The SAFETY Act

1. The SAFETY Act Mark J. Robertson Associate General Counsel U.S. Department of Homeland Security

2. November 25, 2002 - President Bush signed the Homeland Security Act of 2002 January 24, 2003 - Governor Tom Ridge sworn in as first Secretary of Homeland Security July 11, 2003 - SAFETY Act NPRM published October 16, 2003 - SAFETY Act Interim Final Rule published October 2003 - www.safetyact.gov website went live January 2004 - Office of Safety Act Implementation stood-up June 2004 - DHS awarded first Designations and Certifications June 8 2006 – SAFETY Act Final Rule published History

3. SAFETY Act was enacted as part of the Homeland Security Act of 2002, Public Law 107-296 (Title VIII, Subtitle G, Sections 861-65). SAFETY Act is intended to remove barriers to development and deployment of technologies that counter terrorist threats and to facilitate the development and deployment of anti-terrorism technologies by creating systems of “risk management” and “litigation management.” Implementing regulations are promulgated at 6 CFR Part 25. Overview

4. Technologies that qualify for SAFETY Act protections include: Products Equipment Services (including support services) Devices Information technologies Must be “designed, developed, modified, or procured for the specific purpose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm such acts might otherwise cause.” (Sec. 865(1)) Definition: Technology

5. Two separate protections may be granted to Sellers of anti-terrorism technologies: Designation as a “Qualified Anti-Terrorism Technology” or “QATT”. Certificationof a QATT as an “Approved Product for Homeland Security” and for the purpose of establishing the “Government Contractor Defense.” SAFETY Act Protections

6. Prior United States Government use or demonstrated substantial utility and effectiveness. Availability of the technology for immediate deployment. Existence of extraordinarily large or unquantifiable potential third party liability risk exposure to the Seller or other provider of the technology. Substantial likelihood that the technology will not be deployed unless SAFETY Act risk management protections are extended. Criteria for Designation as a QATT

7. Magnitude of risk exposure to the public if the technology is not deployed. Evaluation of scientific studies that can be feasibly conducted in order to assess the capability of the technology to substantially reduce risks of harm. Whether the technology is effective in facilitating the defense against acts of terrorism. A determination made by a government officials that the technology is appropriate for the purpose of preventing, detecting, identifying or deterring acts of terrorism. Criteria for Designation (cont.)

8. Technologies that qualify for SAFETY Act protections include: Products Equipment Services (including support services) Devices Information technologies Must be “designed, developed, modified, or procured for the specific purpose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm such acts might otherwise cause.” (Sec. 865(1)) Definition: Technology

9. Exclusive Federal cause of action and exclusive jurisdiction in Federal court for claims arising out of deployment of QATTs in defense against, response to, or recovery from an act of terrorism. Benefits of SAFETY Act Designation

10. 2) Limitation on the liability of the Seller to a specified amount of required liability insurance coverage. Seller will not be required to obtain any more liability insurance coverage than is reasonably available “at prices and terms that will not unreasonably distort the sales price” of the QATT. Benefits of SAFETY Act Designation

11. 3) Prohibition on joint and several liability for noneconomic damages. Seller can only be liable for that percentage of noneconomic damages proportionate to their responsibility for the harm. Benefits of SAFETY Act Designation

12. 4) Complete bar on punitive damages and prejudgment interest. Benefits of SAFETY Act Designation

13. 5) Reduction of plaintiff’s recovery by amounts that plaintiff received from “collateral sources,” such as insurance benefits or other government benefits. Benefits of SAFETY Act Designation

14. Designation as a QATT is a prerequisite for granting of a Certification. To receive a Certification, QATT also must be shown to: Perform as intended Conform to the Seller’s specifications Be safe for use as intended - Seller is required to provide safety and hazard analyses Criteria for SAFETY Act “Certification”

15. Rebuttable presumption that the Seller is entitled to the “government contractor defense”. Placement on “Approved Product List for Homeland Security”. Issuance of certificate of conformance to the Seller. Benefits of SAFETY Act Certification

16. Further clarifies the liability protections available under the SAFETY Act. States with greater specificity those products and services that are eligible for Designation as a QATT. Clarifies the Department’s efforts to protect the confidential information, intellectual property, and trade secrets of SAFETY Act applicants. Provides for “Block Designations” and “Block Certifications” for specified categories of qualified anti-terrorism technologies. Final Rule Enhancements

17. Final Rule Enhancements • Provides for appropriate coordination of SAFETY Act consideration of anti-terrorism technologies with government procurement processes. • Provides for “Developmental Testing and Evaluation Designations” • Takes other actions necessary to streamline processes, add flexibility for applicants, and clarify protections afforded by the SAFETY Act.

18. Getting Help Help FAQs • SAFETY Act website: www.safetyact.gov • FAQs • OnlineHelp Topics • Help Request- on-line form sent to Help Desk for response • E-mail:helpdesk@safetyact.gov • Toll Free Phone:1-866-788-9318