PART 25--REGULATIONS TO SUPPORT ANTI-TERRORISM BY FOSTERING EFFECTIVE TECHNOLOGIES

Sec.  25.1 Purpose.

Sec.  25.2 Definitions.

Sec.  25.3 Delegation.

Sec.  25.4 Designation of Qualified Anti-Terrorism Technologies.

Sec.  25.5 Obligations of Seller.

Sec.  25.6 Procedures for Designation of Qualified Anti-Terrorism

Technologies.

Sec.  25.7 Litigation Management.

Sec.  25.8 Government Contractor Defense.

Sec.  25.9 Procedures for Certification of Approved Products for

Homeland Security.

Sec.  25.10 Confidentiality and Protection of Intellectual Property.

    Authority: Subtitle G, of Title VIII, Public Law 107-296, 116

Stat. 2238 (6 U.S.C. 441-444).

Sec.  25.1  Purpose.

    This part implements the Support Anti-terrorism by Fostering

Effective Technologies Act of 2002, sections 441-444 of title 6, United

States Code (the ``SAFETY Act'' or ``the Act'').

Sec.  25.2  Definitions.

    Act of Terrorism--The term ``Act of Terrorism'' means any act

determined to have met the following requirements or such other

requirements as defined and specified by the Secretary:

    (1) Is unlawful;

    (2) Causes harm, including financial harm, to a person, property,

or entity, in the United States, or in the case of a domestic United

States air carrier or a United States-flag vessel (or a vessel based

principally in the United States on which United States income tax is

paid and whose insurance coverage is subject to regulation in the

United States), in or outside the United States; and

    (3) Uses or attempts to use instrumentalities, weapons or other

methods designed or intended to cause mass destruction, injury or other

loss to citizens or institutions of the United States.

    Certification--The term ``Certification'' means (unless the context

requires otherwise) the certification issued pursuant to section 25.9

that a Qualified Anti-Terrorism Technology for which a Designation has

been issued will perform as intended, conforms to the Seller's

specifications, and is safe for use as intended.

    Contractor--The term ``contractor'' means any person, firm, or

other entity with whom or with which a Seller has a contract or

contractual arrangement relating to the manufacture, sale, use, or

operation of anti-terrorism Technology for which a Designation is

issued (regardless of whether such contract is entered into before or

after the issuance of such Designation), including, without limitation,

an independent laboratory or other entity engaged in testing or

verifying the safety, utility, performance, or effectiveness of such

Technology, or the conformity of such Technology to the Seller's

specifications.

    Designation--The term ``Designation'' means the designation of a

Qualified Anti-Terrorism Technology under the SAFETY Act issued by the

Under Secretary under authority delegated to the Under Secretary by the

Secretary of Homeland Security.

    Loss--The term ``loss'' means death, bodily injury, or loss of or

damage to property, including business interruption loss (which is a

component of loss of or damage to property).

    Noneconomic damages--The term ``noneconomic damages'' means damages

for losses for physical and emotional pain, suffering, inconvenience,

physical impairment, mental anguish, disfigurement, loss of enjoyment

of life, loss of society and companionship, loss of consortium, hedonic

damages, injury to reputation, and any other nonpecuniary losses.

    Office of SAFETY Act Implementation--The term ``Office of SAFETY

Act Implementation'' or ``OSAI'' means the office within the Department

of Homeland Security's Directorate of Science and Technology that

assists with the implementation of the SAFETY Act. The responsibilities

of the Office of SAFETY Act Implementation may include, without

limitation, preparing the SAFETY Act Application Kit, receiving and

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facilitating the evaluation of applications, managing the SAFETY Act

Web site and otherwise providing the public with information regarding

the SAFETY Act and the application process.

    Physical harm--The term ``physical harm'' as used in the Act and

this part means any physical injury to the body, including an injury

that caused, either temporarily or permanently, partial or total

physical disability, incapacity or disfigurement. In no event shall

physical harm include mental pain, anguish, or suffering, or fear of

injury.

    Qualified Anti-Terrorism Technology or QATT--The term ``'Qualified

Anti-Terrorism Technology'' or ``QATT'' means any Technology (including

information technology) designed, developed, modified, procured, or

sold for the purpose of preventing, detecting, identifying, or

deterring acts of terrorism or limiting the harm such acts might

otherwise cause, for which a Designation has been issued pursuant to

this part.

    SAFETY Act or Act--The term ``SAFETY Act'' or ``Act'' means the

Support Anti-terrorism by Fostering Effective Technologies Act of 2002,

sections 441-444 of title 6, United States Code.

    SAFETY Act Application Kit --The term ``SAFETY Act Application

Kit'' means the Application Kit containing the instructions and forms

necessary to apply for Designation or Certification. The SAFETY Act

Application Kit shall be published at http://www.safetyact.gov or made

available in hard copy upon written request to: Directorate of Science

and Technology, SAFETY Act/room 4320, Department of Homeland Security,

Washington, DC 20528.

    SAFETY Act Confidential Information--Any and all information and

data voluntarily submitted to the Department under this part (including

Applications, Pre-Applications, other forms, supporting documents and

other materials relating to any of the foregoing, and responses to

requests for additional information), including, but not limited to,

inventions, devices, Technology, know-how, designs, copyrighted

information, trade secrets, confidential business information,

analyses, test and evaluation results, manuals, videotapes, contracts,

letters, facsimile transmissions, electronic mail and other

correspondence, financial information and projections, actuarial

calculations, liability estimates, insurance quotations, and business

and marketing plans. Notwithstanding the foregoing, ``SAFETY Act

Confidential Information'' shall not include any information or data

that is in the public domain or becomes part of the public domain by

any means other than the violation of this section.

    Secretary--The term ``Secretary'' means the Secretary of Homeland

Security as established by section 102 of the Homeland Security Act of

2002.

    Seller--The term ``Seller'' means any person, firm, or other entity

that sells or otherwise provides Qualified Anti-Terrorism Technology to

any customer(s) and to whom or to which (as appropriate) a Designation

and/or Certification has been issued under this Part (unless the

context requires otherwise).

    Technology--The term ``Technology'' means any product, equipment,

service (including support services), device, or technology (including

information technology) or any combination of the foregoing. Design

services, consulting services, engineering services, software

development services, software integration services, threat

assessments, vulnerability studies, and other analyses relevant to

homeland security may be deemed a Technology under this part.

    Under Secretary--The term ``Under Secretary'' means the Under

Secretary for Science and Technology of the Department of Homeland

Security.

Sec.  25.3  Delegation.

    All of the Secretary's responsibilities, powers, and functions

under the SAFETY Act, except the authority to declare that an act is an

Act of Terrorism for purposes of section 865(2) of the SAFETY Act, may

be exercised by the Under Secretary for Science and Technology of the

Department of Homeland Security or the Under Secretary's designees.

Sec.  25.4  Designation of Qualified Anti-Terrorism Technologies.

    (a) General. The Under Secretary may Designate as a Qualified Anti-

Terrorism Technology for purposes of the protections under the system

of litigation and risk management set forth in sections 441-444 of

Title 6, United States Code, any qualifying Technology designed,

developed, modified, provided or procured for the specific purpose of

preventing, detecting, identifying, or deterring acts of terrorism or

limiting the harm such acts might otherwise cause.

    (b) Criteria to be Considered. (1) In determining whether to issue

the Designation under paragraph (a) of this section, the Under

Secretary may exercise discretion and judgment in considering the

following criteria and evaluating the Technology:

    (i) Prior United States Government use or demonstrated substantial

utility and effectiveness.

    (ii) Availability of the Technology for immediate deployment in

public and private settings.

    (iii) Existence of extraordinarily large or extraordinarily

unquantifiable potential third party liability risk exposure to the

Seller or other provider of such anti-terrorism Technology.

    (iv) Substantial likelihood that such anti-terrorism Technology

will not be deployed unless protections under the system of risk

management provided under sections 441-444 of title 6, United States

Code, are extended.

    (v) Magnitude of risk exposure to the public if such anti-terrorism

Technology is not deployed.

    (vi) Evaluation of all scientific studies that can be feasibly

conducted in order to assess the capability of the Technology to

substantially reduce risks of harm.

    (vii) Anti-terrorism Technology that would be effective in

facilitating the defense against acts of terrorism, including

Technologies that prevent, defeat or respond to such acts.

    (viii) A determination made by Federal, State, or local officials,

that the Technology is appropriate for the purpose of preventing,

detecting, identifying or deterring acts of terrorism or limiting the

harm such acts might otherwise cause.

    (ix) Any other factor that the Under Secretary may consider to be

relevant to the determination or to the homeland security of the United

States.

    (2) The Under Secretary has discretion to give greater weight to

some factors over others, and the relative weighting of the various

criteria may vary depending upon the particular Technology at issue and

the threats that the Technology is designed to address. The Under

Secretary may, in his discretion, determine that failure to meet a

particular criterion justifies denial of an application under the

SAFETY Act. However, the Under Secretary is not required to reject an

application that fails to meet one or more of the criteria. The Under

Secretary may conclude, after considering all of the relevant criteria

and any other relevant factors, that a particular Technology merits

Designation as a Qualified Anti-Terrorism Technology even if one or

more particular criteria are not satisfied. The Under Secretary's

considerations will take into account evolving threats and conditions

that give rise to the need for the anti-terrorism Technologies.

    (c) Use of Standards. From time to time, the Under Secretary may

develop,

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issue, revise, adopt, and recommend technical standards for various

categories or components of anti-terrorism Technologies (``Adopted

Standards''). In the case of Adopted Standards that are developed by

the Department or that the Department has the right or license to

reproduce, the Department will make such standards available to the

public consistent with necessary protection of sensitive homeland

security information. In the case of Adopted Standards that the

Department does not have the right or license to reproduce, the

Directorate of Science and Technology will publish a list and summaries

of such standards and may publish information regarding the sources for

obtaining copies of such standards. Compliance with any Adopted

Standard or other technical standards that are applicable to a

particular anti-terrorism Technology may be considered in determining

whether a Technology will be Designated pursuant to paragraph (a) of

this section. Depending on whether an Adopted Standard otherwise meets

the criteria set forth in section 862 of the Homeland Security Act; 6

U.S.C. 441, the Adopted Standard itself may be deemed a Technology that

may be Designated as a Qualified Anti-Terrorism Technology.

    (d) Consideration of Substantial Equivalence. In considering the

criteria in paragraph (b) of this section, or evaluating whether a

particular anti-terrorism Technology complies with any Adopted Standard

referenced in paragraph (c) of this section, the Under Secretary may

consider evidence that the Technology is substantially equivalent to

other Technologies (``Predicate Technologies'') that previously have

been Designated as Qualified Anti-Terrorism Technologies under the

SAFETY Act. A Technology may be deemed to be substantially equivalent

to a Predicate Technology if:

    (1) It has the same intended use as the Predicate Technology; and

    (2) It has the same or substantially similar performance or

technological characteristics as the Predicate Technology.

    (e) Pre-Application Consultations. To the extent that he deems it

to be appropriate, the Under Secretary may consult with prospective and

current SAFETY Act applicants regarding their particular anti-terrorism

Technologies. Prospective applicants may request such consultations

through the Office of SAFETY Act Implementation. The confidentiality

provisions in Sec.  25.10 shall be applicable to such consultations.

    (f) Developmental Testing & Evaluation (DT&E) Designations. With

respect to any Technology that is being developed, tested, evaluated,

modified or is otherwise being prepared for deployment for the purpose

of preventing, detecting, identifying, or deterring acts of terrorism

or limiting the harm such acts might otherwise cause, the Under

Secretary may Designate such Technology as a Qualified Anti-Terrorism

Technology and make such Technology eligible for the protections under

the system of litigation and risk management set forth in sections 441-

444 of title 6, United States Code. A Designation made pursuant to this

paragraph shall be referred to as a ``DT&E Designation,'' and shall

confer all of the rights, privileges and obligations that accompany

Designations made pursuant to paragraph (a) of this section except as

modified by the terms of this paragraph or the terms of the particular

DT&E Designation. The intent of this paragraph is to make eligible for

SAFETY Act protections qualifying Technologies that are undergoing

testing and evaluation and that may need to be deployed in the field

either for developmental testing and evaluation purposes or on an

emergency basis, including during a period of heightened risk. DT&E

Designations shall describe the subject Technology (in such detail as

the Under Secretary deems to be appropriate); identify the Seller of

the subject Technology; be limited to the period of time set forth in

the applicable DT&E Designation, which in no instance shall exceed a

reasonable period for testing or evaluating the Technology

(presumptively not longer than 36 months); be terminable by the Under

Secretary at any time upon notice to the Seller; be subject to the

limitations on the use or deployment of the QATT set forth in the DT&E

Designation; and be subject to such other limitations as established by

the Under Secretary. The protections associated with a DT&E Designation

shall apply only during the period specified in the applicable DT&E

Designation. Consent of the Seller of a QATT Designated pursuant to

this paragraph will be a condition precedent to the establishment of

any deployment or use condition and any other obligation established by

the Under Secretary pursuant to this paragraph. Those seeking a DT&E

Designation for a QATT pursuant to this paragraph (f) shall follow the

procedures for DT&E Designations set forth in the SAFETY Act

Application Kit.

Sec.  25.5  Obligations of Seller.

    (a) Liability Insurance Required. The Seller shall obtain liability

insurance of such types and in such amounts as shall be required in the

applicable Designation, which shall be the amounts and types certified

by the Under Secretary to satisfy otherwise compensable third-party

claims arising out of, relating to, or resulting from an Act of

Terrorism when Qualified Anti-Terrorism Technologies have been deployed

in defense against, response to, or recovery from, such act. The Under

Secretary may request at any time that the Seller of a Qualified Anti-

Terrorism Technology submit any information that would:

    (1) Assist in determining the amount of liability insurance

required; or

    (2) Show that the Seller or any other provider of Qualified Anti-

Terrorism Technology otherwise has met all of the requirements of this

section.

    (b) Amount of Liability Insurance. (1) The Under Secretary may

determine the appropriate amounts and types of liability insurance that

the Seller will be required to obtain and maintain based on criteria he

may establish to satisfy compensable third-party claims arising from,

relating to or resulting from an Act of Terrorism. In determining the

amount of liability insurance required, the Under Secretary may

consider any factor, including, but not limited to, the following:

    (i) The particular Technology at issue;

    (ii) The amount of liability insurance the Seller maintained prior

to application;

    (iii) The amount of liability insurance maintained by the Seller

for other Technologies or for the Seller's business as a whole;

    (iv) The amount of liability insurance typically maintained by

Sellers of comparable Technologies;

    (v) Information regarding the amount of liability insurance offered

on the world market;

    (vi) Data and history regarding mass casualty losses;

    (vii) The intended use of the Technology; and

    (viii) The possible effects of the cost of insurance on the price

of the product, and the possible consequences thereof for development,

production, or deployment of the Technology.

    (2) In determining the appropriate amounts and types of insurance

that a particular Seller is obligated to carry, the Under Secretary may

not require any type of insurance or any amount of insurance that is

not available on the world market, and may not require any type or

amount of insurance that would

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unreasonably distort the sales price of the Seller's anti-terrorism

Technology

    (c) Scope of Coverage. (1) Liability insurance required to be

obtained pursuant to this section shall, in addition to the Seller,

protect the following, to the extent of their potential liability for

involvement in the manufacture, qualification, sale, use, or operation

of Qualified Anti-Terrorism Technologies deployed in defense against,

response to, or recovery from, an Act of Terrorism:

    (i) Contractors, subcontractors, suppliers, vendors and customers

of the Seller.

    (ii) Contractors, subcontractors, suppliers, and vendors of the

customer.

    (2) Notwithstanding the foregoing, in appropriate instances the

Under Secretary will specify in a particular Designation that,

consistent with the Department's interpretation of the SAFETY Act, an

action for the recovery of damages proximately caused by a Qualified

Anti-Terrorism Technology that arises out of, relates to, or results

from an Act of Terrorism may properly be brought only against the

Seller and, accordingly, the liability insurance required to be

obtained pursuant to this section shall be required to protect only the

Seller.

    (d) Third Party Claims. To the extent available pursuant to the

SAFETY Act, liability insurance required to be obtained pursuant to

this section shall provide coverage against third party claims arising

out of, relating to, or resulting from an Act of Terrorism when the

applicable Qualified Anti-Terrorism Technologies have been deployed in

defense against, response to, or recovery from such act.

    (e) Reciprocal Waiver of Claims. The Seller shall enter into a

reciprocal waiver of claims with its contractors, subcontractors,

suppliers, vendors, and customers, and contractors and subcontractors

of the customers, involved in the manufacture, sale, use, or operation

of Qualified Anti-Terrorism Technologies, under which each party to the

waiver agrees to be responsible for losses, including business

interruption losses, that it sustains, or for losses sustained by its

own employees resulting from an activity resulting from an Act of

Terrorism when Qualified Anti-Terrorism Technologies have been deployed

in defense against, response to, or recovery from such act.

Notwithstanding the foregoing, provided that the Seller has used

diligent efforts in good faith to obtain all required reciprocal

waivers, obtaining such waivers shall not be a condition precedent or

subsequent for, nor shall the failure to obtain one or more of such

waivers adversely affect, the issuance, validity, effectiveness,

duration, or applicability of a Designation or a Certification. Nothing

in this paragraph (e) shall be interpreted to render the failure to

obtain one or more of such waivers a condition precedent or subsequent

for the issuance, validity, effectiveness, duration, or applicability

of a Designation or a Certification.

    (f) Information to be Submitted by the Seller. As part of any

application for a Designation, the Seller shall provide all information

that may be requested by the Under Secretary or his designee, regarding

a Seller's liability insurance coverage applicable to third-party

claims arising out of, relating to, or resulting from an Act of

Terrorism when the Seller's Qualified Anti-Terrorism Technology has

been deployed in defense against, response to, or recovery from such

act, including:

    (1) Names of insurance companies, policy numbers, and expiration

dates;

    (2) A description of the types and nature of such insurance

(including the extent to which the Seller is self-insured or intends to

self-insure);

    (3) Dollar limits per occurrence and annually of such insurance,

including any applicable sublimits;

    (4) Deductibles or self-insured retentions, if any, that are

applicable;

    (5) Any relevant exclusions from coverage under such policies or

other factors that would affect the amount of insurance proceeds that

would be available to satisfy third party claims arising out of,

relating to, or resulting from an Act of Terrorism;

    (6) The price for such insurance, if available, and the per-unit

amount or percentage of such price directly related to liability

coverage for the Seller's Qualified Anti-Terrorism Technology deployed

in defense against, or response to, or recovery from an Act of

Terrorism;

    (7) Where applicable, whether the liability insurance, in addition

to the Seller, protects contractors, subcontractors, suppliers, vendors

and customers of the Seller and contractors, subcontractors, suppliers,

vendors and customers of the customer to the extent of their potential

liability for involvement in the manufacture, qualification, sale, use

or operation of Qualified Anti-terrorism Technologies deployed in

defense against, response to, or recovery from an Act of Terrorism; and

    (8) Any limitations on such liability insurance.

    (g) Under Secretary's Certification. For each Qualified Anti-

Terrorism Technology, the Under Secretary shall certify the amount of

liability insurance the Seller is required to carry pursuant to section

443(a) of title 6, United States Code, and paragraphs (a), (b), and (c)

of this section. The Under Secretary shall include the insurance

certification under this section as a part of the applicable

Designation. The insurance certification may specify a period of time

for which such insurance certification will apply. The Seller of a

Qualified Anti-Terrorism Technology may at any time petition the Under

Secretary for a revision of the insurance certification under this

section, and the Under Secretary may revise such insurance

certification in response to such a petition. The Under Secretary may

at any time request information from the Seller regarding the insurance

carried by the Seller or the amount of insurance available to the

Seller.

    (h) Seller's Continuing Obligations. Within 30 days after the Under

Secretary's insurance certification required by paragraph (g) of this

section, the Seller shall certify to the Under Secretary in writing

that the Seller has obtained the required insurance. Within 30 days of

each anniversary of the issuance of a Designation or at any other time

as he may determine, the Under Secretary may require, by written notice

to the Seller, that the Seller certify to the Under Secretary in

writing that the Seller has maintained the required insurance. The

Under Secretary may terminate a Designation if the Seller fails to

provide any of the insurance certifications required by this paragraph

(h) or provides a false certification.

Sec.  25.6  Procedures for Designation of Qualified Anti-Terrorism

Technologies.

    (a) Application Procedure. Any person, firm or other entity seeking

a Designation shall submit an application to the Under Secretary or

such other official as may be named from time to time by the Under

Secretary. Such applications shall be submitted according to the

procedures set forth in and using the appropriate forms contained in

the SAFETY Act Application Kit prescribed by the Under Secretary, which

shall be made available at http://www.safetyact.gov and by mail upon

written request to: Directorate of Science and Technology, SAFETY Act/

room 4320, Department of Homeland Security, Washington, DC 20528. The

burden is on the applicant to make timely submission of all relevant

data requested in the SAFETY Act Application Kit to substantiate an

application for Designation. An applicant may withdraw a submitted

application at any time and for any reason by making a written request

for withdrawal with the Department. Withdrawal of a SAFETY Act

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application shall have no prejudicial effect on any other application.

    (b) Initial Notification. Within 30 days after receipt of an

application for a Designation, the Under Secretary his designee shall

notify the applicant in writing that:

    (1) The application is complete and will be reviewed and evaluated,

or

    (2) That the application is incomplete, in which case the missing

or incomplete parts will be specified.

    (c) Review Process. (1) The Under Secretary or his designee will

review each complete application and any included supporting materials.

In performing this function, the Under Secretary or his designee may

but is not required to:

    (i) Request additional information from the Seller;

    (ii) Meet with representatives of the Seller;

    (iii) Consult with, and rely upon the expertise of, any other

Federal or non-Federal entity;

    (iv) Perform studies or analyses of the subject Technology or the

insurance market for such Technology; and

    (v) Seek information from insurers regarding the availability of

insurance for such Technology.

    (2) For Technologies with which a Federal, State, or local

government agency already has substantial experience or data (through

the procurement process or through prior use or review), the review may

rely in part upon such prior experience and, thus, may be expedited.

The Under Secretary may consider any scientific studies, testing, field

studies, or other experience with the Technology that he deems

appropriate and that are available or can be feasibly conducted or

obtained, including test results produced by an independent laboratory

or other entity engaged to test or verify the safety, utility,

performance, in order to assess the effectiveness of the Technology or

the capability of the Technology to substantially reduce risks of harm.

Such studies may, in the Under Secretary's discretion, include, without

limitation:

    (i) Public source studies;

    (ii) Classified and otherwise confidential studies;

    (iii) Studies, tests, or other performance records or data provided

by or available to the producer of the specific Technology; and

    (iv) Proprietary studies that are available to the Under Secretary.

    (3) In considering whether or the extent to which it is feasible to

defer a decision on a Designation until additional scientific studies

can be conducted on a particular Technology, the Under Secretary will

bring to bear his expertise concerning the protection of the security

of the United States and will consider the urgency of the need for the

Technology.

    (d) Action by the Under Secretary. Within 90 days of notification

to the Seller that an application for a Designation is complete in

accordance with paragraph (b)(1) of this section, the Under Secretary

shall take one of the following actions:

    (1) Approve the application and issue an appropriate Designation to

the applicant for the Technology, which shall include the insurance

certification required by Sec.  25.5(h) of this Part;

    (2) Notify the applicant in writing that the Technology is

potentially eligible for a Designation, but that additional specified

information is needed before a decision may be reached; or

    (3) Deny the application, and notify the applicant in writing of

such decision. The Under Secretary may extend the 90-day time period

for up to 45 days upon notice to the Seller. The Under Secretary is not

required to provide a reason or cause for such extension. The Under

Secretary's decision shall be final and not subject to review, except

at the discretion of the Under Secretary.

    (e) Content of Designation. (1) A Designation shall:

    (i) Describe the Qualified Anti-Terrorism Technology (in such

detail as the Under Secretary deems to be appropriate);

    (ii) Identify the Seller(s) of the Qualified Anti-Terrorism

Technology;

    (iii) Specify the earliest date of sale of the Qualified Anti-

Terrorism Technology to which the Designation shall apply (which shall

be determined by the Under Secretary in his discretion, and may be

prior to, but shall not be later than, the effective date of the

Designation);

    (iv) Set forth the insurance certification required by Sec. 

25.5(g); and

    (v) To the extent practicable, include such standards,

specifications, requirements, performance criteria, limitations, or

other information as the Department in its sole and unreviewable

discretion may deem appropriate.

    (2) The Designation may, but need not, specify other entities that

are required to be covered by the liability insurance required to be

purchased by the Seller. The failure to specify a covered person, firm,

or other entity in a Designation will not preclude the application or

applicability of the Act's protections to that person, firm, or other

entity.

    (f) Term of Designation; Renewal. A Designation shall be valid and

effective for a term of five to eight years (as determined by the Under

Secretary) commencing on the date of issuance, and the protections

conferred by the Designation shall continue in full force and effect

indefinitely to all sales of Qualified Anti-Terrorism Technologies

covered by the Designation. At any time within two years prior to the

expiration of the term of the Designation, the Seller may apply for

renewal of the Designation. The Under Secretary shall make the

application form for renewal available at http://www.safetyact.gov and

by mail upon request sent to: Directorate of Science and Technology,

SAFETY Act/room 4320, Department of Homeland Security, Washington, DC

20528.

    (g) Government Procurements. (1) Overview. The Under Secretary may

coordinate the review of a Technology for SAFETY Act purposes in

connection with a Federal, State, or local government agency

procurement of an anti-terrorism Technology in any manner he deems

appropriate consistent with the Act and other applicable law. A

determination by the Under Secretary to issue a Designation, or not to

issue a Designation for a particular Technology as a QATT is not a

determination that the Technology meets, or fails to meet, the

requirements of any solicitation issued by any Federal government

customer or non-Federal government customer. Determinations by the

Under Secretary with respect to whether to issue a Designation for

Technologies submitted for his review shall be based on the factors

identified in Sec.  25.4(b).

    (2) Procedure. Any Federal, State, or local government agency that

engages in or is planning to engage in the procurement of a Technology

that potentially qualifies as a Qualified Anti-terrorism Technology,

through the use of a solicitation of proposals or otherwise, may

request that the Under Secretary issue a notice stating that the

Technology to be procured either affirmatively or presumptively

satisfies the technical criteria necessary to be deemed a Qualified

Anti-Terrorism Technology (a ``Pre-Qualification Designation Notice'').

The Pre-Qualification Designation Notice will provide that the

vendor(s) chosen to provide the Technology (the ``Selected

Vendor(s)''), upon submitting an application for SAFETY Act Designation

will: Receive expedited review of their application for Designation;

either affirmatively or presumptively (as the case may be) be deemed to

have satisfied the technical criteria for SAFETY Act Designation with

respect to the Technology identified in the Pre-Qualification

Designation Notice; and be

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authorized to submit a streamlined application as set forth in the Pre-

Qualification Designation Notice. In instances in which the subject

procurement involves Technology with respect to which a Block

Designation or Block Certification has been issued, the Department may

determine that the vendor providing such Technology will affirmatively

receive Designation or Certification with respect to such Technology,

provided the vendor satisfy each other applicable requirement for

Designation or Certification. Government agencies seeking a Pre-

Qualification Designation Notice shall submit a written request using

the ``Procurement Pre-Qualification Request'' form prescribed by the

Under Secretary and made available at http://www.safetyact.gov and by

mail upon request sent to: Directorate of Science and Technology,

SAFETY Act/room 4320, Department of Homeland Security, Washington, DC

20528.

    (3) Actions. Within 60 days after the receipt of a complete

Procurement Pre-Qualification Request, the Under Secretary shall take

one of the following actions:

    (i) Approve the Procurement Pre-Qualification Request and issue an

appropriate Pre-Qualification Designation Notice to the requesting

agency that it may include in the government contract or in the

solicitation materials, as appropriate; or

    (ii) Notify the requesting agency in writing that the relevant

procurement is potentially eligible for a Pre-Qualification Designation

Notice, but that additional information is needed before a decision may

be reached; or

    (iii) Deny the Procurement Pre-Qualification Request and notify the

requesting agency in writing of such decision, including the reasons

for such denial.

    (4) Contents of Notice. A Pre-Qualification Designation Notice

shall contain, at a minimum, the following:

    (i) A detailed description of and detailed specifications for the

Technology to which the Pre-Qualification Designation Notice applies,

which may incorporate by reference all or part of the procurement

solicitation documents issued or to be issued by the requesting agency;

    (ii) A statement that the Technology to which the Pre-Qualification

Designation Notice applies satisfies the technical criteria to be

deemed a Qualified Anti-Terrorism Technology and that the Selected

Vendor(s) may presumptively or will qualify for the issuance of a

Designation for such Technology upon compliance with the terms and

conditions set forth in such Pre-Qualification Designation Notice and

the approval of the streamlined application;

    (iii) A list of the portions of the application referenced in Sec. 

25.6(a) that the Selected Vendor(s) must complete and submit to the

Department in order to obtain Designation and the appropriate period of

time for such submission;

    (iv) The period of time within which the Under Secretary will take

action upon such submission;

    (v) The date of expiration of such Pre-Qualification Designation

Notice; and

    (vi) Any other terms or conditions that the Under Secretary deems

to be appropriate in his discretion.

    (5) Review of Completed Applications. The application for

Designation from the Selected Vendor(s) shall be considered, processed,

and acted upon in accordance with the procedures set forth in Sec. 

25.6 (which shall be deemed to be modified by the terms and conditions

set forth in the applicable Pre-Qualification Designation Notice).

However, the review and evaluation of the Technology to be procured

from the Selected Vendor(s), in relation to the criteria set forth in

Sec.  25.4(b), shall ordinarily consist of a validation that that the

Technology complies with the detailed description of and detailed

specifications for the Technology set forth in the applicable Pre-

Qualification Designation Notice.

    (h) Block Designations. (1) From time to time, the Under Secretary,

in response to an application submitted pursuant to Sec.  25.6(a) or

upon his own initiative, may issue a Designation that is applicable to

any person, firm, or other entity that is a qualified Seller of the

QATT described in such Designation (a ``Block Designation''). A Block

Designation will be issued only for Technology that relies on

established performance standards or defined technical characteristics.

All Block Designations shall be published by the Department within ten

days after the issuance thereof at http://www.safetyact.gov, and copies

may also be obtained by mail by sending a request to: Directorate of

Science and Technology, SAFETY Act/room 4320, Department of Homeland

Security, Washington, DC 20528. Any person, firm, or other entity that

desires to qualify as a Seller of a QATT that has received a Block

Designation shall complete only such portions of the application

referenced in Sec.  25.6(a) as are specified in such Block Designation

and shall submit an application to the Department in accordance with

Sec.  25.6(a) and the terms of the Block Designation. Applicants

seeking to be qualified Sellers of a QATT pursuant to a Block

Designation will receive expedited review of their applications and

shall not be required to provide information with respect to the

technical merits of the QATT that has received Block Designation.

Within 60 days (or such other period of time as may be specified in the

applicable Block Designation) after the receipt by the Department of a

complete application, the Under Secretary shall take one of the

following actions:

    (i) Approve the application and notify the applicant in writing of

such approval, which notification shall include the certification

required by Sec.  25.5(g); or

    (ii) Deny the application, and notify the applicant in writing of

such decision, including the reasons for such denial.

    (2) If the application is approved, commencing on the date of such

approval the applicant shall be deemed to be a Seller under the

applicable Block Designation for all purposes under the SAFETY Act,

this part, and such Block Designation. A Block Designation shall be

valid and effective for a term of five to eight years (as determined by

the Under Secretary in his discretion) commencing on the date of

issuance, and may be renewed or extended by the Under Secretary at his

own initiative or in response to an application for renewal submitted

by a qualified Seller under such Block Designation in accordance with

Sec.  25.6(h). Except as otherwise specifically provided in this

paragraph, a Block Designation shall be deemed to be a Designation for

all purposes under the SAFETY Act and this part.

    (i) Other Bases for Expedited Review of Applications. The Under

Secretary may identify other categories or types of Technologies for

which expedited processing may be granted. For example, the Under

Secretary may conduct expedited processing for applications addressing

a particular threat or for particular types of anti-terrorism

Technologies. The Under Secretary shall notify the public of any such

opportunities for expedited processing by publishing such notice in the

Federal Register.

    (j) Transfer of Designation. Except as may be restricted by the

terms and conditions of a Designation, any Designation may be

transferred and assigned to any other person, firm, or other entity to

which the Seller transfers and assigns all right, title, and interest

in and to the Technology covered by the Designation, including the

intellectual property rights therein (or, if the Seller is a licensee

of the Technology, to any

[[Page 33165]]

person, firm, or other entity to which such Seller transfers all of its

right, title, and interest in and to the applicable license agreement).

Such transfer and assignment of a Designation will not be effective

unless and until the Under Secretary is notified in writing of the

transfer using the ``Application for Transfer of Designation'' form

issued by the Under Secretary (the Under Secretary shall make this

application form available at http://www.safetyact.gov and by mail by

written request sent to: Directorate of Science and Technology, SAFETY

Act/room 4320, Department of Homeland Security, Washington, DC 20528).

Upon the effectiveness of such transfer and assignment, the transferee

will be deemed to be a Seller in the place and stead of the transferor

with respect to the applicable Technology for all purposes under the

SAFETY Act, this part, and the transferred Designation. The transferred

Designation will continue to apply to the transferor with respect to

all transactions and occurrences that occurred through the time at

which the transfer and assignment of the Designation became effective,

as specified in the applicable Application for Transfer of Designation.

    (k) Application of Designation to Licensees. Except as may be

restricted by the terms and conditions of a Designation, any

Designation shall apply to any other person, firm, or other entity to

which the Seller licenses (exclusively or nonexclusively) the right to

manufacture, use, or sell the Technology, in the same manner and to the

same extent that such Designation applies to the Seller, effective as

of the date of commencement of the license, provided that the Seller

notifies the Under Secretary of such license by submitting, within 30

days after such date of commencement, a ``Notice of License of

Qualified Anti-terrorism Technology'' form issued by the Under

Secretary. The Under Secretary shall make this form available at http://www.safetyact.gov

 and by mail upon request sent to: Directorate of

Science and Technology, SAFETY Act/room 4320, Department of Homeland

Security, Washington, DC 20528. Such notification shall not be required

for any licensee listed as a Seller on the applicable Designation.

    (l) Significant Modification of Qualified Anti-terrorism

Technologies. (1) The Department recognizes that Qualified Anti-

Terrorism Technologies may routinely undergo changes or modifications

in their manufacturing, materials, installation, implementation,

operating processes, component assembly, or in other respects from time

to time. When a Seller makes routine changes or modifications to a

Qualified Anti-Terrorism Technology, such that the QATT remains within

the scope of the description set forth in the applicable Designation or

Certification, the Seller shall not be required to provide notice under

this subsection, and the changes or modifications shall not adversely

affect the force or effect of the Seller's QATT Designation or

Certification.

    (2) A Seller shall promptly notify the Department and provide

details of any change or modification to a QATT that causes the QATT no

longer to be within the scope of the Designation or Certification by

submitting to the Department a completed ``Notice of Modification to

Qualified Anti-Terrorism Technology'' form issued by the Under

Secretary (a ``Modification Notice''). A Seller is not required to

notify the Department of any change or modification of a particular

Qualified Anti-Terrorism Technology that is made post-sale by a

purchaser unless the Seller has consented expressly to the

modification. The Under Secretary shall make an appropriate form

available at http://www.safetyact.gov and by mail upon request sent to:

Directorate of Science and Technology, SAFETY Act/room 4320, Department

of Homeland Security, Washington, DC 20528. The Department will

promptly acknowledge receipt of a Modification Notice by providing the

relevant Seller with written notice to that effect. Within 60 days of

the receipt of a Modification Notice, the Under Secretary may, in his

sole and unreviewable discretion:

    (i) Inform the submitting Seller that the QATT as changed or

modified is consistent with, and is not outside the scope of, the

Seller's Designation or Certification;

    (ii) Issue to the Seller a modified Designation or Certification

incorporating some or all of the notified changes or modifications;

    (iii) Seek further information regarding the changes or

modifications and temporarily suspend the 60-day period of review;

    (iv) Inform the submitting Seller that the changes or modifications

might cause the QATT as changed or modified to be outside the scope of

the Seller's Designation or Certification, and require further review

and consideration by the Department;

    (v) Inform the submitting Seller that the QATT as changed or

modified is outside the scope of the subject Seller's Designation or

Certification, and require that the QATT be brought back into

conformance with the Seller's Designation or Certification; or

    (vi) If the Seller fails to bring the subject QATT into conformance

in accordance with the Under Secretary's direction pursuant to

paragraph (l)(2)(v) of this section, issue a public notice stating that

the QATT as changed or modified is outside the scope of the submitting

Seller's Designation or Certification and, consequentially, that such

Designation or Certification is not applicable to the QATT as changed

or modified. If the Under Secretary does not take one or more of such

actions within the 60-day period following the Department's receipt of

a Seller's Modification Notice, the changes or modifications identified

in the Modification Notice will be deemed to be approved by the Under

Secretary and the QATT, as changed or modified, will be conclusively

established to be within the scope of the description of the QATT in

the Seller's Designation or Certification.

    (3) Notwithstanding anything to the contrary herein, a Seller's

original QATT Designation or Certification will continue in full force

and effect in accordance with its terms unless modified, suspended, or

terminated by the Under Secretary in his discretion, including during

the pendency of the review of the Seller's Modification Notice. In no

event will any SAFETY Act Designation or Certification terminate

automatically or retroactively under this section. A Seller is not

required to notify the Under Secretary of any change or modification

that is made post-sale by a purchaser or end-user of the QATT without

the Seller's consent, but the Under Secretary may, in appropriate

circumstances, require an end-user to provide periodic reports on

modifications or permit inspections or audits.

Sec.  25.7  Litigation Management

    (a) Liability for all claims against a Seller arising out of,

relating to, or resulting from an Act of Terrorism when such Seller's

Qualified Anti-Terrorism Technology has been deployed in defense

against, response to, or recovery from such act and such claims result

or may result in loss to the Seller shall not be in an amount greater

than the limits of liability insurance coverage required to be

maintained by the Seller under this section or as specified in the

applicable Designation.

    (b) In addition, in any action for damages brought under section

442 of Title 6, United States Code:

    (1) No punitive damages intended to punish or deter, exemplary

damages, or other damages not intended to compensate a plaintiff for

actual losses

[[Page 33166]]

may be awarded, nor shall any party be liable for interest prior to the

judgment;

    (2) Noneconomic damages may be awarded against a defendant only in

an amount directly proportional to the percentage of responsibility of

such defendant for the harm to the plaintiff, and no plaintiff may

recover noneconomic damages unless the plaintiff suffered physical

harm; and

    (3) Any recovery by a plaintiff shall be reduced by the amount of

collateral source compensation, if any, that the plaintiff has received

or is entitled to receive as a result of such Acts of Terrorism that

result or may result in loss to the Seller.

    (c) Without prejudice to the authority of the Under Secretary to

terminate a Designation pursuant to paragraph (h) of Sec.  25.6, the

liability limitations and reductions set forth in this section shall

apply in perpetuity to all sales or deployments of a Qualified Anti-

Terrorism Technology in defense against, response to, or recovery from

any Act of Terrorism that occurs on or after the effective date of the

Designation applicable to such Qualified Anti-Terrorism Technology,

regardless of whether any liability insurance coverage required to be

obtained by the Seller is actually obtained or maintained or not,

provided that the sale of such Qualified Anti-Terrorism Technology was

consummated by the Seller on or after the earliest date of sale of such

Qualified Anti-Terrorism Technology specified in such Designation and

prior to the earlier of the expiration or termination of such

Designation.

    (d) There shall exist only one cause of action for loss of

property, personal injury, or death for performance or non-performance

of the Seller's Qualified Anti-Terrorism Technology in relation to an

Act of Terrorism. Such cause of action may be brought only against the

Seller of the Qualified Anti-Terrorism Technology and may not be

brought against the buyers, the buyers' contractors, or downstream

users of the Technology, the Seller's suppliers or contractors, or any

other person or entity. In addition, such cause of action must be

brought in the appropriate district court of the United States.

Sec.  25.8  Government Contractor Defense

    (a) Criteria for Certification. The Under Secretary may issue a

Certification for a Qualified Anti-Terrorism Technology as an Approved

Product for Homeland Security for purposes of establishing a rebuttable

presumption of the applicability of the government contractor defense.

In determining whether to issue such Certification, the Under Secretary

or his designee shall conduct a comprehensive review of the design of

such Technology and determine whether it will perform as intended,

conforms to the Seller's specifications, and is safe for use as

intended. The Seller shall provide safety and hazard analyses and other

relevant data and information regarding such Qualified Anti-Terrorism

Technology to the Department in connection with an application. The

Under Secretary or his designee may require that the Seller submit any

information that the Under Secretary or his designee considers relevant

to the application for approval. The Under Secretary or his designee

may consult with, and rely upon the expertise of, any other

governmental or non-governmental person, firm, or entity, and may

consider test results produced by an independent laboratory or other

person, firm, or other entity engaged by the Seller.

    (b) Extent of Liability. Should a product liability or other

lawsuit be filed for claims arising out of, relating to, or resulting

from an Act of Terrorism when Qualified Anti-Terrorism Technologies

Certified by the Under Secretary as provided in Sec. Sec.  25.8 and

25.9 of this part have been deployed in defense against or response or

recovery from such act and such claims result or may result in loss to

the Seller, there shall be a rebuttable presumption that the government

contractor defense applies in such lawsuit. This presumption shall only

be overcome by clear and convincing evidence showing that the Seller

acted fraudulently or with willful misconduct in submitting information

to the Department during the course of the consideration of such

Technology under this section and Sec.  25.9 of this part. A claimant's

burden to show fraud or willful misconduct in connection with a

Seller's SAFETY Act application cannot be satisfied unless the claimant

establishes there was a knowing and deliberate intent to deceive the

Department. This presumption of the government contractor defense shall

apply regardless of whether the claim against the Seller arises from a

sale of the product to Federal Government or non-Federal Government

customers. Such presumption shall apply in perpetuity to all

deployments of a Qualified Anti-Terrorism Technology (for which a

Certification has been issued by the Under Secretary as provided in

this section and Sec.  25.9 of this part) in defense against, response

to, or recovery from any Act of Terrorism that occurs on or after the

effective date of the Certification applicable to such Technology,

provided that the sale of such Technology was consummated by the Seller

on or after the earliest date of sale of such Technology specified in

such Certification (which shall be determined by the Under Secretary in

his discretion, and may be prior to, but shall not be later than, such

effective date) and prior to the expiration or termination of such

Certification.

    (c) Establishing Applicability of the Government Contractor

Defense. The Under Secretary will be exclusively responsible for the

review and approval of anti-terrorism Technology for purposes of

establishing the government contractor defense in any product liability

lawsuit for claims arising out of, relating to, or resulting from an

Act of Terrorism when Qualified Anti-Terrorism Technologies approved by

the Under Secretary, as provided in this final rule, have been deployed

in defense against or response or recovery from such act and such

claims result or may result in loss to the Seller. The Certification of

a Technology as an Approved Product for Homeland Security shall be the

only evidence necessary to establish that the Seller of the Qualified

Anti-Terrorism Technology that has been issue a Certification is

entitled to a presumption of dismissal from a cause of action brought

against a Seller arising out of, relating to, or resulting from an Act

of Terrorism when the Qualified Anti-Terrorism Technology was deployed

in defense against or response to or recovery from such Act of

Terrorism. This presumption of dismissal is based upon the statutory

government contractor defense conferred by the SAFETY Act.

Sec.  25.9  Procedures for Certification of Approved Products for

Homeland Security.

    (a) Application Procedure. An applicant seeking a Certification of

anti-terrorism Technology as an Approved Product for Homeland Security

under Sec.  25.8 shall submit information supporting such request to

the Under Secretary. The Under Secretary shall make application forms

available at http://www.safetyact.gov, and copies may also be obtained

by mail by sending a request to: Directorate of Science and Technology,

SAFETY Act/room 4320, Department of Homeland Security, Washington, DC

20528. An application for a Certification may not be filed unless the

applicant has also filed an application for a Designation for the same

Technology in accordance with Sec.  25.6(a). Such applications may be

filed simultaneously and may be reviewed simultaneously by the

Department.

[[Page 33167]]

    (b) Initial Notification. Within 30 days after receipt of an

application for a Certification, the Under Secretary or his designee

shall notify the applicant in writing that:

    (1) The application is complete and will be reviewed, or

    (2) That the application is incomplete, in which case the missing

or incomplete parts will be specified.

    (c) Review Process. The Under Secretary or his designee will review

each complete application for a Certification and any included

supporting materials. In performing this function, the Under Secretary

or his designee may, but is not required to:

    (1) Request additional information from the Seller;

    (2) Meet with representatives of the Seller;

    (3) Consult with, and rely upon the expertise of, any other Federal

or non-Federal entity; and

    (4) Perform or seek studies or analyses of the Technology.

    (d) Action by the Under Secretary.

    (1) Within 90 days after receipt of a complete application for a

Certification, the Under Secretary shall take one of the following

actions:

    (i) Approve the application and issue an appropriate Certification

to the Seller;

    (ii) Notify the Seller in writing that the Technology is

potentially eligible for a Certification, but that additional specified

information is needed before a decision may be reached; or

    (iii) Deny the application, and notify the Seller in writing of

such decision.

    (2) The Under Secretary may extend the time period one time for 45

days upon notice to the Seller, and the Under Secretary is not required

to provide a reason or cause for such extension. The Under Secretary's

decision shall be final and not subject to review, except at the

discretion of the Under Secretary.

    (e) Designation is a Pre-Condition. The Under Secretary may approve

an application for a Certification only if the Under Secretary has also

approved an application for a Designation for the same Technology in

accordance with Sec.  25.4.

    (f) Content and Term of Certification; Renewal. (1) A Certification

shall:

    (i) Describe the Qualified Anti-Terrorism Technology (in such

detail as the Under Secretary deems to be appropriate);

    (ii) Identify the Seller(s) of the Qualified Anti-Terrorism

Technology;

    (iii) Specify the earliest date of sale of the Qualified Anti-

Terrorism Technology to which the Certification shall apply (which

shall be determined by the Under Secretary in his discretion, and may

be prior to, but shall not be later than, the effective date of the

Certification); and

    (iv) To the extent practicable, include such standards,

specifications, requirements, performance criteria, limitations, or

other information as the Department in its sole and unreviewable

discretion may deem appropriate.

    (2) A Certification shall be valid and effective for the same

period of time for which the related Designation is issued, and shall

terminate upon the termination of such related Designation. The Seller

may apply for renewal of the Certification in connection with an

application for renewal of the related Designation. An application for

renewal must be made using the ``Application for Certification of an

Approved Product for Homeland Security'' form issued by the Under

Secretary.

    (g) Application of Certification to Licensees. A Certification

shall apply to any other person, firm, or other entity to which the

applicable Seller licenses (exclusively or nonexclusively) the right to

manufacture, use, or and sell the Technology, in the same manner and to

the same extent that such Certification applies to the Seller,

effective as of the date of commencement of the license, provided that

the Seller notifies the Under Secretary of such license by submitting,

within 30 days after such date of commencement, a ``Notice of License

of Approved Anti-terrorism Technology'' form issued by the Under

Secretary. The Under Secretary shall make this form available at http://www.safetyact.gov

 and by mail upon request sent to: Directorate of

Science and Technology, SAFETY Act/room 4320, Department of Homeland

Security, Washington, DC 20528. Such notification shall not be required

for any licensee listed as a Seller on the applicable Certification.

    (h) Transfer of Certification. In the event of any permitted

transfer and assignment of a Designation, any related Certification for

the same anti-terrorism Technology shall automatically be deemed to be

transferred and assigned to the same transferee to which such

Designation is transferred and assigned. The transferred Certification

will continue to apply to the transferor with respect to all

transactions and occurrences that occurred through the time at which

such transfer and assignment of the Certification became effective.

    (i) Issuance of Certificate; Approved Product List. For anti-

terrorism Technology reviewed and approved by the Under Secretary and

for which a Certification is issued, the Under Secretary shall issue a

certificate of conformance to the Seller and place the anti-terrorism

Technology on an Approved Product List for Homeland Security, which

shall be published by the Department.

    (j) Block Certifications. (1) From time to time, the Under

Secretary, in response to an application submitted pursuant to Sec. 

25.9(a) or at his own initiative, may issue a Certification that is

applicable to any person, firm or other entity that is a qualified

Seller of the Approved Product for Homeland Security described in such

Certification (a ``Block Certification''). All Block Certifications

shall be published by the Department within ten days after the issuance

thereof at http://www.safetyact.gov, and copies may also be obtained by

mail by sending a request to: Directorate of Science and Technology,

SAFETY Act/room 4320, Department of Homeland Security, Washington, DC

20528. Any person, firm, or other entity that desires to qualify as a

Seller of an Approved Product for Homeland Security under a Block

Certification shall complete only such portions of the application

referenced in Sec.  25.9(a) as are specified in such Block

Certification and shall submit such application to the Department in

accordance with Sec.  9(a). Applicants seeking to be qualified Sellers

of an Approved Product for Homeland Security pursuant to a Block

Certification will receive expedited review of their applications and

shall not be required to provide information with respect to the

technical merits of the Approved Product for Homeland Security that has

received Block Certification. Within 60 days (or such other period of

time as may be specified in the applicable Block Certification) after

the receipt by the Department of a complete application, the Under

Secretary shall take one of the following actions:

    (i) Approve the application and notify the applicant in writing of

such approval; or

    (ii) Deny the application, and notify the applicant in writing of

such decision, including the reasons for such denial.

    (2) If the application is approved, commencing on the date of such

approval, the applicant shall be deemed to be a Seller under the

applicable Block Certification for all purposes under the SAFETY Act,

this part, and such Block Certification. A Block Certification shall be

valid and effective for the same period of time for which the related

Block Designation is issued. A Block Certification may be renewed by

the Under Secretary at his own initiative or in response to an

application for

[[Page 33168]]

renewal submitted by a qualified Seller under such Block Certification

in accordance with Sec.  25.9(g). Except as otherwise specifically

provided in this paragraph, a Block Certification shall be deemed to be

a Certification for all purposes under the SAFETY Act and this part.

Sec.  25.10  Confidentiality and Protection of Intellectual Property.

    (a) General. The Secretary, in consultation with the Office of

Management and Budget and appropriate Federal law enforcement and

intelligence officials, and in a manner consistent with existing

protections for sensitive or classified information, shall establish

confidentiality procedures for safeguarding, maintenance and use of

information submitted to the Department under this part. Such protocols

shall, among other things, ensure that the Department will utilize all

appropriate exemptions from the Freedom of Information Act.

    (b) Non-Disclosure. Except as otherwise required by applicable law

or regulation or a final order of a court of competent jurisdiction, or

as expressly authorized in writing by the Under Secretary, no person,

firm, or other entity may:

    (1) Disclose SAFETY Act Confidential Information (as defined above)

to any person, firm, or other entity, or

    (2) Use any SAFETY Act Confidential Information for his, her, or

its own benefit or for the benefit of any other person, firm, or other

entity, unless the applicant has consented to the release of such

SAFETY Act Confidential Information.

    (c) Legends. Any person, firm, or other entity that submits data or

information to the Department under this Part may place a legend on

such data or information indicating that the submission constitutes

SAFETY Act Confidential Information. The absence of such a legend shall

not prevent any data or information submitted to the Department under

this Part from constituting or being considered by the Department to

constitute SAFETY Act Confidential Information.

    Dated: June 2, 2006.

Michael Chertoff,

Secretary.

[FR Doc. 06-5223 Filed 6-5-06; 2:16 pm]

BILLING CODE 4410-10-P

Our Core Services:

• Free Initial Consultation

• Help Reduce Your Costs

• Detailed SAFETY Act Explanation and Education

• Evaluate SAFETY Act Applicabilty to Your Specific Exposures

• Review and Evaluate Your Overall Terrorism Liability Exposures and Mitigation Strategies

• Provide Highly Cost Effective Solutions

• Provide Reports and Updates as Requested

• Full SAFETY Act Application Support

• Provide Updates & DHS Feedback

• Negotiate with the DHS, Lawyers, Brokers and/or Insurers as Needed

• Evaluate Existing SAFETY Act Approvals for Issues and Conflicts

• Review Insurance Program for Conflicts, Compliance, Adequacy and Potential Cost of Risk Savings

• Review Contracts and Agreements for Conflicts, Issues, Compliance and Modifications Needed

• Assist in Upgrading Any Existing SAFETY Act Approvals

• Help You Use SAFETY Act to Better Market Approved Products and/or Services

• Help Create an Overall SAFETY Act Strategy Plan for You, Your Customers, Suppliers, and Vendors

• Provide Expert Advice, Consultation and Access to Our Key Business Partners as Needed or Requested

• Consult on Other Related Terrorism Financial Protection Strategies and Solutions

By e-Mail:

    info [at] SAFETYACTCONSULTANTS dot com

Our online web-form:   Web-form

Phone:     (202) 640-4000

Toll-free:  (855) SAFETY ACT  or:                                (877)S ACT HELP 

Fax:           (202) 407-7054

Mailing Address:

SAFETY ACT CONSULTANTS
P.O. Box 1666
Brookfield, WI  53008-1666

We look forward to assisting you in creating customized solutions critical to your organization and key in helping to protect people and assets. 

We will help you:

Protect Your Organization from enterprise threatening liability that will follow a terrorist event alleged to involve your organization's facilities or products in any way

Protect your bottom line from suits stemming from the use, manufacture, distribution, provision or deployment of anti-terrorism or terrorism response or mitigation related products, advice, aid, procedures, technologies or other services

Save Money on both new and existing insurance programs, the ongoing cost of risk as well as the overall SAFETY Act process

Increase Your Revenue by using SAFETY Act approval to help market your products, advice, facilities, technologies or services including cyber or network related

Thoroughly understand the SAFETY Act as well as the regulations that implement it

Thoroughly understand the SAFETY Act application process

Evaluate the Act's benefit to your organization, insurance,  products, suppliers, vendors and customers

Determine if SAFETY Act
protection can apply to a given product, facility, technology, procedure and/or service

Describe and review the Act with your risk management, legal, upper management, finance, engineering, and marketing groups as needed 

Evaluate the time demands, costs and difficulty of the application process for your unique exposures

Manage the entire application process through completion

Evaluate insurance programs for adequacy in coverage, limits, protecting your liability cap savings, insurer and SAFETY Act compliance

Evaluate contracts and other agreements for conflicts, issues adequacy as well as insurer and SAFETY Act compliance

Provide options for minimizing cost of insurance and risk while maximizing coverages

Arrange for outside experts as appropriate for your specific needs including experts in technical, legal, insurance and political affairs as well as physical and financial asset, business income and supply chain protection

Monitor the SAFETY Act status of your suppliers, vendors, subcontractors and customers

Negotiate with the DHS, insurance brokers, insurers and/or lawyers if potential problems, conflicts, limitations, potential savings or enhancement possibilities exist

Create a standardized process to coordinate and manage all SAFETY Act related activities for existing, planned or future exposures as well as third party approvals (i.e. your vendors)

Post approval support including any changes in your insurance, the insurance market, insurance costs; changes in your approved products or services; periodic review of compliance and other services you deem necessary

Advise on other terrorism related financial protection strategies including contractual protection review, FARs, Public Law 85-804, Government Contractor Defense - "Boyle", captive utilization and/or formation, conventional and non-conventional terrorism insurance coverages, TRIA applicability and access, etc.