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ANSI Submits Comments in Response to Federal Register Notice on the SAFETY Act


New York, Aug 18, 2003

On July 11, 2003, the Department of Homeland Security (DHS) submitted a Federal Register notice of proposed rulemaking on “Regulations Implementing the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 (the SAFETY Act).” According to the Federal Register notice, the rules proposed by the DHS would implement sections of the SAFETY Act, which is intended to facilitate the development and deployment of anti-terrorism technologies by limiting the liability of manufacturers, sellers and purchasers of these tools. Per the ANSI National Policy Committee, the Institute filed comments in response to the notice, suggesting alternative language and adjusted definitions to better reflect the role of voluntary consensus standards in anti-terrorism technology. ANSI filed its comments on August 11, the due date for comments under the notice.

With the establishment of the Department of Homeland Security, Public Law 107-296 mandated that “All standards activities of the Department shall be conducted in accordance with section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA)… and Office of Management and Budget (OMB) Circular A-119.” These directives instruct federal agencies as well as state and local governments to achieve greater reliance on voluntary standards and encourage government employee participation in voluntary consensus standards bodies.

Under the proposed language of the SAFETY Act, companies investing in the development and deployment of qualified anti-terrorism technologies will be provided with unique protections that would encourage them to invest in these life-saving technologies by creating mechanisms designed to limit liability, qualifying them with an official "designation" and "approval."

ANSI submitted comments that suggested that the Act include standards development as a DHS-qualified “service” that develops and provides relevant and appropriate standards to be eligible for designation as “qualified anti-terrorism technologies” under the Act. Further, ANSI suggested that the definition be amended to include “publications such as standards that constitute or include intellectual property.” The narrative in the announcement of the proposed rule, under Specific Issue 1, supports this modification.

In Section 25.3(c), the Act makes reference to “safety and effectiveness standards.” ANSI comments advised use of the generic term, “technical standards that are developed or adopted by voluntary consensus standards bodies,” found in NTTAA Sec. 12(d) and in OMB Circular A-119 and commonly used and shared within the governmental and private sector standards community. The term “voluntary technical standard” is comprehensive and well–defined in terms of its characteristics, and yet it is broad enough to provide the DHS with a wide range of possible standards to consider.

Currently, the Act asserts that standards developed or adopted by the Department pursuant to Section 25.3(c) will be published by the DHS electronically, and copies may also be obtained by mail. ANSI noted the probability that many standards may be copyrighted documents owned by the various developers of such standards. ANSI suggested that the DHS reference the relevant standards and provide links to acquire, download or purchase such standards, observing and protecting the rights of the copyright holder. This approach would respect private intellectual property rights, as well as be consistent with the practices of many other federal agencies such as the Department of Defense (DoD), the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA) and others who currently reference voluntary standards promulgated by private sector standards developing organizations, using such reference standards both as regulatory and as procurement documents.

For more information about ANSI’s comments, please contact ANSI's vice president of public policy and government affairs, David Karmol.

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