United States SAFETY Act Program Fundamentals
Part 1: The Fundamentals of the US SAFETY Act and Why You Should Care
More and more stadiums, airports and critical infrastructure sites are applying to be “SAFETY Act acknowledged.” Even the Salesforce Tower in San Francisco got certified in 2019. But why are security professionals and businesspeople alike so interested in achieving this accolade? The answer is as much of a business-driven decision as it is a safety and security priority. Read more to understand why you should care.
What is the SAFETY Act?
After the attacks on 9/11, the private sector was hesitant to deploy security technologies due to:
- Perceived inevitability of acts of terror
Fear that ”doing more” to prepare for such inevitabilities through technology investments or deepened planning initiatives had the potential to only create more liability rather than manage the risk
Congress enacted the Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act as part of the Homeland Security Act of 2002. The goal of the SAFETY Act is not only to protect those who develop and deploy effective anti-terrorism technologies but also to provide an incentive for innovations and evolutionary processes in support of safety, security and emergency preparedness within the private sector.
Why is the SAFETY Act important?
The SAFETY Act creates a system of risk and litigation management that ensures that manufacturers, sellers and providers of the Technologies are not deterred by the threat of liability in the event of an Act of Terrorism. Of considerable note, the Act also importantly provides liability protection opportunities for certified anti-terrorism Technologies, including financial caps on damages that can be awarded in lawsuits as well as the provision of government contractor defense status. The available liability protections for those acknowledged under the Act are impactful and rarely available through similar statutorily established programs.
By design, the SAFETY Act provides critical incentives for companies to develop and deploy potentially life-saving technologies without fear of crippling legal costs. The SAFETY Act has been credited with facilitating the development and deployment of a wide range of anti-terrorism technologies. These technologies have helped to make our nation safer and more resilient in the face of terrorist threats.
Who can apply for the SAFETY Act Program and in support of What?
A person, firm or other entity that owns the Technology and provides it to a customer. The Act affectionately refers to the owner as a “Seller.”
Qualified Anti-Terrorism Technologies, affectionately referred to as “QATTs” by the Act, can include the following so long as deployed in the US or deployed in a manner that has direct US implications:
- Products
- Services
- Software and other forms of intellectual property
Plans and/or procedures
SAFETY Act was introduced to encourage a safer environment, and for those who qualify, it aims to enhance protections for organizations from being disproportionately impacted by terrorism. Companies, venues and stadiums can apply, not just security providers. Qualified Anti-Terrorism Technologies (QATTs) are placed on an Approved SAFETY Act Product List for Homeland Security, and if desired by the Seller, Award status may be publicly shared on the Office of SAFETY Act Implementation website.
Examples of eligible technologies:
- Threat and Vulnerability Assessment Services
- Detection Systems – Blast Mitigation Materials
- Screening Services
- Security Programs
- Sensors and Sensor Integration
- Threatening Object Detectors
- Decision Support Software
- Security Services
- Best Practices
- Crisis Management Systems
Venue Security
What are the levels of protection the SAFETY Act offers?
There are three categories of acknowledgment available under the SAFETY Act: Developmental Testing & Evaluation, Designation and Certification.
Developmental Testing & Evaluation:
- Typically used for promising candidates that have not yet gone through thorough testing
“DTED” is a temporary level that offers many of the benefits of SAFETY Act Designation status for a shortened period of time, typically 12-24 months, and often under a limited set of circumstances
Designation:
- Liability insurance limit is determined by DHS, and all claims are limited to that amount
- No punitive damages and no prejudgment interest
- No joint and several liability for non-economic damages
- No non-economic damages if there is no physical harm
Recovery reduced by all collateral sources
Certification:
- Certification is the highest level of acknowledgment offered under the Act. In addition to providing for the Designation benefits outlined above, Sellers awarded SAFETY Act certification have the right to assert the Government Contractor Defense under applicable circumstances.
Part 2: Applying for Your SAFETY Act Application
Now you’ve decided that the SAFETY Act makes sense for your organization. What are the next steps to achieve this approval? The application process varies with organizational needs, strategies, resources and nuances.
Below is a discussion of available mechanisms in support of an organizations’ SAFETY Act pursuit:
Organization Registration with Office of SAFETY Act Implementation (OSAI)
A simple first step in the process to support planning initiatives. Visit the SAFETY Act website to register with OSAI. This registration is intended to establish an official point of contact and creates a unique identification number for a contemplated application as a potential seller.
Request Pre-Application Consultation (recommended, not required)
The Pre-Application Consultation is an opportunity for potential Sellers to informally provide the Department of Homeland Security with information about the QATT and receive guidance before proceeding with the full application. Though not required, it is a step that may be appropriate in support of SAFETY Act ambitions depending on where the organization falls on the continuum of candidacy.
Submit a full Application that conforms with organizational posture.
Selecting the right application type will help guide your information preparation efforts. A Pre-Application Consultation may help you determine which application type you should submit.
- Developmental Testing & Evaluation
- Designation
Certification
Technology that shows promise but is not yet mature enough to receive full Designation can be granted a DT&E Designation to provide protection during further testing or trial deployment to collect the additional efficacy data necessary for a full Designation.
Designation is a prerequisite for receiving Certification. However, Sellers can apply for Designation and Certification at the same time or apply for Certification after SAFETY Act Designation has been issued.
Once DHS has received a full application, the Office of SAFETY Act Implementation (OSAI) will review the application for completeness. When OSAI determines that the application is complete, the applicant will receive an email notification. Then OSAI in conjunction with its supporting contractors will review and evaluate the Submission and documentation presented in support of the Submission. This oftentimes includes additional OSAI requests, referred to as RFIs, which require Seller responses. Ultimately, once OSAI completes its evaluative processes, a determination is made whether the technology described in the application will receive SAFETY Act protections and be classified as a QATT.
Consultant companies, such as Petrone Risk are often called upon to guide clients through the journey of obtaining SAFETY Act coverage. Petrone Risk is a risk management/security advisory firm specializing in the DHS SAFETY Act program.
Part 3: Counter-Drone and the SAFETY Act
As the use of drones proliferates, so does the number of drone incidents. The Federal Aviation Administration (FAA) projects that by 2024 there will be around 2.3 million drones registered in the U.S. Recent drone incidents include Seahawks-Falcons and D.C. Airport Shutdown, with more events regularly being added to the Dedrone Drone Incident Center.
In April of 2022, the White House released “The Domestic Counter-Unmanned Aircraft Systems National Action Plan” to address the threat of nefarious drone activity to the homeland, and in July 2022, the NFL, MLB, NASCAR and NCAA addressed a letter to Congress. The four major sports leagues banded together to urge quick action on counter-drone legislation.
“The unauthorized use of drones (whether malicious or otherwise) presents a significant and rising threat to all large gatherings of people, including major sporting events.”
– Letter to Congress from NASCAR, NCAA, NFL and MLB
Counter-drone solutions have become an essential security measure to protect public events, stadiums, airports and critical infrastructure.
For SAFETY Act consideration purposes, qualified C-UAS will fall into one of two general categories:
- C-UAS that do not implicate federal criminal laws relating to surveillance, recording, or decoding signaling information, accessing or damaging computers, or interference with an aircraft for use within the United States or its territories. Such systems must comply with laws and regulations administered by the Federal Communications Commission (FCC) and the Federal Aviation Administration (FAA), including federal criminal laws related to aviation and the Radio Frequency (RF) spectrum. Further, such C-UAS may not implicate aviation security laws and regulations administered by the Transportation Security Administration (TSA).
- C-UAS that are used operationally by the Departments of Defense, Energy, Justice, or Homeland Security and that have been evaluated and approved for use at specific locations and use cases within the United States or its territories in accordance with the agencies’ policy implementation of their C-UAS statutory authorities. Such systems must be evaluated, approved and operationally used by the authorized agency for its specific use case. SAFETY Act protections for this group of C-UAS will be limited to deployments of the subject C-UAS to a specifically identified authorized federal agency for the specific use case(s) for which the C-UAS has been approved by the individual agency. Source
Authors
Mary-Lou Smulders, CMO at Dedrone
Kathleen Lupia, Esq., Senior Managing Director at Petrone Risk
Petrone Risk, a long-standing trusted security program resource, serves the global community in an effort to elevate emergency preparedness, safety and security prospects. Accomplished through steadfast and enduring client relationships, Petrone Risk works to analyze and understand the needs of its eclectic client base and document protocol and processes in support of organizational maintenance and elevation, inevitably poising clients for SAFETY Act candidacy for which Petrone Risk also supports.
Dedrone, the market leader in smart airspace security, protects people, property and information from drone threats. Dedrone’s counter-drone system is trusted by hundreds of commercial, government and military customers globally to protect against unauthorized drones. With flexibility to host on-premise or in the cloud via Dedrone’s Airspace Security-as-a-Service (ASaaS), Dedrone customers can detect, identify, locate, analyze and mitigate unauthorized drone threats.
