Cross-Waiver of Liability, 62061-62065 [E6-17701]

Agencies

• National Aeronautics and Space Administration

[Federal Register Volume 71, Number 204 (Monday, October 23, 2006)]
[Proposed Rules]
[Pages 62061-62065]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-17701]


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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. 71, No. 204 / Monday, October 23, 2006 / 
Proposed Rules

[[Page 62061]]



NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1266

[Notice (06-079)]
RIN 2700-AB51


Cross-Waiver of Liability

AGENCY: National Aeronautics and Space Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Aeronautics and Space Administration (NASA) is 
proposing to amend part 1266 of Title 14 to update and ensure 
consistency in the use of cross-waiver of liability provisions in NASA 
agreements. Part 1266 provides the regulatory basis for cross-waiver 
provisions used in the following categories of NASA mission agreements: 
Agreements for activities in connection with the ``Agreement Among the 
Government of Canada, Governments of Member States of the European 
Space Agency, the Government of Japan, the Government of the Russian 
Federation, and the Government of the United States of America 
concerning Cooperation on the Civil International Space Station'' 
(commonly referred to as the ISS Intergovernmental Agreement, or IGA); 
agreements for use of the Space Shuttle; and agreements for NASA's 
science and space exploration missions that are launched on Expendable 
Launch Vehicles (ELVs). Among other generally clerical amendments to 
this Part, NASA is proposing to delete the subsection regarding the 
cross-waiver of liability during Space Shuttle operations and expand 
the scope of the ELV provision to encompass Reusable Launch Vehicles 
(RLVs) as well as other users of the same launch vehicle during the 
same launch.
    Comment Date: Comments due on or before November 22, 2006.

ADDRESSES: Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Steven A. Mirmina, Senior Attorney, 
Office of the General Counsel, NASA Headquarters, 300 E Street, SW., 
Washington, DC 20546; telephone: 202/358-2432; e-mail 
steve.mirmina@nasa.gov.

SUPPLEMENTARY INFORMATION: In the 14 years since the current rule's 
publication (September 25, 1991), shifts in areas of NASA mission and 
program emphases warrant an adjustment of the NASA cross-waiver 
provisions to ensure they remain current. Most notably, on January 29, 
1998, the United States formally joined with 14 nations in an 
international partnership in cooperative space exploration for the 
design, development, operation, and utilization of the International 
Space Station (ISS) through the IGA. The IGA entered into force for 
NASA and various other Partners between 1998 and 2005. Article 16 of 
the IGA establishes a broad cross-waiver of liability among Partner 
States and their contractually or otherwise related entities by 
requiring those entities to make similar waivers of liability. Thus, 
NASA is required to include IGA-based cross-waivers in contracts and 
agreements for activities related to the ISS.
    A second development involves the February 1, 2003, Space Shuttle 
Columbia accident. In the wake of that tragedy, NASA embraced the 
recommendations of the Columbia Accident Investigation Board (CAIB) 
that the NASA Space Transportation System (Shuttle) be used chiefly for 
completion of the ISS and then retired. While NASA is assessing the 
possibility of a servicing mission for the Hubble Space Telescope using 
the Shuttle, NASA does not expect to conclude any Space Act agreements 
with international partners for cooperation on this prospective 
mission. Since current servicing mission plans envision no other non-
ISS missions, there is no longer a need to retain the section of part 
1266 regarding a separate cross-waiver of liability to be used during 
Shuttle operations (formerly Sec.  1266.103), and NASA is proposing to 
delete it.
    Third, NASA has continued to conduct scores of missions for the 
purpose of furthering science and space exploration unrelated to the 
ISS and without using the Shuttle. These missions are currently 
launched using ELVs and Evolved Expendable Launch Vehicles (EELVs). 
NASA anticipates that missions of this nature may also be launched 
using commercially available RLVs. Thus, NASA is expanding the scope of 
the current ELV section to include RLVs as well. NASA has an 
established practice of including cross-waivers in its mission 
agreements to lower the risks and costs of space exploration. Revising 
the present regulation is intended to promote consistency between the 
general types of cross-waivers NASA uses in its agreement practice for 
ISS activities and other scientific missions launched by commercial 
vehicles. Additionally, since commercial launch providers can launch 
multiple payloads on the same vehicle, NASA is proposing to expand the 
scope of the waiver in Sec.  1266.104 to include other users of a 
single launch vehicle.\1\
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    \1\ The provisions of this Regulation will be applicable only to 
NASA launches that are not licensed by the Federal Aviation 
Administration (FAA). The FAA licenses launch vehicles and reentry 
of reentry vehicles under authority granted to the Secretary of 
Transportation in the Commercial Space Launch Act (CSLA) of 1984, as 
amended, codified in 49 U.S.C. Subtitle IX, chapter 701, and 
delegated to the FAA Administrator. Licensing authority under the 
CSLA is carried out by FAA Associate Administrator for Commercial 
Space Transportation. Where NASA acquires launch services on a 
commercial basis (such as through contracts for spacecraft delivery 
on-orbit) the cross-waiver provisions of the CSLA will apply.
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    Fourth, NASA has had a long history and consistent practice of 
requiring international and domestic partners to cross-waive claims for 
loss or damage and, thus, assume responsibility for the risks inherent 
in space exploration. For years, NASA has utilized broad, no-fault, no 
subrogation cross-waivers. In response to questions raised by the U.S. 
Department of Justice in 1995 regarding the Agency's authority to waive 
claims of the U.S. Government, and at NASA's request, President Clinton 
underscored successive Administrations' acknowledgement of the 
importance of these liability arrangements by affirming, through a 
delegation of his constitutional foreign affairs authority, NASA's 
authority to enter into cross-waivers of liability, on behalf of the 
Government of the United States, with its Partners in international 
agreements. In part, the President's delegation provided:

    The authority conferred upon the President by the Constitution 
and the laws of the United States of America to execute mutual 
waivers of claims of liability on behalf of the

[[Page 62062]]

United States for damages arising out of cooperative activities is 
hereby delegated to the Administrator of NASA for agreements with 
foreign governments and their agents regarding aeronautical, 
science, and space activities that are executed pursuant to the 
authority granted NASA by the National Aeronautics and Space Act of 
1958, Public Law 85-568, as amended.\2\
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    \2\ Presidential Documents, Memorandum of October 10, 1995, 
Delegation of Authority to Enter into Mutual Waivers of Liability 
for Certain Agreements Under the National Aeronautics and Space Act 
of 1958, 60 FR 53251, October 13, 1995.

However, this delegation of cross-waiver authority for cooperative 
agreements with foreign entities left unresolved the extent of NASA's 
authority to execute similar waivers of U.S. Government claims against 
the Agency's U.S. cooperative partners, such as corporations and 
universities. Therefore, NASA sought statutory confirmation and 
clarification of NASA's authority to implement liability cross-waivers 
with both domestic and international partners.
    Congress responded by amending the National Aeronautics and Space 
Act of 1958 (Space Act) to include Section 309.\3\ Specifically, this 
section, codified at 42 U.S.C. 2458c, confirms and clarifies NASA's 
authority to waive claims of the U.S. Government in cooperative 
agreements in exchange for a reciprocal waiver of claims from the 
cooperating party. In situations where, for example, a foreign space 
agency lacks fully reciprocal authority to waive claims of its 
government, special arrangements have been developed to cover the gap, 
including the requirement to purchase insurance to protect NASA against 
broader claims of a foreign government that a foreign space agency is 
unable to waive. A prime example of such arrangements is set forth in 
Article 16 of the IGA to address potential subrogated claims of the 
Japanese Government.
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    \3\ The provisions of Section 309 were recently extended in the 
NASA Authorization Act of 2005, Pub. L. 109-155, which was signed by 
President Bush on December 30, 2005.
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    Use of Cross-Waivers for ISS and ELV/RLV Activities: The 
fundamental purpose of cross-waivers of liability in NASA agreements is 
to encourage participation in the exploration, exploitation, and use of 
outer space. The IGA declares the Partner States' intention that cross-
waivers of liability be broadly construed to achieve this purpose. It 
is important to underscore the fact that agreements for high-risk 
activities of very broad and diffuse scope require that both entities 
be involved in ``Protected Space Operations'' or ``PSO.'' PSO is 
defined to include a wide range of design, transport, flight, and 
payload activities. In addition, for many of these higher-risk 
activities as well as for any activity requiring a significant amount 
of contractor involvement, NASA typically insists that each party 
require its own related entities (e.g. contractors, subcontractors, 
users, and customers, at any tier) to agree to waive claims against 
similar entities that may be legally related to any other party. This 
is referred to as the ``flow down'' requirement of the cross-waiver.
    The chief differences between the ISS and ELV cross-waivers lie in 
the broad scope of the ISS activities required to be covered by cross-
waivers in contrast with the more limited scope of waivers used for 
most mission-specific science and space exploration activities. To 
illustrate, the cross-waiver for ISS activities generally is in effect 
anywhere in the world when activities are conducted in implementation 
of any ISS-related agreement. The ELV-based cross-waiver is more 
limited; it generally is only applied to the parties to an agreement 
and their related entities, although it is being expanded by this 
proposed rule to cover other payloads launched on the same vehicle. In 
essence, however, the operation of the ISS and ELV waivers is 
comparable; both the party claiming damage and the party causing damage 
must be participating in ``Protected Space Operations''. More 
specifically, the term ``Protected Space Operations'' in the IGA cross-
waiver includes all activities in implementation of the IGA or 
Memoranda of Understanding concluded pursuant to the IGA. In contrast, 
the term ``Protected Space Operations'' in NASA's science and space 
exploration agreements covers all ELV or RLV activities that are 
performed in implementation of an agreement for launch services. The 
specific requirements and precise scope of the term ``Protected Space 
Operations'' are provided in Sec. Sec.  1266.102 and 1266.104.
    The other changes accomplished in this revision are minor, making 
uniform the capitalization, use of italics, ordering of listed terms, 
and general editorial changes to the cross-waiver regulation.
    General: This part establishes the regulatory basis for cross-
waivers incorporated in NASA agreements implementing the IGA as well as 
for cooperative ELV or RLV missions that do not involve ISS activities. 
In addition, this part provides the regulatory basis for NASA to flow 
down the obligations of these cross-waivers of liability to its related 
entities through contracts issued pursuant to its mission agreements. 
To be made fully effective, the cross-waivers required by this part 
will necessitate concomitant changes to NASA procurement regulations. 
NASA plans to implement these changes as expeditiously as possible 
after this proposed rule becomes final.
    This regulation is not a significant regulatory action for purposes 
of Executive Order 12866, ``Regulatory Planning and Review''. As 
required by the Regulatory Flexibility Act, NASA certifies that these 
amendments will not have a significant impact on small business 
entities.

List of Subjects in 14 CFR Part 1266

    Cross-waiver, Evolved expendable launch vehicle, Expendable launch 
vehicle, Intergovernmental agreement, International Space Station, 
Liability, Reusable launch vehicle, Space shuttle, Space transportation 
and exploration.

    For the reasons stated in the preamble, NASA proposes to revise 14 
CFR part 1266 as follows:

PART 1266--CROSS-WAIVER OF LIABILITY

Sec.
1266.100 Purpose.
1266.101 Scope.
1266.102 Cross-waiver of liability for agreements involving 
activities related to the International Space Station (ISS).
1266.103 [Reserved].
1266.104 Cross-waiver of liability for science and space exploration 
agreements for missions launched by Expendable Launch Vehicles or 
Reusable Launch Vehicles.

    Authority: 42 U.S.C. 2473 (c)(1), (c)(5) and 42 U.S.C. 2458c.


Sec.  1266.100  Purpose.

    The purpose of this regulation is to ensure that consistent cross-
waivers of liability are included in NASA agreements for activities 
related to the ISS and for NASA's other activities of scientific space 
exploration that do not involve activities in connection with the ISS, 
whether launched by Expendable Launch Vehicle (ELV) or Reusable Launch 
Vehicle (RLV).


Sec.  1266.101  Scope.

    The provisions at Sec.  1266.102 are intended to implement the 
cross-waiver requirement in Article 16 of the intergovernmental 
agreement entitled, ``Agreement Among the Government of Canada, 
Governments of Member States of the European Space Agency, the 
Government of Japan, the Government of the Russian Federation, and the 
Government of the United States of America concerning Cooperation on 
the Civil International Space Station (IGA)''. Article 16 establishes a 
cross-waiver of

[[Page 62063]]

liability for use by the Partner States and their related entities and 
requires that this reciprocal waiver of claims be extended to 
contractually or otherwise related entities of NASA by requiring those 
entities to make similar waivers of liability. Thus, NASA is required 
to include IGA-based cross-waivers in contracts and agreements for ISS 
activities that fall within the scope of ``Protected Space 
Operations,'' as that term is defined in Sec.  1266.102. The purpose of 
the waiver is to encourage participation in the ``exploration, 
exploitation, and use of outer space'' through the ISS. The IGA 
declares the Partner States' intention that this cross-waiver of 
liability be broadly construed to achieve this purpose. NASA 
incorporates the provisions of Sec.  1266.102 into its agreements for 
activities that implement the IGA and the memoranda of understanding 
between the United States and its respective international partners. 
The provisions at Sec.  1266.104 of this part provide the regulatory 
basis for cross-waiver clauses to be incorporated in NASA's science and 
space exploration agreements that do not involve activities in 
connection with the ISS and are launched by either ELVs or RLVs.


Sec.  1266.102  Cross-waiver of liability for agreements involving 
activities related to the International Space Station (ISS).

    (a) The objective of this section is to implement NASA's 
responsibility to flow down the cross-waiver of liability in Article 16 
of the IGA to its related entities in the interest of encouraging 
participation in the exploration, exploitation, and use of outer space 
through the ISS. It is intended that the cross-waiver of liability be 
broadly construed to achieve this objective. Provided that the waiver 
of claims is reciprocal, the parties may tailor the scope of the cross-
waiver clause in these agreements to address the specific circumstances 
of a particular cooperation.
    (b) For the purposes of this section:
    (1) The term ``Partner State'' includes each contracting party for 
which the Agreement Among The Government of Canada, Governments of 
Member States of the European Space Agency, the Government of Japan, 
the Government of the Russian Federation, and the Government of the 
United States of America Concerning Cooperation on the Civil 
International Space Station (signed January 29, 1998; hereinafter the 
``Intergovernmental Agreement'') has entered into force or become 
operative (pursuant to Sections 25 and 26, respectively, of the 
Intergovernmental Agreement), or any successor agreement. A Partner 
State includes its Cooperating Agency. It also includes any entity 
specified in the MOU between NASA and the Government of Japan to assist 
the Government of Japan's Cooperating Agency in the implementation of 
that MOU.
    (2) The term ``related entity'' means:
    (i) A contractor or subcontractor of a Party or a Partner State at 
any tier;
    (ii) A user or customer of a Party or a Partner State at any tier; 
or
    (iii) A contractor or subcontractor of a user or customer of a 
Party or a Partner State at any tier. The term ``related entity'' may 
also apply to a State, or an agency or institution of a State, having 
the same relationship to a Partner State as described in paragraphs 
(b)(2)(i) through (b)(2)(iii) of this section or otherwise engaged in 
the implementation of Protected Space Operations as defined in 
paragraph (b) (3)(vi) of this section. The terms ``contractors'' and 
``subcontractors'' include suppliers of any kind.
    (3) The term ``damage'' means:
    (i) Bodily injury to, or other impairment of health of, or death 
of, any person;
    (ii) Damage to, loss of, or loss of use of any property;
    (iii) Loss of revenue or profits; or
    (iv) Other direct, indirect or consequential damage.
    (4) The term ``launch vehicle'' means an object or any part thereof 
intended for launch, launched from Earth, or returning to Earth which 
carries payloads or persons, or both.
    (5) The term ``payload'' means all property to be flown or used on 
or in a launch vehicle or the ISS.
    (6) The term ``Protected Space Operations'' means all launch 
vehicle activities, ISS activities, and payload activities on Earth, in 
outer space, or in transit between Earth and outer space in 
implementation of the IGA, MOUs concluded pursuant to the IGA, and 
implementing arrangements. It includes, but is not limited to:
    (i) Research, design, development, test, manufacture, assembly, 
integration, operation, or use of launch or transfer vehicles, the ISS, 
payloads, or instruments, as well as related support equipment and 
facilities and services; and
    (ii) All activities related to ground support, test, training, 
simulation, or guidance and control equipment and related facilities or 
services. ``Protected Space Operations'' also includes all activities 
related to evolution of the ISS, as provided for in Article 14 of the 
IGA. ``Protected Space Operations'' excludes activities on Earth which 
are conducted on return from the ISS to develop further a payload's 
product or process for use other than for ISS-related activities in 
implementation of the IGA.
    (c)(1) Cross-waiver of liability: Each Party agrees to a cross-
waiver of liability pursuant to which each Party waives all claims 
against any of the entities or persons listed in paragraphs (c)(1)(i) 
through (c)(1)(iv) of this section based on damage arising out of 
Protected Space Operations. This cross-waiver shall apply only if the 
person, entity, or property causing the damage is involved in Protected 
Space Operations and the person, entity, or property damaged is damaged 
by virtue of its involvement in Protected Space Operations. The cross-
waiver shall apply to any claims for damage, whatever the legal basis 
for such claims against:
    (i) Another Party;
    (ii) A Partner State other than the United States of America;
    (iii) A related entity of any entity identified in paragraph 
(c)(1)(i) or (c)(1)(ii) of this section; or
    (iv) The employees of any of the entities identified in paragraphs 
(c)(1)(i) through (c)(1)(iii) of this section.
    (2) In addition, each Party shall, by contract or otherwise, extend 
the cross-waiver of liability as set forth in paragraph (c)(1) of this 
section to its related entities by requiring them, by contract or 
otherwise, to:
    (i) Waive all claims against the entities or persons identified in 
paragraphs (c)(1)(i) through (c)(1)(iv) of this section; and
    (ii) Require that their related entities waive all claims against 
the entities or persons identified in paragraphs (c)(1)(i) through 
(c)(1)(iv) of this section.
    (3) For avoidance of doubt, this cross-waiver of liability includes 
a cross-waiver of claims arising from the Convention on International 
Liability for Damage Caused by Space Objects, which entered into force 
on September 1, 1972, where the person, entity, or property causing the 
damage is involved in Protected Space Operations and the person, 
entity, or property damaged is damaged by virtue of its involvement in 
Protected Space Operations.
    (4) Notwithstanding the other provisions of this section, this 
cross-waiver of liability shall not be applicable to:
    (i) Claims between a Party and its own related entity or between 
its own related entities;
    (ii) Claims made by a natural person, his/her estate, survivors or 
subrogees (except when a subrogee is a Party to this Agreement or is 
otherwise bound by the terms of this cross-waiver) for bodily injury 
to, or other impairment of health of, or death of such person;

[[Page 62064]]

    (iii) Claims for damage caused by willful misconduct;
    (iv) Intellectual property claims;
    (v) Claims for damage resulting from a failure of a Party to extend 
the cross-waiver of liability to its related entities, pursuant to 
paragraph (c)(2) of this section; or
    (vi) Claims by or against a Party arising out of or relating to the 
other Party's failure to meet its contractual obligations set forth in 
the Agreement.
    (5) Nothing in this section shall be construed to create the basis 
for a claim or suit where none would otherwise exist.
    (6) This cross-waiver shall not be applicable when the Commercial 
Space Launch Act cross-waiver (49 U.S.C. 70101 et seq.) is applicable.


Sec.  1266.103  [Reserved].


Sec.  1266.104  Cross-waiver of liability for science and space 
exploration agreements for missions launched by Expendable Launch 
Vehicles or Reusable Launch Vehicles.

    (a) The purpose of this section is to implement a cross-waiver of 
liability between the parties to agreements for NASA's science and 
space exploration missions launched by an Expendable Launch Vehicle 
(ELV) or Reusable Launch Vehicle (RLV) when those missions do not 
involve activities in connection with the International Space Station 
(ISS). This comprehensive cross-waiver of liability is intended to 
apply both between the parties to those agreements as well as to the 
parties' related entities, in the interest of furthering participation 
in space exploration, use, and investment. It is intended that the 
cross-waiver of liability be broadly construed to achieve this 
objective. Provided that the waiver of claims is reciprocal, the 
parties may tailor the scope of the cross-waiver clause in these 
agreements to address the specific circumstances of a particular 
cooperation.
    (b) For purposes of this section:
    (1) The term ``Party'' means a party to a NASA agreement involving 
a launch of an ELV or RLV not involving activities in connection with 
the ISS.
    (2) The term ``related entity'' means:
    (i) A contractor or subcontractor of a Party at any tier;
    (ii) A user or customer of a Party at any tier; or
    (iii) A contractor or subcontractor of a user or customer of a 
Party at any tier. The term ``related entity'' may also apply to a 
State or an agency or institution of a State, having the same 
relationship to a Party as described in paragraphs (b)(2)(i) through 
(b)(2)(iii) of this section, or otherwise engaged in the implementation 
of Protected Space Operations as defined in paragraph (b)(6) of this 
section. The terms ``contractors'' and ``subcontractors'' include 
suppliers of any kind.
    (3) The term ``damage'' means:
    (i) Bodily injury to, or other impairment of health of, or death 
of, any person;
    (ii) Damage to, loss of, or loss of use of any property;
    (iii) Loss of revenue or profits; or
    (iv) Other direct, indirect, or consequential damage.
    (4) The term ``launch vehicle'' means an object or any part thereof 
intended for launch, launched from Earth, or returning to Earth which 
carries payloads or persons, or both.
    (5) The term ``payload'' means all property to be flown or used on 
or in a launch vehicle.
    (6) The term ``Protected Space Operations'' means all ELV or RLV 
activities and payload activities on Earth, in outer space, or in 
transit between Earth and outer space in implementation of an agreement 
for launch services. It includes, but is not limited to:
    (i) Research, design, development, test, manufacture, assembly, 
integration, operation, or use of launch or transfer vehicles, 
payloads, or instruments, as well as related support equipment and 
facilities and services; and
    (ii) All activities related to ground support, test, training, 
simulation, or guidance and control equipment and related facilities or 
services. The term ``Protected Space Operations'' excludes activities 
on Earth that are conducted on return from space to develop further a 
payload's product or process for use other than for the activities 
within the scope of an Agreement for launch services.
    (c) Cross-waiver of liability: (1) Each Party agrees to a cross-
waiver of liability pursuant to which each Party waives all claims 
against any of the entities or persons listed in paragraphs (c)(1)(i) 
through (c)(1)(iv) of this section based on damage arising out of 
Protected Space Operations. This cross-waiver shall apply only if the 
person, entity, or property causing the damage is involved in Protected 
Space Operations and the person, entity, or property damaged is damaged 
by virtue of its involvement in Protected Space Operations. The cross-
waiver shall apply to any claims for damage against:
    (i) Another Party;
    (ii) A party to another NASA agreement that includes flight on the 
same launch vehicle;
    (iii) A related entity of any entity identified in paragraphs 
(c)(1)(i) or (c)(1)(ii) of this section; or
    (iv) The employees of any of the entities identified in paragraphs 
(c)(1)(i) through (c)(1)(iii) of this section.
    (2) In addition, each Party shall extend the cross-waiver of 
liability as set forth in paragraph (c)(1) of this section to its own 
related entities by requiring them, by contract or otherwise, to:
    (i) Waive all claims against the entities or persons identified in 
paragraphs (c)(1)(i) through (c)(1)(iv) of this section; and
    (ii) Require that their related entities waive all claims against 
the entities or persons identified in paragraphs (c)(1)(i) through 
(c)(1)(iv) of this section.
    (3) For avoidance of doubt, this cross-waiver of liability includes 
a cross-waiver of claims arising from the Convention on International 
Liability for Damage Caused by Space Objects, which entered into force 
on September 1, 1972, where the person, entity, or property causing the 
damage is involved in Protected Space Operations and the person, 
entity, or property damaged is damaged by virtue of its involvement in 
Protected Space Operations.
    (4) Notwithstanding the other provisions of this section, this 
cross-waiver of liability shall not be applicable to:
    (i) Claims between a Party and its own related entity or between 
its own related entities;
    (ii) Claims made by a natural person, his/her estate, survivors, or 
subrogees (except when a subrogee is a Party to this Agreement or is 
otherwise bound by the terms of this cross-waiver) for bodily injury 
to, or other impairment of health of, or death of such natural person;
    (iii) Claims for damage caused by willful misconduct;
    (iv) Intellectual property claims;
    (v) Claims for damages resulting from a failure of a Party to 
extend the cross-waiver of liability to its related entities, pursuant 
to paragraph (c)(2) of this section; or
    (vi) Claims by or against a Party arising out of or relating to the 
other Party's failure to meet its contractual obligations set forth in 
the Agreement.
    (5) Nothing in this section shall be construed to create the basis 
for a claim or suit where none would otherwise exist.
    (6) This cross-waiver shall not be applicable when the Commercial 
Space

[[Page 62065]]

Launch Act cross-waiver (49 U.S.C. 70101 et seq.) is applicable.

Michael D. Griffin,
Administrator.
[FR Doc. E6-17701 Filed 10-20-06; 8:45 am]
BILLING CODE 7510-13-P