[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Proposed Rules]
[Pages 25657-25660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10903]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1812, 1828, and 1852

RIN 2700-AD55


Cross-Waiver of Liability Clauses

AGENCY: National Aeronautics and Space Administration.

ACTION: Proposed rule.

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SUMMARY: NASA proposes to revise the NASA FAR Supplement (NFS) to 
consolidate and make changes to three currently-existing cross-waiver 
of liability clauses. The changes include consolidation of the three 
clauses into two clauses and retitleing the two clauses to more closely 
align the clauses with current mission programs including International 
Space Station (ISS) activities, and Science or Space Exploration 
activities unrelated to the ISS. The existing Expendable Launch Vehicle 
(ELV) clause will be broadened to apply to contracts and subcontracts 
related to a launch of any kind other than one involving the 
International Space Station. The International Space Station (ISS) 
activities cross-waiver of liability clause is revised and its 
applicably broadened to include Space Shuttle activities related to the 
ISS. Accordingly, the Space Shuttle services clause will be deleted in 
its entirety with all Space Shuttle activity falling under one of the 
two remaining clauses. These proposed changes to the NFS are being made 
to align contract clauses with the regulatory authority established by 
a final rule published February 26, 2008, which established NASA's 
cross-waiver of liability authority in two categories of NASA 
agreements.

DATES: Interested parties should submit comments on or before July 5, 
2011 to be considered in formulation of the final rule.

ADDRESSES: Interested parties may submit comments, identified by RIN 
number 2700-AD55, via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. 
Comments may also be submitted to R. Todd Lacks (Mail Stop 5J75), NASA 
Headquarters, Office of Procurement, Contract Management Division, 
Washington, DC 20546. Comments may also be submitted by e-mail to 
[email protected].

FOR FURTHER INFORMATION CONTACT: R. Todd Lacks, NASA, Office of 
Procurement, Contract Management Division (Suite 5J75); (202) 358-0799; 
e-mail: [email protected].

[[Page 25658]]


SUPPLEMENTARY INFORMATION: These proposed changes to the NFS are being 
made to align contract clauses with the regulatory authority 
established by the final rule published at 73 FR 10143-50, dated 26 
February 2008. The February 2008 rule established NASA's cross-waiver 
of liability authority in two categories of NASA agreements: (1) 
Agreements for ISS activities pursuant to 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); 
and (2) launch agreements involving science or space exploration 
activities unrelated to the ISS. Sections 1812.301(f)(i)(K), (L), and 
(M) and 1828.371 of the NFS are being changed to reflect the new titles 
for clauses 1852.228-76 and 1852.228-78 and deletion of 1852.228-72.

A. Background

    NASA has been including cross-waivers of liability in its launch 
services agreements with U.S. and foreign parties since NASA's original 
cross-waiver regulations were published in 1991. By incorporating the 
cross-waivers of liability into agreements for International Space 
Station (ISS) activities and Science or Space Exploration activities 
unrelated to the ISS that involve a launch, each Party, as defined in 
the cross-waiver, agree to waive all claims against any entity or 
person defined in the cross-waiver for damage to their property arising 
out of Protected Space Operations. These cross-waivers also require the 
parties to extend these cross-waivers to their related entities 
ensuring those related entities also waive all claims against any 
entity or person defined in the cross-waiver for damages arising out of 
Protected Space Operations.

B. Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This is not a significant regulatory action and, 
therefore, was not subject to review under Section 6(b) of Executive 
Order 12866, Regulatory Planning and Review dated September 30, 1993. 
This rule is not a major rule under 5 U.S.C. 804.

C. Regulatory Flexibility Act

    NASA certifies that this proposed rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
because the rule does not impose any additional requirements on small 
businesses. This proposed rule updates and clarifies already-existing 
requirements.

D. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) is not applicable 
because the NFS changes do not impose information collection 
requirements that require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 1812, 1828, and 1852

    Government procurement.

William P. McNally,
Assistant Administrator for Procurement.
    Accordingly, 48 CFR parts 1812, 1828, and 1852 are proposed to be 
amended as follows:
    1. The authority citation for 48 CFR parts 1812, 1828, and 1852 
continues to read as follows:

    Authority:  42 U.S.C. 2455(a), 2473(c)(1).

PART 1812--ACQUISITION OF COMMERCIAL ITEMS

    2. In section 1812.301, paragraph (f)(i)(K) is removed and 
reserved, and paragraphs (f)(i)(L) and (f)(i)(M) are revised to read as 
follows:


1812.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items. (NASA supplements paragraph (f))

    (f)(i) * * *
    (L) 1852.228-76, Cross-Waiver of Liability for International Space 
Station Activities.
    (M) 1852.228-78, Cross-Waiver of Liability for Science or Space 
Exploration Activities unrelated to the International Space Station.
* * * * *

PART 1828--BONDS AND INSURANCE

    3. Section 1828.371 is revised to read as follows:


1828.371  Clauses incorporating cross-waivers of liability for 
International Space Station activities and Science or Space Exploration 
activities unrelated to the International Space Station.

    (a) In contracts covering International Space Station activities, 
or Science or Space Exploration activities unrelated to the 
International Space Station that involve a launch, NASA shall require 
the contractor to agree to waive all claims against any entity or 
person defined in the clause 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-
waivers will require the contractor to extend the cross-waiver 
provisions to their subcontractors at any tier and related entities 
ensuring those subcontractors and related entities also waive all 
claims against any entity or person defined in the clause for damages 
arising out of Protected Space Operations. The purpose of the clauses 
prescribed in this section is to extend the cross-waivers under other 
agreements to NASA contractors that perform work in support of NASA's 
obligations under these agreements.
    (b) The contracting officer shall insert the clause at 1852.228-78, 
Cross-Waiver of Liability for Science or Space Exploration Activities 
unrelated to the International Space Station, in solicitations and 
contracts above the simplified acquisition threshold for the 
acquisition of launches for science or space exploration activities 
unrelated to the International Space Station or for acquisitions for 
science or space exploration activities that are not related to the 
International Space Station but involve a launch. If Space Shuttle 
services under a contract are being conducted in support of science or 
space exploration activities not related to the International Space 
Station, the contracting officer shall insert the clause prescribed by 
this paragraph and designate application of the clause to those 
particular activities. If a science or space exploration activity is in 
support of the International Space Station, the contracting officer 
shall insert the clause prescribed by paragraph (c) of this section and 
designate its application to that particular launch.
    (c) The contracting officer shall insert the clause at 1852.228-76, 
Cross-Waiver of Liability for International Space Station Activities, 
in solicitations and contracts above the simplified acquisition 
threshold when the work to

[[Page 25659]]

be performed involves Protected Space Operations, as that term is 
defined in the clause, relating to the International Space Station. If 
Space Shuttle services under a contract are being conducted in support 
of International Space Station activities, the contracting officer 
shall insert the clause prescribed by this paragraph and designate 
application of the clause to those particular activities.
    (d) At the contracting officer's discretion, the clauses prescribed 
by paragraphs (b) and (c) of this section may be used in solicitations, 
contracts, new work modifications, or extensions to existing contracts 
under the simplified acquisition threshold involving science or space 
exploration activities unrelated to the International Space Station, or 
International Space Station activities, respectively, in appropriate 
circumstances. Examples of such circumstances are when the value of 
contractor property on a Government installation used in performance of 
the contract is significant, or when it is likely that the contractor 
or subcontractor will have its valuable property exposed to risk or 
damage caused by other participants in the science or space exploration 
activities unrelated to the International Space Station, or 
International Space Station activities.

PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


1852.228-72  [Removed]

    4. Section 1852.228-72 is removed.
    5. Section 1852.228-76 is revised to read as follows:


1852.228-76  Cross-Waiver of Liability for International Space Station 
Activities.

    As prescribed in 1828.371(c) and (d), insert the following clause:

CROSS-WAIVER OF LIABILITY FOR INTERNATIONAL SPACE STATION ACTIVITIES

 [XX/XX]

    (a) The Intergovernmental 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) for the 
International Space Station (ISS) contains a cross-waiver of 
liability provision to encourage participation in the exploration, 
exploitation, and use of outer space through the ISS. The objective 
of this clause is to extend this cross-waiver of liability to NASA 
contracts in the interest of encouraging participation in the 
exploration, exploitation, and use of outer space through the 
International Space Station (ISS). The Parties intend that this 
cross-waiver of liability be broadly construed to achieve this 
objective.
    (b) As used in this clause, the term:
    (1) ``Agreement'' refers to any NASA Space Act agreement that 
contains the cross-waiver of liability provision authorized by 14 
CFR Part 1266.102.
    (2) ``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.
    (3) ``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.
    (4) ``Partner State'' includes each Contracting Party for which 
the IGA has entered into force, pursuant to Article 25 of the IGA or 
pursuant to any successor agreement. A Partner State includes its 
Cooperating Agency. It also includes any entity specified in the 
Memorandum of Understanding (MOU) between NASA and the Government of 
Japan to assist the Government of Japan's Cooperating Agency in the 
implementation of that MOU.
    (5) ``Party'' means a party to a NASA Space Act agreement 
involving activities in connection with the ISS and a party that is 
neither the prime contractor under this contract nor a subcontractor 
at any tier.
    (6) ``Payload'' means all property to be flown or used on or in 
a Launch Vehicle or the ISS.
    (7) ``Protected Space Operations'' means all Launch or Transfer 
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, 
implementing arrangements, and contracts to perform work in support 
of NASA's obligations under these Agreements. 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.
    (8) ``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 terms ``contractor'' and ``subcontractor'' include suppliers 
of any kind.
    (9) ``Transfer Vehicle'' means any vehicle that operates in 
space and transfers Payloads or persons or both between two 
different space objects, between two different locations on the same 
space object, or between a space object and the surface of a 
celestial body. A Transfer Vehicle also includes a vehicle that 
departs from and returns to the same location on a space object.
    (c) Cross-waiver of liability:
    (1) The Contractor agrees to a cross-waiver of liability 
pursuant to which it waives all claims against any of the entities 
or persons listed in paragraphs (c)(1)(i) through (c)(1)(iv) of this 
clause 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) A Party as defined in (b)(5) of this clause;
    (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 clause; or
    (iv) The employees of any of the entities identified in 
paragraphs (c)(1)(i) through (c)(1)(iii) of this clause.
    (2) In addition, the contractor shall, by contract or otherwise, 
extend the cross-waiver of liability set forth in paragraph (c)(1) 
of this clause to its subcontractors at any tier 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 clause; and
    (ii) Require that their subcontractors waive all claims against 
the entities or persons identified in paragraphs (c)(1)(i) through 
(c)(1)(iv) of this clause.
    (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 clause, this 
cross-waiver of liability shall not be applicable to:
    (i) Claims between the Government and its own contractors or 
between its own contractors and subcontractors;
    (ii) Claims made by a natural person, his/her estate, survivors 
or subrogees (except when a subrogee is a Party to an 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;
    (iii) Claims for Damage caused by willful misconduct;
    (iv) Intellectual property claims;

[[Page 25660]]

    (v) Claims for Damage resulting from a failure of the contractor 
to extend the cross-waiver of liability to its subcontractors and 
related entities, pursuant to paragraph (c)(2) of this clause;
    (vi) Claims by the Government arising out of or relating to the 
contractor's failure to perform its obligations under this contract.
    (5) Nothing in this clause 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 49 U.S.C. 
Subtitle IX, Chapter. 701 is applicable.


(End of clause)
    6. Section 1852.228-78 is revised to read as follows:


1852.228-78  Cross-Waiver of Liability for Science or Space Exploration 
Activities Unrelated to the International Space Station.

    As prescribed in 1828.371(b) and (d), insert the following clause:

CROSS-WAIVER OF LIABILITY FOR SCIENCE OR SPACE EXPLORATION ACTIVITIES 
UNRELATED TO THE INTERNATIONAL SPACE STATION

 [XX/XX]

    (a) The purpose of this clause is to extend a cross-waiver of 
liability to NASA contracts for work done in support of Agreements 
between Parties involving Science or Space Exploration activities 
that are not related to the International Space Station (ISS) but 
involve a launch. This cross-waiver of liability shall be broadly 
construed to achieve the objective of furthering participation in 
space exploration, use, and investment.
    (b) As used in this clause, the term:
    (1) ``Agreement'' refers to any NASA Space Act agreement that 
contains the cross-waiver of liability provision authorized in 14 
CFR 1266.104.
    (2) ``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;
    (3) ``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.
    (4) ``Party'' means a party to a NASA Space Act agreement for 
Science or Space Exploration activities unrelated to the ISS that 
involve a launch and a party that is neither the prime contractor 
under this contract nor a subcontractor at any tier hereof.
    (5) ``Payload'' means all property to be flown or used on or in 
a Launch Vehicle.
    (6) ``Protected Space Operations'' means all Launch or Transfer 
Vehicle activities and Payload activities on Earth, in outer space, 
or in transit between Earth and outer space in implementation of an 
Agreement for Science or Space Exploration activities unrelated to 
the ISS that involve a launch. Protected Space Operations begins at 
the signature of the Agreement and ends when all activities done in 
implementation of the Agreement are completed. 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.
    Protected Space Operations excludes activities on Earth which 
are conducted on return from space to develop further a payload's 
product or process other than for the activities within the scope of 
an Agreement.
    (7) ``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 terms ``contractors'' and ``subcontractors'' include 
suppliers of any kind.
    (8) ``Transfer Vehicle'' means any vehicle that operates in 
space and transfers Payloads or persons or both between two 
different space objects, between two different locations on the same 
space object, or between a space object and the surface of a 
celestial body. A Transfer Vehicle also includes a vehicle that 
departs from and returns to the same location on a space object.
    (c) Cross-waiver of liability:
    (1) The Contractor agrees to a waiver of liability pursuant to 
which it waives all claims against any of the entities or persons 
listed in paragraphs (c)(1)(i) through (iv) of this clause 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 waiver shall apply to any claims 
for Damage, whatever the legal basis for such claims, against:
    (i) A Party;
    (ii) A Party to another NASA Agreement or contract that includes 
flight on the same Launch Vehicle;
    (iii) A Related Entity of any entity identified in paragraphs 
(c)(1)(i) or (ii) of this clause; or
    (iv) The employees of any of the entities identified in 
(c)(1)(i) through (iii) of this clause.
    (2) The Contractor agrees to extend the cross-waiver of 
liability as set forth in paragraph (c)(1) of this clause to its own 
subcontractors at all tiers by requiring them, by contract or 
otherwise, to:
    (i) Waive all claims against the entities or persons identified 
in paragraphs (c)(1)(i) through (iv) of this clause; and
    (ii) Require that their Related Entities waive all claims 
against the entities or persons identified in paragraphs (c)(1)(i) 
through (iv) of this clause.
    (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, entered 
into force on 1 September 1972, in which 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 clause, this 
cross-waiver of liability shall not be applicable to:
    (i) Claims between the Government and its own contractors or 
between its own contractors and subcontractors;
    (ii) Claims made by a natural person, his/her estate, survivors, 
or subrogees (except when a subrogee is a Party to an Agreement or 
is otherwise bound by the terms of this cross-waiver) for bodily 
injury to, or other impairment of health, or death of such person;
    (iii) Claims for Damage caused by willful misconduct;
    (iv) Intellectual property claims;
    (v) Claims for damages resulting from a failure of the 
contractor to extend the cross-waiver of liability to its 
subcontractors and related entities, pursuant to paragraph (c)(2) of 
this clause; or
    (vi) Claims by the Government arising out of or relating to a 
contractor's failure to perform its obligations under this contract.
    (5) Nothing in this clause 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 49 U.S.C. 
Subtitle IX, Chapter 701 is applicable.


(End of clause)

[FR Doc. 2011-10903 Filed 5-4-11; 8:45 am]
BILLING CODE 7510-01-P