Several industry groups have been urging the Department of Homeland Security (DHS) to implement the July 11 proposed Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act.  The Act is intended to encourage wide participation against terrorism by limiting claims and damages potentially faced by companies providing anti-terrorism products and services in federal, state, local and private contracts.  The act authorizes DHS to designate “qualified anti-terrorism technologies” (QATTs) and to “certify” a list of “approved” products and services.  Once certified a variety of protections against liability to third parties goes into effect such as (1) lawsuits arising from the deployment of that technology may be brought only against the seller and only in federal court (2) claim liability is limited to the amount of seller’s insurance coverage to be specified by DHS for each individual technology and any recovery is to be reduced by any collateral compensation such as insurance and government benefits (3) a seller can only be liable for that percentage of non-economic damages (e.g. pain and suffering) which is proportionate to its responsibility for the harm and (4) punitive damages and prejudgment interest are barred.  In addition, special liability protection for QATTs that DHS certifies is so entitled to provides a rebuttable presumption that the “government contractor defense” shields a seller from product liability claims.  It will cover sales of both federal and non-federal customers and can be rebutted only if the seller acted fraudulently when submitting product information to DHS.

The proposal defines QATT as “any product, equipment, service (including support services), device or technology…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.”  To qualify as a QATT, the seller must submit an application to DHS through the mail or at http://www.dhs.gov.  Once submitted, the DHS will determine whether to qualify the technology based on eight criteria: (1) prior government use or demonstrated substantial utility and effectiveness (2) availability for immediate deployment (3) the existence of “extraordinarily large or extraordinarily unquantifiable” risk to the seller (4) it being likely the technology will not be deployed without the Act’s liability limitation (5) the risk to the public if the technology is not deployed (6) evaluation of all scientific studies that can “feasibly” be conducted (7) the effectiveness of the technology and (8) any other factor DHS considers relevant.  The original SAFETY ACT proposal can be found at Federal Register 41420.

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