The emergence of new dangers faced by emergency responders has fueled research and development of innovative technologies for detection and personal protection. But there's an added risk of putting these new technologies into the marketplace. It's hard enough to design equipment to detect and protect against unknown hazards; harder still to give the equipment the type of exhaustive pre-market testing and evaluation that will ensure its safety and efficacy. In our litigious society, will manufacturers be willing to assume the risks necessary to bring new protective technologies to market at a cost that responder agencies can afford?
Congress recognized the need to give suppliers some protection when it wrote the legislation establishing the Department of Homeland Security (DHS), and included a bill known as the SAFETY (Support Anti-Terrorism by Fostering Effective Technologies) Act. Under this act, companies will be able to apply for designation as a "qualified anti-terrorism technology," which would give certain protection from liability.
The act allows DHS to determine whether to designate a particular technology as a qualified anti-terrorism technology, listing seven criteria to be considered: (1) Prior United States government use, or demonstrated substantial utility and effectiveness; (2) availability of the technology for immediate deployment; (3) the potential liability of the seller; (4) the likelihood that the technology will not be deployed without SAFETY Act protections; (5) the risk to the public if the technology is not deployed; (6) evaluation of scientific studies; and (7) the effectiveness of the technology in defending against acts of terrorism. These criteria are not exclusive. DHS may consider other factors, and give greater weight to some factors over others based upon the particular technology at issue and the threats the technology is designed to address.
DHS published an interim rule last year to implement the SAFETY Act, and has begun accepting applications. A seller can get a product designated as a qualified antiterrorism technology, which limits liability to an amount of insurance the company is required to carry, and gives the seller specific legal protections as well. For example, lawsuits would have to be brought in federal court, punitive damages are prohibited and a seller's liability would be reduced by the amount recovered from collateral sources such as insurance.
Applicants can also seek a higher level of recognition, called "certification." This requires an additional level of review at DHS, and carries with it an additional protection, in the form of a rebuttable presumption that the seller is entitled to the "government contractor defense." This puts the product on an approved list of technologies that are immune from liability as long as they conform to specifications.
When DHS Assistant Secretary Parney Albright briefed the ISEA Annual Meeting last November, he admitted that the difference between designation and certification might be confusing. And the process is still being refined. DHS estimates it may take 100 hours to fill out the application. At a Congressional hearing last year, one witness said it's likely to be more like 1,000 hours. But the end result is seen as vitally important to enable companies to develop and market new technologies.
ISEA believes it is equally important to consider existing products and technologies when conferring SAFETY Act protections. As we told DHS in comments on SAFETY Act rules, "there are products in the new terrorism and response market that have been used for years to prevent or mitigate injury in emergency response," yet they might not qualify because they are already on the market.
DHS needs to be vigilant to new entrants to this market, who may claim that their products would not be offered without SAFETY Act protection, while manufacturers of similar products are denied coverage. Rep. Tim Davis, R-Va., chairman of the House Government Reform Committee, expressed a similar view. "While developing new technology is essential," he said in his opening statement at an October 2003 hearing, "I believe DHS needs to focus on qualifying 'existing' antiterrorism technologies that are ready to be deployed to protect our civilian population." He urged DHS to make this its number one priority in implementing the SAFETY Act.
There is the predictable chorus of dismay from those who believe the SAFETY Act is a back-handed way of introducing tort reform. But for the most part, it's regarded as an important and necessary step to ensuring that America's responders get the latest and best technology to keep them safe.