The Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act), Public Law 107-296

Ownership:  The Department of Homeland Security (DHS), specifically the Under Secretary for Science and Technology (the Under Secretary), is responsible for review and approval of applications for Designation and Certification of Qualified Anti-Terrorism Technologies (QATTs) under the SAFETY Act.   Sellers of a potential QATT must fill out application forms, furnish all of the requisite supporting data and information, and successfully demonstrate compliance with the criteria specified in the Act.   DHS has prepared a SAFETY Act application kit that can be found at www.safetyact.gov.   Application forms also are available by mail:  Department of Homeland Security, ATTN: SAFETY Act, 245 Murray Lane, Building 410, Washington, DC 20528.

General Information: The purpose of the SAFETY Act is to encourage the development and deployment of anti-terrorism technologies that will substantially enhance the protection of the nation. The SAFETY Act reflects the intent of Congress to ensure that the threat of liability does not deter potential sellers from developing and commercializing technologies that could significantly reduce the risk of, or mitigate the effect of, acts of terrorism.   Specifically, the SAFETY Act creates certain liability limitations for (claims arising out of, relating to, or resulting from an act of terrorism) when QATTs have been deployed. The SAFETY Act does not limit liability where an act of terrorism has not occurred.  All forms of technology, including products, software, services, and various forms of intellectual property, may qualify for SAFETY Act protection.  The two separate protections available to sellers of qualifying anti-terrorism technologies are (Designation) as a QATT (which enables the seller to invoke certain liability limitations) and (Certification) of a QATT (which enables the seller to invoke a rebuttable presumption that the government contractor defense applies and confers on the QATT status as an (Approved Product for Homeland Security).  

Designation:  In determining whether to grant a Designation, the Under Secretary exercises discretion and judgment in interpreting, weighing, and determining the overall significance of certain criteria, which include (but are not limited to) the following seven criteria stated in the Act:  

• Prior United States Government use or demonstrated substantial utility and effectiveness.
• Availability of the technology for immediate deployment in public and private settings.
• Existence of extraordinarily large or unquantifiable potential third party liability risk exposure to seller (or another provider of the technology).
• Substantial likelihood that the technology will not be deployed unless SAFETY Act protections are extended.
• Magnitude of risk exposure to the public if the technology is not deployed.
• Evaluation of all scientific studies that can be feasibly conducted to assess the capability of the technology to substantially reduce risks of harm.
• Whether the technology would be effective in facilitating the defense against acts of terrorism.  

A Designation is valid for five to eight years (as specified by the Under Secretary in individual cases) and automatically terminates if the QATT is significantly changed, unless an (Application for Modification of Designation) is filed and approved as provided in the implementing regulations.  Sellers may transfer a Designation in connection with the sale of the related QATT if an (Application for Transfer of Designation) is filed with the Under Secretary.  Sellers may also apply for renewal at any time commencing two years prior to the expiration of the Designation.

Certification: Receipt of a Designation is a prerequisite for receipt of a Certification.  Accordingly, sellers may apply for a Certification either in conjunction with, or subsequent to an application for Designation.  The seller is required to provide safety and hazard analysis in connection with the application.  Certification establishes a rebuttable presumption of the applicability of the (Government Contractor Defense.)  In determining whether a QATT qualifies for a Certification, there are three additional criteria against which the QATT is evaluated:

• It must perform as intended
• Conform to the seller's specifications
• Be safe for use as intended

Important Things to Know:  

• Designation and Certification of an anti-terrorism technology has no bearing per se on the award of a contract from DHS or any other agency for these technologies.
• Designation and Certification under the SAFETY Act does not constitute designation under FAR 9.2 qualifications requirements (qualified products lists, qualified manufacturers lists, etc.).
• Designation and Certification do not limit liability for harm where no act of terrorism has occurred.
• The availability of indemnification under Public Law 85-804 is not necessarily affected by the issuance of a Designation or a Certification, but the approval of the Director of the Office of Management and Budget may be required before indemnification may be granted pursuant to Executive Order 10789 of November 14, 1958 (as amended in 2003).
• The DHS Applicant Help Desk (1-866-788-9318) assists sellers in administrative processes, but cannot provide advice on the content or substance of an application.  
• All individuals involved in the processing and evaluation of applications, including DHS personnel, supporting administrative contractors, and government and non-government evaluators, are bound by appropriate nondisclosure and conflict of interest agreements.
• Applications are provided secure handling and treated as proprietary information.
• Sellers must not, under any circumstances, submit or include U.S. Government classified information as part of an application.  The submission of such information must be separately arranged with DHS.
• DHS offers a simplified Pre-Application process that affords sellers an opportunity to obtain preliminary feedback from DHS on their prospects for obtaining SAFETY act protections without preparing and submitting the full SAFETY Act application.
• DHS provides expedited review of SAFETY Act applications relating to technologies that are the subject of Federal, state, or local government procurements.

Disclaimer: This material is for training purposes only. Its purpose is to inform employers of best practices in occupational safety and health and general OSHA compliance requirements. This material is not, in any way, a substitute for any provision of the Occupational Safety and Health Act of 1970 or any standards issued by OSHA.