Cross-Waiver of Liability Clauses, 25657-25660 [2011-10903]
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Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Proposed Rules
portal by inputting RIN 2007–AD64
under the heading ‘‘Enter keyword or
ID’’ and selecting ‘‘Search.’’ Select the
link ‘‘Submit a Comment’’ that
corresponds with ‘‘RIN 2007–AD54.’’
Follow the instructions provided at the
‘‘Submit a Comment’’ screen. Please
include your name, company name (if
any), and ‘‘RIN 2700–AD54’’ on your
attached document. (2) E-mail:
leigh.pomponio@nasa.gov. Include RIN
2007–AD54 in the subject line of the
message.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check https://www.regulations.gov
approximately two to three days after
submission to verify posting.
FOR FURTHER INFORMATION CONTACT:
Leigh Pomponio, NASA, Office of
Procurement, (202) 358–0592; e-mail:
leigh.pomponio@nasa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
NASA is proposing to amend the
NASA FAR Supplement to include a
requirement for contracting officers to
notify prospective contractors if they are
found non-responsible for award. Such
notification permits potential
contractors to improve their
opportunities for future awards by
addressing the non-responsibility
issues. This proposed rule is consistent
with FAR 9.104–6, Federal Awardee
Performance and Integrity Information
System (FAPIIS). Because contracting
officers use FAPIIS to obtain pre-award
information, and to enter
determinations of non-responsibility for
public display, it is a good practice to
personally notify contractors of nonresponsibility findings and the basis of
the finding in an effort to afford
potential contractors an opportunity to
improve the underlying causes for a
non-responsibility determination and to
promote maximum competition for
future awards.
emcdonald on DSK2BSOYB1PROD with PROPOSALS
B. Executive Order 12866 and Executive
Order 13563
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
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reducing costs, of harmonizing rules,
and of promoting flexibility. This
proposed rule has NOT been designated
a ‘‘significant regulatory action’’ under
section 3(f) of Executive Order 12866.
This is not a major rule under 5 U.S.C.
804.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
C. Regulatory Flexibility Act
25657
AGENCY:
This final rule is not expected to 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 it does not impose any new
requirements on small entities. This rule
only imposes requirements on
Government personnel; the impact on
the public, including small entities, is
the receipt of additional information.
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 Part 1809
Government procurement.
William P. McNally,
Assistant Administrator for Procurement.
Accordingly, 48 CFR Part 1809 is
amended as follows:
1. The authority citation for 48 CFR
Part 1809 continues to read as follows:
Authority: 42 U.S.C. 2455(a), 2473(c)(1)
PART 1809—CONTRACTOR
QUALIFICATIONS
2. Section 1809.105–2 is added to
Subpart 1809.1 to read as follows:
1809.105–2 Determinations and
documentation.
(a) The contracting officer shall
provide written notification to a
prospective contractor determined not
responsible, which includes the basis
for the determination. Notification
provides the prospective contractor with
the opportunity to take corrective action
prior to future solicitations.
[FR Doc. 2011–10919 Filed 5–4–11; 8:45 am]
BILLING CODE 7510–01–P
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48 CFR Parts 1812, 1828, and 1852
RIN 2700–AD55
Cross-Waiver of Liability Clauses
National Aeronautics and
Space Administration.
ACTION: Proposed rule.
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: https://
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
todd.lacks@nasa.gov.
FOR FURTHER INFORMATION CONTACT: R.
Todd Lacks, NASA, Office of
Procurement, Contract Management
Division (Suite 5J75); (202) 358–0799;
e-mail: todd.lacks@nasa.gov.
SUMMARY:
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Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Proposed Rules
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 crosswaiver 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.
SUPPLEMENTARY INFORMATION:
emcdonald on DSK2BSOYB1PROD with PROPOSALS
A. Background
NASA has been including crosswaivers 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 crosswaiver 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
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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:
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1828.371 Clauses incorporating crosswaivers 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 crosswaivers 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
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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
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(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
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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.
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(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 crosswaiver 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 crosswaiver 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 crosswaiver 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 crosswaiver 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;
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(v) Claims for Damage resulting from a
failure of the contractor to extend the crosswaiver 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
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(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
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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 crosswaiver 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.
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(3) For avoidance of doubt, this crosswaiver 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 crosswaiver 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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 226
[Docket No. 110407235–1242–01]
RIN 0648–XA349
Endangered and Threatened Wildlife;
Notice of 90-Day Finding on a Petition
to Revise Critical Habitat for the
Endangered Leatherback Sea Turtle
Under the Endangered Species Act
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Department of Commerce.
ACTION: Notice of 90-day petition
finding.
AGENCY:
We, NMFS, announce a 90day finding on a petition to revise
critical habitat for the endangered
SUMMARY:
E:\FR\FM\05MYP1.SGM
05MYP1
]]>Agencies
[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Proposed Rules]
[Pages 25657-25660]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10903]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://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
todd.lacks@nasa.gov.
FOR FURTHER INFORMATION CONTACT: R. Todd Lacks, NASA, Office of
Procurement, Contract Management Division (Suite 5J75); (202) 358-0799;
e-mail: todd.lacks@nasa.gov.
[[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
