Monday, January 7, 2013

HR 68 Introduced – CFATS Changes

As I mentioned earlier Rep. Jackson-Lee (D,TX) introduced HR 68, the Chemical Facility Security Improvement Act of 2013. The GPO site does not yet have a copy of this bill posted but the Library of Congress Thomas site does. While that is not an official publication, it is good enough to tell us that the language of HR 68 is exactly the same as the two earlier versions that I mentioned (HR 225-112th Congress, and HR 261 111th Congress).

The links above go to earlier blog posts where I describe the political shortcomings of the bill and everything in those posts still apply to this version. I’ll avoid repeating myself here and just provide a summary of what the bill does.

SSP Approval

Section 2(a) of the bill prohibits the Secretary from spending any money on the approval of a CFATS site security plan unless the facility meets local security standards set by any State or local government agency. Instead of saying that the Secretary can’t approve a site security plan unless it meets local standards, it essentially prohibits any DHS action on a site security plan (including presumably accepting the submission of the site security plan) unless the facility meets local standards.

Hmm… I just thought of something. This might be a good way to essentially opt out of the CFATS process. If a facility doesn’t meet local standards, the regulatory authority of the folks at ISCD would be suspended.

Program Changes

Section 2(b) of the bill makes a number of seemingly innocuous word changes (delete this and add this type of thing) to the §550 CFATS authorization language that would mandate some substantial changes to the program. It would eliminate the Chemical-Terrorism Vulnerability Information (CVI) program and place CFATS under the

The first would insert the words “from terrorist attack” in two places that would clarify the ‘threat’ from which the covered facilities would be at high-risk. This seems simple enough, but it seems to me that the only purpose would be to remove facilities from CFATS coverage that are only at risk of having DHS chemicals of interest (COI) stolen from the site to be used to make weapons of mass destruction for use in a terrorist attack. Theft isn’t exactly a terrorist attack.

Section 2(b)(1)(C) would remove the phrase that has provided the most problems for the folks at ISCD; “the Secretary may not disapprove a site security plan submitted under this section based on the presence or absence of a particular security measure”. This change would allow Department to tell facility owners exactly what security measures would be required for site security plan approval. It would also allow for the dismembering of the risk-based performance standards.

Section 2(b)(2) would change the way that information submitted to DHS was protected by the Government from public disclosure. It would eliminate the Chemical-Terrorism Vulnerability Information (CVI) program and put the CFATS program under the data protection of the sensitive security information (SSI) set forth in §1520.5 of 49 CFR. It would also eliminate the protection from any data submitted to DHS that wasn’t actually part of the site vulnerability assessment (SVA) or site security plan (SSP) submission. Information provided separately to DHS in response to questions about the program would not be specifically protected.

Finally §2(b)(3) would eliminate the phrase “nothing in this section confers upon any person except the Secretary a right of action against an owner or operator of a chemical facility to enforce any provision of this section”. This does not provide an affirmative right for citizen lawsuits, but it is certainly intended to open the door for their use.

Moving Forward

This bill did not see any action in either the 111th or 112th Congresses and I don’t believe that even a single hearing will be held on this bill.

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