[Congressional Record Volume 168, Number 158 (Thursday, September 29, 2022)]
[Senate]
[Page S5764]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 6240. Mr. CRAMER submitted an amendment intended to be proposed to
amendment SA 5499 submitted by Mr. Reed (for himself and Mr. Inhofe)
and intended to be proposed to the bill H.R. 7900, to authorize
appropriations for fiscal year 2023 for military activities of the
Department of Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military personnel
strengths for such fiscal year, and for other purposes; which was
ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. MODIFICATION TO PROVISIONS OF LAW RELATING TO
CERTAIN ACTIVITIES WITH UNUSUALLY HAZARDOUS
RISKS.
(a) Research and Development Contracts: Indemnification
Provisions.--Section 3861 of title 10, United States Code, is
amended--
(1) in subsection (a)--
(A) by inserting ``the Secretary of Defense or'' after
``With the approval of''; and
(B) by inserting ``or defense agency'' before ``for
research''; and
(2) by adding at the end the following new subsection:
``(e) Approval by Secretary of Defense.--If, within 90 days
of the submission of a request to the Secretary of a military
department by a contractor for indemnification of the
contractor by the military department for a risk that is
unusually hazardous, the Secretary of a military department
rejects or refuses to approve such request--
``(1) the contractor may appeal such rejection or refusal
to the Secretary of Defense; and
``(2) the Secretary of Defense may approve the
indemnification of the contractor by the military department.
``(f) Definition of Unusually Hazardous.--In this section,
the term `unusually hazardous' may include risk of the
following:
``(1) burning, explosion, detonation, flight or surface
impact, or toxic or hazardous material release associated
with one or more of the following:
``(A) Products or programs relating to any hypersonic
weapon system, including boost glide vehicles and air-
breathing propulsion systems.
``(B) Products or programs relating to rocket propulsion
systems, including, at a minimum, with respect to rockets,
missiles, launch vehicles, rocket engines or motors or
hypersonic weapons systems using either a solid or liquid
high energy propellant inclusive of any warhead, if any, in
excess of 1000 pounds of the chemical equivalent of
Trinitrotoluene (TNT).
``(C) Products or programs relating to the introduction,
fielding or incorporating of any item containing high energy
propellants, inclusive of any warhead, if any, in excess of
1000 pounds of the chemical equivalent of Trinitrotoluene
into any ship, vessel, submarine, aircraft, or spacecraft.
``(2) Loss of products relating to a classified program
where insurance is not available due to the prohibition of
disclosure of classified information to commercial insurance
providers, and without such disclosure access to insurance is
not possible.
``(3) Any other risk that the contract defines as unusually
hazardous.''.
(b) Executive Order 10789.--
(1) Definition of unusually hazardous.--For purposes of
Executive Order 10789 (50 U.S.C. 1431 note; relating to
contracting authority of Government agencies in connection
with national defense functions), the term ``unusually
hazardous'' may include risk of one or more of the following:
(A) Burning, explosion, detonation, flight or surface
impact, or toxic or hazardous material release associated
with, including operations and maintenance thereof, one or
more of the following:
(i) Products or programs relating to any hypersonic weapon
system, including boost glide vehicles and air-breathing
propulsion systems.
(ii) Products or programs relating to rocket propulsion
systems, including, at a minimum, with respect to rockets,
missiles, launch vehicles, rocket engines or motors or
hypersonic weapons systems using either a solid or liquid
high energy propellant inclusive of any warhead, if any, in
excess of 1000 pounds of the chemical equivalent of
Trinitrotoluene (TNT).
(iii) Products or programs relating to the introduction,
fielding or incorporating of any item containing high energy
propellants, inclusive of any warhead, if any, in excess of
1000 pounds of the chemical equivalent of Trinitrotoluene
into any ship, vessel, submarine, aircraft, or spacecraft.
(B) Loss of products relating to a classified program where
insurance is not available due to the prohibition of
disclosure of classified information to commercial insurance
providers, and without such disclosure access to insurance is
not possible.
(C) Any other risk that the contract defines as unusually
hazardous.
(2) Willful misconduct exclusion.--(A) Pursuant to
paragraph 1A(b)(2) of such Executive Order, an
indemnification and hold harmless agreement entered into
between the United States and a contractor, or between a
contractor and a subcontractor, or between two
subcontractors, may have the authority not to cover claims or
losses, whether between the United States and a contractor,
or between a contractor and a subcontractor, or between two
subcontractors, caused by the willful misconduct or lack of
good faith on the part of one or more contractor or
subcontractor principal officials which are--
(i) claims by the United States (other than those arising
through subrogation) against the contractor or subcontractor,
or
(ii) losses affecting the property of such contractor or
subcontractor.
(B) In this paragraph, the term ``principal officials''
means directors, officers, managers, superintendents, or
other representatives supervising or directing--
(i) all or substantially all of the contractor or
subcontractor's business;
(ii) all or substantially all of the contractor or
subcontractor's operations at any one plant or separate
location in which the contract is being performed; or
(iii) a separate and complete major industrial operation in
connection with the performance of the contract.
(c) Extension of Requirement for Reports on Certain
Activities With Unusually Hazardous Risks.--Section 1684 of
the National Defense Authorization Act for Fiscal Year 2022
(Public Law 117-81) is amended--
(1) in subsection (a), by striking ``2022 and 2023'' and
inserting ``2022 through 2024''; and
(2) in subsection (b), by striking ``September 30, 2023''
and inserting ``September 30, 2024''.
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