Cross Waivers of Liability Clauses, 59339-59343 [2012-23715]
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59339
‘‘Niagara Falls’’, ‘‘NY’’ is withdrawn as
of September 27, 2012.
‘‘$1,000,000,000’’ and adding, in its
place, ‘‘$1,000,000’’.
[FR Doc. 2012–23819 Filed 9–26–12; 8:45 am]
[FR Doc. 2012–23901 Filed 9–26–12; 8:45 am]
revised as of October 1, 2011, on page
206, in section 227.7102–1, paragraph
(c) is added to read as follows:
BILLING CODE 6560–50–P
BILLING CODE 1505–01–D
227.7102–1
Policy.
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DEPARTMENT OF DEFENSE
HEALTH AND HUMAN SERVICES
DEPARTMENT
Defense Acquisition Regulations
System
*
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(c) The Government’s rights in a
vessel design, and in any useful article
embodying a vessel design, must be
consistent with the Government’s rights
in technical data pertaining to the
design (10 U.S.C. 7317; 17 U.S.C.
1301(a)(3)).
Administration for Children and
Families
48 CFR Part 209
45 CFR Part 301
Contractor Qualifications
[FR Doc. 2012–23925 Filed 9–26–12; 8:45 am]
State Plan Approval and Grant
Procedures
CFR Correction
BILLING CODE 1505–01–D
CFR Correction
In Title 45 of the Code of Federal
Regulations, Parts 200 to 499, revised as
of October 1, 2011, on page 221, in
§ 301.1 definitions for ‘‘Agent of a
Child’’ and ‘‘Attorney of a Child’’ are
added to read as follows:
§ 301.1
General definitions.
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*
Agent of a Child means a caretaker
relative having custody of or
responsibility for the child.
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Attorney of a Child means a licensed
lawyer who has entered into an
attorney-client relationship with either
the child or the child’s resident parent
to provide legal representation to the
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[FR Doc. 2012–23893 Filed 9–26–12; 8:45 am]
BILLING CODE 1505–01–D
DEPARTMENT OF DEFENSE
In Title 48 of the Code of Federal
Regulations, Chapter 2 (Parts 201–299),
revised as of October 1, 2011, on page
55, in section 209.104–70, paragraph (a)
is amended by revising the second
sentence to read as follows:
209.104–70
Solicitation provisions.
(a) * * * Any disclosure that the
government of a terrorist country has a
significant interest in an offeror or a
subsidiary of an offeror shall be
forwarded through agency channels to
the address at 209.104–1(g)(i)(C).
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[FR Doc. 2012–23905 Filed 9–26–12; 8:45 am]
BILLING CODE 1505–01–D
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
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Publicizing Contract Actions
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48 CFR Part 227
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National Aeronautics and
Space Administration.
ACTION: Final rule.
AGENCY:
NASA has adopted, with
minor changes, a final rule amending
the NASA FAR Supplement (NFS) to
consolidate and make changes to three
existing cross-waiver of liability
contract clauses, and to more closely
align the clauses with current mission
programs.
SUMMARY:
DATES:
Effective Date: October 29, 2012.
FOR FURTHER INFORMATION CONTACT:
1. Background
[Corrected]
In Title 48 of the Code of Federal
Regulations, Chapter 2 (Parts 201—299),
revised as of October 1, 2011, on page
73, in section 212.504, paragraph (a) is
corrected by redesignating (iv) through
the first paragraph (xvii) as (iii) through
(xvi).
48 CFR Part 205
[Corrected]
Cross Waivers of Liability Clauses
212.504
BILLING CODE 1505–01–D
In Title 48 of the Code of Federal
Regulations, Chapter 2 (Parts 201—299),
revised as of October 1, 2011, on page
38, in section 205.470, the first sentence
is corrected by removing
RIN 2700–AD55
CFR Correction
Acquisition of Commercial Items
[FR Doc. 2012–23917 Filed 9–26–12; 8:45 am]
205.470
48 CFR Parts 1812, 1828, and 1852
Leigh Pomponio, NASA, Office of
Procurement, Contract Management
Division (Suite 2P77); (202) 358–0592;
email: leigh.pomponio@nasa.gov.
SUPPLEMENTARY INFORMATION:
48 CFR Part 212
Defense Acquisition Regulations
System
CFR Correction
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
Patents, Data, and Copyrights; CFR
Correction
In Title 48 of the Code of Federal
Regulations, Chapter 2 (Parts 201—299),
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A proposed rule was published on
May 5, 2011 (76 FR 25657) to
consolidate NASA’s three existing crosswaiver of liability clauses into two
clauses and to align the two clauses
with Agency mission requirements,
consistent with the cross-waiver of
liability regulatory authority at 14 CFR
part 1266. The regulatory authority at 14
CFR part 1266 was promulgated on
February 26, 2008 (73 FR 10143–50).
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
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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.
Following promulgation of the twocategory regulatory authority, the threecategory contract clause arrangement no
longer aligned. The procurement rule of
May 7, 2011 proposed to delete one
clause and realign the remaining two to
cover the two categories of contracts on
which cross-waivers of liability are
authorized and required: Contracts
supporting ISS and contracts supporting
launches into space that are not related
to the ISS. Clause 1852.228–72, CrossWaiver of Liability for Space Shuttle
Services will be deleted. Clause
1852.228–76 is amended and retitled
Cross-Waiver of Liability for
International Space Station Activities,
and 1852.228–78 is amended and
retitled Cross-Waiver of Liability for
Science or Space Exploration Activities
Unrelated to the International Space
Station. While the proposed rule
included continuing applicability of
cross waivers of liability to Space
Shuttle support contracts, this final rule
removes the Space Shuttle support
contract references because NASA will
not issue any new contracts for Space
Shuttle support. Further, wherever the
cross-waiver of liability clauses are
referenced in the NASA FAR
Supplement, conforming changes are
being made to clause numbers and
titles.
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2. Discussion and Analysis
Two respondents submitted
comments in response to the proposed
rule. NASA reviewed and considered all
comments in the development of the
final rule. No changes are being made to
the rule as a result of the comments. A
discussion of the comments follows:
A. One respondent mistakenly cited
this docket number, but the comments
submitted were unrelated to this rule.
B. One respondent submitted 19
specific recommendations for change.
They are individually addressed below.
In general, the comments appear to
confuse the relationship NASA has with
its contractors vice that which NASA
has with Cooperating Parties under
cooperative Space Act agreements. This
procurement rule addresses only the
requirements for NASA contractors.
This rule does not address the
relationship that NASA has with other
entities under cooperative Space Act
agreements.
C. Comments:
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1. 1852.228–76(a): The stated
objective is ‘‘to extend this cross-waiver
of liability to NASA contracts’’
[emphasis added.] There is a distinction
between NFS contracts and Space Act
agreements that is recognized
throughout the proposed rule, but not
reflected in paragraph (a). Recommend
adding ‘‘Space Act agreements’’.
NASA Response: The distinction
between NASA contracts and Space Act
agreements is recognized throughout the
rule, but this rule applies only to
contracts, and therefore, Space Act
agreements are not cited in the clause.
The purpose of this rule is to extend
cross-waivers of liability to contracts.
Space Act Agreements have their own
set of terms, and they are governed by
14 CFR part 1266. To the extent that
cross-waivers of liability apply to Space
Act agreements, the terms will be
included in the Space Act agreement.
Space Act agreements are outside the
scope of this Rule.
2. 1852.228–76(b)(1): NASA contracts
should be added to the definition of
‘‘Agreement’’ to ensure that the crosswaiver clauses include FAR-based
contracts. NASA Response:
‘‘Agreement’’, as defined in the clause,
is correct. Agreement, as used here,
refers to Space Act agreements between
NASA and Cooperating Parties, and
does not include contracts. Contracts
between NASA and contractors,
including subcontracts and supplier
contracts thereunder, are not
Agreements as defined in the clause.
3. 1852.228–76(b)(5): The definition
of ‘‘Party’’ should be amended to add
NASA contractors.
NASA Response: ‘‘Party’’, as defined
in the clause, refers to Parties to the
cooperative Space Act agreement, i.e.
the Space Act agreement between NASA
and a Cooperating Party. The definition
does not include contractors, and the
definition clearly states that contractors
and subcontractors are not ‘‘Parties’’.
4. 1852.228–76(b)(6): Recommend
amending the definition of payload to
read ‘‘all property to be flown or used
on or in a Launch or Transfer Vehicle
or the ISS’’
NASA Response: It is not necessary to
add ‘‘transfer vehicle’’ to the definition
of ‘‘payload’’ because, at the time of
launch, a transfer vehicle is ‘‘property
flown on a launch vehicle’’, and is
therefore included in the definition of
payload. While it is true that, at some
point, a transfer vehicle ceases to be
‘‘payload’’ and becomes, instead, a
‘‘space vehicle’’, it is not necessary, for
purposes of this rule, to define that
point in time. A transfer vehicle is
subject to cross-waivers of liability
whether it is functioning as payload or
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as a space vehicle. For a detailed
discussion on NASA’s development of a
definition of ‘‘transfer vehicle,’’ please
see 73 FR 10146.
5. 1852.228–76 (b)(7): The ‘‘Protected
Space Operations’’ definition includes
certain activities ‘‘in implementation of
the IGA * * * and contracts to perform
work in support of NASA’s obligations
under the IGA and these related
agreements.’’ It appears that the
capitalized ‘‘Agreements’’ in this
sentence refers to the IGA; however,
‘‘Agreement’’ is defined in the clause to
mean otherwise. Recommend clarifying
the distinction.
NASA response: Agreements as used
in 1852.228–76(b)(7) is consistent with
the definition of Agreement in the
clause. It does not refer specifically to
the IGA.
6. 1852.228–76(c)(1): Recommend
changing ‘‘the contractor’’ to ‘‘each
party’’.
NASA response: The ‘‘contractor’’ is
the correct term. The purpose of the
clause is to require the contractor to
agree to a waiver of liability. The clause
does not apply to ‘‘each party’’ to other
agreements.
7. 1852.228–76(c)(2): Recommend
changing ‘‘the contractor’’ to ‘‘each
party’’ and ‘‘subcontractors’’ to ‘‘related
entities’’.
NASA response: The clause is correct
as written. The clause requires the
contractor to extend the cross-waiver
liability to its subcontractors at any tier.
Use of the terms ‘‘Party’’ or ‘‘related
entities’’ would, for reasons stated
above, be incorrect. 1852.228–
76(c)(2)(ii): Recommend changing
‘‘subcontractors’’ to ‘‘related entities.’’
NASA Response: See response to 7.
8. 1852.228–76(c)(4)(i): Recommend
changing ‘‘the Government’’ to ‘‘a
Party’’, and ‘‘own contractors or
between its own contractors and their
subcontractors and subcontractors’’ to ’’
related entities’’.
NASA Response: The clause is correct
as written. Cross-waivers do not apply
between the Government and its
contractors or between a contractor and
its subcontractors. Contract terms and
conditions apply to these relationships.
9. 1852.228–76(c)(4)(v): Recommend
changing ‘‘contractor’’ to ‘‘party’’ and
‘‘subcontractor’’ to ‘‘related entity’’.
NASA Response: See response to 9.
10. 1852.228–76(c)(4)(vi):
Recommend changing ‘‘Government’’ to
‘‘a Party’’ and ‘‘contractor’s’’ to ‘‘other
Party’s’’ inserting the word
‘‘contractual’’ before ‘‘obligations ’’ and
changing ‘‘contract’’ to ‘‘agreement’’.
NASA Response: The clause is correct
as written. Specifically, 1852.228–
76(c)(4)(vi) refers to the relationship
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between NASA and its contractor and
does not include any other parties or
any agreements.
11. 1852.228–78(b)(1): NASA
contracts should be amended to add the
definition of ‘‘Agreement’’ to ensure that
the cross-waiver clauses include FARbased contracts. We recommend
amending the definition as follows:
‘‘Agreement’’ refers to any NASA Space
Act agreements or contracts that contain
the cross-waiver of liability provisions
authorized by 14 CFR Part 1266–104.’’
NASA Response: This rule amends
the NASA FAR Supplement which
applies only to contracts and not Space
Act Agreements. Also see response to 2.
12. 1852.228–78(b)(4): Recommend
the definition of ‘‘Party’’ be amended to
add NASA contracts.
NASA Response: See response to 3.
13. 1852.228–78(b)(5): Recommend
adding ‘‘Transfer Vehicle’’ to the
definition of ‘‘Payload’’.
NASA Response: See response to 4.
14. 1852.228–78(c)(1): Recommend
changing ‘‘contractor’’ to ‘‘each Party’’.
NASA Response: The clause is correct
as written. The contract clause obligates
the contractor. See response to 6 above.
15. 1852.228–78(c)(2): Recommend
changing ‘‘contractor’’ to ‘‘party’’ and
‘‘own subcontractors at all tiers’’ to
‘‘related entities’’.
NASA Response: The clause is correct
as written. See response to 7.
16. 1852.228–78(c)(4)(i): Recommend
changing ‘‘Government’’ to ‘‘a Party’’
and ‘‘own contractors or between its
own contractors and their
subcontractors’’ to ’’ Related Entities’’.
NASA Response: The clause is correct
as written. See response to 9.
17. 1852.228–78(c)(4)(v): Recommend
changing ‘‘contractor’’ to ‘‘a Party’’ and
‘‘subcontractors’’ to ‘‘related entities’’ .
NASA Response: The clause is correct
as written. See response to 9.
18. 1852.228–78(c)(4)(6): Recommend
changing ‘‘Government’’ to ‘‘a party’’
and ‘‘contractor’s’’ to ‘‘other party’s’’
and inserting the word ‘‘contractual’’
before ‘‘obligations ’’ and ‘‘contract’’ to
‘‘agreement’’.
NASA Response: See response to 11.
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3. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 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). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
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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
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
4. Regulatory Flexibility Act
NASA certifies that this final rule will
not have a significant economic impact
on a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, at 5 U.S.C. 601, et. seq.,
because it the rule does not impose any
additional requirements on small
business. The rule updates and realigns
already-existing requirements.
5. 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 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.
(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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59341
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 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
be performed involves Protected Space
Operations, as that term is defined in
the clause, relating to the International
Space Station.
(d) At the contracting officer’s
discretion, the clauses prescribed by
paragraphs (b) and (c) of this section
may be used in solicitations, contracts,
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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:
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CROSS-WAIVER OF LIABILITY FOR
INTERNATIONAL SPACE STATION
ACTIVITIES (OCT 2012)
(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
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.
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(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)
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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;
(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)
E:\FR\FM\27SER1.SGM
27SER1
Federal Register / Vol. 77, No. 188 / Thursday, September 27, 2012 / Rules and Regulations
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:
tkelley on DSK3SPTVN1PROD with RULES
CROSS–WAIVER OF LIABILITY FOR
SCIENCE OR SPACE EXPLORATION
ACTIVITIES UNRELATED TO THE
INTERNATIONAL SPACE STATION
(OCT 2012)
(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
VerDate Mar<15>2010
16:28 Sep 26, 2012
Jkt 226001
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.
Note to paragraph (a)(7): 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 (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 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 (c)(1)(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 (c)(1)(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 (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, 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;
PO 00000
Frm 00057
Fmt 4700
Sfmt 4700
59343
(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. 2012–23715 Filed 9–26–12; 8:45 am]
BILLING CODE 7510–01–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Part 3415
Contracting by Negotiation
CFR Correction
In Title 48 of the Code of Federal
Regulations, Chapter 29 to End, revised
as of October 1, 2011, on page 150, in
section 3415.605, paragraph (d) is
correctly revised, and section 3415.606
is added to read as follows:
3415.605 Content of unsolicited
proposals.
*
*
*
*
*
d. No prior commitments were
received from Departmental employees
regarding acceptance of this proposal.
Date:
llllllllllllllllll
l
Organization:
llllllllllllllllll
l
Name:
llllllllllllllllll
l
Title:
llllllllllllllllll
l
(This certification must be signed by a
responsible person authorized to enter
into contracts on behalf of the
organization.)
3415.606
Agency procedures.
(b)(1) The HCA or designee is the
contact point to coordinate the receipt,
control, and handling of unsolicited
proposals.
E:\FR\FM\27SER1.SGM
27SER1
]]>Agencies
[Federal Register Volume 77, Number 188 (Thursday, September 27, 2012)]
[Rules and Regulations]
[Pages 59339-59343]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23715]
-----------------------------------------------------------------------
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1812, 1828, and 1852
RIN 2700-AD55
Cross Waivers of Liability Clauses
AGENCY: National Aeronautics and Space Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NASA has adopted, with minor changes, a final rule amending
the NASA FAR Supplement (NFS) to consolidate and make changes to three
existing cross-waiver of liability contract clauses, and to more
closely align the clauses with current mission programs.
DATES: Effective Date: October 29, 2012.
FOR FURTHER INFORMATION CONTACT: Leigh Pomponio, NASA, Office of
Procurement, Contract Management Division (Suite 2P77); (202) 358-0592;
email: leigh.pomponio@nasa.gov.
SUPPLEMENTARY INFORMATION:
1. Background
A proposed rule was published on May 5, 2011 (76 FR 25657) to
consolidate NASA's three existing cross-waiver of liability clauses
into two clauses and to align the two clauses with Agency mission
requirements, consistent with the cross-waiver of liability regulatory
authority at 14 CFR part 1266. The regulatory authority at 14 CFR part
1266 was promulgated on February 26, 2008 (73 FR 10143-50). 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
[[Page 59340]]
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.
Following promulgation of the two-category regulatory authority,
the three-category contract clause arrangement no longer aligned. The
procurement rule of May 7, 2011 proposed to delete one clause and
realign the remaining two to cover the two categories of contracts on
which cross-waivers of liability are authorized and required: Contracts
supporting ISS and contracts supporting launches into space that are
not related to the ISS. Clause 1852.228-72, Cross-Waiver of Liability
for Space Shuttle Services will be deleted. Clause 1852.228-76 is
amended and retitled Cross-Waiver of Liability for International Space
Station Activities, and 1852.228-78 is amended and retitled Cross-
Waiver of Liability for Science or Space Exploration Activities
Unrelated to the International Space Station. While the proposed rule
included continuing applicability of cross waivers of liability to
Space Shuttle support contracts, this final rule removes the Space
Shuttle support contract references because NASA will not issue any new
contracts for Space Shuttle support. Further, wherever the cross-waiver
of liability clauses are referenced in the NASA FAR Supplement,
conforming changes are being made to clause numbers and titles.
2. Discussion and Analysis
Two respondents submitted comments in response to the proposed
rule. NASA reviewed and considered all comments in the development of
the final rule. No changes are being made to the rule as a result of
the comments. A discussion of the comments follows:
A. One respondent mistakenly cited this docket number, but the
comments submitted were unrelated to this rule.
B. One respondent submitted 19 specific recommendations for change.
They are individually addressed below. In general, the comments appear
to confuse the relationship NASA has with its contractors vice that
which NASA has with Cooperating Parties under cooperative Space Act
agreements. This procurement rule addresses only the requirements for
NASA contractors. This rule does not address the relationship that NASA
has with other entities under cooperative Space Act agreements.
C. Comments:
1. 1852.228-76(a): The stated objective is ``to extend this cross-
waiver of liability to NASA contracts'' [emphasis added.] There is a
distinction between NFS contracts and Space Act agreements that is
recognized throughout the proposed rule, but not reflected in paragraph
(a). Recommend adding ``Space Act agreements''.
NASA Response: The distinction between NASA contracts and Space Act
agreements is recognized throughout the rule, but this rule applies
only to contracts, and therefore, Space Act agreements are not cited in
the clause. The purpose of this rule is to extend cross-waivers of
liability to contracts. Space Act Agreements have their own set of
terms, and they are governed by 14 CFR part 1266. To the extent that
cross-waivers of liability apply to Space Act agreements, the terms
will be included in the Space Act agreement. Space Act agreements are
outside the scope of this Rule.
2. 1852.228-76(b)(1): NASA contracts should be added to the
definition of ``Agreement'' to ensure that the cross-waiver clauses
include FAR-based contracts. NASA Response: ``Agreement'', as defined
in the clause, is correct. Agreement, as used here, refers to Space Act
agreements between NASA and Cooperating Parties, and does not include
contracts. Contracts between NASA and contractors, including
subcontracts and supplier contracts thereunder, are not Agreements as
defined in the clause.
3. 1852.228-76(b)(5): The definition of ``Party'' should be amended
to add NASA contractors.
NASA Response: ``Party'', as defined in the clause, refers to
Parties to the cooperative Space Act agreement, i.e. the Space Act
agreement between NASA and a Cooperating Party. The definition does not
include contractors, and the definition clearly states that contractors
and subcontractors are not ``Parties''.
4. 1852.228-76(b)(6): Recommend amending the definition of payload
to read ``all property to be flown or used on or in a Launch or
Transfer Vehicle or the ISS''
NASA Response: It is not necessary to add ``transfer vehicle'' to
the definition of ``payload'' because, at the time of launch, a
transfer vehicle is ``property flown on a launch vehicle'', and is
therefore included in the definition of payload. While it is true that,
at some point, a transfer vehicle ceases to be ``payload'' and becomes,
instead, a ``space vehicle'', it is not necessary, for purposes of this
rule, to define that point in time. A transfer vehicle is subject to
cross-waivers of liability whether it is functioning as payload or as a
space vehicle. For a detailed discussion on NASA's development of a
definition of ``transfer vehicle,'' please see 73 FR 10146.
5. 1852.228-76 (b)(7): The ``Protected Space Operations''
definition includes certain activities ``in implementation of the IGA *
* * and contracts to perform work in support of NASA's obligations
under the IGA and these related agreements.'' It appears that the
capitalized ``Agreements'' in this sentence refers to the IGA; however,
``Agreement'' is defined in the clause to mean otherwise. Recommend
clarifying the distinction.
NASA response: Agreements as used in 1852.228-76(b)(7) is
consistent with the definition of Agreement in the clause. It does not
refer specifically to the IGA.
6. 1852.228-76(c)(1): Recommend changing ``the contractor'' to
``each party''.
NASA response: The ``contractor'' is the correct term. The purpose
of the clause is to require the contractor to agree to a waiver of
liability. The clause does not apply to ``each party'' to other
agreements.
7. 1852.228-76(c)(2): Recommend changing ``the contractor'' to
``each party'' and ``subcontractors'' to ``related entities''.
NASA response: The clause is correct as written. The clause
requires the contractor to extend the cross-waiver liability to its
subcontractors at any tier. Use of the terms ``Party'' or ``related
entities'' would, for reasons stated above, be incorrect. 1852.228-
76(c)(2)(ii): Recommend changing ``subcontractors'' to ``related
entities.''
NASA Response: See response to 7.
8. 1852.228-76(c)(4)(i): Recommend changing ``the Government'' to
``a Party'', and ``own contractors or between its own contractors and
their subcontractors and subcontractors'' to '' related entities''.
NASA Response: The clause is correct as written. Cross-waivers do
not apply between the Government and its contractors or between a
contractor and its subcontractors. Contract terms and conditions apply
to these relationships.
9. 1852.228-76(c)(4)(v): Recommend changing ``contractor'' to
``party'' and ``subcontractor'' to ``related entity''.
NASA Response: See response to 9.
10. 1852.228-76(c)(4)(vi): Recommend changing ``Government'' to ``a
Party'' and ``contractor's'' to ``other Party's'' inserting the word
``contractual'' before ``obligations '' and changing ``contract'' to
``agreement''.
NASA Response: The clause is correct as written. Specifically,
1852.228-76(c)(4)(vi) refers to the relationship
[[Page 59341]]
between NASA and its contractor and does not include any other parties
or any agreements.
11. 1852.228-78(b)(1): NASA contracts should be amended to add the
definition of ``Agreement'' to ensure that the cross-waiver clauses
include FAR-based contracts. We recommend amending the definition as
follows: ``Agreement'' refers to any NASA Space Act agreements or
contracts that contain the cross-waiver of liability provisions
authorized by 14 CFR Part 1266-104.''
NASA Response: This rule amends the NASA FAR Supplement which
applies only to contracts and not Space Act Agreements. Also see
response to 2.
12. 1852.228-78(b)(4): Recommend the definition of ``Party'' be
amended to add NASA contracts.
NASA Response: See response to 3.
13. 1852.228-78(b)(5): Recommend adding ``Transfer Vehicle'' to the
definition of ``Payload''.
NASA Response: See response to 4.
14. 1852.228-78(c)(1): Recommend changing ``contractor'' to ``each
Party''.
NASA Response: The clause is correct as written. The contract
clause obligates the contractor. See response to 6 above.
15. 1852.228-78(c)(2): Recommend changing ``contractor'' to
``party'' and ``own subcontractors at all tiers'' to ``related
entities''.
NASA Response: The clause is correct as written. See response to 7.
16. 1852.228-78(c)(4)(i): Recommend changing ``Government'' to ``a
Party'' and ``own contractors or between its own contractors and their
subcontractors'' to '' Related Entities''.
NASA Response: The clause is correct as written. See response to 9.
17. 1852.228-78(c)(4)(v): Recommend changing ``contractor'' to ``a
Party'' and ``subcontractors'' to ``related entities'' .
NASA Response: The clause is correct as written. See response to 9.
18. 1852.228-78(c)(4)(6): Recommend changing ``Government'' to ``a
party'' and ``contractor's'' to ``other party's'' and inserting the
word ``contractual'' before ``obligations '' and ``contract'' to
``agreement''.
NASA Response: See response to 11.
3. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 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). E.O.
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 E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
4. Regulatory Flexibility Act
NASA certifies that this final rule will not have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601, et. seq.,
because it the rule does not impose any additional requirements on
small business. The rule updates and realigns already-existing
requirements.
5. 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 amended as
follows:
0
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
0
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.
(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
0
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 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 be performed involves Protected Space
Operations, as that term is defined in the clause, relating to the
International Space Station.
(d) At the contracting officer's discretion, the clauses prescribed
by paragraphs (b) and (c) of this section may be used in solicitations,
contracts,
[[Page 59342]]
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]
0
4. Section 1852.228-72 is removed.
0
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
(OCT 2012)
(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 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;
(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)
[[Page 59343]]
0
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
(OCT 2012)
(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.
Note to paragraph (a)(7): 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 (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 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 (c)(1)(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 (c)(1)(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 (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, 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. 2012-23715 Filed 9-26-12; 8:45 am]
BILLING CODE 7510-01-P
