United States: New SAFETY Act Application Kit – Streamlined And Less Burdensome

The Support Antiterrorism by Fostering Effective Technologies (SAFETY) Act, a component of the broader Homeland Security Act of 2002, is critical legislation for many companies developing, or planning to develop, anti-terrorism technology. A known difficulty with the SAFETY Act, though, has been the onerous application for SAFETY Act protection. However, the Department of Homeland Security ("DHS") published the SAFETY Act final rule on June 8, 2006 and, to institute some of the flexibilities in the final rule, DHS revised the SAFETY Act application kit for sellers of antiterrorism technology.

The new SAFETY Act application kit ("new kit") is intended to streamline the application process and focuses on soliciting essential technology information that may be supplemented, as necessary, with individual applicants on a case-by-case basis. In addition, DHS has instituted a program to conduct SAFETY Act application reviews with anti-terrorism procurement for DHS. DHS is planning to roll out this "in parallel" review and procurement of anti-terrorism technologies throughout the federal government.

Prior to the new kit, two protections were afforded by the SAFETY Act, (i) Designation as qualified anti-terrorism technologies ("QATT") and (ii) Certification as a QATT, which is an approval where the seller is entitled to a rebuttable presumption that the government contractor defense protects it against liability arising from use of the product.

The new kit allows for new designations and certifications, as follows:

The DT&E designation recognizes that promising anti-terrorism technology may, for various reasons, require additional developmental testing and evaluation. A DT&E designation makes available QATT protections, but with certain limitations. DT&E designation includes limitation on the use and development of the technology and the term for testing and evaluation of the technology. In addition, DHS can terminate this designation at will.

The block designation or certification is a determination that the technology satisfies the technical criteria for either QATT designation and certification, and that no additional technical analysis will be required in evaluating SAFETY Act applications from potential sellers. Applications from potential sellers of QATT, that are the subject of block designation or certification, will receive an expedited review and will not require submission of information concerning the technical merits of the underlying technology.

The new kit allows entities to receive an expedited review of a SAFETY Act application and requests information about past sales and ongoing procurement of the technology. Such acquisition or utilization by the military, a federal government agency, or a state, local, or foreign government entity is viewed in the new kit as an important factor in expediting review of a SAFETY Act application. By providing expedited review, carving out additional designations and certification, and taking steps to conduct SAFETY Act reviews in parallel with anti-terrorism procurement, DHS should be commended for taking proactive steps to ease the often onerous and burdensome SAFETY Act application process.

This article is presented for informational purposes only and is not intended to constitute legal advice.