Cross-­‐Waiver/Indemnification Authority (developer of experimental aerospace vehicle) -­ 42 U.S.C. 2458c

[NASA]

(a) In General. – The Administrator may provide liability insurance for, or indemnification to, the developer of an experimental aerospace vehicle developed or used in execution of an agreement between the Administration and the developer.

(b) Terms and Conditions. –

    (1) In general.
    Except as otherwise provided in this section, the insurance and indemnification provided by the Administration under subsection (a) to a developer shall be provided on the same terms and conditions as insurance and indemnification is provided by the Administration under section 308 of the National Aeronautics and Space Act of 1958 (42 U.S.C. 2458b) to the user of a space vehicle.
    (2) Insurance.

    (A) In general. – A developer shall obtain liability insurance or demonstrate financial responsibility in amounts to compensate for the maximum probable loss from claims by – (i) a third party for death, bodily injury, or property damage, or loss resulting from an activity carried out in connection with the development or use of an experimental aerospace vehicle; and (ii) the United States Government for damage or loss to Government property resulting from such an activity.
    (B) Maximum required. – The Administrator shall determine the amount of insurance required, but, except as provided in subparagraph (C), that amount shall not be greater than the amount required under section 70112(a)(3) of title 49, United States Code, for a launch. The Administrator shall publish notice of the Administrator’s determination and the applicable amount or amounts in the Federal Register within 10 days after making the determination.
    (C) Increase in dollar amounts. – The Administrator may increase the dollar amounts set forth in section 70112(a)(3)(A) of title 49, United States Code, for the purpose of applying that section under this section to a developer after consultation with the Comptroller General and such experts and consultants as may be appropriate, and after publishing notice of the increase in the Federal Register not less than 180 days before the increase goes into effect. The Administrator shall make available for public inspection, not later than the date of publication of such notice, a complete record of any correspondence received by the Administration, and a transcript of any meetings in which the Administration participated, regarding the proposed increase.
    (D) Safety review required before administrator provides insurance. – The Administrator may not provide liability insurance or indemnification under subsection (a) unless the developer establishes to the satisfaction of the Administrator that appropriate safety procedures and practices are being followed in the development of the experimental aerospace vehicle.

    (3) No indemnification without cross-waiver.
    Notwithstanding subsection (a), the Administrator may not indemnify a developer of an experimental aerospace vehicle under this section unless there is an agreement between the Administration and the developer described in subsection (c).

    (4) Application of certain procedures.
    If the Administrator requests additional appropriations to make payments under this section, like the payments that may be made under section 308(b) of the National Aeronautics and Space Act of 1958 (42 U.S.C. 2458b(b)), then the request for those appropriations shall be made in accordance with the procedures established by subsections (d) and (e) of section 70113 of title 49, United States Code.

(c) Cross-Waivers. –

    (1) Administrator authorized to waive. – The Administrator, on behalf of the United States, and its departments, agencies, and related entities, may reciprocally waive claims with a developer and with the related entities of that developer under which each party to the waiver agrees to be responsible, and agrees to ensure that its own related entities are responsible, for damage or loss to its property for which it is responsible, or for losses resulting from any injury or death sustained by its own employees or agents, as a result of activities connected to the agreement or use of the experimental aerospace vehicle.
    (2) Limitations.

    (A) Claims. – A reciprocal waiver under paragraph (1) may not preclude a claim by any natural person (including, but not limited to, a natural person who is an employee of the United States, the developer, or the developer’s subcontractors) or that natural person’s estate, survivors, or subrogees for injury or death, except with respect to a subrogee that is a party to the waiver or has otherwise agreed to be bound by the terms of the waiver.
    (B) Liability for negligence. – A reciprocal waiver under paragraph (1) may not absolve any party of liability to any natural person (including, but not limited to, a natural person who is an employee of the United States, the developer, or the developer’s subcontractors) or such a natural person’s estate, survivors, or subrogees for negligence, except with respect to a subrogee that is a party to the waiver or has otherwise agreed to be bound by the terms of the waiver.
    (C) Indemnification for damages. – A reciprocal waiver under paragraph (1) may not be used as the basis of a claim by the Administration or the developer for indemnification against the other for damages paid to a natural person, or that natural person’s estate, survivors, or subrogees, for injury or death sustained by that natural person as a result of activities connected to the agreement or use of the experimental aerospace vehicle.

    (3) Effect on previous waivers.
    Subsection (c) applies to any waiver of claims entered into by the Administration without regard to whether it was entered into before, on, or after the date of the enactment of this Act (Oct. 21, 1998).

(d) Definitions. – In this section:

    (1) Administration. – The term ‘Administration’ means the National Aeronautics and Space Administration.
    (2) Administrator. – The term ‘Administrator’ means the Administrator of the National Aeronautics and Space Administration.
    (3) Common terms. – Any term used in this section that is defined in the National Aeronautics and Space Act of 1958 (42 U.S.C. 2451 et seq.) has the same meaning in this section as when it is used in that Act.
    (4) Developer. – The term ‘developer’ means a United States person (other than a natural person) who – ”(A) is a party to an agreement that was in effect before the date of the enactment of this Act (Oct. 21, 1998) with the Administration for the purpose of developing new technology for an experimental aerospace vehicle; ”(B) owns or provides property to be flown or situated on that vehicle; or ”(C) employs a natural person to be flown on that vehicle.
    (5) Experimental aerospace vehicle. – The term ‘experimental aerospace vehicle’ means an object intended to be flown in, or launched into, suborbital flight for the purpose of demonstrating technologies necessary for a reusable launch vehicle, developed under an agreement between the Administration and a developer that was in effect before the date of the enactment of this Act (Oct. 21, 1998).
    (6) Related entity. – The term ‘related entity’ includes a contractor or subcontractor at any tier, a supplier, a grantee, and an investigator or detailee.

(e) Relationship to Other Laws.

    (1) Section 308 of national aeronautics and space act of 1958. – This section does not apply to any object, transaction, or operation to which section 308 of the National Aeronautics and Space Act of 1958 (42 U.S.C. 2458b) applies.
    (2) Chapter 701 of title 49, united states code. – The Administrator may not provide indemnification to a developer under this section for launches subject to license under section 70117(g)(1) of title 49, United States Code.

(f) Termination.

    (1) In general. – The provisions of this section shall terminate on December 31, 2002, except that the Administrator may extend the termination date to a date not later than September 30, 2005, if the Administrator determines that such an extension is necessary to cover the operation of an experimental aerospace vehicle.
    (2) Effect of termination on agreements. – The termination of this section does not terminate or otherwise affect a cross-waiver agreement, insurance agreement, indemnification agreement, or any other agreement entered into under this section except as may be provided in that agreement.

    – Source –

    Pub. L. 105-276, title IV, Sec. 431, Oct. 21, 1998, 112 Stat. 2513.

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