C Advisory U.S. Department of Transportation Circular Federal Aviation Administration Subject: Reciprocal Waiver of Claims Date: 09/11/2024 AC No: 440.17-1 Requirements Initiated By: AST-1 This advisory circular (AC) provides guidance for an operator to comply with Title 14 of the Code of Federal Regulations (14 CFR) § 440.17, Reciprocal waiver of claims requirements.
Under § 440.17, for a licensed or permitted launch or reentry, a licensee or permittee must enter into reciprocal waiver of claims agreements under which each party waives and releases claims against all the other parties to the waiver, 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. This guidance document provides templates a licensee or permittee could, but is not required to, use to execute reciprocal waiver of claims agreements that are acceptable to the Administrator in accordance with § 440.17(c)-(e).
If you have suggestions for improving this AC, you may use the Advisory Circular Feedback form at the end of this AC.
Minh A. Nguyen Executive Director/Office of Strategic Management Commercial Space Transportation
Contents Paragraph Page
1 Purpose1
2 Applicability1
3 Applicable Regulations and Related Documents2
4 Definitions3
5 Acronyms3
6 Waiver of Claims4
6.1 Licensed Launch Operators4
6.2 Licensed Reentry Operators4
6.3 Permitted Operators4
6.4 Agreement for Waiver of Claims and Assumption of Responsibility for a Crew
Member4
6.5 Agreement for Waiver of Claims and Assumption of Responsibility for Space Flight
Participants4
6.6 Directions for Use5
7 Agreement for Waiver of Claims Templates6
7.1 Licensed Launch Operators6
7.1.1 Licensed Launch Operators with No Customer6
7.1.2 Licensed Launch Operators with One Customer10
7.1.3 Licensed Launch Operators with More than One Customer15
7.1.4 Licensed Launch Operators with a Government Customer20
7.2 Waiver of Claims and Assumption of Responsibility for Licensed Reentry Activities. 26
7.2.1 Waiver of Claims and Assumption of Responsibility for Licensed Reentry
Activities with No Customer26
7.2.2 Waiver of Claims and Assumption of Responsibility for Licensed Reentry
Activities with One Customer30
7.2.3 Waiver of Claims and Assumption of Responsibility for Licensed Reentry
Activities with More Than One Customer35
7.3 Agreement for Waiver of Claims and Assumption of Responsibility for Permitted
Activities40
7.3.1 Agreement for Waiver of Claims and Assumption of Responsibility for
Permitted Activities with No Customer40
7.3.2 Agreement for Waiver of Claims and Assumption of Responsibility for
Permitted Activities with One Customer43
ii
Contents (continued) Paragraph Page
7.3.3 Agreement for Waiver of Claims and Assumption of Responsibility for
Permitted Activities with More than One Customer47
7.4 Agreement for Waiver of Claims and Assumption of Responsibility for a Crew
Member52
7.5 Agreement for Waiver of Claims and Assumption of Responsibility for a Space Flight
Participant56
iii
1 PURPOSE.
This advisory circular (AC) provides guidance for an operator to comply with Title 14 of the Code of Federal Regulations (14 CFR) § 440.17 Reciprocal waiver of claims requirements by providing templates for reciprocal waiver of claims agreements that are in a form acceptable to the Administrator.
1.1 Level of Imperatives.
This AC presents one, but not the only, acceptable means of compliance with the associated regulatory requirements. The Federal Aviation Administration (FAA) will consider other means of compliance that an applicant may elect to present. Throughout this document, the word “must” characterizes statements that directly follow from regulatory text and therefore reflect regulatory mandates. The word “should” describes an option that, if used, would constitute a means to comply with the regulation;
variation from the provisions of this AC is possible, but must satisfy the regulation to constitute a means of compliance. The word “may” describes variations or alternatives allowed within the accepted means of compliance set forth in this AC.
2 APPLICABILITY.
2.1 The guidance in this AC is for launch and reentry vehicle operators required to comply with 14 CFR part 440.
2.2 The material in this AC is advisory in nature and does not constitute a regulation. This guidance is not legally binding in its own right, and the FAA will not rely upon this guidance as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this guidance document (as distinct from existing statutes and regulations) is voluntary only, and nonconformity will not affect rights and obligations under existing statutes and regulations. It describes acceptable means, but not the only means, for demonstrating compliance with the applicable regulations. The FAA will consider other means of compliance that an operator may elect to present.
2.3 The material in this AC does not change or create any additional regulatory requirements, nor does it authorize changes to, or deviations from, existing regulatory requirements.
3 APPLICABLE REGULATIONS AND RELATED DOCUMENTS.
3.1 Related U.S.C. Regulation.
• 51 United States Code (U.S.C.) Subtitle V, Chapter 509.
• 51 U.S.C. Section 50914(b).
3.2 Related FAA Commercial Space Transportation Regulations.
The following 14 CFR regulations must be accounted for when showing compliance with § 440.17. The full text of these regulations can be downloaded from the U.S.
Government Printing Office e-CFR. A paper copy can be ordered from the Government Printing Office, Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA, 15250-7954.
• Section 401.7, Definitions.
• Section 401.5, Definitions.
• Part 440, Financial Responsibility.
3.3 Related Industry and Government Documents.
• U.S. Congress Public Law 114-90, U.S. Commercial Space Launch Competitiveness Act, dated November 25, 2015, https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf.
4 DEFINITIONS.
For this AC, the definitions in each template and the definitions listed in §§ 401.5,
401.7, and 440.3 apply.
5 ACRONYMS.
AC – Advisory Circular AST – Office of Commercial Space Transportation CFR – Code of Federal Regulations FAA – Federal Aviation Administration U.S. – United States U.S.C. – United States Code USG – United States Government 3
6 WAIVER OF CLAIMS.
A waiver of claims is a type of exculpatory agreement, which is a document that limits or releases an entity from liability. The purpose of the waiver of claims is to limit lawsuits after a launch or reentry mishap. It does not cover any deliberate damage or gross negligence. The requirement for a waiver of claims does not preclude contractual arrangements for provisions such as those related to meeting mission requirements.
6.1 Licensed Launch Operators.
Licensed launch operators with no customer should use the template in paragraph 7.1.1 of this AC. Licensed launch operators desiring one customer on one wavier of claims should use the template in paragraph 7.1.2 of this AC. Licensed launch operators desiring more than one customer on a single document should use the template in paragraph 7.1.3 of this AC. Licensed launch operators with a government customer should use the template in paragraph 7.1.4 of this AC for each government customer.
6.2 Licensed Reentry Operators.
Licensed reentry operators with no customer should use the template in paragraph 7.2.1 of this AC. Licensed reentry operators desiring one customer on one waiver of claims should use the template in paragraph 7.2.2 of this AC. Licensed reentry operators desiring more than one customer on a single document should use the template in paragraph 7.2.3 of this AC. This AC does not currently contain a template for licensed reentry operators with a government customer. The FAA is working to develop a template for licensed reentry operators with a government customer and will update this AC accordingly.
6.3 Permitted Operators.
Permitted operators with no customer should use the template in paragraph 7.3.1 of this AC. Permitted operators desiring one customer on one waiver of claims should use the template in paragraph 7.3.2 of this AC. Permitted operators desiring more than one customer on a single document should use the template in paragraph 7.3.3 of this AC.
6.4 Agreement for Waiver of Claims and Assumption of Responsibility for a Crew Member For each licensed or permitted activity including crew, as defined in §§ 401.5 and
401.7, 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 in accordance with § 440.17(e). A crew member may use the template in paragraph 7.4 of this AC to satisfy the requirement.
6.5 Agreement for Waiver of Claims and Assumption of Responsibility for Space Flight Participants.
For each licensed or permitted activity including space flight participants as defined in §§ 401.5 and 401.7, 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 in accordance with § 440.17(d). A space flight participant may use the template in paragraph 7.5 of this AC to satisfy the requirement.
Additionally, for each licensed activity including space flight participants, the licensee 4
and each space flight participant must enter into a reciprocal waiver of claims agreement in accordance with 51 U.S.C. 50914(b)(1). This AC does not currently contain a template for licensees with a space flight participant. The FAA is working to develop a template for licensees with a space flight participant and will update this AC accordingly.
6.6 Directions for Use.
For each applicable template, the operator must fill out a description of the payload or mission and the description of the vehicle and site the mission will use. The operator may choose to list more than one mission or payload and more than one vehicle or launch site provided the operator has a license or permit for each of the described vehicles and locations. The license or permit number that applies to the mission should be entered into the blanks in the appropriate section in the definition. If there is more than one license or permit the operator wishes the waiver of claims to apply to, all applicable license or permit numbers should be listed. The date at the top of the document should be left blank. The FAA will enter the date upon completion of the document. The operator is responsible for obtaining signatures from first-tier customers, space flight participants, and crew members as applicable.
6.6.1 Once the operator’s and any necessary signatures are obtained, the operator can provide the form to the FAA for final signature and date. The templates may be executed on paper or by electronic means.
6.6.2 Any alterations to the template aside from filling in the mission description and license or permit number may result in additional review by the FAA prior to signature.
7 AGREEMENT FOR WAIVER OF CLAIMS TEMPLATES.
7.1 Licensed Launch Operators.
7.1.1 Licensed Launch Operators with No Customer.
Waiver of Claims and Assumption of Responsibility for Licensed Launch, Including Suborbital Launch, with No Customer This Agreement for Waiver of Claims and Assumption of Responsibilities for Licensed Launch (the "Agreement") is entered into this day of ________, by and among [Licensee] (the “Licensee”) and the Federal Aviation Administration of the Department of Transportation ("the FAA"), 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/mission] on a [vehicle description] launch vehicle at [Launch site location].
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 § 440.3 of the Regulations.
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. Wai ver and Release of Claims
a. Licensee hereby waives and releases claims it may have against the United States, and against its Contractors and Subcontractors of the United States, 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. The United States hereby waives and releases claims it may have against Licensee, and against the Contractors and Subcontractors of the Licensee, 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 § 440.9(c) and (e), respectively, of the Regulations.
3. Assumption of Responsibility
a. Licensee 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. Licensee 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 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 § 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 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 Licensed 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 Licensee and against the Contractors and Subcontractors of Licensee, 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, 7
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 § 440.9(c) and (e), respectively, of the Regulations.
5. Indemnification
a. Licensee 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 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 and arising out of the indemnifying party's failure to implement properly the waiver requirement.
b. 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 and Licensee's 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 and arising out of the indemnifying party's failure to implement properly the waiver requirement, 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 § 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 paragraph 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 § 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 § 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 § 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 8
demonstration of financial responsibility required under § 440.9(c) of the Regulations.
7. Miscellaneous
a. Nothing contained herein shall be construed as a waiver or release by Licensee or the United States of any claim by an employee of the Licensee 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, and in the case of Licensee, the Contractors and Subcontractors, the directors, officers, agents and employees of the Licensee, 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: __________________________________________________________________ Printed Name: _________________________________________________________ Title: ________________________________________________________________ Federal Aviation Administration of the Department of Transportation, on Behalf of the United States Government By: __________________________________________________________________ Printed Name: _________________________________________________________ Title: ________________________________________________________________ 9