[Federal Register Volume 71, Number 204 (Monday, October 23, 2006)]
[Proposed Rules]
[Pages 62061-62065]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17701]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 71, No. 204 / Monday, October 23, 2006 /
Proposed Rules
[[Page 62061]]
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1266
[Notice (06-079)]
RIN 2700-AB51
Cross-Waiver of Liability
AGENCY: National Aeronautics and Space Administration.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The National Aeronautics and Space Administration (NASA) is
proposing to amend part 1266 of Title 14 to update and ensure
consistency in the use of cross-waiver of liability provisions in NASA
agreements. Part 1266 provides the regulatory basis for cross-waiver
provisions used in the following categories of NASA mission agreements:
Agreements for activities in connection with 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);
agreements for use of the Space Shuttle; and agreements for NASA's
science and space exploration missions that are launched on Expendable
Launch Vehicles (ELVs). Among other generally clerical amendments to
this Part, NASA is proposing to delete the subsection regarding the
cross-waiver of liability during Space Shuttle operations and expand
the scope of the ELV provision to encompass Reusable Launch Vehicles
(RLVs) as well as other users of the same launch vehicle during the
same launch.
Comment Date: Comments due on or before November 22, 2006.
ADDRESSES: Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Steven A. Mirmina, Senior Attorney,
Office of the General Counsel, NASA Headquarters, 300 E Street, SW.,
Washington, DC 20546; telephone: 202/358-2432; e-mail
[email protected].
SUPPLEMENTARY INFORMATION: In the 14 years since the current rule's
publication (September 25, 1991), shifts in areas of NASA mission and
program emphases warrant an adjustment of the NASA cross-waiver
provisions to ensure they remain current. Most notably, on January 29,
1998, the United States formally joined with 14 nations in an
international partnership in cooperative space exploration for the
design, development, operation, and utilization of the International
Space Station (ISS) through the IGA. The IGA entered into force for
NASA and various other Partners between 1998 and 2005. Article 16 of
the IGA establishes a broad cross-waiver of liability among Partner
States and their contractually or otherwise related entities by
requiring those entities to make similar waivers of liability. Thus,
NASA is required to include IGA-based cross-waivers in contracts and
agreements for activities related to the ISS.
A second development involves the February 1, 2003, Space Shuttle
Columbia accident. In the wake of that tragedy, NASA embraced the
recommendations of the Columbia Accident Investigation Board (CAIB)
that the NASA Space Transportation System (Shuttle) be used chiefly for
completion of the ISS and then retired. While NASA is assessing the
possibility of a servicing mission for the Hubble Space Telescope using
the Shuttle, NASA does not expect to conclude any Space Act agreements
with international partners for cooperation on this prospective
mission. Since current servicing mission plans envision no other non-
ISS missions, there is no longer a need to retain the section of part
1266 regarding a separate cross-waiver of liability to be used during
Shuttle operations (formerly Sec. 1266.103), and NASA is proposing to
delete it.
Third, NASA has continued to conduct scores of missions for the
purpose of furthering science and space exploration unrelated to the
ISS and without using the Shuttle. These missions are currently
launched using ELVs and Evolved Expendable Launch Vehicles (EELVs).
NASA anticipates that missions of this nature may also be launched
using commercially available RLVs. Thus, NASA is expanding the scope of
the current ELV section to include RLVs as well. NASA has an
established practice of including cross-waivers in its mission
agreements to lower the risks and costs of space exploration. Revising
the present regulation is intended to promote consistency between the
general types of cross-waivers NASA uses in its agreement practice for
ISS activities and other scientific missions launched by commercial
vehicles. Additionally, since commercial launch providers can launch
multiple payloads on the same vehicle, NASA is proposing to expand the
scope of the waiver in Sec. 1266.104 to include other users of a
single launch vehicle.\1\
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\1\ The provisions of this Regulation will be applicable only to
NASA launches that are not licensed by the Federal Aviation
Administration (FAA). The FAA licenses launch vehicles and reentry
of reentry vehicles under authority granted to the Secretary of
Transportation in the Commercial Space Launch Act (CSLA) of 1984, as
amended, codified in 49 U.S.C. Subtitle IX, chapter 701, and
delegated to the FAA Administrator. Licensing authority under the
CSLA is carried out by FAA Associate Administrator for Commercial
Space Transportation. Where NASA acquires launch services on a
commercial basis (such as through contracts for spacecraft delivery
on-orbit) the cross-waiver provisions of the CSLA will apply.
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Fourth, NASA has had a long history and consistent practice of
requiring international and domestic partners to cross-waive claims for
loss or damage and, thus, assume responsibility for the risks inherent
in space exploration. For years, NASA has utilized broad, no-fault, no
subrogation cross-waivers. In response to questions raised by the U.S.
Department of Justice in 1995 regarding the Agency's authority to waive
claims of the U.S. Government, and at NASA's request, President Clinton
underscored successive Administrations' acknowledgement of the
importance of these liability arrangements by affirming, through a
delegation of his constitutional foreign affairs authority, NASA's
authority to enter into cross-waivers of liability, on behalf of the
Government of the United States, with its Partners in international
agreements. In part, the President's delegation provided:
The authority conferred upon the President by the Constitution
and the laws of the United States of America to execute mutual
waivers of claims of liability on behalf of the
[[Page 62062]]
United States for damages arising out of cooperative activities is
hereby delegated to the Administrator of NASA for agreements with
foreign governments and their agents regarding aeronautical,
science, and space activities that are executed pursuant to the
authority granted NASA by the National Aeronautics and Space Act of
1958, Public Law 85-568, as amended.\2\
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\2\ Presidential Documents, Memorandum of October 10, 1995,
Delegation of Authority to Enter into Mutual Waivers of Liability
for Certain Agreements Under the National Aeronautics and Space Act
of 1958, 60 FR 53251, October 13, 1995.
However, this delegation of cross-waiver authority for cooperative
agreements with foreign entities left unresolved the extent of NASA's
authority to execute similar waivers of U.S. Government claims against
the Agency's U.S. cooperative partners, such as corporations and
universities. Therefore, NASA sought statutory confirmation and
clarification of NASA's authority to implement liability cross-waivers
with both domestic and international partners.
Congress responded by amending the National Aeronautics and Space
Act of 1958 (Space Act) to include Section 309.\3\ Specifically, this
section, codified at 42 U.S.C. 2458c, confirms and clarifies NASA's
authority to waive claims of the U.S. Government in cooperative
agreements in exchange for a reciprocal waiver of claims from the
cooperating party. In situations where, for example, a foreign space
agency lacks fully reciprocal authority to waive claims of its
government, special arrangements have been developed to cover the gap,
including the requirement to purchase insurance to protect NASA against
broader claims of a foreign government that a foreign space agency is
unable to waive. A prime example of such arrangements is set forth in
Article 16 of the IGA to address potential subrogated claims of the
Japanese Government.
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\3\ The provisions of Section 309 were recently extended in the
NASA Authorization Act of 2005, Pub. L. 109-155, which was signed by
President Bush on December 30, 2005.
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Use of Cross-Waivers for ISS and ELV/RLV Activities: The
fundamental purpose of cross-waivers of liability in NASA agreements is
to encourage participation in the exploration, exploitation, and use of
outer space. The IGA declares the Partner States' intention that cross-
waivers of liability be broadly construed to achieve this purpose. It
is important to underscore the fact that agreements for high-risk
activities of very broad and diffuse scope require that both entities
be involved in ``Protected Space Operations'' or ``PSO.'' PSO is
defined to include a wide range of design, transport, flight, and
payload activities. In addition, for many of these higher-risk
activities as well as for any activity requiring a significant amount
of contractor involvement, NASA typically insists that each party
require its own related entities (e.g. contractors, subcontractors,
users, and customers, at any tier) to agree to waive claims against
similar entities that may be legally related to any other party. This
is referred to as the ``flow down'' requirement of the cross-waiver.
The chief differences between the ISS and ELV cross-waivers lie in
the broad scope of the ISS activities required to be covered by cross-
waivers in contrast with the more limited scope of waivers used for
most mission-specific science and space exploration activities. To
illustrate, the cross-waiver for ISS activities generally is in effect
anywhere in the world when activities are conducted in implementation
of any ISS-related agreement. The ELV-based cross-waiver is more
limited; it generally is only applied to the parties to an agreement
and their related entities, although it is being expanded by this
proposed rule to cover other payloads launched on the same vehicle. In
essence, however, the operation of the ISS and ELV waivers is
comparable; both the party claiming damage and the party causing damage
must be participating in ``Protected Space Operations''. More
specifically, the term ``Protected Space Operations'' in the IGA cross-
waiver includes all activities in implementation of the IGA or
Memoranda of Understanding concluded pursuant to the IGA. In contrast,
the term ``Protected Space Operations'' in NASA's science and space
exploration agreements covers all ELV or RLV activities that are
performed in implementation of an agreement for launch services. The
specific requirements and precise scope of the term ``Protected Space
Operations'' are provided in Sec. Sec. 1266.102 and 1266.104.
The other changes accomplished in this revision are minor, making
uniform the capitalization, use of italics, ordering of listed terms,
and general editorial changes to the cross-waiver regulation.
General: This part establishes the regulatory basis for cross-
waivers incorporated in NASA agreements implementing the IGA as well as
for cooperative ELV or RLV missions that do not involve ISS activities.
In addition, this part provides the regulatory basis for NASA to flow
down the obligations of these cross-waivers of liability to its related
entities through contracts issued pursuant to its mission agreements.
To be made fully effective, the cross-waivers required by this part
will necessitate concomitant changes to NASA procurement regulations.
NASA plans to implement these changes as expeditiously as possible
after this proposed rule becomes final.
This regulation is not a significant regulatory action for purposes
of Executive Order 12866, ``Regulatory Planning and Review''. As
required by the Regulatory Flexibility Act, NASA certifies that these
amendments will not have a significant impact on small business
entities.
List of Subjects in 14 CFR Part 1266
Cross-waiver, Evolved expendable launch vehicle, Expendable launch
vehicle, Intergovernmental agreement, International Space Station,
Liability, Reusable launch vehicle, Space shuttle, Space transportation
and exploration.
For the reasons stated in the preamble, NASA proposes to revise 14
CFR part 1266 as follows:
PART 1266--CROSS-WAIVER OF LIABILITY
Sec.
1266.100 Purpose.
1266.101 Scope.
1266.102 Cross-waiver of liability for agreements involving
activities related to the International Space Station (ISS).
1266.103 [Reserved].
1266.104 Cross-waiver of liability for science and space exploration
agreements for missions launched by Expendable Launch Vehicles or
Reusable Launch Vehicles.
Authority: 42 U.S.C. 2473 (c)(1), (c)(5) and 42 U.S.C. 2458c.
Sec. 1266.100 Purpose.
The purpose of this regulation is to ensure that consistent cross-
waivers of liability are included in NASA agreements for activities
related to the ISS and for NASA's other activities of scientific space
exploration that do not involve activities in connection with the ISS,
whether launched by Expendable Launch Vehicle (ELV) or Reusable Launch
Vehicle (RLV).
Sec. 1266.101 Scope.
The provisions at Sec. 1266.102 are intended to implement the
cross-waiver requirement in Article 16 of the intergovernmental
agreement entitled, ``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)''. Article 16 establishes a
cross-waiver of
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liability for use by the Partner States and their related entities and
requires that this reciprocal waiver of claims be extended to
contractually or otherwise related entities of NASA by requiring those
entities to make similar waivers of liability. Thus, NASA is required
to include IGA-based cross-waivers in contracts and agreements for ISS
activities that fall within the scope of ``Protected Space
Operations,'' as that term is defined in Sec. 1266.102. The purpose of
the waiver is to encourage participation in the ``exploration,
exploitation, and use of outer space'' through the ISS. The IGA
declares the Partner States' intention that this cross-waiver of
liability be broadly construed to achieve this purpose. NASA
incorporates the provisions of Sec. 1266.102 into its agreements for
activities that implement the IGA and the memoranda of understanding
between the United States and its respective international partners.
The provisions at Sec. 1266.104 of this part provide the regulatory
basis for cross-waiver clauses to be incorporated in NASA's science and
space exploration agreements that do not involve activities in
connection with the ISS and are launched by either ELVs or RLVs.
Sec. 1266.102 Cross-waiver of liability for agreements involving
activities related to the International Space Station (ISS).
(a) The objective of this section is to implement NASA's
responsibility to flow down the cross-waiver of liability in Article 16
of the IGA to its related entities in the interest of encouraging
participation in the exploration, exploitation, and use of outer space
through the ISS. It is intended that the cross-waiver of liability be
broadly construed to achieve this objective. Provided that the waiver
of claims is reciprocal, the parties may tailor the scope of the cross-
waiver clause in these agreements to address the specific circumstances
of a particular cooperation.
(b) For the purposes of this section:
(1) The term ``Partner State'' includes each contracting party for
which 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 (signed January 29, 1998; hereinafter the
``Intergovernmental Agreement'') has entered into force or become
operative (pursuant to Sections 25 and 26, respectively, of the
Intergovernmental Agreement), or any successor agreement. A Partner
State includes its Cooperating Agency. It also includes any entity
specified in the MOU between NASA and the Government of Japan to assist
the Government of Japan's Cooperating Agency in the implementation of
that MOU.
(2) The term ``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 term ``related entity'' may
also apply to a State, or an agency or institution of a State, having
the same relationship to a Partner State as described in paragraphs
(b)(2)(i) through (b)(2)(iii) of this section or otherwise engaged in
the implementation of Protected Space Operations as defined in
paragraph (b) (3)(vi) of this section. The terms ``contractors'' and
``subcontractors'' include suppliers of any kind.
(3) The term ``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.
(4) The term ``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.
(5) The term ``payload'' means all property to be flown or used on
or in a launch vehicle or the ISS.
(6) The term ``Protected Space Operations'' means all launch
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, and
implementing arrangements. 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.
(c)(1) Cross-waiver of liability: Each Party agrees to a cross-
waiver of liability pursuant to which each Party waives all claims
against any of the entities or persons listed in paragraphs (c)(1)(i)
through (c)(1)(iv) of this section 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) Another Party;
(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 section; or
(iv) The employees of any of the entities identified in paragraphs
(c)(1)(i) through (c)(1)(iii) of this section.
(2) In addition, each Party shall, by contract or otherwise, extend
the cross-waiver of liability as set forth in paragraph (c)(1) of this
section to its related entities 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 section; 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 section.
(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 section, this
cross-waiver of liability shall not be applicable to:
(i) Claims between a Party and its own related entity or between
its own related entities;
(ii) Claims made by a natural person, his/her estate, survivors or
subrogees (except when a subrogee is a Party to this 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;
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(iii) Claims for damage caused by willful misconduct;
(iv) Intellectual property claims;
(v) Claims for damage resulting from a failure of a Party to extend
the cross-waiver of liability to its related entities, pursuant to
paragraph (c)(2) of this section; or
(vi) Claims by or against a Party arising out of or relating to the
other Party's failure to meet its contractual obligations set forth in
the Agreement.
(5) Nothing in this section 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 the Commercial
Space Launch Act cross-waiver (49 U.S.C. 70101 et seq.) is applicable.
Sec. 1266.103 [Reserved].
Sec. 1266.104 Cross-waiver of liability for science and space
exploration agreements for missions launched by Expendable Launch
Vehicles or Reusable Launch Vehicles.
(a) The purpose of this section is to implement a cross-waiver of
liability between the parties to agreements for NASA's science and
space exploration missions launched by an Expendable Launch Vehicle
(ELV) or Reusable Launch Vehicle (RLV) when those missions do not
involve activities in connection with the International Space Station
(ISS). This comprehensive cross-waiver of liability is intended to
apply both between the parties to those agreements as well as to the
parties' related entities, in the interest of furthering participation
in space exploration, use, and investment. It is intended that the
cross-waiver of liability be broadly construed to achieve this
objective. Provided that the waiver of claims is reciprocal, the
parties may tailor the scope of the cross-waiver clause in these
agreements to address the specific circumstances of a particular
cooperation.
(b) For purposes of this section:
(1) The term ``Party'' means a party to a NASA agreement involving
a launch of an ELV or RLV not involving activities in connection with
the ISS.
(2) The term ``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 term ``related entity'' may also apply to a
State or an agency or institution of a State, having the same
relationship to a Party as described in paragraphs (b)(2)(i) through
(b)(2)(iii) of this section, or otherwise engaged in the implementation
of Protected Space Operations as defined in paragraph (b)(6) of this
section. The terms ``contractors'' and ``subcontractors'' include
suppliers of any kind.
(3) The term ``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.
(4) The term ``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.
(5) The term ``payload'' means all property to be flown or used on
or in a launch vehicle.
(6) The term ``Protected Space Operations'' means all ELV or RLV
activities and payload activities on Earth, in outer space, or in
transit between Earth and outer space in implementation of an agreement
for launch services. 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. The term ``Protected Space Operations'' excludes activities
on Earth that are conducted on return from space to develop further a
payload's product or process for use other than for the activities
within the scope of an Agreement for launch services.
(c) Cross-waiver of liability: (1) Each Party agrees to a cross-
waiver of liability pursuant to which each Party waives all claims
against any of the entities or persons listed in paragraphs (c)(1)(i)
through (c)(1)(iv) of this section 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 against:
(i) Another Party;
(ii) A party to another NASA agreement 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 section; or
(iv) The employees of any of the entities identified in paragraphs
(c)(1)(i) through (c)(1)(iii) of this section.
(2) In addition, each Party shall extend the cross-waiver of
liability as set forth in paragraph (c)(1) of this section to its own
related entities 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 section; 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 section.
(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 section, this
cross-waiver of liability shall not be applicable to:
(i) Claims between a Party and its own related entity or between
its own related entities;
(ii) Claims made by a natural person, his/her estate, survivors, or
subrogees (except when a subrogee is a Party to this 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 natural person;
(iii) Claims for damage caused by willful misconduct;
(iv) Intellectual property claims;
(v) Claims for damages resulting from a failure of a Party to
extend the cross-waiver of liability to its related entities, pursuant
to paragraph (c)(2) of this section; or
(vi) Claims by or against a Party arising out of or relating to the
other Party's failure to meet its contractual obligations set forth in
the Agreement.
(5) Nothing in this section 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 the Commercial
Space
[[Page 62065]]
Launch Act cross-waiver (49 U.S.C. 70101 et seq.) is applicable.
Michael D. Griffin,
Administrator.
[FR Doc. E6-17701 Filed 10-20-06; 8:45 am]
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