The SAFETY Act

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

• 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

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Overview

• 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.

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Definition Technology

• 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))

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SAFETY Act Protections

• Two separate protections may be granted to
  Sellers of anti-terrorism technologies
• Designation as a Qualified Anti-Terrorism
  Technology or QATT.
• Certification of a QATT as an Approved Product
  for Homeland Security and for the purpose of
  establishing the Government Contractor Defense.

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Criteria for Designation as a QATT

• 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.

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Criteria for Designation (cont.)

• 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.

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Definition Technology

• 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))

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Benefits of SAFETY Act Designation

• 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.

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Benefits of SAFETY Act Designation

• 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.

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Benefits of SAFETY Act Designation

• 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.

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Benefits of SAFETY Act Designation

• 4) Complete bar on punitive damages and
• prejudgment interest.

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Benefits of SAFETY Act Designation

• 5) Reduction of plaintiffs recovery by
  amounts that plaintiff received from collateral
  sources, such as insurance benefits or other
  government benefits.

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Criteria for SAFETY Act Certification

• 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 Sellers specifications
• Be safe for use as intended
• - Seller is required to provide safety and
  hazard analyses

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Benefits of SAFETY Act Certification

• 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.

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Final Rule Enhancements

• 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 Departments 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.

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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.

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Getting Help
Help
FAQs

• SAFETY Act website www.safetyact.gov
• FAQs
• Online Help Topics
• Help Request - on-line form sent to Help Desk
• for response
• E-mail helpdesk_at_safetyact.gov
• Toll Free Phone [phone]