[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Proposed Rules]
[Pages 71339-71341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32591]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
[NOTICE (99-159)]
14 CFR Parts 1261 and 1267
RIN 2700-AC35
Meritorious Claims Which Result From the Conduct of NASA
Functions
AGENCY: National Aeronautics and Space Administration.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The National Aeronautics and Space Administration (NASA)
proposes to amend its rules regarding the submission and processing of
meritorious claims under section 203 of the National Aeronautics and
Space Act of 1958, as amended. NASA regulations currently discuss the
submission and processing of meritorious, as well as tort, claims by
NASA. This proposal provides separate coverage for meritorious claims
in a new part. The proposal reflects the statutes and requirements
governing these two types of claims, differences in their processing
and settlement by NASA, and differences in their payment.
DATES: Comments must be received on or before February 22, 2000.
ADDRESSES: Send comments to Associate General Counsel (Contracts), Code
GK, National Aeronautics and Space Administration, 300 E Street, SW.,
Washington, DC 20546-0001. Submit electronic comments and other data to
broan@hq.nasa.gov. NASA will consider late comments to the extent
practicable.
FOR FURTHER INFORMATION CONTACT: Bernard J. Roan, (202) 358-2072
(voice), (202) 358-4355 (fax), and broan@hq.nasa.gov (e-mail).
SUPPLEMENTARY INFORMATION: 42 U.S.C. 2473(c)(13) governs meritorious
claims against NASA for bodily injury, death, or damage to or loss of
real or personal property resulting from the conduct of NASA's
functions. Meritorious claims are those claims that NASA decides, as a
matter of equity or fairness, to pay, but for which the United States
could not be held legally liable to the claimant. 42 U.S.C. 2473(c)(13)
authorizes NASA to consider and pay such meritorious claims in amounts
of $25,000 or less and to consider for payment such meritorious claims
exceeding $25,000. In turn, 31 U.S.C. 3104 requires the Secretary of
the Treasury to certify payment of any claim exceeding $25,000 which
NASA considers meritorious.
NASA regulations at 14 CFR subpart 1261.3 presently govern the
processing of meritorious claims. Subpart 1261.3 discusses tort and
meritorious claims without drawing any significant distinctions between
the two types of claims. Moreover, subpart 1261.3 does not discuss the
relationship between NASA and the Secretary of the Treasury in
processing meritorious claims settled by NASA. Addressing meritorious
claims separately from tort claims helps to clarify the bases NASA
deems acceptable for considering meritorious claims.
The proposed rule creates a new part 1267 of 14 CFR governing
NASA's processing of meritorious claims. The new part 1267 establishes
specific procedures for considering meritorious claims arising from
NASA space launch activities.
The proposed rule applies only to meritorious claims brought by
third parties. The proposed rule does not apply to claims arising from
NASA space launches for which the United States provides its space
launch contractor indemnification against third party claims under
other statutory authority. Moreover, the proposed rule, read in
conjunction with proposed implementing coverage in the NASA supplement
to the Federal Acquisition Regulation, addresses certain insurance
requirements levied on space launch contractors for the payment of
third party claims which might otherwise be filed as meritorious
claims. Finally, the new part 1267 discusses administrative matters,
such as filing and documenting meritorious claims, time limitations,
processing by NASA officials, and final approval by the NASA General
Counsel.
As required by the Regulatory Flexibility Act, NASA certifies that
this proposed rule will not have a significant economic impact on small
business entities.
These regulations do not require additional reporting under the
criteria of the Paperwork Reduction Act of 1980.
As required by the Unfunded Mandates Reform Act, NASA certifies
that this regulation will not compel the expenditure in any 1 year of
$100 million or more by State, local, and tribal governments in the
aggregate, or by the private sector. Therefore, the detailed statement
under section 202 of the Unfunded Mandates Reform Act of 1995 is not
required.
List of Subjects
14 CFR Part 1261
Accidents, Administrative practice and procedure, Claims, Tort
claims.
14 CFR Part 1267
Accidents, Administrative practice and procedure, Claims, Federal
Acquisition Regulations, Government contracts, Government procurement,
Space transportation and exploration, Tort claims.
For the reasons set forth in the preamble, NASA proposes to amend
14 CFR parts 1261 and 1267 as follows:
PART 1261--PROCESSING OF MONETARY CLAIMS (GENERAL)
Subpart 1261.3--Claims Against NASA or Its Employees for Damage to
or Loss of Property or Personal Injury or Death--Accruing on or
After January 18, 1967
1. The authority citation for subpart 1261.3 is revised to read as
follows:
Authority: 28 U.S.C. 2671-2680; and 28 CFR part 14.
2. Remove Sec. 1261.301 paragraphs (b) and (c) and redesignate
paragraph (d) as (b).
3. Remove Sec. 1261.307 paragraph (b) and redesignate paragraph (c)
as (b).
4. Amend Sec. 1261.308 by:
A. Amending paragraph (c) by removing the phrase ``pursuant either
to the Federal Tort Claims Act, or 42 U.S.C. 2473(c)(13)''; and
B. Removing paragraph (d).
5. Amend Sec. 1261.312 paragraph (a) by removing the phrase ``a
Voucher for Payment of Tort Claims (NASA Form 616) if the claim has
been acted upon pursuant to 42 U.S.C. 2473(c)(13), or''.
6. Add part 1267 to read as follows:
PART 1267--MERITORIOUS CLAIMS WHICH RESULT FROM THE CONDUCT OF NASA
FUNCTIONS
Sec.
1267.100 Scope of the part.
1267.101 Authorities.
1267.102 Applicability.
1267.103 Definitions.
1267.104 Claims.
1267.105 Presentation of claims.
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1267.106 Filing and processing third party claims involving launch
service contractors.
1267.107 Evidence and information required from third party
claimants.
1267.108 Time limitations for third party claims.
1267.109 NASA action on a launch service claim.
1267.110 Confidentiality.
Authority: 42 U.S.C. 2473(c)(13); 31 U.S.C. 1304.
Sec. 1267.100 Scope of the part.
This part sets forth the procedures for submitting and processing
claims against the United States for bodily injury, death, or damage to
or loss of real or personal property resulting from the conduct of
certain space launch functions by NASA through launch service
contractors. This part further designates the NASA officials authorized
to act upon these claims.
Sec. 1267.101 Authorities.
42 U.S.C. 2473(c)(13)(A), sec. 203(c)(13)(A) of the National
Aeronautics and Space Act of 1958, as amended, authorizes NASA to
consider, ascertain, adjust, determine, settle, and pay, on behalf of
the United States, any claim made against the United States for $25,000
or less for bodily injury, death, or damage to or loss of real or
personal property resulting from the conduct of NASA's functions as
specified in 42 U.S.C. 2473(a). NASA may settle and pay a claim under
this authority even though the United States could not be held legally
liable to the claimant.
(a) 42 U.S.C. 2473(c)(13)(B) authorizes NASA to consider a claim in
excess of $25,000 which, but for the dollar amount, would otherwise be
covered by 42 U.S.C. 2473(c)(13)(A).
(b) 31 U.S.C. 1304, as amended by Public Law 104-316, appropriates
amounts to pay settlements of meritorious claims, when certified by the
Secretary of the Treasury and in excess of the amount payable from
Agency appropriations under 42 U.S.C. 2473.
Sec. 1267.102 Applicability.
(a) One of NASA's primary functions is launching Government and
Government-sponsored payloads into space. In recognition of this fact,
NASA has determined that launches conducted by NASA through launch
service contractors constitute, for purposes of considering claims
under 42 U.S.C. 2473(c)(13), the conduct of a NASA function.
Accordingly, NASA will include in its contracts for launch services a
clause designating the launch as being the conduct of a NASA function
and agreeing to consider claims resulting from the launch under the
authority of 42 U.S.C. 2473(c)(13) and the procedures prescribed in
this part.
(b) This part does not apply to launches for which the NASA
Administrator has provided indemnification pursuant to Public Law 85-
804, or to launches for which the Department of Transportation has
issued or transferred a license under the Commercial Space Launch Act,
49 U.S.C., Chapter 701.
Sec. 1267.103 Definitions.
(a) Meritorious claims are those claims that NASA decides to pay as
a matter of equity or fairness, but for which the United States could
not be held legally liable to the claimant.
(b) Third party claimant means any person or entity, other than
NASA, the launch service contractor, or the launch service contractor's
subcontractors, at any tier, involved in the performance of launch
services pursuant to a contract with NASA. For purposes of this part,
employees of the Government, employees of the launch service
contractor, and employees of the launch service contractor's
subcontractors come within the definition of third party claimant.
Sec. 1267.104 Claims.
(a) For purposes of this part, a meritorious claim arises as a
demand by a third party claimant against a NASA launch service
contractor for money damages, in a sum certain, for bodily injury,
death, or damage to or loss of real or personal property resulting from
a launch conducted by NASA through that launch service contractor.
(b) NASA will consider a third party claim, originally made against
a launch service contractor, as a claim against the United States for
purposes of 42 U.S.C. 2473(c)(13) if the launch services were provided
pursuant to a contract containing the clause at NASA Federal
Acquisition Regulation Supplement (NFS) 1852.228-XX. Once received and
evaluated, NASA will consider a third party claim that is reasonable in
amount to be meritorious, unless the gross negligence or willful
misconduct of the third party claimant, or any launch service
contractor or subcontractor, caused or was an intervening cause in the
bodily injury, death, or damage to or loss of real or personal property
for which damages are sought.
(c) NASA will forward any meritorious claim that is reasonable in
amount and arose out of the conduct of NASA's space launch function to
the Secretary of the Treasury for certification for payment from the
permanent Judgment Fund pursuant to 31 U.S.C. 1304 and implementing
regulations; provided, the claim exceeds $25,000 and the launch service
contractor has exhausted any insurance coverage required by the
contract.
Sec. 1267.105 Presentation of claims.
(a) For damage to or loss of real or personal property, the owner
of the property or his or her duly authorized agent or legal
representative may present a claim.
(b) For bodily injury, the injured person or his or her duly
authorized agent or legal representative may present a claim.
(c) For wrongful death, the executor or administrator of the
decedent's estate or any other person legally entitled to assert such a
claim in accordance with applicable state law may present a claim.
(d) For any loss wholly compensated by insurance, an insurer with
the rights of a subrogee may present a claim. For any loss partially
compensated by insurance, multiple parties with the rights of subrogees
may present claims individually as their respective interests appear,
or jointly. An insurer that provides insurance required by the NASA
launch service contract may not present a subrogation claim based on
that insurance.
(e) If an agent or legal representative presents a claim, it must
be presented in the name of the claimant. The agent or legal
representative must sign the claim, showing the title or legal capacity
of the person signing, accompanied by evidence of the legal authority
of the agent or representative to present a claim on behalf of the
claimant.
Sec. 1267.106 Filing and processing third party claims involving
launch service contractors.
(a) To come under this part, a third party claim arising out of a
launch conducted by NASA through a launch service contractor must first
be filed with the contractor providing the launch service. If the
identity of the cognizant launch service contractor is not apparent, a
claimant should contact the nearest NASA Center for information.
(b) The cognizant launch service contractor must promptly process
any third party claim received in accordance with the terms of the
contract and this part. As an initial matter, the launch service
contractor must verify that any third party claim for bodily injury,
death, or damage to or loss of real or personal property resulted from
a launch conducted by NASA through the launch service contractor. If
the claim resulted from a launch by NASA
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conducted through the launch service contractor, then the contractor
must settle the matter in a reasonable amount, applying any available
insurance coverage required by the contract.
(c) If the cognizant launch service contractor finds that the
insurance coverage required by the contract has been exhausted, the
claim must be given to the NASA contracting officer. The contracting
officer must consider any remaining liability as a claim against the
United States in accordance with this subpart, the terms of the launch
service contract, the Federal Acquisition Regulation (FAR), and the
NASA FAR Supplement (NFS). As such, the contracting officer must
examine the remaining liability to determine whether the amount claimed
is reasonable. For amounts determined to be unreasonable, the
contracting officer must refer the claim back to the launch service
contractor to conduct further discussions. Ultimately, the contract's
disputes clause prescribes procedures for resolving disagreements, if
necessary. For amounts determined to be reasonable, the contracting
officer must process the claim in accordance with Sec. 1267.109.
Sec. 1267.107 Evidence and information required from third party
claimants.
(a) A third party claimant should, insofar as possible, provide
competent evidence to the launch service contractor to substantiate the
circumstances alleged to have given rise to the claim and the amount
claimed. A third party claimant should obtain supporting statements,
repair bills, one or more estimates for repair, and other data, if
possible. Documentation from disinterested parties should be obtained
whenever possible.
(b) With regard to the amount claimed, a third party claimant must
notify the launch service contractor of, and provide information
concerning, any money or other property received as damages or
compensation, or which the third party claimant may be entitled to
receive from other sources by reason of the claimed bodily injury,
death, or damage to or loss of real or personal property. These other
sources of money, damages, or compensation include, but are not limited
to, other launch service contractors, insurers, employers, and persons
whose conduct may have caused or contributed to the accident or
incident.
(c) A third party claimant must provide an English translation of
any supporting document written in a foreign language.
Sec. 1267.108 Time limitations for third party claims.
(a) Consistent with the time limitation stipulated in 42 U.S.C.
2473(c)(13)(A), to receive consideration in accordance with this part,
a third party claimant must file its claim with the launch service
contractor within 2 years after the occurrence of the accident or
incident out of which the claim arose. If the launch service contractor
receives a third party claim within this time period, but after the
launch service contract has expired, or if the claim is still pending
when the contract expires, the contracting officer will reserve the
matter for resolution during final contract closeout.
(b) A third party claimant has properly filed a claim for purposes
of paragraph (a) of this section, when the cognizant launch service
contractor receives from the claimant, or the claimant's duly
authorized agent or legal representative, a written notification and
description of the incident or accident giving rise to the claim,
accompanied by substantiation of the amount claimed.
Sec. 1267.109 NASA action on a launch service claim.
(a) The contracting officer must investigate any launch service
claim submitted by the launch service contractor. As necessary, the
contracting officer may request any NASA office or other Federal agency
to assist in the investigation.
(b) The contracting officer must evaluate any launch service claim
submitted by a launch service contractor to determine that it is
meritorious and reasonable in amount. As part of this evaluation, the
contracting officer must verify that the amount requested is over and
above any insurance required by the contract and that the launch
service contractor or its insurer has, in fact, paid out an amount to
the third party claimant equal to the amount of any required insurance
coverage.
(c) The NASA General Counsel is NASA's final approving official for
claims arising under 42 U.S.C. 2473, in an amount exceeding $25,000. To
pay this type of claim from the permanent indefinite judgment fund,
however, 31 U.S.C. 1304 requires certification by the Secretary of the
Treasury. Accordingly, to facilitate the processing of claims under
this part, the contracting officer must forward to the NASA General
Counsel the following documentation:
(1) A short and concise statement of the general facts surrounding
the launch service claim as a whole;
(2) Copies of all relevant portions of the launch service contract
file and the claim file; and
(3) The contracting officer's analysis of the launch service claim
and recommendations regarding payment from the permanent indefinite
judgment fund.
(d) The NASA General Counsel must fully evaluate and consider any
launch service claim forwarded in accordance with paragraph (c) of this
section. If the General Counsel deems the claim to be reasonable, the
General Counsel will refer the launch service claim to the Secretary of
the Treasury for certification and payment from the permanent
indefinite judgment fund pursuant to 31 U.S.C. 1304.
Sec. 1267.110 Confidentiality.
Under the process prescribed in this subpart, NASA officials may
gain access to contractor documents and other materials that are
privileged, business sensitive, or confidential. In accordance with 18
U.S.C. 1905, NASA officials may not disclose these materials in any
manner or to any extent not authorized by law and must take appropriate
steps to prevent unauthorized disclosures.
Daniel S. Goldin,
Administrator.
[FR Doc. 99-32591 Filed 12-20-99; 8:45 am]
BILLING CODE 7510-01-P
