§ 20148 — Indemnification; Nasa Launch Services And Reentry Services

(a) Under such regulations in conformity with this section as the Administrator shall prescribe taking into account the availability, cost, and terms of liability insurance, any contract between the Administration and a provider may provide that the United States will indemnify the provider against successful claims (including reasonable expenses of litigation or settlement) by third parties for death, bodily injury, or loss of or damage to property resulting from launch services and reentry services carried out under the contract that the contract defines as unusually hazardous or nuclear in nature, but only to the extent the total amount of successful claims related to the activities under the contract— (1) is more than the amount of insurance or demonstration of financial responsibility described in subsection (c)(3); and (2) is not more than the amount specified in section 50915(a)(1)(B). (b) A contract made under subsection (a) that provides indemnification shall provide for— (1) notice to the United States of any claim or suit against the provider for death, bodily injury, or loss of or damage to property; and (2) control of or assistance in the defense by the United States, at its election, of that claim or suit and approval of any settlement. (1) The provider under subsection (a) shall obtain liability insurance or demonstrate financial responsibility in amounts to compensate for the maximum probable loss from claims by— (A) a third party for death, bodily injury, or property damage or loss resulting from a launch service or reentry service carried out under the contract; and (B) the United States Government for damage or loss to Government property resulting from a launch service or reentry service carried out under the contract. (A) The Administrator shall determine the maximum probable losses under subparagraphs (A) and (B) of paragraph (1) not later than 90 days after the date that the provider requests such a determination and submits all information the Administrator requires. (B) The Administrator may revise a determination under subparagraph (A) of this paragraph if the Administrator determines the revision is warranted based on new information. (3) For the total claims related to one launch or reentry, a provider shall not be required to obtain insurance or demonstrate financial responsibility of more than— (i) $500,000,000 under paragraph (1)(A); or (ii) $100,000,000 under paragraph (1)(B); or (B) the maximum liability insurance available on the world market at reasonable cost. (4) An insurance policy or demonstration of financial responsibility under this subsection shall protect the following, to the extent of their potential liability for involvement in launch services or reentry services: (A) The Government. (B) Personnel of the Government. (C) Related entities of the Government. (D) Related entities of the provider. (E) Government astronauts. (d) Notwithstanding subsection (a), the Administrator may not indemnify a provider under this section unless there is a cross-waiver between the Administration and the provider as described in subsection (e). (1) The Administrator, on behalf of the United States and its departments, agencies, and instrumentalities, shall reciprocally waive claims with a provider under which each party to the waiver agrees to be responsible, and agrees to ensure that its related entities are responsible, for damage or loss to its property, or for losses resulting from any injury or death sustained by its employees or agents, as a result of activities arising out of the performance of the contract. (2) The waiver made by the Government under paragraph (1) shall apply only to the extent that the claims are more than the amount of insurance or demonstration of financial responsibility required under subsection (c)(1)(B). (f) Indemnification under subsection (a) may exclude claims resulting from the willful misconduct of the provider or its related entities. (g) No payment may be made under subsection (a) unless the Administrator or the Administrator’s designee certifies that the amount is just and reasonable. (1) Upon the approval by the Administrator, payments under subsection (a) may be made from funds appropriated for such payments. (2) The Administrator shall not approve payments under paragraph (1), except to the extent provided in an appropriation law or to the extent additional legislative authority is enacted providing for such payments. (3) If the Administrator requests additional appropriations to make payments under this subsection, then the request for those appropriations shall be made in accordance with the procedures established under section 50915. (1) The authority to indemnify under this section shall not create any rights in third persons that would not otherwise exist by law. (2) Nothing in this section may be construed as prohibiting the Administrator from indemnifying a provider or any other NASA contractor under other law, including under Public Law 85–804 (50 U.S.C. 1431 et seq.). (3) Notwithstanding any other provision of this section— (A) all obligations under this section are subject to the availability of funds; and (B) nothing in this section may be construed to require obligation or payment of funds in violation of sections 1341, 1342, 1349 through 1351, and 1511 through 1519 of title 31, United States Code (commonly referred to as the “Anti-Deficiency Act”). (j) The Administrator may not provide indemnification under this section for an activity that requires a license or permit under chapter 509. (k) In this section: (1) The term “government astronaut” has the meaning given the term in section 50902. (2) The term “launch services” has the meaning given the term in section 50902. (3) The term “provider” means a person that provides domestic launch services or domestic reentry services to the Government. (4) The term “reentry services” has the meaning given the term in section 50902. (5) The term “related entity” means a contractor or subcontractor. (6) The term “third party” means a person except— (A) the United States Government; (B) related entities of the Government involved in launch services or reentry services; (C) a provider; (D) related entities of the provider involved in launch services or reentry services; or (E) a government astronaut.