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 various
implementation deadlines set by Congress. The previous postings in this series
was:
Congress has been fairly vocal about the delays in getting
site security plans approved, so it is not unexpected that there were a number
of very specific implementation deadlines put into this legislation. Some of
them are very tight deadlines that don’t take into consideration review
requirements outside of DHS.
CFATS Repeal
The bill is very clear that, in general, the current CFATS
regulations will continue in force with some changes. Section 2107(b)(1) states
that “each existing CFATS regulation shall remain in
effect unless the Secretary amends, consolidates, or repeals
the regulation”. And it is important to note that the term ‘existing CFATS regulation’
is specifically defined {§2101(5)} to include any guidance documents published
in the Federal Register. This would include the Risk
Based Performance Standards guidance document and the Clarification
to Chemical Facility Anti-Terrorism Standards; Propane and presumably the
current Agricultural
Facilities Time Extension Notification.
Having given with the one hand, however, Congress required
the Secretary of DHS to take away with another. In §2107(b) the bill would
require that:
“Not later than 30 days after the
date of enactment of the Protecting and Securing Chemical Facilities from
Terrorist Attacks Act of 2014, the Secretary shall repeal any existing CFATS
regulation that the Secretary determines is duplicative of, or conflicts with,
this title.”
Now I have not had the time to go through the current
regulations and see what if any of the current provisions of 6 CFR Part 27 may
be “duplicative of, or conflicts with, this title”. Even though the bill has
not yet been signed into law, I’m sure that the Secretary has at least a couple
of lawyers looking at this requirement.
Unfortunately, even with the best of intentions and
unlimited lawyer power, I am afraid that the Secretary is going to have a hard
time meeting this deadline. Forgetting for the moment the amount of time lost
to holidays and the resultant short staffing in any agency at this time of
year, even if the Secretary meets the 30 day deadline to produce such a
regulation change, it will probably take another 30 to 60 days for it to be
processed through OMB.
Also, I’m not sure that this requirement is specific enough
to allow the Secretary to avoid the publish and public comment process required
by 5
USC 553.
Facility Outreach
Program
Section 2109 give DHS just 90 days to establish an outreach
program to help identify potential chemical facilities of interest (think back
to the West Fertilizer incident) and to make “make available compliance
assistance materials and information on education and training” {§2109(2)}.
Since the Department has done a great deal of work on this topic since the
publication of Executive Order 13650 (see requirement here)
this requirement should be fairly simple to complete.
Expedited Approval
Facilities
As I mentioned in my last post the Secretary is required to
come up with a program to help Tier 3 and Tier 4 facilities expedite the site
security plan approval process. This is essentially a program where the
facility can self-certify that their plan meets the minimum risk based performance
standards associated with a facility at their level of risk.
There are actually two prongs to this program, both of which
DHS is required to have up and running within 180 days of the bill being
signed. Both are set forth in §2102(c)(4). First it requires that the “Secretary
shall issue guidance for expedited approval facilities that identifies specific
security measures that are sufficient to meet the risk-based performance standards”{§2102(c)(4)(B)(i)}.
Then it allows the Secretary to “develop prescriptive site
security plan templates with specific security measures to meet the risk-based
performance standards under subsection (a)(2)(C) for adoption and certification”
{§2102(c)(4)(H)(i)}.
To aid in DHS being able to meet this deadline Congress has
allowed that the Department should not be subject to the administrative rulemaking
provisions of 5
USC 553 (publish and comment requirements) or 44
USC Chapter 35, Subchapter I (clearance through OMB’s Office of Information
and Regulatory Affairs). These exceptions to the regulatory process will
certainly make things easier for ISCD to publish a final guidance document as
they essentially have carte blanch to do things their way.
Congress could justify moving this outside of the normal rulemaking
process because any Tier 3 or Tier 4 facility has the full option to use this
expedited approval method in full or in part or not at all. This means that the
guidance cannot ‘really’ be a burden on anyone.
Whistleblower
Protections
One of the provisions that was added to this bill to make it
easier to obtain bipartisan support was the whistleblower protections set forth
in §2105. This requires the Secretary, within 180 days, to “establish, and
provide information to the public regarding, a procedure under which any
employee or contractor of a chemical facility of interest may submit a report
to the Secretary regarding a violation of a requirement under this title” {§2105(a)(1)}.
Setting up the reporting and investigation mechanisms may be
possible within the 180 day time frame, but this will also require the
publication of a regulation (actually just an addition to 6 CFR 27) and
Congress did not try to exempt DHS from the normal regulatory process for this
requirement. Since this will place a potential ‘burden’ on every ‘chemical facility
of interest’ (NOT just CFATS facilities) the normal process will have to be
followed.
Various Reports
All of the remaining time deadlines for implementation
processes deal with reports to Congress. And no one (besides some beleaguered staffers
at ISCD and various congressional committees) cares about those.
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