Friday, August 1, 2014

Senate Homeland Security Committee Rewrites and Adopts HR 4007

On Wednesday the Senate Homeland Security and Governmental Affairs Committee marked up and adopted HR 4007, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (NOTE: That is a name change). Substitute language was offered by Chairman Carper (D,DE) and Ranking Member Coburn (R,OK) and it was subsequently modified. The new language was adopted by a voice vote with Sen. Senator Baldwin (D,WI) voting no.


Most news reports have identified only two changes to the bill; a new expedited approval program for Tier 3 and Tier 4 facilities and an expansion of the whistleblower protections. These were the two really major changes (and will be discussed in more detail in a subsequent post), but the substitute language was a major re-write of the bill passed by the House. Most of the changes were language and formatting changes (this version does read cleaner), but there were other changes that will significantly change the Department’s actions resulting from this modified bill.

The changes include:

• Specifically allows the Secretary to suggest improvements to an alternative security plan to allow its approval {§2102(c)(2)(A)(ii)};
• Specifically authorizes the use of contractors (nongovernment personnel) to support the audit and inspection program {§2102(d)(1)(C)};
• Specifically authorizes the use of nondepartment personnel to conduct audits and inspection (EPA-RMP and/or OSHA-PSM presumably) {§2102(d)(1)(C)};
• Limits site security plan approval authority to DHS personnel {§2102(d)(1)(D)(iii)};
• Replaces requirement of nongovernment inspectors to have a Secret security clearance with the possession of a CVI certificate {§2102(d)(1)(e)};
• In two places where ‘consultation’ is required adds requirement for consulting with ‘public and private labor organizations’ {§2102(e)(1) and §2109};
• Adds a requirement for semi-annual reports to Congress about retiering and removal of facilities from CFATS program {§2102(e)(4)};
• Removes phrase ‘if such information may not be disclosed pursuant to any State or local law’ from paragraph about sharing with States and local governments {§2103(b)};
• Removes requirement to share information through ‘Homeland Security Information Network or the Homeland Secure Data Network’ {§2103(c)};
• Added specific exemption from disclosure under the Freedom of Information Act (5 USC 552) {§2103(e)};
• Expanded ‘Civil Penalties’ section to include ‘Civil Enforcement’ activities {§2104};
• Added ‘Non-reporting chemical facilities of interest’ under Civil Penalties {§2104(b)};
• Specifically limits rights of enforcement action under the program to the Secretary of DHS {§2104(d)};
• Specifically allows that “each existing CFATS regulation shall remain in effect unless the Secretary amends, consolidates, or repeals the regulation” {§2107(b)};
• Gives Secretary 30 days to “repeal any existing CFATS regulation that the Secretary determines is duplicative of, or conflicts with, this title” {§2107(b)(2};
• Lowers maximum number of employees to 100 at facility and adds ‘small business concern’ (15 USC 632 for definition) to definition of Small Covered Facility {§2108(a)};
• Expands assistance that may be provided to Small Covered Facilities to include “cybersecurity, recordkeeping, and reporting procedures” {§2108(b)};
• Specifically repeals Section 550 upon effective date of this bill {§4(b)}; and
• Sets 4 year termination of program {§5};

In addition to the above changes there were three things that were specifically removed from the bill:

• References to ‘Security Screening Coordination Office’ {Old §2101(d)(3)(C)};
• The rail transit exemption language {Old §2105(c)}; and
• The entire spending authorization section {Old §2110}.

Security Plan Suggestions

One of the problems that has plagued the enforcement of the current CFATS regulations is the interpretation that the prohibition against requiring specific security measures for approval of site security plans also applied to DHS providing suggestions to facilities about how to get their programs within compliance. Some inspectors have been more aggressive than others in limiting their suggestions to avoid the appearance of requiring a security measure and this makes it harder for facilities to know what changes need to be made to get their SSP authorized.

The language of {§2102(c)(2)(A)(ii)} will certainly make this clearer for facilities submitting alternative security plans (ASP) and I think that most inspectors (and inspectees) will assume that it is okay for an inspector to let a facility know what types of things have been used at other facilities to respond to a specific security situation.

Consultation with Labor Organizations

The language of §2102(e)(1) and §2109 could have only been added in the Democrat controlled Senate. Having said that, since the relationship with the labor organizations is only consultative, this language should not raise any significant ire in the Republican controlled House. There were lots of other labor inspired additions that could have been added to the bill that could have interfered with its adoption by the House.

Moving Forward

The earlier in September that this bill comes to the floor of the Senate for a vote (which will almost certainly have bipartisan support) the better the bill’s chances of getting through Conference before the November elections.

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