee, Customer, any part 440 customer,
and their respective directors, officers, servants, agents,
subsidiaries, employees and assignees, or any of them, from and
against liability, loss or damage arising out of claims that
Contractors and Subcontractors of the United States may have for
Property Damage sustained by them, and for Bodily Injury or Property
Damage sustained by their employees, resulting from Licensed
Activities, to the extent that claims they would otherwise have for
such damage or injury exceed the amount of insurance or
demonstration of financial responsibility required under sections
440.9(c) and (e), respectively, of the Regulations.
6. Assurances Under 51 U.S.C. 50914(e)
Notwithstanding any provision of this Agreement to the contrary,
Licensee shall hold harmless and indemnify the United States and its
agencies, servants, agents, employees and assignees, or any of them,
from and against liability, loss or damage arising out of claims for
Bodily Injury or Property Damage, resulting from Licensed
Activities, regardless of fault, except to the extent that: (i) As
provided in section 7(b) of this Agreement, claims result from
willful misconduct of the United States or its agents; (ii) claims
for Property Damage sustained by the United States or its
Contractors and Subcontractors exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(e) of the Regulations; (iii) claims by a Third Party for
Bodily Injury or Property Damage exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as
adjusted for inflation after January 1, 1989) above such amount, and
are payable pursuant to the provisions of 51 U.S.C. 50915 and
section 440.19 of the Regulations; or (iv) Licensee has no liability
for claims exceeding $1,500,000,000 (as adjusted for inflation after
January 1, 1989) above the amount of insurance or demonstration of
financial responsibility required under section 440.9(c) of the
Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Licensee, Customer or the United States of any claim by
an employee of the Licensee, Customer or the United States,
respectively, including a member of the Armed Forces of the United
States, for Bodily Injury or Property Damage, resulting from
Licensed Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors
of any of the Parties, any part 440 customer, the Contractors and
Subcontractors of any part 440 customer, and in the case of
Licensee, Customer, any part 440 customer, and the Contractors and
Subcontractors of each of them, the directors, officers, agents and
employees of any of the foregoing, and in the case of the United
States, its agents.
(c) This Agreement shall be governed by and construed in
accordance with United States Federal law.
In witness whereof, the Parties to this Agreement have caused
the Agreement to be duly executed by their respective duly
authorized representatives as of the date written above.
Licensee
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Customer
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
[[Page 1601]]
Federal Aviation Administration of the Department of Transportation on
Behalf of the United States Government
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Associate Administrator for Commercial Space Transportation
Subpart B--Waiver of Claims and Assumption of Responsibility for
Licensed Launch, Including Suborbital Launch, With More Than One
Customer
This agreement is entered into this _ day of ___, by and among
[Licensee] (the ``Licensee''); [List of Customers]; (with [List of
Customers] hereinafter referred to in their individual capacity as
``Customer''); and the Federal Aviation Administration of the
Department of Transportation, on behalf of the United States
Government (collectively, the ``Parties''), to implement the
provisions of section 440.17(c) of the Commercial Space
Transportation Licensing Regulations, 14 CFR Ch. III (the
``Regulations''). This agreement applies to the launch of [Payload]
payload on a [Launch Vehicle] vehicle at [Location of Launch Site].
In consideration of the mutual releases and promises contained
herein, the Parties hereby agree as follows:
1. Definitions
Contractors and Subcontractors means entities defined by Sec.
440.3 of the Regulations.
Customer means each above-named Customer.
Part 440 customer means a customer defined by Sec. 440.3 of the
Regulations, other than the above-named Customer.
License means License No. _ issued on ___, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Licensee,
including all license orders issued in connection with the License.
Licensee means the Licensee and any transferee of the Licensee
under 51 U.S.C. Subtitle V, ch. 509.
United States means the United States and its agencies involved
in Licensed Activities. Except as otherwise defined herein, terms
used in this Agreement and defined in 51 U.S.C. Subtitle V, ch.
509--Commercial Space Launch Activities, or in the Regulations,
shall have the same meaning as contained in 51 U.S.C. Subtitle V,
ch. 509, or the Regulations, respectively.
2. Waiver and Release of Claims
(a) Licensee hereby waives and releases claims it may have
against each Customer, the United States, any part 440 customer, and
each of their respective Contractors and Subcontractors, for
Property Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault.
(b) Each Customer hereby waives and releases claims it may have
against Licensee, the United States, any part 440 customer, and each
of their respective Contractors and Subcontractors for Property
Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault.
(c) The United States hereby waives and releases claims it may
have against Licensee, each Customer, any part 440 customer, and
each of their respective Contractors and Subcontractors, for
Property Damage it sustains, and for Bodily Injury or Property
Damage sustained by its own employees, resulting from Licensed
Activities, regardless of fault, to the extent that claims it would
otherwise have for such damage or injury exceed the amount of
insurance or demonstration of financial responsibility required
under sections 440.9(c) and (e), respectively, of the Regulations.
3. Assumption of Responsibility
(a) Licensee and each Customer shall each be responsible for
Property Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault. Licensee and each Customer shall each hold
harmless and indemnify each other, the United States, any part 440
customer, and the Contractors and Subcontractors of each, for Bodily
Injury or Property Damage sustained by its own employees, resulting
from Licensed Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage
it sustains, and for Bodily Injury or Property Damage sustained by
its own employees, resulting from Licensed Activities, regardless of
fault, to the extent that claims it would otherwise have for such
damage or injury exceed the amount of insurance or demonstration of
financial responsibility required under sections 440.9(c) and (e),
respectively, of the Regulations.
4. Extension of Assumption of Responsibility and Waiver and Release of
Claims
(a) Licensee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(a) and
3(a), respectively, to its Contractors and Subcontractors by
requiring them to waive and release all claims they may have against
each Customer, the United States, any part 440 customer, and each of
their respective Contractors and Subcontractors, and to agree to be
responsible, for Property Damage they sustain and to be responsible,
hold harmless and indemnify each Customer, the United States, any
part 440 customer, and each of their respective Contractors and
Subcontractors, for Bodily Injury or Property Damage sustained by
their own employees, resulting from Licensed Activities, regardless
of fault.
(b) Each Customer shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(b) and
3(a), respectively, to its customers, Contractors, and
Subcontractors, by requiring them to waive and release all claims
they may have against Licensee, the United States, and part 440
customers, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for Property Damage
they sustain and to be responsible, hold harmless and indemnify
Licensee, the United States, and part 440 customers, and each of
their respective Contractors and Subcontractors, for Bodily Injury
or Property Damage sustained by their own employees, resulting from
Licensed Activities, regardless of fault.
(c) The United States shall extend the requirements of the
waiver and release of claims, and the assumption of responsibility
as set forth in paragraphs 2(c) and 3(b), respectively, to its
Contractors and Subcontractors by requiring them to waive and
release all claims they may have against Licensee, each Customer,
any part 440 customer, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for any Property
Damage they sustain and for any Bodily Injury or Property Damage
sustained by their own employees, resulting from Licensed
Activities, regardless of fault, to the extent that claims they
would otherwise have for such damage or injury exceed the amount of
insurance or demonstration of financial responsibility required
under sections 440.9(c) and (e), respectively, of the Regulations.
5. Indemnification
(a) Licensee shall hold harmless and indemnify each Customer and
its directors, officers, servants, agents, subsidiaries, employees
and assignees, or any of them; the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them; and any part 440 customer and its directors, officers,
servants, agents, subsidiaries, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims that Licensee's Contractors and Subcontractors may have for
Property Damage sustained by them and for Bodily Injury or Property
Damage sustained by their employees, resulting from Licensed
Activities.
(b) Each Customer shall hold harmless and indemnify Licensee and
its directors, officers, servants, agents, subsidiaries, employees
and assignees, or any of them; the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them; and any part 440 customer and its directors, officers,
servants, agents, subsidiaries, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims that each Customer's Contractors, Subcontractors, or
customers, may have for Property Damage sustained by them and for
Bodily Injury or Property Damage sustained by their employees,
resulting from Licensed Activities.
(c) To the extent provided in advance in an appropriations law
or to the extent there is enacted additional legislative authority
providing for the payment of claims, the United States shall hold
harmless and indemnify Licensee, each Customer, any part 440
customer, and their respective directors, officers, servants,
agents, subsidiaries, employees and assignees, or any of them, from
and against liability, loss or damage arising out of claims that
Contractors and Subcontractors of the United States may have for
Property Damage sustained by them, and
[[Page 1602]]
for Bodily Injury or Property Damage sustained by their employees,
resulting from Licensed Activities, to the extent that claims they
would otherwise have for such damage or injury exceed the amount of
insurance or demonstration of financial responsibility required
under sections 440.9(c) and (e), respectively, of the Regulations.
6. Assurances Under 51 U.S.C. 50914(e)
Notwithstanding any provision of this Agreement to the contrary,
Licensee shall hold harmless and indemnify the United States and its
agencies, servants, agents, employees and assignees, or any of them,
from and against liability, loss or damage arising out of claims for
Bodily Injury or Property Damage, resulting from Licensed
Activities, regardless of fault, except to the extent that: (i) As
provided in section 7(b) of this Agreement, claims result from
willful misconduct of the United States or its agents; (ii) claims
for Property Damage sustained by the United States or its
Contractors and Subcontractors exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(e) of the Regulations; (iii) claims by a Third Party for
Bodily Injury or Property Damage exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as
adjusted for inflation after January 1, 1989) above such amount, and
are payable pursuant to the provisions of 51 U.S.C. 50915 and
section 440.19 of the Regulations; or (iv) Licensee has no liability
for claims exceeding $1,500,000,000 (as adjusted for inflation after
January 1, 1989) above the amount of insurance or demonstration of
financial responsibility required under section 440.9(c) of the
Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Licensee, any Customer or the United States of any claim
by an employee of the Licensee, any Customer or the United States,
respectively, including a member of the Armed Forces of the United
States, for Bodily Injury or Property Damage, resulting from
Licensed Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors
of any of the Parties, any part 440 customer, the Contractors and
Subcontractors of any part 440 customer, and in the case of
Licensee, each Customer, any part 440 customer, and the Contractors
and Subcontractors of each of them, the directors, officers, agents
and employees of any of the foregoing, and in the case of the United
States, its agents.
(c) References herein to Customer shall apply to, and be deemed
to include, each such customer severally and not jointly.
(d) This Agreement shall be governed by and construed in
accordance with United States Federal law.
In witness whereof, the Parties to this Agreement have caused
the Agreement to be duly executed by their respective duly
authorized representatives as of the date written above.
Licensee
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Customer 1
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
[Signature lines for each additional customer]
Federal Aviation Administration of the Department of Transportation on
Behalf of the United States Government
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Associate Administrator for Commercial Space Transportation
Part 2--Waiver of Claims and Assumption of Responsibility for Licensed
Reentry
Subpart A--Waiver of Claims and Assumption of Responsibility for
Licensed Reentry With One Customer
This Agreement is entered into this _ day of ___, by and among
[Licensee] (the ``Licensee''), [Customer] (the ``Customer''), and
the Federal Aviation Administration of the Department of
Transportation, on behalf of the United States Government
(collectively, the ``Parties''), to implement the provisions of
Sec. 440.17(c) of the Commercial Space Transportation Licensing
Regulations, 14 CFR Ch. III (the ``Regulations''). This agreement
applies to the reentry of the [Payload] payload on a [Reentry
Vehicle] vehicle.
In consideration of the mutual releases and promises contained
herein, the Parties hereby agree as follows:
1. Definitions
Contractors and Subcontractors means entities defined by Sec.
440.3 of the Regulations.
Customer means the above-named Customer.
Part 440 Customer means a customer defined by Sec. 440.3 of the
Regulations, other than the above named Customer.
License means License No. _ issued on ___, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Licensee,
including all license orders issued in connection with the License.
Licensee means the Licensee and any transferee of the Licensee
under 51 U.S.C. Subtitle V, ch. 509.
United States means the United States and its agencies involved
in Licensed Activities. Except as otherwise defined herein, terms
used in this Agreement and defined in 51 U.S.C. Subtitle V, ch.
509--Commercial Space Launch Activities, or in the Regulations,
shall have the same meaning as contained in 51 U.S.C. Subtitle V,
ch. 509, or the Regulations, respectively.
2. Waiver and Release of Claims
(a) Licensee hereby waives and releases claims it may have
against Customer, the United States, any part 440 customer, and each
of their respective Contractors and Subcontractors, for Property
Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault.
(b) Customer hereby waives and releases claims it may have
against Licensee, the United States, any part 440 customer, and each
of their respective Contractors and Subcontractors, for Property
Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault.
(c) The United States hereby waives and releases claims it may
have against Licensee, Customer, any part 440 customer, and each of
their respective Contractors and Subcontractors, for Property Damage
it sustains, and for Bodily Injury or Property Damage sustained by
its own employees, resulting from Licensed Activities, regardless of
fault, to the extent that claims it would otherwise have for such
damage or injury exceed the amount of insurance or demonstration of
financial responsibility required under sections 440.9(c) and (e),
respectively, of the Regulations.
3. Assumption of Responsibility
(a) Licensee and Customer shall each be responsible for Property
Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault. Licensee and Customer shall each hold harmless
and indemnify each other, the United States, any part 440 customer,
and the Contractors and Subcontractors of each, for Bodily Injury or
Property Damage sustained by its own employees, resulting from
Licensed Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage
it sustains, and for Bodily Injury or Property Damage sustained by
its own employees, resulting from Licensed Activities, regardless of
fault, to the extent that claims it would otherwise have for such
damage or injury exceed the amount of insurance or demonstration of
financial responsibility required under Sec. Sec. 440.9(c) and (e)
of the Regulations.
4. Extension of Assumption of Responsibility and Waiver and Release of
Claims
(a) Licensee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(a) and
3(a), respectively, to its Contractors and Subcontractors by
requiring them to waive and release all claims they may have against
Customer, the United States, any part 440 customer, and each of
their respective Contractors and Subcontractors, and to agree to be
responsible, for Property Damage they sustain and to be responsible,
hold harmless and indemnify Customer, the United States, any part
440 customer, and each of their respective Contractors and
Subcontractors, for Bodily Injury or Property Damage sustained by
their own employees, resulting from Licensed Activities, regardless
of fault.
(b) Customer shall extend the requirements of the waiver and
release of claims, and the
[[Page 1603]]
assumption of responsibility, hold harmless, and indemnification, as
set forth in paragraphs 2(b) and 3(a), respectively, to its
customers, Contractors, and Subcontractors, by requiring them to
waive and release all claims they may have against Licensee, the
United States, and part 440 customers, and each of their respective
Contractors and Subcontractors, and to agree to be responsible, for
Property Damage they sustain and to be responsible, hold harmless
and indemnify Licensee, the United States, and part 440 customers,
and each of their respective Contractors and Subcontractors, for
Bodily Injury or Property Damage sustained by their own employees,
resulting from Licensed Activities, regardless of fault.
(c) The United States shall extend the requirements of the
waiver and release of claims, and the assumption of responsibility
as set forth in paragraphs 2(c) and 3(b), respectively, to its
Contractors and Subcontractors by requiring them to waive and
release all claims they may have against Licensee, Customer, any
part 440 customer, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for any Property
Damage they sustain and for any Bodily Injury or Property Damage
sustained by their own employees, resulting from Licensed
Activities, regardless of fault, to the extent that claims they
would otherwise have for such damage or injury exceed the amount of
insurance or demonstration of financial responsibility required
under sections 440.9(c) and (e), respectively, of the Regulations.
5. Indemnification
(a) Licensee shall hold harmless and indemnify Customer and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them; the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them; and any part 440 customer and its directors, officers,
servants, agents, subsidiaries, employees and assignees, or any of
them from and against liability, loss or damage arising out of
claims that Licensee's Contractors and Subcontractors may have for
Property Damage sustained by them and for Bodily Injury or Property
Damage sustained by their employees, resulting from Licensed
Activities.
(b) Customer shall hold harmless and indemnify Licensee and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them; the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them; and any part 440 customer and its directors, officers,
servants, agents, subsidiaries, employees and assignees, or any of
them from and against liability, loss or damage arising out of
claims that Customer's Contractors, Subcontractors, or customers,
may have for Property Damage sustained by them and for Bodily Injury
or Property Damage sustained by their employees, resulting from
Licensed Activities.
(c) To the extent provided in advance in an appropriations law
or to the extent there is enacted additional legislative authority
providing for the payment of claims, the United States shall hold
harmless and indemnify Licensee, Customer, any part 440 customer,
and their respective directors, officers, servants, agents,
subsidiaries, employees and assignees, or any of them, from and
against liability, loss or damage arising out of claims that
Contractors and Subcontractors of the United States may have for
Property Damage sustained by them, and for Bodily Injury or Property
Damage sustained by their employees, resulting from Licensed
Activities, to the extent that claims they would otherwise have for
such damage or injury exceed the amount of insurance or
demonstration of financial responsibility required under Sec. Sec.
440.9(c) and (e) of the Regulations.
6. Assurances Under 51 U.S.C. 50914(e)
Notwithstanding any provision of this Agreement to the contrary,
Licensee shall hold harmless and indemnify the United States and its
agencies, servants, agents, employees and assignees, or any of them,
from and against liability, loss or damage arising out of claims for
Bodily Injury or Property Damage, resulting from Licensed
Activities, regardless of fault, except to the extent that: (i) As
provided in section 7(b) of this Agreement, claims result from
willful misconduct of the United States or its agents; (ii) claims
for Property Damage sustained by the United States or its
Contractors and Subcontractors exceed the amount of insurance or
demonstration of financial responsibility required under Sec.
440.9(e) of the Regulations; (iii) claims by a Third Party for
Bodily Injury or Property Damage exceed the amount of insurance or
demonstration of financial responsibility required under Sec.
440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as
adjusted for inflation after January 1, 1989) above such amount, and
are payable pursuant to the provisions of 51 U.S.C. 50915 and Sec.
440.19 of the Regulations; or (iv) Licensee has no liability for
claims exceeding $1,500,000,000 (as adjusted for inflation after
January 1, 1989) above the amount of insurance or demonstration of
financial responsibility required under Sec. 440.9(c) of the
Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Licensee, Customer or the United States of any claim by
an employee of the Licensee, Customer or the United States,
respectively, including a member of the Armed Forces of the United
States, for Bodily Injury or Property Damage, resulting from
Licensed Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors
of any of the Parties, any part 440 customer, the Contractors and
Subcontractors of any part 440 customer, and in the case of
Licensee, Customer, any part 440 customer, and the Contractors and
Subcontractors of each of them, the directors, officers, agents and
employees of any of the foregoing, and in the case of the United
States, its agents.
(c) This Agreement shall be governed by and construed in
accordance with United States Federal law.
In Witness Whereof, the Parties to this Agreement have caused
the Agreement to be duly executed by their respective duly
authorized representatives as of the date written above.
Licensee
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Customer
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Federal Aviation Administration of the Department of Transportation on
Behalf of the United States Government
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Associate Administrator for Commercial Space Transportation
Subpart B--Waiver of Claims and Assumption of Responsibility for
Licensed Reentry With More Than One Customer
This agreement is entered into this __day of ___, by and among
[Licensee] (the ``Licensee''); [List of Customers] (with [List of
Customers] hereinafter referred to in their individual capacity as
``Customer''); and the Federal Aviation Administration of the
Department of Transportation, on behalf of the United States
Government (collectively, the ``Parties''), to implement the
provisions of section 440.17(c) of the Commercial Space
Transportation Licensing Regulations, 14 CFR Ch. III (the
``Regulations''). This agreement applies to the reentry of [Payload]
payload on a [Reentry Vehicle] vehicle.
In consideration of the mutual releases and promises contained
herein, the Parties hereby agree as follows:
1. Definitions
Contractors and Subcontractors means entities described in Sec.
440.3 of the Regulations.
Customer means each above-named Customer.
Part 440 customer means a customer defined by Sec. 440.3 of the
Regulations, other than the above-named customer.
License means License No. __issued on ___, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Licensee,
including all license orders issued in connection with the License.
Licensee means the Licensee and any transferee of the Licensee
under 51 U.S.C. Subtitle V, ch. 509.
United States means the United States and its agencies involved
in Licensed Activities. Except as otherwise defined herein, terms
used in this Agreement and defined in 51 U.S.C. Subtitle V, ch.
509--Commercial Space Launch Activities, or in the Regulations,
shall have the same meaning as contained in 51 U.S.C. Subtitle V,
ch. 509, or the Regulations, respectively.
2. Waiver and Release of Claims
(a) Licensee hereby waives and releases claims it may have
against each Customer,
[[Page 1604]]
the United States, any part 440 customer, and each of their
respective Contractors and Subcontractors, for Property Damage it
sustains and for Bodily Injury or Property Damage sustained by its
own employees, resulting from Licensed Activities, regardless of
fault.
(b) Each Customer hereby waives and releases claims it may have
against Licensee, the United States, any part 440 customer, and each
of their respective Contractors and Subcontractors, for Property
Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault.
(c) The United States hereby waives and releases claims it may
have against Licensee, each Customer, any part 440 customer, and
each of their respective Contractors and Subcontractors, for
Property Damage it sustains, and for Bodily Injury or Property
Damage sustained by its own employees, resulting from Licensed
Activities, regardless of fault, to the extent that claims it would
otherwise have for such damage or injury exceed the amount of
insurance or demonstration of financial responsibility required
under Sec. 440.9(c) and (e), respectively, of the Regulations.
3. Assumption of Responsibility
(a) Licensee and each Customer shall each be responsible for
Property Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Activities,
regardless of fault. Licensee and each Customer shall each hold
harmless and indemnify each other, the United States, any part 440
customer, and the Contractors and Subcontractors of each, for Bodily
Injury or Property Damage sustained by its own employees, resulting
from Licensed Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage
it sustains, and for Bodily Injury or Property Damage sustained by
its own employees, resulting from Licensed Activities, regardless of
fault, to the extent that claims it would otherwise have for such
damage or injury exceed the amount of insurance or demonstration of
financial responsibility required under sections 440.9(c) and (e),
respectively, of the Regulations.
4. Extension of Assumption of Responsibility and Waiver and Release of
Claims
(a) Licensee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(a) and
3(a), respectively, to its Contractors and Subcontractors by
requiring them to waive and release all claims they may have against
each Customer, the United States, any part 440 customer, and each of
their respective Contractors and Subcontractors, and to agree to be
responsible, for Property Damage they sustain and to be responsible,
hold harmless and indemnify each Customer, the United States, any
part 440 customer, and each of their respective Contractors and
Subcontractors, for Bodily Injury or Property Damage sustained by
their own employees, resulting from Licensed Activities, regardless
of fault.
(b) Each Customer shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(b) and
3(a), respectively, to its customers, Contractors, and
Subcontractors, by requiring them to waive and release all claims
they may have against Licensee, the United States, and part 440
customers, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for Property Damage
they sustain and to be responsible, hold harmless and indemnify
Licensee, the United States, and part 440 customers, and each of
their respective Contractors and Subcontractors, for Bodily Injury
or Property Damage sustained by their own employees, resulting from
Licensed Activities, regardless of fault.
(c) The United States shall extend the requirements of the
waiver and release of claims, and the assumption of responsibility
as set forth in paragraphs 2(c) and 3(b), respectively, to its
Contractors and Subcontractors by requiring them to waive and
release all claims they may have against Licensee, each Customer,
any part 440 customer, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for any Property
Damage they sustain and for any Bodily Injury or Property Damage
sustained by their own employees, resulting from Licensed
Activities, regardless of fault, to the extent that claims they
would otherwise have for such damage or injury exceed the amount of
insurance or demonstration of financial responsibility required
under sections 440.9(c) and (e), respectively, of the Regulations.
5. Indemnification
(a) Licensee shall hold harmless and indemnify each Customer and
its directors, officers, servants, agents, subsidiaries, employees
and assignees, or any of them; the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them; and any part 440 customer and its directors, officers,
servants, agents, subsidiaries, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims that Licensee's Contractors and Subcontractors may have for
Property Damage sustained by them and for Bodily Injury or Property
Damage sustained by their employees, resulting from Licensed
Activities.
(b) Each Customer shall hold harmless and indemnify Licensee and
its directors, officers, servants, agents, subsidiaries, employees
and assignees, or any of them; and the United States and its
agencies, servants, agents, subsidiaries, employees and assignees,
or any of them; and any part 440 customer and its directors,
officers, servants, agents, subsidiaries, employees and assignees,
or any of them, from and against liability, loss or damage arising
out of claims that each Customer's Contractors, Subcontractors, or
customers, may have for Property Damage sustained by them and for
Bodily Injury or Property Damage sustained by their employees,
resulting from Licensed Activities.
(c) To the extent provided in advance in an appropriations law
or to the extent there is enacted additional legislative authority
providing for the payment of claims, the United States shall hold
harmless and indemnify Licensee, each Customer, any part 440
customer, and their respective directors, officers, servants,
agents, subsidiaries, employees and assignees, or any of them, from
and against liability, loss or damage arising out of claims that
Contractors and Subcontractors of the United States may have for
Property Damage sustained by them, and for Bodily Injury or Property
Damage sustained by their employees, resulting from Licensed
Activities, to the extent that claims they would otherwise have for
such damage or injury exceed the amount of insurance or
demonstration of financial responsibility required under sections
440.9(c) and (e), respectively, of the Regulations.
6. Assurances Under 51 U.S.C. 50914(e)
Notwithstanding any provision of this Agreement to the contrary,
Licensee shall hold harmless and indemnify the United States and its
agencies, servants, agents, employees and assignees, or any of them,
from and against liability, loss or damage arising out of claims for
Bodily Injury or Property Damage, resulting from Licensed
Activities, regardless of fault, except to the extent that: (i) As
provided in section 7(b) of this Agreement, claims result from
willful misconduct of the United States or its agents; (ii) claims
for Property Damage sustained by the United States or its
Contractors and Subcontractors exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(e) of the Regulations; (iii) claims by a Third Party for
Bodily Injury or Property Damage exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as
adjusted for inflation after January 1, 1989) above such amount, and
are payable pursuant to the provisions of 51 U.S.C. 50915 and
section 440.19 of the Regulations; or (iv) Licensee has no liability
for claims exceeding $1,500,000,000 (as adjusted for inflation after
January 1, 1989) above the amount of insurance or demonstration of
financial responsibility required under section 440.9(c) of the
Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Licensee, any Customer or the United States of any claim
by an employee of the Licensee, any Customer or the United States,
respectively, including a member of the Armed Forces of the United
States, for Bodily Injury or Property Damage, resulting from
Licensed Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the
[[Page 1605]]
Contractors and Subcontractors of any of the Parties, any part 440
customers, the Contractors and Subcontractors of any part 440
customer, and in the case of Licensee, each Customer, any part 440
customer, and the Contractors and Subcontractors of each of them,
the directors, officers, agents and employees of any of the
foregoing, and in the case of the United States, its agents.
(c) References herein to Customer shall apply to, and be deemed
to include, each such customer severally and not jointly.
(d) This Agreement shall be governed by and construed in
accordance with United States Federal law.
In witness whereof, the Parties to this Agreement have caused
the Agreement to be duly executed by their respective duly
authorized representatives as of the date written above.
Licensee
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Customer 1
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
[Signature lines for each additional customer]
Federal Aviation Administration of the Department of Transportation
on Behalf of the United States Government
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Associate Administrator for Commercial Space Transportation
0
5. Revise Appendix C to part 440 to read as follows:
Appendix C to Part 440--Agreement for Waiver of Claims and Assumption
of Responsibility for Permitted Activities
Part 1--Waiver of Claims and Assumption of Responsibility for Permitted
Activities With No Customer
This agreement is entered into this _ day of ___, by and between
[Permittee] (the ``Permittee'') and the Federal Aviation
Administration of the Department of Transportation, on behalf of the
United States Government (collectively, the ``Parties''), to
implement the provisions of section 440.17(c) of the Commercial
Space Transportation Licensing Regulations, 14 CFR Ch. III (the
``Regulations''). This agreement applies to [describe permitted
activity]. In consideration of the mutual releases and promises
contained herein, the Parties hereby agree as follows:
1. Definitions
Contractors and Subcontractors means entities defined by Sec.
440.3 of the Regulations.
Permit means Permit No. _ issued on ___, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Permittee,
including all permit orders issued in connection with the Permit.
Permittee means the holder of the Permit issued under 51 U.S.C.
Subtitle V, ch. 509.
United States means the United States and its agencies involved
in Permitted Activities. Except as otherwise defined herein, terms
used in this Agreement and defined in 51 U.S.C. Subtitle V, ch.
509--Commercial Space Launch Activities, or in the Regulations,
shall have the same meaning as contained in 51 U.S.C. Subtitle V,
ch. 509, or the Regulations, respectively.
2. Waiver and Release of Claims
(a) Permittee hereby waives and releases claims it may have
against the United States, and against its Contractors and
Subcontractors, for Property Damage it sustains and for Bodily
Injury or Property Damage sustained by its own employees, resulting
from Permitted Activities, regardless of fault.
(b) The United States hereby waives and releases claims it may
have against Permittee and against its Contractors and
Subcontractors, for Property Damage it sustains resulting from
Permitted Activities, regardless of fault, to the extent that claims
it would otherwise have for such damage exceed the amount of
insurance or demonstration of financial responsibility required
under section 440.9(e) of the Regulations.
3. Assumption of Responsibility
(a) Permittee shall be responsible for Property Damage it
sustains and for Bodily Injury or Property Damage sustained by its
own employees, resulting from Permitted Activities, regardless of
fault. Permittee shall hold harmless and indemnify the United
States, and the Contractors and Subcontractors of the United States,
for Bodily Injury or Property Damage sustained by its own employees,
resulting from Permitted Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage
it sustains, resulting from Permitted Activities, regardless of
fault, to the extent that claims it would otherwise have for such
damage exceed the amount of insurance or demonstration of financial
responsibility required under section 440.9(e) of the Regulations.
4. Extension of Assumption of Responsibility and Waiver and Release
of Claims
(a) Permittee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(a) and
3(a), respectively, to its Contractors and Subcontractors by
requiring them to waive and release all claims they may have against
the United States, and against the Contractors and Subcontractors of
the United States, and to agree to be responsible for Property
Damage they sustain and to be responsible, hold harmless, and
indemnify the United States, and the Contractors and Subcontractors
of the United States, for Bodily Injury or Property Damage sustained
by their own employees, resulting from Permitted Activities,
regardless of fault.
(b) The United States shall extend the requirements of the
waiver and release of claims, and the assumption of responsibility
as set forth in paragraphs 2(b) and 3(b), respectively, to its
Contractors and Subcontractors by requiring them to waive and
release all claims they may have against Permittee, and against the
Contractors and Subcontractors of Permittee, and to agree to be
responsible, for any Property Damage they sustain, resulting from
Permitted Activities, regardless of fault, to the extent that claims
they would otherwise have for such damage exceed the amount of
insurance or demonstration of financial responsibility required
under section 440.9(e) of the Regulations.
5. Indemnification
Permittee shall hold harmless and indemnify the United States
and its agencies, servants, agents, subsidiaries, employees and
assignees, or any of them, from and against liability, loss, or
damage arising out of claims that Permittee's Contractors and
Subcontractors may have for Property Damage sustained by them and
for Bodily Injury or Property Damage sustained by their employees,
resulting from Permitted Activities.
6. Assurances Under 51 U.S.C. 50914(e)
Notwithstanding any provision of this Agreement to the contrary,
Permittee shall hold harmless and indemnify the United States and
its agencies, servants, agents, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims for Bodily Injury or Property Damage, resulting from
Permitted Activities, regardless of fault, except to the extent
that: (i) As provided in section 7(b) of this Agreement, claims
result from willful misconduct of the United States or its agents;
(ii) claims for Property Damage sustained by the United States or
its Contractors and Subcontractors exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(e) of the Regulations; (iii) claims by a Third Party for
Bodily Injury or Property Damage exceed the amount of insurance or
demonstration of financial responsibility required under Sec.
440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as
adjusted for inflation after January 1, 1989) above such amount, and
are payable pursuant to the provisions of 51 U.S.C. 50915 and Sec.
440.19 of the Regulations; or (iv) Licensee has no liability for
claims exceeding $1,500,000,000 (as adjusted for inflation after
January 1, 1989) above the amount of insurance or demonstration of
financial responsibility required under Sec. 440.9(c) of the
Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Permittee or the United States of any claim by an
employee of the Permittee or the United States, respectively,
including a member of the Armed Forces of the United States, for
Bodily Injury or Property Damage, resulting from Permitted
Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility, or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors
of any of the Parties, and in the case of Permittee and its
Contractors and Subcontractors, the directors, officers, agents, and
employees of
[[Page 1606]]
any of the foregoing, and in the case of the United States, its
agents.
(c) This Agreement shall be governed by and construed in
accordance with United States Federal law.
In witness whereof, the Parties to this Agreement have caused
the Agreement to be duly executed by their respective duly
authorized representatives as of the date written above.
[Permittee]
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Federal Aviation Administration of the Department of Transportation
on Behalf of the United States Government
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Associate Administrator for Commercial Space Transportation
Part 2--Waiver of Claims and Assumption of Responsibility for Permitted
Activities With One Customer
This agreement is entered into this _ day of ___, by and among
[Permittee] (the ``Permittee''), [Customer] (the ``Customer'') and
the Federal Aviation Administration of the Department of
Transportation, on behalf of the United States Government
(collectively, the ``Parties''), to implement the provisions of
section 440.17(c) of the Commercial Space Transportation Licensing
Regulations, 14 CFR Ch. III (the ``Regulations''). This agreement
applies to [describe permitted activity]. In consideration of the
mutual releases and promises contained herein, the Parties hereby
agree as follows:
1. Definitions
Contractors and Subcontractors means entities defined by Sec.
440.3 of the Regulations.
Customer means the above-named Customer.
Part 440 customer means a customer defined by Sec. 440.3 of the
Regulations, other than the above-named customer.
Permit means Permit No. _ issued on ___, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Permittee,
including all permit orders issued in connection with the Permit.
Permittee means the holder of the Permit issued under 51 U.S.C.
Subtitle V, ch. 509.
United States means the United States and its agencies involved
in Permitted Activities.
Except as otherwise defined herein, terms used in this Agreement
and defined in 51 U.S.C. Subtitle V, ch. 509--Commercial Space
Launch Activities, or in the Regulations, shall have the same
meaning as contained in 51 U.S.C. Subtitle V, ch. 509, or the
Regulations, respectively.
2. Waiver and Release of Claims
(a) Permittee hereby waives and releases claims it may have
against Customer, the United States, any part 440 customer, and each
of their respective Contractors and Subcontractors, for Property
Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Permitted Activities,
regardless of fault.
(b) Customer hereby waives and releases claims it may have
against Permittee, the United States, any part 440 customer, and
each of their respective Contractors and Subcontractors, for Bodily
Injury or Property Damage sustained by its own employees, resulting
from Permitted Activities, regardless of fault.
(c) The United States hereby waives and releases claims it may
have against Permittee, Customer, any part 440 customer, and each of
their respective Contractors and Subcontractors, for Property Damage
it sustains, and for Bodily Injury or Property Damage sustained by
its own employees, resulting from Permitted Activities, regardless
of fault, to the extent that claims it would otherwise have for such
damage or injury exceed the amount of insurance or demonstration of
financial responsibility required under sections 440.9(c) and (e),
respectively, of the Regulations.
3. Assumption of Responsibility
(a) Permittee and Customer shall each be responsible for
Property Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Permitted Activities,
regardless of fault. Permittee and Customer shall each hold harmless
and indemnify each other, the United States, any part 440 customer,
and the Contractors and Subcontractors of each, for Bodily Injury or
Property Damage sustained by its own employees, resulting from
Permitted Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage
it sustains, resulting from Permitted Activities, regardless of
fault, to the extent that claims it would otherwise have for such
damage exceed the amount of insurance or demonstration of financial
responsibility required under section 440.9(e) of the Regulations.
4. Extension of Assumption of Responsibility and Waiver and Release
of Claims
(a) Permittee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(a) and
3(a), respectively, to its Contractors and Subcontractors by
requiring them to waive and release all claims they may have against
Customer, the United States, any part 440 customer, and each of
their respective Contractors and Subcontractors, and to agree to be
responsible, for Property Damage they sustain and to be responsible,
hold harmless and indemnify Customer, the United States, any part
440 customer, and each of their respective Contractors and
Subcontractors, for Bodily Injury or Property Damage sustained by
their own employees, resulting from Permitted Activities, regardless
of fault.
(b) Customer shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(b) and
3(a), respectively, to its customers, Contractors, and
Subcontractors, by requiring them to waive and release all claims
they may have against Permittee, the United States, part 440
customers, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for Property Damage
they sustain and to be responsible, hold harmless and indemnify
Permittee, the United States, part 440 customers, and each of their
respective Contractors and Subcontractors, for Bodily Injury or
Property Damage sustained by their own employees, resulting from
Permitted Activities, regardless of fault.
(c) The United States shall extend the requirements of the
waiver and release of claims, and the assumption of responsibility
as set forth in paragraphs 2(c) and 3(b), respectively, to its
Contractors and Subcontractors by requiring them to waive and
release all claims they may have against Permittee, Customer, any
part 440 customer, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for any Property
Damage they sustain and for any Bodily Injury or Property Damage
sustained by their own employees, resulting from Permitted
Activities, regardless of fault, to the extent that claims they
would otherwise have for such damage or injury exceed the amount of
insurance or demonstration of financial responsibility required
under sections 440.9(c) and (e), respectively, of the Regulations.
5. Indemnification
(a) Permittee shall hold harmless and indemnify Customer and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them; the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them; and any part 440 customer and its directors, officers,
servants, agents, subsidiaries, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims that Permittee's Contractors and Subcontractors may have for
Property Damage sustained by them and for Bodily Injury or Property
Damage sustained by their employees, resulting from Permitted
Activities.
(b) Customer shall hold harmless and indemnify Permittee and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them; the United States and its agencies,
servants, agents, subsidiaries, employees and assignees, or any of
them; and any part 440 customer and its directors, officers,
servants, agents, subsidiaries, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims that Customer's Contractors, Subcontractors, or customers,
may have for Property Damage sustained by them and for Bodily Injury
or Property Damage sustained by their employees, resulting from
Permitted Activities.
6. Assurances Under 51 U.S.C. 50914(e)
Notwithstanding any provision of this Agreement to the contrary,
Permittee shall hold harmless and indemnify the United States and
its agencies, servants, agents, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims for Bodily Injury or Property Damage, resulting from
Permitted Activities, regardless of fault, except to the
[[Page 1607]]
extent that: (i) As provided in section 7(b) of this Agreement,
claims result from willful misconduct of the United States or its
agents; (ii) claims for Property Damage sustained by the United
States or its Contractors and Subcontractors exceed the amount of
insurance or demonstration of financial responsibility required
under section 440.9(e) of the Regulations; (iii) claims by a Third
Party for Bodily Injury or Property Damage exceed the amount of
insurance or demonstration of financial responsibility required
under Sec. 440.9(c) of the Regulations, and do not exceed
$1,500,000,000 (as adjusted for inflation after January 1, 1989)
above such amount, and are payable pursuant to the provisions of 51
U.S.C. 50915 and Sec. 440.19 of the Regulations; or (iv) Licensee
has no liability for claims exceeding $1,500,000,000 (as adjusted
for inflation after January 1, 1989) above the amount of insurance
or demonstration of financial responsibility required under Sec.
440.9(c) of the Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Permittee, Customer or the United States of any claim by
an employee of the Permittee, Customer or the United States,
respectively, including a member of the Armed Forces of the United
States, for Bodily Injury or Property Damage, resulting from
Permitted Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors
of any of the Parties, any part 440 customer, the Contractors and
Subcontractors of any part 440 customer, and in the case of
Permittee, Customer, any part 440 customer, and the Contractors and
Subcontractors of each of them, the directors, officers, agents and
employees of any of the foregoing, and in the case of the United
States, its agents.
(c) This Agreement shall be governed by and construed in
accordance with United States Federal law.
In witness whereof, the Parties to this Agreement have caused
the Agreement to be duly executed by their respective duly
authorized representatives as of the date written above.
Permittee
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Customer
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Federal Aviation Administration of the Department of Transportation
on Behalf of the United States Government
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Associate Administrator for Commercial Space Transportation
Part 3--Waiver of Claims and Assumption of Responsibility for Permitted
Activities With More Than One Customer
This agreement is entered into this _ day of ___, by and among
[Permittee] (the ``Permittee''); [List of Customers]; (with [List of
Customers] hereinafter referred to in their individual capacity as
``Customer''); and the Federal Aviation Administration of the
Department of Transportation, on behalf of the United States
Government (collectively, the ``Parties''), to implement the
provisions of section 440.17(c) of the Commercial Space
Transportation Licensing Regulations, 14 CFR Ch. III (the
``Regulations''). This agreement applies to [describe permitted
activity].
In consideration of the mutual releases and promises contained
herein, the Parties hereby agree as follows:
1. Definitions
Contractors and Subcontractors means entities defined by Sec.
440.3 of the Regulations.
Customer means each above-named Customer.
Part 440 customer means a customer defined by Sec. 440.3 of the
Regulations, other than the above-named Customer.
Permit means Permit No. _ issued on ___, by the Associate
Administrator for Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation, to the Permittee,
including all permit orders issued in connection with the Permit.
Permittee means the holder of the Permit issued under 51 U.S.C.
Subtitle V, ch. 509.
United States means the United States and its agencies involved
in Permitted Activities. Except as otherwise defined herein, terms
used in this Agreement and defined in 51 U.S.C. Subtitle V, ch.
509--Commercial Space Launch Activities, or in the Regulations,
shall have the same meaning as contained in 51 U.S.C. Subtitle V,
ch. 509, or the Regulations, respectively.
2. Waiver and Release of Claims
(a) Permittee hereby waives and releases claims it may have
against each Customer, the United States, any part 440 customer, and
each of their respective Contractors and Subcontractors, for
Property Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Permitted Activities,
regardless of fault.
(b) Each Customer hereby waives and releases claims it may have
against Permittee, the United States, any part 440 customer, and
each of their Contractors and Subcontractors, for Property Damage it
sustains and for Bodily Injury or Property Damage sustained by its
own employees, resulting from Permitted Activities, regardless of
fault.
(c) The United States hereby waives and releases claims it may
have against Permittee, each Customer, any part 440 customer, and
each of their respective Contractors and Subcontractors, for
Property Damage it sustains, and for Bodily Injury or Property
Damage sustained by its own employees, resulting from Permitted
Activities, regardless of fault, to the extent that claims it would
otherwise have for such damage or injury exceed the amount of
insurance or demonstration of financial responsibility required
under sections 440.9(c) and (e), respectively, of the Regulations.
3. Assumption of Responsibility
(a) Permittee and each Customer shall each be responsible for
Property Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Permitted Activities,
regardless of fault. Permittee and each Customer shall each hold
harmless and indemnify each other, the United States, any part 440
customer, and the Contractors and Subcontractors of each, for Bodily
Injury or Property Damage sustained by its own employees, resulting
from Permitted Activities, regardless of fault.
(b) The United States shall be responsible for Property Damage
it sustains, resulting from Permitted Activities, regardless of
fault, to the extent that claims it would otherwise have for such
damage or injury exceed the amount of insurance or demonstration of
financial responsibility required under section 440.9(e) of the
Regulations.
4. Extension of Assumption of Responsibility and Waiver and Release
of Claims
(a) Permittee shall extend the requirements of the waiver and
release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(a) and
3(a), respectively, to its Contractors and Subcontractors by
requiring them to waive and release all claims they may have against
each Customer, the United States, any part 440 customer, and each of
their respective Contractors and Subcontractors, and to agree to be
responsible, for Property Damage they sustain and to be responsible,
hold harmless and indemnify each Customer, the United States, any
part 440 customer, and each of their respective Contractors and
Subcontractors, for Bodily Injury or Property Damage sustained by
their own employees, resulting from Permitted Activities, regardless
of fault.
(b) Each Customer shall extend the requirements of the waiver
and release of claims, and the assumption of responsibility, hold
harmless, and indemnification, as set forth in paragraphs 2(b) and
3(a), respectively, to its customers, Contractors, and
Subcontractors, by requiring them to waive and release all claims
they may have against Permittee, the United States, part 440
customers, and each of their respective Contractors and
Subcontractors, and to agree to be responsible, for Property Damage
they sustain and to be responsible, hold harmless and indemnify
Permittee, the United States, part 440 customers, and each of their
respective Contractors and Subcontractors, for Bodily Injury or
Property Damage sustained by their own employees, resulting from
Permitted Activities, regardless of fault.
(c) The United States shall extend the requirements of the
waiver and release of claims, and the assumption of responsibility
as set forth in paragraphs 2(c) and 3(b), respectively, to its
Contractors and Subcontractors by requiring them to waive and
release all claims they may have against
[[Page 1608]]
Permittee, each Customer, any part 440 customer, and each of their
respective Contractors and Subcontractors, and to agree to be
responsible, for any Property Damage they sustain and for any Bodily
Injury or Property Damage sustained by their own employees,
resulting from Permitted Activities, regardless of fault, to the
extent that claims they would otherwise have for such damage or
injury exceed the amount of insurance or demonstration of financial
responsibility required under sections 440.9(c) and (e),
respectively, of the Regulations.
5. Indemnification
(a) Permittee shall hold harmless and indemnify each Customer
and its directors, officers, servants, agents, subsidiaries,
employees and assignees, or any of them; the United States and its
agencies, servants, agents, subsidiaries, employees and assignees,
or any of them; and any part 440 customer and its directors,
officers, servants, agents, subsidiaries, employees and assignees,
or any of them, from and against liability, loss or damage arising
out of claims that Permittee's Contractors and Subcontractors may
have for Property Damage sustained by them and for Bodily Injury or
Property Damage sustained by their employees, resulting from
Permitted Activities.
(b) Each Customer shall hold harmless and indemnify Permittee
and its directors, officers, servants, agents, subsidiaries,
employees and assignees, or any of them; the United States and its
agencies, servants, agents, subsidiaries, employees and assignees,
or any of them; and any part 440 customer and its directors,
officers, servants, agents, subsidiaries, employees and assignees,
or any of them, from and against liability, loss or damage arising
out of claims that each Customer's Contractors, Subcontractors, or
customers, may have for Property Damage sustained by them and for
Bodily Injury or Property Damage sustained by their employees,
resulting from Permitted Activities.
6. Assurances Under 51 U.S.C. 50914(e)
Notwithstanding any provision of this Agreement to the contrary,
Permittee shall hold harmless and indemnify the United States and
its agencies, servants, agents, employees and assignees, or any of
them, from and against liability, loss or damage arising out of
claims for Bodily Injury or Property Damage, resulting from
Permitted Activities, regardless of fault, except to the extent
that: (i) As provided in section 7(b) of this Agreement, claims
result from willful misconduct of the United States or its agents;
(ii) claims for Property Damage sustained by the United States or
its Contractors and Subcontractors exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(e) of the Regulations; (iii) claims by a Third Party for
Bodily Injury or Property Damage exceed the amount of insurance or
demonstration of financial responsibility required under Sec.
440.9(c) of the Regulations, and do not exceed $1,500,000,000 (as
adjusted for inflation after January 1, 1989) above such amount, and
are payable pursuant to the provisions of 51 U.S.C. 50915 and Sec.
440.19 of the Regulations; or (iv) Licensee has no liability for
claims exceeding $1,500,000,000 (as adjusted for inflation after
January 1, 1989) above the amount of insurance or demonstration of
financial responsibility required under Sec. 440.9(c) of the
Regulations.
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Permittee, any Customer or the United States of any claim
by an employee of the Permittee, any Customer or the United States,
respectively, including a member of the Armed Forces of the United
States, for Bodily Injury or Property Damage, resulting from
Permitted Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to hold harmless and indemnify herein shall not apply to
claims for Bodily Injury or Property Damage resulting from willful
misconduct of any of the Parties, the Contractors and Subcontractors
of any of the Parties, any part 440 customer, the Contractors and
Subcontractors of any part 440 customer, and in the case of
Permittee, each Customer, any part 440 customer, and the Contractors
and Subcontractors of each of them, the directors, officers, agents
and employees of any of the foregoing, and in the case of the United
States, its agents.
(c) References herein to Customer shall apply to, and be deemed
to include, each such customer severally and not jointly.
(d) This Agreement shall be governed by and construed in
accordance with United States Federal law.
In witness whereof, the Parties to this Agreement have caused
the Agreement to be duly executed by their respective duly
authorized representatives as of the date written above.
Permittee
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Customer 1
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
[Signature lines for each additional customer]
Federal Aviation Administration of the Department of Transportation on
Behalf of the United States Government
By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------
Issued under authority provided by 49. U.S.C. 106(f) and
44701(a) in Washington, DC, on January 2, 2015.
Shana Dale,
Deputy Associate Administrator, Commercial Space Transportation.
[FR Doc. 2015-00252 Filed 1-12-15; 8:45 am]
BILLING CODE 4910-13-P