Friday, March 4, 2011

S 473 Introduced – CFATS Extension

As I mentioned in an earlier blog today Sen. Collins (R, ME), along with two Democratic and one Republican co-sponsor, introduced S 473, the Continuing Chemical Facilities Antiterrorism Security Act of 2011. This bill very closely resembles the version of HR 2868 that was approved last year in the Senate Homeland Security and Governmental Affairs Committee. While an official copy of the bill has yet to be printed by the Government Printing Office (GPO), Sen. Collins has provided a link to the final draft of the bill on the Committee web site.

Extension of the CFATS Authority

The legislation would provide {§2(a)} a limited extension of the current CFATS authorization by amending the expiration date found in §550 of the Department of Homeland Security Appropriations Act, 2007 (PL 109-295). The new expiration would be October 4, 2014. Presumably this 3½ year extension would provide enough time for the current round of site security plan approvals to be completed before the next time that the program authorization would have to be revisited by Congress. Based upon the current approval progress, that may be an overly optimistic presumption.

Training and Exercises

The bill enhances the current CFATS program by, among other things, adding two voluntary programs that would assist the CFATS covered chemical facilities increase the effectiveness of their security procedures. Section 2102 would establish a chemical security training program and Section 2103 would establish an exercise program. Both would be developed and administered by FEMA in consultation with the Undersecretary for National Protection and Programs.

The training developed would extend beyond the current training requirements generally described in the Risk-Based Performance Standards Guidance document in both scope and audience. In addition to training on security plan elements it would also address “the National Incident Management System, the National Response Framework, the National Infrastructure Protection Plan, the National Preparedness Guidance, the National Preparedness Goal, the National Maritime Transportation Security Plan, and other such national initiatives” {§2102(b)(6)}. This seems to be too expansive until one considers that the target audience for the training program includes “Federal, State, and local government officials, commercial personnel and management, and governmental and nongovernmental emergency response providers” {§2102(b)(1)}.

There are also provisions for conducting training of the populous in the neighborhood of the covered facility. Specifically it specifies that the program “educates, trains, and involves individuals in neighborhoods around chemical facilities on how to observe and report security risks” {§2102(b)(9)}. While this is a laudatory requirement it would be more useful if it also included provisions for actions to be taken in the event of an actual terrorist attack or chemical accident at the facility.

The voluntary chemical security exercise program would have a similar scope and audience. The purpose of this program would be to “to prevent, prepare for, mitigate against, respond to, and recover from acts of terrorism, natural disasters, and other emergencies at covered chemical facilities” {§2103(a)}. It’s interesting to see security exercises include ‘natural disasters and other emergencies’ (presumably including industrial accidents), but it is a clear recognition that the results of many successful terrorist attacks would be practically indistinguishable from chemical releases due to other causes.

Technical Assistance Program

While Sen. Collins has long been an opponent of including nearly any kind of inherently safer technology (IST) language in chemical security legislation, the actual wording of §2104, which establishes a voluntary technical assistance program, mirrors the IST language included in the House version of HR 2868 from the previous session. This section requires the Assistant Secretary for Infrastructure Protection and the Undersecretary for Science and Technology to establish a formal program that would provide, when requested by a covered facility’s management, assistance or advice on methods to “reduce the risk or consequences associated with a successful act of terrorism against a covered chemical facility” {§2104(a)(1)}.

The expressed purpose of this risk reduction would be to reduce the Tier level of the implementing facility or to reduce the risk to the extent that it would be removed from the list of covered high-risk facilities. Again, this is essentially the same out come that would be expected to be achieved by an IST program.

The main difference here is that owner/operator is free to request or not request the technical assistance. Neither would they be under any obligation to put into effect any suggestion or recommendation made by the technical assistance program.

There is a glaring omission in this section; the failure to address the issue of risk-transference in the consideration of actions that could reduce or eliminate the risk at the covered facility. There is no incentive for the covered facility to avoid transferring their risk to another area or facility that is even less well prepared to respond to that risk. In fact, there is a great financial incentive to take practically any risk reduction activity regardless of its overall effect on the general risk level of anyone outside of the facility; fence line. The reduction of the facility tier level ranking or total removal from the list of covered facilities would greatly reduce the required security costs for the facility.

Chemical Facility Security Advisory Board

Section 2105 provides for the establishment of a Chemical Facility Security Advisory Board to “advise the Secretary on the implementation of the Chemical Facility Anti-Terrorism Standards, including regarding the implementation of the voluntary technical assistance program” {§2105(a)}. Membership would be made up of owner/operators, employees of covered facilities and other experts.

These boards typically provide a level of expertise and experience that is frequently lacking in a regulatory agency. Unfortunately they also lay the Executive branch open to charges of undue influence as has recently been leveled against DHS. It would be best to preemptively deal with these charges by including in the membership of this type of board at least a few representatives of labor unions and/or environmental NGOs.

The Way Forward

As the press release that accompanies the listing of this bill on the Senate Homeland Security Committee web site notes, S 473 is virtually indistinguishable from the version of HR 2868 that was unanimously passed last summer in that Committee. Sen. Collins clearly expects the same support in Committee for this bill.

What must be remembered, however, is that a number of committee members noted that they would do their best to amend the bill on the floor of the Senate. They would attempt to include provisions that would have been too contentious for consideration in that fairly collegial committee, including some form of IST mandate. Those views are unlikely to have changed.

One thing that is certain, however, is that this bill is very likely to receive a warmer reception in the House this year than it would have last year if it makes it to that body without substantial revision.

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