Applicability of FAA Cross Waivers with Government Payload

An interesting question arose at Denton’s space law symposium a couple of weeks ago. Someone wanted to know when the FAA’s cross-waivers applied if a launch operator had  a government customer. The answer is, the FAA’s cross waivers apply during all activities licensed by the FAA, including when the licensed launch is of a government payload.

Section 50914(b) of 51 U.S.C. ch. 509, the Commercial Space Launch Act, and the FAA’s implementing regulations at 14 C.F.R. part 440 require an FAA licensee or permittee, each of its customers, and the FAA on behalf of the U.S. Government to enter into a reciprocal waivers of claims (aka cross waivers) under which each party agrees to be responsible for property damage or loss it sustains, or for various harms to its employees, resulting from an activity carried out under the applicable license or permit. When a launch or reentry operator offers services to an agency of the U.S. Government—such as NASA or the Department of Defense—those agencies also require the operator to enter into cross waivers with them. This seems redundant. And duplicative. More than once.

Fortunately, it’s not. Instead, as section 50914(b) says, the FAA enters into the agreements “for the Government, executive agencies of the Government involved in launch services or reentry services, and contractors and subcontractors involved in launch services or reentry services,….” NASA regulations recognize this as well, stating that a NASA cross-waiver does not apply when the Commercial Space Launch Act applies. 14 CFR 1266.102(c)(6). Although the NASA regulation refers to 49 U.S.C. ch. 701, readers of this blog know that Chapter 701 is merely an earlier location of the same statute, Chapter 509.