Homeland Security Act of 2002 Part 16

(2) t.i.tle 10, united states code.--In chapter 137 of t.i.tle 10, United States Code: (A) Paragraphs (1), (2), (6), and (7) of subsection (c) of section 2304, relating to use of procedures other than compet.i.tive procedures under certain circ.u.mstances (subject to subsection (e) of such section).

(B) Section 2304c, relating to orders under task and delivery order contracts.

(3) Office of federal procurement policy act.-- Paragraphs (1)(B), (1)(D), and (2) of section 18(c) of the Office of Federal Procurement Policy Act (41 U.S.C.

416(c)), relating to inapplicability of a requirement for procurement notice.

(b) Waiver of Certain Small Business Threshold Requirements.--Subclause (II) of section 8(a)(1)(D)(i) of the Small Business Act (15 U.S.C. 637(a)(1)(D)(i)) and clause (ii) of section 31(b)(2)(A) of such Act (15 U.S.C. 657a(b)(2)(A)) shall not apply in the use of streamlined acquisition authorities and procedures referred to in paragraphs (1)(A) and (2)(A) of subsection (a) for a procurement referred to in section 852.

SEC. 857. [6 U.S.C. 427] REVIEW AND REPORT BY COMPTROLLER GENERAL.

(a) Requirements.--Not later than March 31, 2004, the Comptroller General shall-- (1) complete a review of the extent to which procurements of property and services have been made in accordance with this subt.i.tle; and (2) submit a report on the results of the review to the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives.

(b) Content of Report.--The report under subsection (a)(2) shall include the following matters: (1) a.s.sessment.--The Comptroller General's a.s.sessment of-- (A) the extent to which property and services procured in accordance with this t.i.tle have contributed to the capacity of the workforce of Federal Government employees within each executive agency to carry out the mission of the executive agency; and (B) the extent to which Federal Government employees have been trained on the use of technology.

(2) Recommendations.--Any recommendations of the Comptroller General resulting from the a.s.sessment described in paragraph (1).

(c) Consultation.--In preparing for the review under subsection (a)(1), the Comptroller shall consult with the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives on the specific issues and topics to be reviewed. The extent of coverage needed in areas such as technology integration, employee training, and human capital management, as well as the data requirements of the study, shall be included as part of the consultation.

SEC. 858. [6 U.S.C. 428] IDENTIFICATION OF NEW ENTRANTS INTO THE FEDERAL MARKETPLACE.

The head of each executive agency shall conduct market research on an ongoing basis to identify effectively the capabilities, including the capabilities of small businesses and new entrants into Federal contracting, that are available in the marketplace for meeting the requirements of the executive agency in furtherance of defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack. The head of the executive agency shall, to the maximum extent practicable, take advantage of commercially available market research methods, including use of commercial databases, to carry out the research.

Subt.i.tle G--Support Anti-terrorism by Fostering Effective Technologies Act of 2002

SEC. 861. [6 U.S.C. 101 NOTE] SHORT t.i.tLE.

This subt.i.tle may be cited as the ''Support Anti-terrorism by Fostering Effective Technologies Act of 2002'' or the ''SAFETY Act''.

SEC. 862. [6 U.S.C. 441] ADMINISTRATION.

(a) In General.--The Secretary shall be responsible for the administration of this subt.i.tle.

(b) Designation of Qualified Anti-Terrorism Technologies.-- The Secretary may designate anti-terrorism technologies that qualify for protection under the system of risk management set forth in this subt.i.tle in accordance with criteria that shall include, but not be limited to, the following: (1) Prior United States Government use or demonstrated substantial utility and effectiveness.

(2) Availability of the technology for immediate deployment in public and private settings.

(3) Existence of extraordinarily large or extraordinarily unquantifiable potential third party liability risk exposure to the Seller or other provider of such anti-terrorism technology.

(4) Substantial likelihood that such anti-terrorism technology will not be deployed unless protections under the system of risk management provided under this subt.i.tle are extended.

(5) Magnitude of risk exposure to the public if such anti-terrorism technology is not deployed.

(6) Evaluation of all scientific studies that can be feasibly conducted in order to a.s.sess the capability of the technology to substantially reduce risks of harm.

(7) 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.

(c) Regulations.--The Secretary may issue such regulations, after notice and comment in accordance with section 553 of t.i.tle 5, United States Code, as may be necessary to carry out this subt.i.tle.

SEC. 863. [6 U.S.C. 442] LITIGATION MANAGEMENT.

(a) Federal Cause of Action.-- (1) In general.--There shall exist a Federal cause of action for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti- terrorism technologies 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 substantive law for decision in any such action shall be derived from the law, including choice of law principles, of the State in which such acts of terrorism occurred, unless such law is inconsistent with or preempted by Federal law. Such Federal cause of action shall be brought only for claims for injuries that are proximately caused by sellers that provide qualified anti-terrorism technology to Federal and non- Federal government customers.

(2) Jurisdiction.--Such appropriate district court of the United States shall have original and exclusive jurisdiction over all actions for any claim for loss of property, personal injury, or death arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies 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.

(b) Special Rules.--In an action brought under this section for damages the following provisions apply: (1) Punitive damages.--No punitive damages intended to punish or deter, exemplary damages, or other damages not intended to compensate a plaintiff for actual losses may be awarded, nor shall any party be liable for interest prior to the judgment.

(2) Noneconomic damages.-- (A) In general.--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.

(B) Definition.--For purposes of subparagraph (A), 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 companions.h.i.+p, loss of consortium, hedonic damages, injury to reputation, and any other nonpecuniary losses.

(c) Collateral Sources.--Any recovery by a plaintiff in an action under this section shall be reduced by the amount of collateral source compensation, if any, that the plaintiff has received or is ent.i.tled to receive as a result of such acts of terrorism that result or may result in loss to the Seller.

(d) Government Contractor Defense.-- (1) In general.--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 approved by the Secretary, as provided in paragraphs (2) and (3) of this subsection, 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 reb.u.t.table presumption that the government contractor defense applies in such lawsuit. This presumption shall only be overcome by evidence showing that the Seller acted fraudulently or with willful misconduct in submitting information to the Secretary during the course of the Secretary's consideration of such technology under this subsection. 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.

(2) Exclusive responsibility.--The Secretary will be exclusively responsible for the review and approval of anti-terrorism technology for purposes of establis.h.i.+ng a 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 Secretary, as provided in this paragraph and paragraph (3), 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. Upon the Seller's submission to the Secretary for approval of anti- terrorism technology, the Secretary will 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 will conduct safety and hazard a.n.a.lyses on such technology and will supply the Secretary with all such information.

(3) Certificate.--For anti-terrorism technology reviewed and approved by the Secretary, the Secretary will issue a certificate of conformance to the Seller and place the anti-terrorism technology on an Approved Product List for Homeland Security.

(e) Exclusion.--Nothing in this section shall in any way limit the ability of any person to seek any form of recovery from any person, government, or other ent.i.ty that-- (1) attempts to commit, knowingly partic.i.p.ates in, aids and abets, or commits any act of terrorism, or any criminal act related to or resulting from such act of terrorism; or (2) partic.i.p.ates in a conspiracy to commit any such act of terrorism or any such criminal act.

SEC. 864. [6 U.S.C. 443] RISK MANAGEMENT.

(a) In General.-- (1) Liability insurance required.--Any person or ent.i.ty that sells or otherwise provides a qualified anti-terrorism technology to Federal and non-Federal Government customers (''Seller'') shall obtain liability insurance of such types and in such amounts as shall be required in accordance with this section and certified by the 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 or response or recovery from such act.

(2) Maximum amount.--For the total claims related to 1 such act of terrorism, the Seller is not required to obtain liability insurance of more than the maximum amount of liability insurance reasonably available from private sources on the world market at prices and terms that will not unreasonably distort the sales price of Seller's anti-terrorism technologies.

(3) Scope of coverage.--Liability insurance obtained pursuant to this subsection 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 or response or recovery from an act of terrorism: (A) Contractors, subcontractors, suppliers, vendors and customers of the Seller.

(B) Contractors, subcontractors, suppliers, and vendors of the customer.

(4) Third party claims.--Such liability insurance under this section shall provide coverage against third party claims arising out of, relating to, or resulting from the sale or use of anti-terrorism technologies.

(b) 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 or response or recovery from such act.

(c) Extent of Liability.--Notwithstanding any other provision of law, liability for all claims against a Seller arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies 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, whether for compensatory or punitive damages or for contribution or indemnity, shall not be in an amount greater than the limits of liability insurance coverage required to be maintained by the Seller under this section.

SEC. 865. [6 U.S.C. 444] DEFINITIONS.

For purposes of this subt.i.tle, the following definitions apply: (1) Qualified anti-terrorism technology.--For purposes of this subt.i.tle, the term ''qualified anti- terrorism technology'' means any product, equipment, service (including support services), device, or technology (including information technology) designed, developed, modified, or procured for the specific purpose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm such acts might otherwise cause, that is designated as such by the Secretary.

(2) Act of terrorism.--(A) The term ''act of terrorism'' means any act that the Secretary determines meets the requirements under subparagraph (B), as such requirements are further defined and specified by the Secretary.

(B) Requirements.--An act meets the requirements of this subparagraph if the act-- (i) is unlawful; (ii) causes harm to a person, property, or ent.i.ty, 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 princ.i.p.ally 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 (iii) uses or attempts to use instrumentalities, weapons or other methods designed or intended to cause ma.s.s destruction, injury or other loss to citizens or inst.i.tutions of the United States.

(3) Insurance carrier.--The term ''insurance carrier'' means any corporation, a.s.sociation, society, order, firm, company, mutual, partners.h.i.+p, individual aggregation of individuals, or any other legal ent.i.ty that provides commercial property and casualty insurance. Such term includes any affiliates of a commercial insurance carrier.

(4) Liability insurance.-- (A) In general.--The term ''liability insurance'' means insurance for legal liabilities incurred by the insured resulting from-- (i) loss of or damage to property of others; (ii) ensuing loss of income or extra expense incurred because of loss of or damage to property of others; (iii) bodily injury (including) to persons other than the insured or its employees; or (iv) loss resulting from debt or default of another.

(5) Loss.--The term ''loss'' means death, bodily injury, or loss of or damage to property, including business interruption loss.

(6) Non-federal government customers.--The term ''non-Federal Government customers'' means any customer of a Seller that is not an agency or instrumentality of the United States Government with authority under Public Law 85-804 to provide for indemnification under certain circ.u.mstances for third-party claims against its contractors, including but not limited to State and local authorities and commercial ent.i.ties.

Subt.i.tle H--Miscellaneous Provisions

SEC. 871. [6 U.S.C. 451] ADVISORY COMMITTEES.

(a) In General.--The Secretary may establish, appoint members of, and use the services of, advisory committees, as the Secretary may deem necessary. An advisory committee established under this section may be exempted by the Secretary from Public Law 92-463, but the Secretary shall publish notice in the Federal Register announcing the establishment of such a committee and identifying its purpose and members.h.i.+p.

Notwithstanding the preceding sentence, members of an advisory committee that is exempted by the Secretary under the preceding sentence who are special Government employees (as that term is defined in section 202 of t.i.tle 18, United States Code) shall be eligible for certifications under subsection (b)(3) of section 208 of t.i.tle 18, United States Code, for official actions taken as a member of such advisory committee.

(b) Termination.--Any advisory committee established by the Secretary shall terminate 2 years after the date of its establishment, unless the Secretary makes a written determination to extend the advisory committee to a specified date, which shall not be more than 2 years after the date on which such determination is made. The Secretary may make any number of subsequent extensions consistent with this subsection.

SEC. 872. [6 U.S.C. 452] REORGANIZATION.

(a) Reorganization.--The Secretary may allocate or reallocate functions among the officers of the Department, and may establish, consolidate, alter, or discontinue organizational units within the Department, but only-- (1) pursuant to section 1502(b); or (2) after the expiration of 60 days after providing notice of such action to the appropriate congressional committees, which shall include an explanation of the rationale for the action.

(b) Limitations.-- (1) In general.--Authority under subsection (a)(1) does not extend to the abolition of any agency, ent.i.ty, organizational unit, program, or function established or required to be maintained by this Act.

(2) Abolitions.--Authority under subsection (a)(2) does not extend to the abolition of any agency, ent.i.ty, organizational unit, program, or function established or required to be maintained by statute.

SEC. 873. [6 U.S.C. 453] USE OF APPROPRIATED FUNDS.

(a) Disposal of Property.-- (1) Strict compliance.--If specifically authorized to dispose of real property in this or any other Act, the Secretary shall exercise this authority in strict compliance with section 204 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 485).

(2) Deposit of proceeds.--The Secretary shall deposit the proceeds of any exercise of property disposal authority into the miscellaneous receipts of the Treasury in accordance with section 3302(b) of t.i.tle 31, United States Code.

(b) Gifts.--Except as authorized by section 2601 of t.i.tle 10, United States Code, and by section 93 of t.i.tle 14, United States Code, gifts 1 or donations of services or property of or for the Department may not be accepted, used, or disposed of unless specifically permitted in advance in an appropriations Act and only under the conditions and for the purposes specified in such appropriations Act.

--------------------------------------------------------------------------- 1 Section 103(3) of Public Law 108-7 (117 Stat. 529) amends subsection (b) by inserting ''Except as authorized by section 2601 of t.i.tle 10, United States Code, and by section 93 of t.i.tle 14, United States Code,'' before the word ''Gifts'' in the second place it appears and by striking the letter ''G'' and inserting in lieu thereof ''g'' in the word ''Gifts'' in the second place it appears. The word ''Gifts''

appears once in the text, however, the amendments have been executed to reflect the probable intent of Congress.

--------------------------------------------------------------------------- (c) Budget Request.--Under section 1105 of t.i.tle 31, United States Code, the President shall submit to Congress a detailed budget request for the Department for fiscal year 2004, and for each subsequent fiscal year.

SEC. 874. [6 U.S.C. 454] FUTURE YEAR HOMELAND SECURITY PROGRAM.

(a) In General.--Each budget request submitted to Congress for the Department under section 1105 of t.i.tle 31, United States Code, shall, at or about the same time, be accompanied by a Future Years Homeland Security Program.

(b) Contents.--The Future Years Homeland Security Program under subsection (a) shall-- (1) include the same type of information, organizational structure, and level of detail as the future years defense program submitted to Congress by the Secretary of Defense under section 221 of t.i.tle 10, United States Code; (2) set forth the homeland security strategy of the Department, which shall be developed and updated as appropriate annually by the Secretary, that was used to develop program planning guidance for the Future Years Homeland Security Program; and (3) include an explanation of how the resource allocations included in the Future Years Homeland Security Program correlate to the homeland security strategy set forth under paragraph (2).

(c) Effective Date.--This section shall take effect with respect to the preparation and submission of the fiscal year 2005 budget request for the Department and for any subsequent fiscal year, except that the first Future Years Homeland Security Program shall be submitted not later than 90 days after the Department's fiscal year 2005 budget request is submitted to Congress.

SEC. 875. [6 U.S.C. 455] MISCELLANEOUS AUTHORITIES.