H. R. 5005—98
Secretary and the Director, may be implemented imme-
diately.
‘‘(ii) With respect to any parts of the proposal
as to which recommendations have been made but
not accepted by the Secretary and the Director, at
any time after 30 calendar days have elapsed since
the initiation of the congressional notification, con-
sultation, and mediation procedures set forth in
subparagraph (B), if the Secretary determines, in the
Secretary’s sole and unreviewable discretion, that fur-
ther consultation and mediation is unlikely to produce
agreement, the Secretary may implement any or all
of such parts, including any modifications made in
response to the recommendations as the Secretary
determines advisable.
‘‘(iii) The Secretary shall promptly notify Congress
of the implementation of any part of the proposal and
shall furnish with such notice an explanation of the
proposal, any changes made to the proposal as a result
of recommendations from employee representatives,
and of the reasons why implementation is appropriate
under this subparagraph.
‘‘(D) 
CONTINUING
COLLABORATION.—If 
a 
proposal
described in subparagraph (A) is implemented, the Sec-
retary and the Director shall—
‘‘(i) develop a method for each employee represent-
ative to participate in any further planning or develop-
ment which might become necessary; and
‘‘(ii) give each employee representative adequate
access to information to make that participation
productive.
‘‘(2) PROCEDURES.—Any procedures necessary to carry out
this subsection shall be established by the Secretary and the
Director jointly as internal rules of departmental procedure
which shall not be subject to review. Such procedures shall
include measures to ensure—
‘‘(A) in the case of employees within a unit with respect
to which a labor organization is accorded exclusive recogni-
tion, representation by individuals designated or from
among individuals nominated by such organization;
‘‘(B) in the case of any employees who are not within
such a unit, representation by any appropriate organization
which represents a substantial percentage of those
employees or, if none, in such other manner as may be
appropriate, consistent with the purposes of the subsection;
‘‘(C) the fair and expeditious handling of the consulta-
tion and mediation process described in subparagraph (B)
of paragraph (1), including procedures by which, if the
number 
of 
employee 
representatives 
providing 
rec-
ommendations exceeds 5, such representatives select a com-
mittee or other unified representative with which the Sec-
retary and Director may meet and confer; and
‘‘(D) the selection of representatives in a manner con-
sistent with the relative number of employees represented
by the organizations or other representatives involved.
‘‘(f) PROVISIONS RELATING TO APPELLATE PROCEDURES.—
‘‘(1) SENSE OF CONGRESS.—It is the sense of Congress that—
H. R. 5005—99
‘‘(A) employees of the Department are entitled to fair
treatment in any appeals that they bring in decisions
relating to their employment; and
‘‘(B) in prescribing regulations for any such appeals
procedures, the Secretary and the Director of the Office
of Personnel Management—
‘‘(i) should ensure that employees of the Depart-
ment are afforded the protections of due process; and
‘‘(ii) toward that end, should be required to consult
with the Merit Systems Protection Board before issuing
any such regulations.
‘‘(2) REQUIREMENTS.—Any regulations under this section
which relate to any matters within the purview of chapter
77—
‘‘(A) shall be issued only after consultation with the
Merit Systems Protection Board;
‘‘(B) shall ensure the availability of procedures which
shall—
‘‘(i) be consistent with requirements of due process;
and
‘‘(ii) provide, to the maximum extent practicable,
for the expeditious handling of any matters involving
the Department; and
‘‘(C) shall modify procedures under chapter 77 only
insofar as such modifications are designed to further the
fair, efficient, and expeditious resolution of matters
involving the employees of the Department.
‘‘(g) PROVISIONS
RELATING
TO
LABOR-MANAGEMENT
RELA-
TIONS.—Nothing in this section shall be construed as conferring
authority on the Secretary of Homeland Security to modify any
of the provisions of section 842 of the Homeland Security Act
of 2002.
‘‘(h) SUNSET PROVISION.—Effective 5 years after the conclusion
of the transition period defined under section 1501 of the Homeland
Security Act of 2002, all authority to issue regulations under this
section (including regulations which would modify, supersede, or
terminate any regulations previously issued under this section)
shall cease to be available.’’.
(3) TECHNICAL AND CONFORMING AMENDMENT.—The table
of chapters for part III of title 5, United States Code, is
amended by adding at the end of the following:
‘‘97. Department of Homeland Security ........................................................ 9701’’.
(b) EFFECT ON PERSONNEL.—
(1) NONSEPARATION OR NONREDUCTION IN GRADE OR COM-
PENSATION OF FULL-TIME PERSONNEL AND PART-TIME PERSONNEL
HOLDING PERMANENT POSITIONS.—Except as otherwise provided
in this Act, the transfer under this Act of full-time personnel
(except special Government employees) and part-time personnel
holding permanent positions shall not cause any such employee
to be separated or reduced in grade or compensation for 1
year after the date of transfer to the Department.
(2) POSITIONS COMPENSATED IN ACCORDANCE WITH EXECU-
TIVE SCHEDULE.—Any person who, on the day preceding such
person’s date of transfer pursuant to this Act, held a position
compensated in accordance with the Executive Schedule pre-
scribed in chapter 53 of title 5, United States Code, and who,
without a break in service, is appointed in the Department
H. R. 5005—100
to a position having duties comparable to the duties performed
immediately preceding such appointment shall continue to be
compensated in such new position at not less than the rate
provided for such position, for the duration of the service of
such person in such new position.
(3) COORDINATION RULE.—Any exercise of authority under
chapter 97 of title 5, United States Code (as amended by
subsection (a)), including under any system established under
such chapter, shall be in conformance with the requirements
of this subsection.
SEC. 842. LABOR-MANAGEMENT RELATIONS.
(a) LIMITATION ON EXCLUSIONARY AUTHORITY.—
(1) IN GENERAL.—No agency or subdivision of an agency
which is transferred to the Department pursuant to this Act
shall be excluded from the coverage of chapter 71 of title
5, United States Code, as a result of any order issued under
section 7103(b)(1) of such title 5 after June 18, 2002, unless—
(A) the mission and responsibilities of the agency (or
subdivision) materially change; and
(B) a majority of the employees within such agency
(or subdivision) have as their primary duty intelligence,
counterintelligence, or investigative work directly related
to terrorism investigation.
(2) EXCLUSIONS
ALLOWABLE.—Nothing in paragraph (1)
shall affect the effectiveness of any order to the extent that
such order excludes any portion of an agency or subdivision
of an agency as to which—
(A) recognition as an appropriate unit has never been
conferred for purposes of chapter 71 of such title 5; or
(B) any such recognition has been revoked or otherwise
terminated as a result of a determination under subsection
(b)(1).
(b) PROVISIONS RELATING TO BARGAINING UNITS.—
(1) LIMITATION
RELATING
TO
APPROPRIATE
UNITS.—Each
unit which is recognized as an appropriate unit for purposes
of chapter 71 of title 5, United States Code, as of the day
before the effective date of this Act (and any subdivision of
any such unit) shall, if such unit (or subdivision) is transferred
to the Department pursuant to this Act, continue to be so
recognized for such purposes, unless—
(A) the mission and responsibilities of such unit (or
subdivision) materially change; and
(B) a majority of the employees within such unit (or
subdivision) have as their primary duty intelligence,
counterintelligence, or investigative work directly related
to terrorism investigation.
(2) LIMITATION RELATING TO POSITIONS OR EMPLOYEES.—
No position or employee within a unit (or subdivision of a
unit) as to which continued recognition is given in accordance
with paragraph (1) shall be excluded from such unit (or subdivi-
sion), for purposes of chapter 71 of such title 5, unless the
primary job duty of such position or employee—
(A) materially changes; and
(B) consists of intelligence, counterintelligence, or
investigative work directly related to terrorism investiga-
tion.
H. R. 5005—101
In the case of any positions within a unit (or subdivision)
which are first established on or after the effective date of
this Act and any employees first appointed on or after such
date, the preceding sentence shall be applied disregarding
subparagraph (A).
(c) WAIVER.—If the President determines that the application
of subsections (a), (b), and (d) would have a substantial adverse
impact on the ability of the Department to protect homeland secu-
rity, the President may waive the application of such subsections
10 days after the President has submitted to Congress a written
explanation of the reasons for such determination.
(d) COORDINATION RULE.—No other provision of this Act or
of any amendment made by this Act may be construed or applied
in a manner so as to limit, supersede, or otherwise affect the
provisions of this section, except to the extent that it does so
by specific reference to this section.
(e) RULE
OF CONSTRUCTION.—Nothing in section 9701(e) of
title 5, United States Code, shall be considered to apply with
respect to any agency or subdivision of any agency, which is
excluded from the coverage of chapter 71 of title 5, United States
Code, by virtue of an order issued in accordance with section 7103(b)
of such title and the preceding provisions of this section (as
applicable), or to any employees of any such agency or subdivision
or to any individual or entity representing any such employees
or any representatives thereof.
Subtitle F—Federal Emergency
Procurement Flexibility
SEC. 851. DEFINITION.
In this subtitle, the term ‘‘executive agency’’ has the meaning
given that term under section 4(1) of the Office of Federal Procure-
ment Policy Act (41 U.S.C. 403(1)).
SEC. 852. PROCUREMENTS FOR DEFENSE AGAINST OR RECOVERY
FROM TERRORISM OR NUCLEAR, BIOLOGICAL, CHEM-
ICAL, OR RADIOLOGICAL ATTACK.
The authorities provided in this subtitle apply to any procure-
ment of property or services by or for an executive agency that,
as determined by the head of the executive agency, are to be
used to facilitate defense against or recovery from terrorism or
nuclear, biological, chemical, or radiological attack, but only if a
solicitation of offers for the procurement is issued during the 1-
year period beginning on the date of the enactment of this Act.
SEC. 853. INCREASED SIMPLIFIED ACQUISITION THRESHOLD FOR
PROCUREMENTS IN SUPPORT OF HUMANITARIAN OR
PEACEKEEPING OPERATIONS OR CONTINGENCY OPER-
ATIONS.
(a) TEMPORARY THRESHOLD AMOUNTS.—For a procurement
referred to in section 852 that is carried out in support of a humani-
tarian or peacekeeping operation or a contingency operation, the
simplified acquisition threshold definitions shall be applied as if
the amount determined under the exception provided for such an
operation in those definitions were—
H. R. 5005—102
(1) in the case of a contract to be awarded and performed,
or purchase to be made, inside the United States, $200,000;
or
(2) in the case of a contract to be awarded and performed,
or purchase to be made, outside the United States, $300,000.
(b) SIMPLIFIED ACQUISITION THRESHOLD DEFINITIONS.—In this
section, the term ‘‘simplified acquisition threshold definitions’’
means the following:
(1) Section 4(11) of the Office of Federal Procurement Policy
Act (41 U.S.C. 403(11)).
(2) Section 309(d) of the Federal Property and Administra-
tive Services Act of 1949 (41 U.S.C. 259(d)).
(3) Section 2302(7) of title 10, United States Code.
(c) SMALL BUSINESS RESERVE.—For a procurement carried out
pursuant to subsection (a), section 15(j) of the Small Business
Act (15 U.S.C. 644(j)) shall be applied as if the maximum anticipated
value identified therein is equal to the amounts referred to in
subsection (a).
SEC. 854. INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN
PROCUREMENTS.
In the administration of section 32 of the Office of Federal
Procurement Policy Act (41 U.S.C. 428) with respect to a procure-
ment referred to in section 852, the amount specified in subsections
(c), (d), and (f) of such section 32 shall be deemed to be $7,500.
SEC. 855. APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORI-
TIES TO CERTAIN PROCUREMENTS.
(a) AUTHORITY.—
(1) IN GENERAL.—The head of an executive agency may
apply the provisions of law listed in paragraph (2) to a procure-
ment referred to in section 852 without regard to whether
the property or services are commercial items.
(2) COMMERCIAL ITEM LAWS.—The provisions of law referred
to in paragraph (1) are as follows:
(A) Sections 31 and 34 of the Office of Federal Procure-
ment Policy Act (41 U.S.C. 427, 430).
(B) Section 2304(g) of title 10, United States Code.
(C) Section 303(g) of the Federal Property and Adminis-
trative Services Act of 1949 (41 U.S.C. 253(g)).
(b) INAPPLICABILITY
OF LIMITATION
ON USE
OF SIMPLIFIED
ACQUISITION PROCEDURES.—
(1) IN
GENERAL.—The $5,000,000 limitation provided in
section 31(a)(2) of the Office of Federal Procurement Policy
Act (41 U.S.C. 427(a)(2)), section 2304(g)(1)(B) of title 10, United
States Code, and section 303(g)(1)(B) of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)(B))
shall not apply to purchases of property or services to which
any of the provisions of law referred to in subsection (a) are
applied under the authority of this section.
(2) OMB GUIDANCE.—The Director of the Office of Manage-
ment and Budget shall issue guidance and procedures for the
use of simplified acquisition procedures for a purchase of prop-
erty or services in excess of $5,000,000 under the authority
of this section.
(c) CONTINUATION
OF AUTHORITY
FOR SIMPLIFIED PURCHASE
PROCEDURES.—Authority under a provision of law referred to in
subsection (a)(2) that expires under section 4202(e) of the Clinger-
H. R. 5005—103
Cohen Act of 1996 (divisions D and E of Public Law 104–106;
10 U.S.C. 2304 note) shall, notwithstanding such section, continue
to apply for use by the head of an executive agency as provided
in subsections (a) and (b).
SEC. 856. USE OF STREAMLINED PROCEDURES.
(a) REQUIRED USE.—The head of an executive agency shall,
when appropriate, use streamlined acquisition authorities and
procedures authorized by law for a procurement referred to in
section 852, including authorities and procedures that are provided
under the following provisions of law:
(1) FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT
OF 1949.—In title III of the Federal Property and Administrative
Services Act of 1949:
(A) Paragraphs (1), (2), (6), and (7) of subsection (c)
of section 303 (41 U.S.C. 253), relating to use of procedures
other than competitive procedures under certain cir-
cumstances (subject to subsection (e) of such section).
(B) Section 303J (41 U.S.C. 253j), relating to orders
under task and delivery order contracts.
(2) TITLE 10, UNITED STATES CODE.—In chapter 137 of title
10, United States Code:
(A) Paragraphs (1), (2), (6), and (7) of subsection (c)
of section 2304, relating to use of procedures other than
competitive procedures under certain circumstances (sub-
ject 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.—Para-
graphs (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 REQUIRE-
MENTS.—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. REVIEW AND REPORT BY COMPTROLLER GENERAL.
(a) REQUIREMENTS.—Not later than March 31, 2004, the Comp-
troller General shall—
(1) complete a review of the extent to which procurements
of property and services have been made in accordance with
this subtitle; 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 Representa-
tives.
(b) CONTENT OF REPORT.—The report under subsection (a)(2)
shall include the following matters:
(1) ASSESSMENT.—The Comptroller General’s assessment
of—
(A) the extent to which property and services procured
in accordance with this title have contributed to the
capacity of the workforce of Federal Government employees
H. R. 5005—104
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 assessment described
in paragraph (1).
(c) CONSULTATION.—In preparing for the review under sub-
section (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. 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.
Subtitle G—Support Anti-terrorism by Fos-
tering Effective Technologies Act of 2002
SEC. 861. SHORT TITLE.
This subtitle may be cited as the ‘‘Support Anti-terrorism by
Fostering Effective Technologies Act of 2002’’ or the ‘‘SAFETY Act’’.
SEC. 862. ADMINISTRATION.
(a) IN GENERAL.—The Secretary shall be responsible for the
administration of this subtitle.
(b) 
DESIGNATION
OF
QUALIFIED
ANTI-TERRORISM
TECH-
NOLOGIES.—The Secretary may designate anti-terrorism tech-
nologies that qualify for protection under the system of risk manage-
ment set forth in this subtitle 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 tech-
nology will not be deployed unless protections under the system
of risk management provided under this subtitle are extended.
(5) Magnitude of risk exposure to the public if such anti-
terrorism technology is not deployed.
H. R. 5005—105
(6) 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.
(7) Anti-terrorism technology that would be effective in
facilitating the defense against acts of terrorism, including tech-
nologies 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 title
5, United States Code, as may be necessary to carry out this
subtitle.
SEC. 863. 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 suf-
fered 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 companionship,
loss of consortium, hedonic damages, injury to reputation,
and any other nonpecuniary losses.
H. R. 5005—106
(c) COLLATERAL SOURCES.—Any recovery by a plaintiff in an
action under this section shall be reduced by the amount of collat-
eral 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.
(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 rebuttable
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 tech-
nology under this subsection. This presumption of the govern-
ment 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 establishing 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 Sec-
retary, 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 con-
duct 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 analyses on such
technology and will supply the Secretary with all such informa-
tion.
(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 entity that—
(1) attempts to commit, knowingly participates 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) participates in a conspiracy to commit any such act
of terrorism or any such criminal act.
SEC. 864. RISK MANAGEMENT.
(a) IN GENERAL.—