Monday, February 4, 2013

S 68 Introduced – Comprehensive CFATS Authorization

As I mentioned in an earlier blog post Sen. Lautenberg introduced S 68, the Secure Chemical Facilities Act. This bill would be the type of comprehensive chemical facility security legislation envisioned when Congress authorized the interim CFATS program in 2006. The language is nearly identical to S 709 in the 112th Congress and S 3599 in the 111th Congress; both authored by Lautenberg.


In many ways this bill mirrors the bill (HR 2868) that passed in the House in the 111th Congress. It does not specifically mention the current CFATS program, but much of the bill affirms what has been currently done and makes modifications to that program. It specifically amends the Homeland Security Act of 2002 adding Title XXI.

It adds a provision that addresses employee participation in the security vulnerability assessment process and the development of the site security plan. It requires that such activities must include at least:

• One supervisory employee {§2103(a)(1)(B)(iii)(I)}
• One non-supervisory employee {§2103(a)(1)(B)(iii)(II)}
• One employee representative from each bargaining agent {§2103(a)(1)(B)(iii)(III)}

It obliquely addresses the current delays in the SSP approval process by requiring that the Secretary must “review and approve or disapprove the security vulnerability assessment or site security plan” within 180 days of their submission {§2103(a)(1)(G)(i)}. It also specifically addresses the sharing of information on the assessment and security plans with the local emergency planning and response personnel requiring the provision of “appropriate information to any local emergency planning committee, State emergency response commission, local law enforcement officials, and emergency response providers to ensure an effective, collective response to terrorist incidents” §2103(c)(9).

It affirms the current risk based performance standards (RBPS) set forth in 6 CFR §27.230, including nearly identical language found in that section. It does add three new ‘security performance standards’:

• Assessing and, as appropriate, using methods to reduce the consequences of a terrorist attack; {§2103(c)(19)}
• Methods to recover or mitigate the release of a substance of concern in the event of a chemical facility terrorist incident; {§2103(c)(20)}
• Methods to mitigate the risks of exposure to chemical agents by maintaining an adequate supply of equipment and products to provide for decontamination procedures designed to neutralize the chemical agents; and {§2103(c)(21)}

The bill would expand the coverage of the CFATS program to include facilities regulated under the Maritime Transportation Security Act (MTSA){§2103(g)(1)} and those regulated by the Department of Justice under the Alcohol Tobacco and Firearms people {§2103(g)(2)}. Those resulting regulations would have to be coordinated with Commandant of the Coast Guard and the Attorney General to ensure that there is no unnecessary duplication or conflicts.

One of the more controversial parts of this legislation is the inclusion of inherently safer technology (IST) provisions under the heading of ‘methods to reduce the consequences of a terrorist attack’ {§2111}. This section deserves more detailed coverage, but it would establish a ‘best technology’ standard for determining what is feasible {§2111(a)}. It would also essentially exempt agricultural retailers and end users {§2111(d)} and small chemical facilities {§2111(e)} from the IST requirements by adding additional requirements before implementation of IST could be mandated.

The personnel surety mandate {§2115} would be expanded by requiring the Secretary to clearly identify the offenses {§2115(b)(2)(A)(i)} and the elapsed time from those offenses {§2115(b)(2)(A)(ii)} that would disqualify a person from working in critical areas of covered chemical facilities; the process would be similar to the TWIC procedures. It would also require the establishment of a redress procedure {§2115(d)} and an appeals process {§2115(e)} for a determination of security risk.

Two other controversial topics address the involvement of non-facility personnel in the chemical facility security processes. Section 2116 would allow private citizens to sue the Secretary to ensure compliance with the provisions of this act and §2117 would allow citizen petitions to raise issues of compliance at individual facilities.

The current Infrastructure Security Compliance Division would get revamped under this bill. It would be upgraded to the Office of Chemical Facility Security, presumably still in the National Protection and Programs Directorate in DHS. It sets some pretty stiff requirements for the Director; a demonstrated knowledge of {§2114(b)(1)}:

• Physical infrastructure protection;
• Cybersecurity;
• Chemical facility security;
• Hazard analysis;
• Chemical process engineering;
• Chemical process safety reviews; or

That ‘or’ at the end is the erasure of those requirements as it sets the alternative as “other such qualifications that the Secretary determines to be necessary” {§2114(b)(1)}.

There are two provisions for the obligatory reports to Congress. Section 2120 provides for an annual report on the status of the chemical facility security program under this legislation with specific details about what that report would entail. It would also include a one-time report on a study of emergency response capabilities for responding to a catastrophic release from terrorist attacks on covered facilities.

As is to be expected from a bill authorizing a comprehensive program like this it does include appropriations authorization. It provides for $300M for 2013 & 2014 and $275M through 2017. Of that $150M is for grants to support the IST program with $3M earmarked for grants supporting that program in the agricultural community.

Moving Forward

In the past I have dismissed the earlier incarnations of this bill as dead upon introduction. Since the bills were of necessity referred to the Senate Homeland Security and Governmental Affairs Committee for action, these bills never stood a chance of being considered because the bills sponsored by then Sen. Collins (R,ME) would take priority in consideration. Without the Collins and Lieberman team present, it is not clear that there will necessarily be an in-committee bill that would pre-empt the consideration of this bill. If Sen. Levin (D,MI) had, for instance, been a co-sponsor of this bill I would have been nearly certain that it would have been considered by the Committee. As it is, we’ll just have to wait and see.

In any case, I doubt that this bill would make it to the floor of the Senate because of the opposition to the IST and citizen action provisions. It will certainly not get considered in the House.

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