By David McWhorter, Ph.D, NFPA Journal

Jul 21, 2009

Like most people who hear about the SAFETY Act for the first time, you may think it has something to do with safety. In this case, however, “SAFETY” stands for Support Anti-terrorism by Fostering Effective Technologies Act, a law designed to protect companies from third-party lawsuits following acts of terrorism in which their products or services were deployed to help detect, prevent, mitigate, or respond to acts of terrorism or the effects they cause. NFPA was awarded SAFETY Act Designation and Certification for its code- and standards-development process in 2008. This provides important liability protection in certain cases for situations involving the NFPA consensus codes and standards.

A few scenarios help illustrate the relevance of the SAFETY Act. Suppose that you manufacture, design, distribute, or provide a device or service that helps occupants of a structure egress safely in the event of a dangerous situation. If people are injured, killed, or suffer damages, including economic, and your product or service can be “blamed,” you will probably face lawsuits from both survivors and the families of those killed. Depending on the exact scenario, the suits brought against your company could bankrupt it. With SAFETY Act protections granted by the Science & Technology Directorate of the Department of Homeland Security (DHS), however, your company’s liability would be limited to the amount of insurance that DHS prescribes to you in the SAFETY Act award if the situation was the result of a terrorist attack. The amount of insurance DHS requires “cannot unreasonably distort the price” of the product or service offered, so the DHS insurance requirements are usually quite reasonable. The idea is that the increased cost of liability insurance to the seller should not significantly affect the price of the anti-terrorism product.

Because SAFETY Act coverage mitigates the fear of unquantifiable liability, providers of anti-terrorism products and services are encouraged to develop and deploy these solutions. The fact that victims have a limited amount of money that they can be awarded is a fair and reasonable tradeoff for the added public protections afforded by the anti-terrorism technologies supported by the Act.

There are no fees associated with filing under the SAFETY Act program, although many firms, for various reasons, hire outside consultants to guide them through the process, which carries varying costs. The process within DHS takes about 120 days, and after considering preparation and data gathering time, one should allow 6 to 8 months from start to finish.

Do you qualify?
To encourage the development and deployment of the widest range of counter-terrorism solutions, the Act defines “technology” very broadly as ”any product, equipment, service (including support services), device, or technology (including information technology) or any combination of the foregoing. Design services, consulting services, engineering services, software development services, software integration services, threat assessments, vulnerability studies, and other analyses relevant to homeland security may be deemed a Technology…”

The language that describes which technologies can receive SAFETY Act coverage and become a Qualified Anti-Terrorism Technology (QATT) is also expansive. It includes “any Technology (including information technology) designed, developed, modified, procured, or sold for the purpose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm such acts might otherwise cause…”
Some relevant examples of DHS-approved QATTs include blast protection, hand-held chemical detectors, building egress systems, decontamination systems, threat and risk assessments, interoperable communications, fire alarm and suppression systems, alert/notification systems, software for emergency response decision making and night vision products. However, relevant to the NFPA audience, there are several technology types that are unrepresented.  These include personal protective equipment (PPE), chemical storage devices that would be “terrorist-resistant” as well as crime-resistant, lighting systems, and building materials.

Regardless of which category your company’s offerings fall into, you should consider SAFETY Act protection if you don’t already have it. Aside from the liability protection to the seller of the product or service that has explicitly received coverage, the SAFETY Act also protects the seller’s “buyers, the buyers’ contractors, or downstream users of the Technology, the seller’s suppliers or contractors.” In other words, the protections flow upstream and downstream. This can provide your customers with a significant benefit over your competitor’s products, assuming they do not have SAFETY Act protection.

Congress gave DHS the authority to grant liability limitation as a metaphorical carrot for the development and deployment of products and services that could benefit the public in a terrorist incident. If your company provides products or services that, in some fashion, prevent, detect, identify, or deter acts of terrorism or limit the harm such acts might cause, you should not overlook the opportunity to take advantage of the SAFETY Act.

Read the full article here.

This piece originally appeared in NFPA Journal.


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