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Emergency assistance payments.

Waiver of defenses.

this amount of indemnity shall be reduced by the amount that the financial protection required shall exceed $60,000,000.148

"m. The Commission is authorized to enter into agreements with other indemnitors to establish coordinated procedures for the prompt handling, investigation, and settlement of claims for public liability. The Commission and other indemnitors may make payments to, or for the aid of, claimants for the purpose of providing immediate assistance following a nuclear incident. Any funds appropriated to the Commission shall be available for such payments. Such payments may be made without securing releases, shall not constitute an admission of the liability of any person indemnified or of any indemnitor, and shall operate as a satisfaction to the extent thereof of any final settlement or judgment.149

"n. (1) With respect to any extraordinary nuclear occurrence to which an insurance policy or contract furnished as proof of financial protection or an indemnity agreement applies and which

"(a) arises out of or results from or occurs in the course of the construction, possession, or operation of a production or utilization facility, or

"(b) arises out of or results from or occurs in the course of transportation of source material, byproduct material, or special nuclear material to or from a production or utilization facility, or

"(c) during the course of the contract activity arises out of or results from the possession, operation, or use by a Commission contractor or subcontractor of a device utilizing special nuclear material or by-product material,

the Commission may incorporate provisions in indemnity agreements with licensees and contractors under this section, and may require provisions to be incorporated in insurance policies or contracts furnished as proof of

148 Public Law 85-602 (72 Stat. 525) (1958), sec. 2, amended sec. 170 by adding new subsection Ì.

Public Law 89-210 (79 Stat. 855) (1965), sec. 5, amended subsec. 170 1. Prior to amendment this subsection read as follows:

"1. The Commission is authorized until August 1, 1967, to enter into an agreement of indemnification with any person engaged in the design, development, construction, operation. repair, and maintenance or use of the nuclear-powered ship authorized by section 716 of the Merchant Marine Act, 1936, and designated the nuclear ship Savannah'. In any such agreement of indemnification the Commission may require such person to provide and maintain financial protection of such a type and in such amounts as the Commission shall determine to be appropriate to cover public liability arising from a nuclear incident in connection with such design, development, construction, operation, repair, maintenance or use and shall indemnify the person indemnified against such claims above the amount of the financial protection required, in the maximum amount provided by subsection e, including the reasonable costs of investigating and settling claims and defending suits for damage."

Public Law 94-197 (89 Stat. 1111) (1975). Sec. 11, amended subsection 170 1. by substituting the word "excluding" for the words "including the reasonable".

140 Public Law 89-645 (80 Stat. 891) (1966), sec. 3, amended sec. 170 by adding new subsection m.

financial protection, which waive (i) any issue or defense as to conduct of the claimant or fault of persons indemnified, (ii) any issue or defense as to charitable or governmental immunity, and (iii) any issue or defense based on any statute of limitations if suit is instituted within three years from the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof, but in no event more than twenty years after the date of the nuclear incident. The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action. When so incorporated, such waivers shall be judicially enforcible in accordance with their terms by the claimant against the person indemnified. Such waivers shall not preclude a defense based upon a failure to take reasonable steps to mitigate damages, nor shall such waivers apply to injury or damage to a claimant or to a claimant's property which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant. The waivers authorized in this subsection shall, as to indemnitors, be effective only with respect to those obligations set forth in the insurance policies or the contracts furnished as proof of financial protection and in the indemnity agreements. Such waivers shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim which is not within the protection afforded under (i) the terms of insurance policies or contracts furnished as proof of financial protection, or indemnity agreements, and (ii) the limit of liability provisions of subsection 170 e.

42 U.S. 2210.

"(2) With respect to any public liability action arising 78 Stat. 410. out of or resulting from an extraordinary nuclear occurrence, the United States district court in the district where the extraordinary nuclear occurrence takes place, or in the case of an extraordinary nuclear occurrence taking place outside the United States, the United States District Court for the District of Columbia, shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Upon motion of the defendant or of the Commission, any such action pending in any State court or United States district court shall be removed or transferred to the United States district court having venue under this subsection. Process of such district court shall be effective throughout the United States.150

150 Public Law 89-645 (80 Stat. 891) (1966), sec. 3, amended sec. 170 by adding new subsection n.

Public Law 94-197 (89 Stat. 1111) (1975), Sec. 12. amended subsection 170 n. (1) (iii) by substituting the word "twenty" for the word "ten".

Allocation of funds.

76 Stat. 410.

42 U.S.C. 2210.

"o. Whenever the United States district court in the district where a nuclear incident occurs, or the United States District Court for the District of Columbia in case of a nuclear incident occurring outside the United States, determines upon the petition of any indemnitor or other interested person that public liability from a single nuclear incident may exceed the limit of liability under subsection 170 e.:

"(1) Total payments made by or for all indemnitors as a result of such nuclear incident shall not exceed 15 per centum of such limit of liability without the prior approval of such court;

"(2) The court shall not authorize payments in excess of 15 per centum of such limit of liability unless the court determines that such payments are or will be in accordance with a plan of distribution which has been approved by the court or such payments are not likely to prejudice the subsequent adoption and implementation by the court of a plan of distribution pursuant to subparagraph (3) of this subsection (o); and

"(3) The Commission shall, and any other indemnitor or other interested person may, submit to such district court a plan for the disposition of pending claims and for the distribution of remaining funds available. Such a plan shall include an allocation of appropriate amounts for personal injury claims, property damage claims, and possible latent injury claims which may not be discovered until a later time and shall include establishment of priorities between claimants and classes of claims, as necessary to insure the most equitable allocation of available funds. Such court shall have all power necessary to approve, disapprove, or modify plans proposed, or to adopt another plan; and to determine the proportionate share of funds available for each claimant. The Commission, any other indemnitor, and any person indemnified shall be entitled to such orders as may be appropriate to implement and enforce the provisions of this section, including orders limiting the liability of the persons indemnified, orders approving or modifying the plan, orders staying the payment of claims and the execution of court judgments, orders apportioning the payments to be made to claimants, and orders permitting partial payments to be made before final determination of the total claims. The orders of such court shall be effective throughout the United States.

"(4) the Commission shall, within ninety days after a court shall have made such determination,

151

deliver to the Joint Committee a supplement to the report prepared in accordance with subsection 170 i. of this Act setting forth the estimated requirements for full compensation and relief of all claimants, and recommendations as to the relief to be provided.1 "p. The Commission shall submit to the Congress by August 1, 1983, a detailed report concerning the need for continuation or modification of the provisions of this section, taking into account the condition of the nuclear industry, availability of private insurance, and the state of knowledge concerning nuclear safety at that time, among other relevant factors, and shall include recommendations as to the repeal or modification of any of the provisions of this section.152

"SEC. 170A. CONFLICTS OF INTEREST RELATING TO CON- Just compenTRACTS AND OTHER ARRANGEMENTS.

"a. The Commission shall, by rule, require any person proposing to enter into a contract, agreement, or other arrangement, whether by competitive bid or negotiation, under this Act or any other law administered by it for the conduct of research, development, evaluation activities, or for technical and management support services, to provide the Commission, prior to entering into any such contract, agreement, or arrangement, with all relevant information, as determined by the Commission, bearing on whether that person has a possible conflict of interest with respect to

"(1) being able to render impartial, technically sound, or objective assistance or advice in light of other activities or relationships with other persons, or "(2) being given an unfair competitive advantage. Such person shall insure, in accordance with regulations prescribed by the Commission, compliance with this section by any subcontractor (other than a supply subcontractor) of such person in the case of any subcontract for more than $10,000.

"b. The Commission shall not enter into any such contract agreement or arrangement unless it finds, after evaluating all information provided under subsection a. and any other information otherwise available to the Commission that

"(1) it is unlikely that a conflict of interest would exist, or

"(2) such conflict has been avoided after appropriate conditions have been included in such contract,

151 Public Law 89-645 (80 Stat. 891) (1966), sec. 3, amended sec. 170 by adding new subsection o. Public Law 94-197 (89 Stat. 1111) (1975) Sec., 13, amended subsection 170 o. by adding new subparagraph (4) and by adding the following language to the second sentence of subparagraph (3): "and shall include establishment of priorities between claimants and classes of claims, as necessary to insure the most equitable allocation of available funds."

153 Public Law 94-197 (89 Stat. 1111) (1975), sec. 14, added a new subsection 170 p.

sation.

42 U.S.C. sec. 2221.

Publication.

Just

compensation.

42 U.S.C.

62 Stat. 933.

Condemnation

of real property. 42 U.S.C. sec. 2222.

62 Stat. 937, 986; 46 Stat. 1421.

40 U.S.C. 257, 258a-258e. Patent

application

disclosures. 42 U.S.C.

sec. 2223.

agreement, or arrangement; except that if the Commission determines that such conflict of interest exists and that such conflict of interest cannot be avoided by including appropriate conditions therein, the Commission may enter into such contract, agreement, or arrangement, if the Commission determines that it is in the best interests of the United States to do so and includes appropriate conditions in such contract, agreement, or arrangement to mitigate such conflict. "c. The Commission shall publish rules for the implementation of this section, in accordance with section 553 of title 5, United States Code (without regard to subsection (a) (2) thereof) as soon as practicable after the date of the enactment of this section, but in no event later than 120 days after such date.153

"CHAPTER 15. COMPENSATION FOR PRIVATE

PROPERTY ACQUIRED

"SEC. 171. JUST COMPENSATION.-The United States shall make just compensation for any property or interests therein taken or requisitioned pursuant to sections 43,154 55,155 66, and 108. Except in case of real property or any interest therein, the Commission shall determine and pay such just compensation. If the compensation so determined is unsatisfactory to the person entitled thereto, such person shall be paid 75 per centum of the amount so determined, and shall be entitled to sue the United States in the Court of Claims, or in any district court of the United States for the district in which such claimant is a resident in the manner provided by section 1346 of Title 28 of the United States Code to recover such further sum as added to said 75 per centum will constitute just compensation.

"SEC. 172. CONDEMNATION OF REAL PROPERTY.-Proceedings for condemnation shall be instituted pursuant to the provisions of the Act approved August 1, 1888, as amended, and section 1403 of Title 28 of the United States Code. The Act approved February 26, 1931, as amended, shall be applicable to any such proceedings.

"SEC. 173. PATENT APPLICATION DISCLOSURES.-In the event that the Commission communicates to any nation any Restricted Data based on any patent application not belonging to the United States, just compensation shall be paid by the United States to the owner of the patent application. The Commission shall determine such compensation. If the compensation so determined is unsatis

153 Public Law 95-601 (92 Stat. 2950), (1978), sec. 8(a) added a new sec. 170A.

154 Public Law 88-489 (78 Stat. 602) (1964), sec. 17, deleted the phrase "52 (with respect to the material for which the United States is required to pay just compensation)," after "43.".

155 Public Law 88-489 (78 Stat. 602) (1964), sec. 17, added "55".

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