Monday, December 22, 2014

HR 4007 – DHS Security Suggestions

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’ll discuss the way Congress worked around the problem of DHS telling facilities what is needed for security.  The previous postings in this series were:

I have long complained about the limitation Congress placed on DHS with their requirement in the §550 authorization that “the Secretary may not disapprove a site security plan submitted under this section based on the presence or absence of a particular security measure” {§550(a)} This has been interpreted to mean that DHS cannot tell facilities what security measures can be implemented to meet the risk-based performance standards. This has been one of the reasons why it has taken so long to get site security plans approved.

Congress did include similar language in HR 4007 {§2102(c)(1)(B)(i)}, but they also required the Secretary to ‘suggest’ security measures to bring site security plans into compliance when a submitted plan is deficient. For example, when the Secretary determines that a site security plan submitted by an enhanced approval facility (EAF) is inadequate during a compliance inspection, then DHS is required to “recommend specific additional security measures that, if made part of the site security plan by the facility, would enable the Secretary to approve the site security plan” {§2102(c)(1)(G)(ii)(II)(aa)}. The key word here is “recommend” as it is made clear that the facility still has the right to not use the recommended security measures as long as their alternatives serve the same purpose.

I understand that some chemical security inspectors (CSI; PLEASE DHS change their title so we can use a different acronym) have already been making these types of recommendations to owner of smaller facilities. The new requirement will ensure that all chemical facilities get this level of assistance regardless with which CSI they work.

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