Sunday, December 14, 2014

HR 4007 – An Overview

While we are still waiting on the President to sign this bill into law (which he is fully expected to do considering the Administration’s vocal support of the measure) it would seem that this on-going discussion about HR 4007 should start with an overview of the provisions of the bill. The previous posting in this series was:

Table of Contents

The general layout of the bill includes five sections:

SEC 1. Short Title – Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014;
SEC 2. Chemical Facility Anti-Terrorism Standards Program – Codifies the CFATS program in 6 USC Title XXI;
SEC 3. Assessment; Reports – Provides for a series of reports to Congress about the performance of the program;
SEC 4. Effective Date; Conforming Repeal – Changes the authority for the CFATS program effective 30 days after this bill is signed into law; and
SEC 5. Termination – Provides for the termination (barring future Congressional action) of the CFATS program 4 years from the date the bill is signed.

The meat of the program is laid out in §2 with 9 new sections added to the US Code:

Sec. 2101. Definitions.
Sec. 2102. Chemical Facility Anti-Terrorism Standards Program.
Sec. 2103. Protection and sharing of information.–
Sec. 2104. Civil enforcement.
Sec. 2105. Whistleblower protections.
Sec. 2106. Relationship to other laws.
Sec. 2107. CFATS regulations.
Sec. 2108. Small covered chemical facilities.
Sec. 2109. Outreach to chemical facilities of interest.

What the Bill Does

First and foremost this bill codifies the CFATS program and takes it out of the annual renewal in the DHS spending bill process. It establishes a 4 year term for the program, subject to future renewals of this authorization by the Congress. In many ways it also makes it easier for Congress to make incremental changes to the program.

The legislation does add some new components to the current CFATS program, including (a more detailed discussion of these additions will be seen in future posts):

• An expedited approval process for site security plans at Tier 3 and Tier 4 facilities;
• The establishment of a whistleblower protection program;
• A requirement to include employee participation in the development of site security plans; and
• Special assistance programs for small chemical facilities.

Interestingly, for the two complicated new processes included in the expedited approval program the bill specifically exempts the Secretary from having to go through the ‘publish and public comment’ regulatory approval process. This is the only way that the tight timeline (180 days) for these two programs could be accomplished.

There is nothing in the bill that specifically repeals anything in the current program. It does, however, provide some more in depth guidance to clear up what has been seen as ‘problems’ within the program. These include (again more details in later posts):

• Additional guidance on the personnel surety program;
• Provision of specific authority to provide guidance on what security measures to include in a site security plan;
• Authority to use inspectors from other government agencies and contractors;
• Risk assessment methodology;
• Changes in Tiering;
• Clarification of enforcement authority; and
• Outreach to chemical facilities of interest.

What is Missing

If I had been writing this legislation there are some additional areas that I would have included to make this a truly comprehensive chemical facility security bill. These could have included:

• Guidance on updating the list of DHS Chemicals of Interest (COI; Appendix A to 6 CFR Part 27);
• Inclusion of the ammonium nitrate security program;
• Guidance on coordination with the Coast Guard on chemical security at MTSA facilities and the NRC on chemical security at nuclear power generation facilities;
• A clear definition of what railroad related facilities could be included in the facilities of interest definition;
• Some sort of discussion about cyber-security requirements; and
• Clear guidance on the status of agricultural facilities as potential facilities of interest.

What is good about the passage of HR 4007, however, is that the heavy lifting on chemical security has now been done and the details (like those mentioned above) can be dealt with on a piecemeal basis.

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