HR 4007 – Current Site Security Plans

This is part of a continuing discussion of the recently passed HR 4007, Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014. In this post I will be looking at the effect that the passage of HR 4007 has on current site security plans. The previous postings in this series was:

HR 4007 Sent to the President

HR 4007 – An Overview

HR 4007 – Implementation Deadlines

Congress clearly intended that all of the 1370+ facilities with currently approved site security plans would not have to go back and redo those plans because of the passage of HR 4007:

“In the case of a covered chemical facility for which the Secretary approved a site security plan before the date of enactment of the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, the Secretary may not require the facility to resubmit the site security plan solely by reason of the enactment of this title.” {§2102(c)(3)(B)}

What is not clear, however, is what the status of site security plans approved between the date the President signs the bill into law (“the enactment of this title”) and the time that the regulations are finally updated to take into account the changes required by HR 4007. Actually it may be slightly more complicated than that as there is still the date that the current authority for CFATS runs out and the new Title XXI takes effect 30 days after the enactment of the bill.

First 30 Days

Since the bill does not spell out what happens in this period, the Secretary has the discretionary authority to either continue current operations as is or suspend operations pending the effective date of Title XXI. I suspect that current operations will continue as before with the current approval process. It would be helpful if there were a statement to that effect from DHS.

DHS may give Tier 3 and Tier 4 facilities a choice as to whether or not they would prefer to wait and see what the expedited security plan process looks like. This is not required by the legislation, but it would certainly fit with the intent of the legislation. If I were a Tier 3 or Tier 4 facility manager early on in the SSP approval process, I think that I would ask my Chemical Security Inspector if that option was available.

Site security plans approved during this interregnum fall into somewhat of a grey area. They do not have the legal protection of §2102(c)(3)(B) so this falls back to the Secretary’s discretionary authority and that can be changed by a Secretarial whim, particularly if no guidance is published. I do not see any advantage to ISCD to change this at some future date, but I surely think that a successful terrorist attack on a facility with an SSP approved during this period would result in a quick change in policy.

Title XXI and Expedited Approvals

The other time period that is going to be fraught with some potential for conflicts is the time between the effective date of Title XXI and the issuance of the guidance for Expedited Approval Facilities document. Tier 3 and Tier 4 facilities with site security plans approved during that 180 day period will certainly be reviewing that guidance document and will be second guessing the cost of their security plans.

It is almost a certainty that some facilities will find that the EAF plan will be less expensive than the one approved by ISCD. There will be requests from facilities with approved plans to be able to opt out of those plans in favor of the EAF plan. It would be helpful if ISCD had a policy in place (publicly in place) on how they planned to deal with such requests.

Policy Decision

ISCD needs to make up its mind on how it intends to deal with these issues. No one expects that they will stop doing site security plan approvals while this is transition is underway; there has been just to much pressure to complete the SSP approval process. But they do owe it to the regulated community (and their physical and corporate neighbors) to be clear about how they will deal with the situations described above.

Many facilities awaiting SSP approvals have already spent the bulk of the money that their plans require so they have little incentive to wait out the publication of the EAF document. Facilities that are facing large future expenditures for their SSP will almost certainly want to take a wait and see attitude in the hope of lower cost compliance options. Making that decision effectively can only be done if all of the facts (in this case policy facts) are known.