CHARLES E. RUMBAUGH
Arbitrator/Mediator
(310) 373-1981 / FAX (310) 373-4182
(888) ADROffice (toll free)
e-mail: ADROffice@Rumbaugh.net
P.O. Box 2636
Rolling Hills, California 90274
P.O. Box 2095
Burlingame, California 94011
July 11, 2003
Special Regulatory Update
The
Department of Homeland Security noticed in the Federal Register
today a proposed rule which “would implement Subtitle G of Title
VIII of the Homeland Security Act of 2002--the Support of
Anti-terrorism by Fostering Effective Technologies Act of 2002
(SAFETY Act)… which will provide critical incentives for the
development and deployment of anti-terrorism technologies by
providing liability protections for Sellers of ‘qualified
anti-terrorism technologies’ and others.”
The
stated “aims” of the Department are the following…
“(1) To produce by regulation as much certainty
as possible regarding the application of the liability protections
created by the Act;
“(2) To provide the Department with sufficient
program flexibility to address the specific circumstances of each
particular request for SAFETY Act coverage.”
A
short initial comment period (comments are due on/before August
11, 2003) is provided with the stated intent that an interim
rule may be issued and the Department “will begin accepting
other SAFETY Act applications on September 1, 2003.”
It
is noted that “the designation of a technology as a qualified
anti-terrorism technology confers all of the liability protections
provided in the Act, except for the presumption in favor of the
government contractor defense….
Qualified anti-terrorism technology’ is not
necessarily required to be newly developed—it may have already
been employed (e.g. ‘prior United States government use’) or may
be a new application of an existing technology…. The proposed rule
provides for designation as a qualified anti-terrorism technology
for five to eight years (renewable) period.” “Reasonable”
liability insurance may be required.
Specific
issues/subjects regarding SAFETY Act—or this proposed rule—and
where public input is generally solicited include the following:
·
Definition
of Anti-Terrorism Technologies
·
Development
of New Technologies
·
Protection
of Intellectual Property and Trade Secrets
·
Evaluation
of Scientific Studies
·
“Exclusive
Federal Jurisdiction” (preemption) under SAFETY Act and
“Scope” of Insurance Coverage as well as Amount
·
Safety
and effectiveness standards for categories of anti-terrorism
technologies, and that the Under Secretary may consider compliance
with any such applicable standards in determining whether to grant a
designation under the Act
·
Relationship
of the SAFETY Act to Indemnification under Public Law 85-804.
COMMENT: This
has a significant impact on all contractors and contracting
officers. Review with
counsel. See prior
Updates.
Charles E. Rumbaugh
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