Friday, April 4, 2008

Whistleblower Provisions of 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 the second half of Section 2105 that deals with whistleblower protections.


Previous blogs in this series include:


·        CFATA of 2008 Introduced as HR. 5577

·        Personnel Background Checks and HR 5577

·        Ranking of Chemical Facilities by HR 5577

·        General SVA and SSP Requirements under HR 5577

·        Minimum SVA Requirements under HR 5577

·        Minimum SSP Requirements under HR 5577

·        Risk Based Performance Standards under HR 5577

·        Alternative Security Programs under HR 5577

·        Record Keeping and Site Inspections under HR 5577

·        DHS Review of SVA’s and SSP’s under HR 5577


One of the problems that the House Homeland Security Committee identified with the current CFATS regulations is that there were few outside checks that would help to ensure that high-risk chemical facilities were actually spending the money necessary to adequately secure their facility from potential terrorist attack. This portion of Section 2105 dealing is one of the tools that the committee put into place to deal with that problem.


Reporting Process


The Secretary is required to establish a process by which people may report security deficiencies at covered chemical facilities that may be “associated with the risk of a chemical facility terrorist incident”. That process must be communicated to the public to allow anyone with such information the opportunity to make such a report. Security deficiencies include “problems, deficiencies, or vulnerabilities”.


The process will be designed to protect the confidentiality of the identity of the reporting person. To that end, the report will be treated the same way as other protected information in this legislation in accordance with the provisions of Section 2108(f). Publicly available information in the report is exempted from those protected information requirements.


The process will include the prompt acknowledgement of the receipt of that report if the person submitting the report identified himself or herself. In any case, the Secretary is required to review and consider any report submitted. The Secretary “shall take appropriate steps under this title” to correct any security deficiency noted.


Chemical Facility Terrorist Incident


The definition of “chemical facility terrorist incident”, as found in Section 2101(3) of this legislation is important to understanding the scope of these provisions. It is defined as “an act or attempted act of terrorism committed at, near, or against a chemical facility” that results in:


·        “the release of a substance of concern from a chemical facility into the surrounding area as a consequence of an act of terrorism;”


·        “the obtaining of a substance of concern by any person for the purpose of using the substance at a location other than the chemical facility in furtherance of an act of terrorism; or”


·        “the sabotage of a chemical facility or a substance of concern at a chemical facility in furtherance of an act of terrorism.”


The phrase ‘at, near, or against’ broadens the scope of activities that are subject to reporting under this section.This is one of the reasons that the Secretary is required to notify the ‘public’ of the reporting process rather than just the employees at covered facilities. The one shortcoming to this broadened scope is that the public cannot be told what chemical facilities are ‘covered facilities’ so DHS will be inviting reports on facilities over which they have no regulatory authority.


It would be interesting to see how DHS goes about sharing the information from reports about facilities that do not fall under it’s regulatory purview. While they are not prohibited from sharing information, neither are they required to provide the information to relevant Federal, State or local agencies. It might be appropriate to add such a requirement to Section 2105(c).


Retaliation Prohibited


For whistleblower rules to be effective they must contain provisions preventing retaliation against the whistleblower. The provisions in this section are extensive and comprehensive. The individual retaliated against is charged with responsibility for enforcing the anti-retaliation provisions, using the procedures outlined in existing regulations {subsections (c) through (g) of section 20109 of title 49, United States Code}.


While the self-enforcement provisions may seem to provide little protection in the battle between the ‘little guy’ and the corporate or governmental giant, they do serve a useful role. It helps to weed out at least some of the self-serving complaints that have little to do with actual or even perceived deficiencies. Besides, there are quite a few private organizations that have proven willing to assist actual whistleblowers in their David vs Goliath fights.

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