New NASA Cross-Waivers

After all the full-blast action and excitement last week in connection with the X Prize Cup and events in the Land of Enchantment, you may feel ready for just a touch of something relaxing, serene and grounded, like, oh, a bit of low-key federal regulation. Eh?

How about NASA's
proposal to amend 14 CFR Part 1266, the 14-year old rule covering the use of cross-waiver of liability provisions in NASA agreements? This ought to slow your heart rate.

NASA wants the rule made current in light of developments including the ISS Intergovernmental Agreement (IGA) which entered into force for NASA and partners between 1998 and 2005. (IGA article 16 "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.") Also, NASA seeks to update the waiver provisions in wake of the Columbia accident.

Under the proposal, along with a few "generally clerical" changes, NASA would delete the subsection regarding the cross-waiver of liability during Space Shuttle operations (§ 1266.103) and expand the scope of the ELV provision to encompass RLV's as well as other users of the same launch vehicle during the same launch. (§ 1266.104)

(And yes, the regulation applies only to NASA launches that are not licensed by the FAA.)

A treat, and it's about time NASA dusted off this provision and polished it up.

Of course, the
National Aeronautics and Space Act of 1958 as amended (42 U.S.C. § 2451 et seq.), authorizes NASA "to enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate, with any agency or instrumentality of the United States, or with any State, Territory, or possession, or with any political subdivision thereof, or with any person, firm, association, corporation, or educational institution" and engage in international cooperative programs pursuant to NASA`s mission. And NASA has indeed entered into "a great number" of agreements "to meet wide-ranging NASA mission and program requirements and objectives."

NASA states almost boastfully that it "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."

(But where does the Agency get the authority to waive claims of the U.S. Government? See, Pres. Clinton's Delegation of Authority, Oct. 13, 1995
60 FR 53251; and 42 U.S.C. 2458c.)

I note the proposed rulemaking's preamble contains an interesting discussion of the differences between the broad ISS cross-waivers and more limited-in-scope ELV cross-waivers. (Uh-oh. Did I say "interesting" and "cross-waivers" in the same sentence?)

For you cross-waiver connoisseurs who would like to weight in on the rule making,
submit your comments on or before November 22, 2006. The Agency says it "plans to implement these changes as expeditiously as possible after this proposed rule becomes final." And if you have questions, or demand to discuss this with a lawyer at NASA headquarters, contact none other than Steve Mirmina: 202/358-2432; steve.mirmina@nasa.gov. (But tell Steve you saw his name in the Federal Register first; he's probably tired of reading about himself on Space Law Probe. ;)

(Hat tip: NASA Watch.)

Image: Astronaut doing paperwork, signed by Gordon Cooper, via Astronautarchives.com.

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