[Code of Federal Regulations]
[Title 6, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 6CFR25.8]

[Page 114-115]
 
                       TITLE 6--HOMELAND SECURITY
 
   CHAPTER I--DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY
 
PART 25_REGULATIONS TO SUPPORT ANTI-TERRORISM BY FOSTERING EFFECTIVE
 
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

[[Page 115]]

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.