Thursday, December 31, 2009

S 2930 Introduction

One of the last bills introduced in the first session of the 111th Congress was S. 2930, the Justice Against Sponsors of Terrorism Act, introduced by Sen. Arlen Specter (D, PA) on December 23rd. The bill is designed to “provide civil litigants with the fullest possible basis, consistent with the Constitution, to seek relief against persons, entities and foreign states, wherever acting and wherever they may be found, which have provided material support or resources, directly or indirectly, to foreign organizations that engage in terrorist activities” {§2(b)}. While the bulk of this legislation is directed at foreign governments and officials that aid or abet terrorist acts there is one provision that might be of concern to chemical manufacturers, distributors and retailers. Section 5 of the bill amends 18 U.S.C. §2333 to define liability for potential law suits seeking to collect damages for terrorist attack. That section adds the following liability definition: “In a suit arising under subsection (a) of this section, liability may be asserted as to the person or persons who committed such act of international terrorism or any person or entity that aided, abetted, provided material support [emphasis added] or resources (as defined in Section 2339A(b)(1) of this title) to, or conspired with the person or persons who committed such an act of international terrorism.” Since the definition of ‘material support’ in 18 USC §2339A(b)(1) includes ‘lethal substances and explosives’ this bill potentially includes chemical manufacturers, distributors and retailers as targets of such litigation. Typically, one would expect that the litigants would have to prove intent in such civil suits. Unfortunately the Findings and Purpose section of this bill includes the following language: “The United States has a vital interest in providing persons and entities injured as a result of terrorist attacks committed within the United States with full access to court to pursue civil claims against persons, entities, or states that have knowingly or recklessly provided material support [emphasis added] or resources, directly or indirectly, to the persons or organizations responsible for their injuries” {§2(9)}. This would seem to allow action to be taken against chemical manufacturers, distributors or retailers that do not take reasonable precautions to ensure that their chemicals (particularly those COI listed in Appendix A, 6 CFR 27 as theft diversion COI) do not fall into the hands of terrorists. High-risk chemical facilities that have DHS approved site security plans would seem to be protected against such suits, except that this would require the disclosure that they are ‘covered facilities’ and that DHS has approved their security plans. It would be nice if the language of this bill would specifically spell out that as an absolute defense to preclude the requirement to disclose such security provisions in the discovery process. Needless to say, this is another piece of chemical security legislation that I will continue to watch as we move into the second session of the 111th Congress next week.

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