Friday, January 25, 2008

Chemical Facility Anti-Terrorism Act of 2008 Markup

As I reported briefly on the 23rd in my blog, “Chemical Facility Anti-Terrorism Act of 2008” the House Subcommittee on Transportation Security and Infrastructure Protection held a session yesterday to markup a draft of a new bill, Chemical Facility Anti-Terrorism Act of 2008. As of yesterday that bill had not yet been officially introduced into the formal legislative process.


The reason for this bill is that the authority for the CFATS regulations issued last year expires on October 31st, 2009. The main purpose of this proposed bill is to codify and make some ‘minor’ revisions to those regulations. Chairwoman Jackson-Lee summarized the bill in her prepared testimony;


“…under the Chemical Facility Anti-Terrorism Act of 2008, the Secretary is required to maintain a list of “significant chemical facilities” which have more than threshold quantities of “substance of concern” or that meet specific criteria. Facilities will be required under the regulations to notify the Secretary if there is any change in the threshold amount of substance of concern.”


“Whereas this bill makes a stronger promotion of lowering off site consequences, requires employee training, protects against Whistleblowers and illegitimate use of background checks, it does not change the function of the CFATS regulation.”


While I haven’t had a chance yet to read the 65-page bill, I have reviewed the subcommittee’s summary. Much of the CFATS regulation will face little or no change by the version of the bill passed in subcommittee today, but there will be some significant changes. Of course, this is an election year so there is no telling if this bill, in any form, will make it to the floor of the House for a vote, much less survive to become law. With that caveat in mind, it would be beneficial to look at how this subcommittee would like to see the CFATS regulations modified.


Probably the most significant change is the expansion of the universe of regulated facilities. This bill would expand the facilities to be covered to all facilities that possess more than a threshold quantity of a “substance of concern” (Section 2102) rather than limit it to only high-risk facilities. Facilities that fall under the Safe Drinking Water Act and the Maritime Transportation Safety Act would also fall under the new regulation (Section 2103).


The Secretary still retains the authority to “designate or exempt a chemical substance as a ‘substance of concern’ and to establish those threshold quantities. There does not appear to be any reason why the current Appendix A could not serve this purpose.


The Secretary would still be responsible for establishing a tiered hierarchy of risk and assigning each "significant chemical facility” to one of those tier rankings. Of those tiers DHS would still have to define which facilities are at high-risk for terrorist attack. High-risk facilities would still be required to perform Vulnerability Assessments and Facility Security Plans (Section 2103).


Enforcement would become a little stricter. Facilities failing to submit a Vulnerability Assessment or Facility Security Plan would receive an order to submit from the Secretary. Failing to do so then would result in an order to cease operations. Furthermore, DHS would be required to establish a procedure to allow individuals to directly notify the department of any “problems, deficiencies, or vulnerabilities at a chemical facility.” (Section 2105). Whistleblower protections would apply to such informers.


Penalties would be significantly increased. The Secretary could issue administrative penalties of up to $250,000 for failure to comply with an order. The Secretary could also bring a civil action in U.S. District Court “against a facility that violates or fails to comply with any order, directive, or facility security plan” (Section 2106). Criminal penalties could also be sought against owners or operators “who knowingly and intentionally violates a compliance order”.


It appears that the CVI rules would also have to be changed. “Information submitted to or obtained by the Secretary under this title or related vulnerability or security information shall be treated as classified material” instead of the current sensitive but unclassified rules for CVI.


Federal preemption rules would follow those seen in the 2008 budget bill. The Secretary would have to establish procedures for states and individuals to request the preemption status of any state or local law (Section 2107). This law would also specifically provide for judicial review of any such decision.


This bill would include specific provisions for inherently safer chemicals, processes and technologies. It would require that “the facility security plan include an assessment of methods to reduce the consequences of a terrorist attack on a facility” (Section 2110). It also requires the Secretary to require the implementation of such methods if the Secretary determines that the methods “would significantly reduce the impact to health or the environment from a terrorist release; can be feasibly incorporated into the facility’s operations; and would not significantly and demonstrably impair the ability of the facility to sustain operations.” An appeal panel would be established by Secretary and would include members of Federal and State agencies and independent security experts.


The rules for background checks are codified in this proposed bill. It would extend the rules used for Hazmat drivers (part 1572 of title 49, CFR) to employees of covered chemical facilities (Section 2115). The wording appears to allow employers to retain people that fail such a background check but prohibits them from firing employees that fail a less stringent standard. This is the type wording that unions have been looking for to protect their members.


As would be expected the devil is in the details. Since this regulation is unlikely to survive as written in the legislative process, I will probably forgo trying to do a detailed analysis of this legislation. Anyone interested in looking at those details can find a copy of the bill on the subcommittee web site.

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