DHS sets final SAFETY Act rule

The Homeland Security Department has issued a final rule that protects companies that make anti-terrorism technologies from some legal liability. The rule, issued June 2, finalizes the implementation of the Support Anti-terrorism by Fostering Effective Technologies Act of 2002, better known as the Safety Act.

The final rule replaces the interim one that had been in place since October 2003. Industry had viewed the implementation of the act as slow and uncertain because of the lack of a final rule, according to a Professional Services Council statement applauding the new rule.

According to the statement, DHS has been getting better at using the Safety Act. Between October 2003, when the interim rule was issued, and February 2005, only six technologies were designated as qualified anti-terrorism technologies suitable for protection under the law's provisions. Because of internal process improvements, DHS has designated another 68 products for protection since March 2005.

“The final rule is a critical step forward and gives clear guidance to [DHS] officials, other government agencies and the companies that are encouraged to promote the development and deployment of anti-terrorism technologies,” said Alan Chvotkin, the council’s senior vice president and counsel.

The Safety Act’s protection is not absolute, but it does provide liability limitations to providers of qualified technologies. Here are some of its provisions.

  • Federal courts have exclusive jurisdictions for lawsuits against the sellers of qualified technologies.

  • Liability is limited to an amount of insurance specified individually for a given qualified technology. The DHS secretary is responsible for ensuring that the amount of insurance carried is enough to satisfy claims arising from acts of terrorism that happen while the technology is deployed.

  • Sellers can only be liable for the percentage of noneconomic damages proportionate to their responsibility in causing the damages.

  • Punitive damages and prejudgment interest are completely barred.

  • Some sellers of qualified technology are entitled to cite their role as a government contractor as a defense in any litigation.
The Safety Act final rule addresses most of the issues that industry has raised during the past three years, Chvotkin said.

“This will be a continuous learning process and the department has expressed a willingness to make further adjustments based on the collective experience of all stakeholders," he said.

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