Cross-Waiver of Liability Clauses

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

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

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

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

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 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.

--This is a summary of a Federal Register article originally published on the page number listed below--

Proposed rule.

CFR Part: "48 CFR Parts 1812, 1828, and 1852"

RIN Number: "RIN 2700-AD55"

Citation: "76 FR 25657"

Federal Register Page Number: "25657"

"Proposed Rules"