Monday, April 14, 2008

Protected Information under HR 5577

This is part of a continuing series taking a detailed look at the provisions of the new Chemical Facility Anti-terrorism Act of 2008 recently introduced in Congress (HR 5577IH). Today’s entry looks at Section 2108 that deals with information that is protected from public disclosure under CFATA of 2008.

Previous blogs in this series include:

The current Chemical Vulnerability Information (CVI) rules are derived from a single sub-paragraph in the Section 550 authorization for CFATS. The provisions of Section 2108 in this legislation are much more extensive and explicit than those found in Section 550.

Prohibition of Public Disclosure

The Secretary is tasked with ensuring that the protected information described in this section is protected from public disclosure. He is specifically directed to ensure that it is not disclosed by any Federal agency nor under any State or local law or regulation. While not prohibited from applying the same rules to contractors, facility personnel, or employee representatives, nothing in this section requires the prohibition of disclosure by any of these personnel.


The Secretary is authorized by this section to issue the necessary rules, regulations and orders necessary to protect the described information. Those regulations will limit access to that information to "to persons designated by the Secretary" and insure that the information is "maintained in a secure location".

The regulations must include provisions for the sharing of information between facility personnel (personnel with security, operational, or fiduciary responsibility for the facility) and law enforcement personnel (at all levels of government) and emergency response personnel. This is done to allow for coordination of security measures and emergency response plans.

The regulations must also provide for "the confidential use of protected information" in administrative and judicial proceedings. This includes sealing of protected documents or information that would normally become part of the public record of those proceedings.

Exceptions to Prohibited Disclosure

This section recognizes that there are three classes of disclosure that cannot be prohibited by the regulations to be developed by the Secretary. The most obvious is that nothing in the rules or regulations may authorize "the withholding of any information from Congress". This is done to protect the responsibility of the Congress to exercise over sight of the Executive Branch.

Nothing in the regulation may allow chemical facilities to withhold information required to be submitted or shared by with other Federal, State or local "government agency under, or otherwise to comply with, any other law." This includes any requirements to share information with facility employees or employee organizations.

Finally, these rules and regulation will have no affect on the information disclosure by any other Federal agency of "any record or information that the Federal agency obtains from a chemical facility under any other law". This was included to allay the concerns of some environmental organizations that the current CVI rules might be used to circumvent various community right-to-know rules.

Protected Information

This section describes four general classes of data that would be considered to be protected information under this legislation. They include tier assignment data, security evaluations and plans, security performance standards and finally any data collected by government agencies during the enforcement or implementation of these regulations at a designated facility.

The tier assignment data not only includes the risk tier assigned by the Secretary, but also the information provided by the facility to allow the Secretary to assess the risk of terrorist attack and the methodology used by the Secretary to make that assessment. Any of this information would be valuable to a terrorist looking for potential targets.

There are three types of information that are expressly excluded precluded from being designated as protected information:

  • "information that is publicly available;"
  • "information that a chemical facility has disclosed other than in accordance with this section; or"
  • "information that, if disclosed, would not be detrimental to the security of a chemical facility."

CVI and Section 2108

There does not appear to be anything in this section that will require any major revisions of the current CVI rules outlined in the current Chemical-terrorism Vulnerability Information Procedures Manual. Section 27.400 of the current CFATS regulations will require substantial modifications to accommodate requirements of this legislation.

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