Thursday, March 13, 2008

CFATA of 2008 Introduced as HR. 5577

On Tuesday Chairman Thompson formally introduced the Chemical Facility Anti-terrorism Act of 2008 (HR 5577IH). This is the cleaned-up version of the committee print that the House Homeland Security Committee has been holding hearings on since December 2007. Co-sponsored by all the Democratic members of his committee, the bill, according to Chairman Thompson, was not supported by the Republican members of the Committee due to the IST provisions included in the bill. The bill was referred to both the Homeland Security Committee and the Committee on Energy and Commerce. There are no indications yet if or when Speaker Pelosi will call for House action on the bill.


While the more controversial provisions of the committee print that was published in January 2008 remain in pretty much the same form, the introduced bill is much longer (85 vs 65 pages). Part of this is due to house keeping provisions required to bridge from the current CFATS regulations to the provisions of this bill, but there are also some new provisions not previously seen.


Sense of Congress Statements


The bill starts off with two ‘sense of Congress’ statements. These statements are meant to express the intention of the Congress as to how the provisions of this bill should be interpreted in future judicial proceedings. They are also intended to provide guidance to the Executive Branch as to how the bill should be implemented.


The first provision deals with the current CFATS regulations. The Secretary is directed to “develop and administer all requirements of this Act” {Sec 3(a)} as an extension and modification of the current CFATS regulations. The Secretary is given the authority to determine what portions of the current “rules, regulations or tools” are appropriate to use to enforce this Act.


The second provision deals with the general philosophy of dealing with ‘chemical security’. The Secretary is charged with using a “holistic approach” {Sec 3(b)} that should deal with both chemical facilities as well as to “secure the supply chain” for the hazardous chemicals used at those facilities. Specifically, the Secretary is told not allow a focus on fixed sites to cause risk to be transferred to “other potential sources of such chemicals.” Remember this second ‘sense of Congress’ statement when we return to the discussion of the IST provisions in this regulation in a future blog.


Employee Training


Section 2103 covers those things that must be included in the vulnerability assessments and site security plans for covered facilities. Sub-paragraph g includes a requirement for the definition of the roles that the employees at the covered facility will play in deterring or responding to a ‘chemical facility terrorist incident’. Included in that requirement is the provision for eight-hours of training every year for employees at those covered facilities.


That training will include:


  • Identification of the chemicals of concern at the facility and a discussion of the risks posed by those chemicals to the employees, emergency responders and the community.
  • A discussion about the plan to prevent and prepare for a terrorist attack including off-site consequences.
  • Identification of opportunities to reduce or eliminate those consequences through IST.
  • Discussion about and practice of proper emergency response procedures.


Certification by Third Party Entities


The explicit assumption of Section 2109 is that there will not be enough DHS personnel to effectively certify compliance of covered facilities with the requirements of these regulations. This section provides for the Secretary to establish rules and procedures for contracting these certification services out to Third Party Entities.


Interestingly there are substantial requirements set forth in this regulation requiring these Third Party Entities to set aside portions of their sub-contracts to a long list of disadvantaged entities. Those entities include HUBZone small businesses, small businesses owned/controlled by service-disabled veterans, and historically black colleges and universities. Extensive reporting requirements are included to insure that these awards are made.


Office of Chemical Facility Security


Section 2113 provides for the establishment of the Office of Chemical Facility Security within DHS. The head of the Office will be the Director of Chemical Facility Security who will be a member of the Senior Executive Service; not a political appointee. Professional qualifications would include a demonstrated knowledge of physical, cyber and chemical facility security, as well as a background in chemical process engineering and safety.


The Secretary is specifically tasked in this regulation to make a reasonable effort to ensure that a wide range of diversity candidates is considered for selection to this post. So specifically, in fact, that the Secretary is required to report to the House and Senate oversight committees on the procedures employed to ensure that there was an acceptable level of diversity in the candidates considered for the job.


National Chemical Security Center of Excellence


Section 2115 requires the Secretary to establish a National Chemical Security Center of Excellence to “conduct research and education and to develop technologies to lower the overall risk of terrorist chemical attack”. Naturally this includes research on IST.


The Center will include at least three colleges or universities, including one historically black college or university and one Hispanic-serving institution. If there are more than three institutions in the Center an ‘appropriate number’ will be historically black colleges or universities, Hispanic-serving institutions and tribal colleges and universities.


Analysis of Other Provisions


The other provisions of this proposed legislation deserve a much more detailed review than is possible in a single blog. The more controversial provisions, like IST, deserve a very detailed review over a number blogs. I will try to do that over the coming weeks, certainly before this comes up for a real vote.

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