[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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