This is part of a continuing discussion of the recently
passed HR 4007, Protecting and Securing Chemical Facilities from Terrorist
Attacks Act of 2014. This post will look at provisions in the bill that address
employee involvement in the CFATS process.
The previous postings in this series were:
As part of the effort to obtain bipartisan support for the
bill provisions were added that were designed in increase worker participation
in the CFATS process. These include a specific requirement for employee and
union involvement in the development of security vulnerability assessments
(SVAs) and site security plants (SSPs) and whistleblower protections.
Directed Employee
Involvement
Section 2102(b)(2) deals with the mandate for employee
involvement in the development of SVAs and SSPs. It states:
To the greatest extent practicable,
a facility’s security vulnerability assessment and site security plan shall
include input from at least 1 facility employee and, where applicable, 1
employee representative from the bargaining agent at that facility, each of
whom possesses, in the determination of the facility’s security officer,
relevant knowledge, experience, training, or education as pertains to matters of
site security.
The term ‘facility’s security officer’ is not defined in
this legislation nor is it used anywhere else in the bill.
There is enough weasel wording in the provisions of this
section that a facility owner could refuse to include the ‘required’
participation based upon the ‘fact’ that none of the employees have the
requisite ‘relevant knowledge, experience, training, or education as pertains
to matters of site security’. Even most security guards could be excluded as
they are typically not ‘facility employees’ but rather employees of a contract
vendor.
Union, excuse me ‘bargaining unit’ participation will be
more problematic as these organizations start to get members trained and
certified by various security standards setting organizations. I would also
suspect that excluded labor or
Companies for which I worked for that have been required to
conduct a process hazard analysis (PHA) on covered processes have always
included operators and shift supervisors in those reviews. I don’t recall a
single instance when any of these employees provided any great new safety
insight, but they were invaluable in providing reality checks on what the
current process actually was (as opposed to ‘as designed’) or on what could
reasonably be expected of an operator. I would expect that the same would be
true for SVA and SSP development.
Whistleblower
Provisions
Section 2105 of the bill provides a description of the
whistleblower requirements of the bill. They are quite simple and fairly
common. First the Secretary is given 180 days to set up a program where
employees and/or contractors can confidentially submit information to DHS about
“a violation of a requirement under this title” {§2105(a)(1)}. This will be one
of the easiest deadlines for DHS to meet since they already have a reporting
system in place on their Critical
Infrastructure: Chemical Security web page; the CFATS Tip Line (877-394-4347).
The Secretary is required to keep the name of the
whistleblower confidential {§2105(a)(2)}. Additionally, the owner/operator is
prohibited from discharging an employee (no such protections are provided for
contractors, an odd oversight) that submits a report. Nor may the
owner/operator “discriminate against an employee with respect to the compensation
provided to, or terms, conditions, or privileges of the employment of, the
employee because the employee (or an individual acting pursuant to a request of
the employee)” {§2105(a)(6)(A)}.
The whistleblower protections do not apply if the employee “knowingly
and willfully makes any false, fictitious, or fraudulent statement or
representation” {§2105(a)(6)(B)(i)}. This first part is prettily clearly a
protection against unfounded accusations. The second part of the protection
exception {§2105(a)(6)(B)(i)} is a bit more problematic because of one
word; “uses any false writing or
document knowing the writing or document contains any
[emphasis added] false, fictitious, or fraudulent statement or entry”. This
would seem to void the whistleblower protections if even one problem statement
occurred in a lengthy document.
The Secretary is not required to take any specific action
with regards to the tips provided beyond the basic mandate to ‘review and
consider’ the information. If action is taken against a facility under the
civil enforcement provisions of the bill (§2104; to be discussed in a future
post) based upon a whistleblower tip, the facility has 20 days to submit a
petition of review of that enforcement action.
There is nothing specified in the bill as to what
information must be provided in that petition or what basis must be established
for the requested review; I expect that that will be addressed in the new
regulations. DHS must determine in writing that the violation continues to
exist (within 30 days of the submission of the petition) or the enforcement
action will cease {§2105(a)(5)(D)}.
Publicly Available
Information
Finally, it is important to note that DHS is required {§2105(a)(2)}
to treat all whistleblower tips (except publicly available information) as
protected information under the provisions of §2103 (also to be discussed at a
later date).
Actually, the ‘publicly available information’ provision
seems like it may be a bit of a problem for the Executive Branch. Anyone
familiar with the rules for handling of classified information knows that
classification protection requirements do not change if information becomes ‘publicly
available’ without going through the declassification process. For example,
people with security clearances are not supposed to discuss specific documents
or information disclosed by Mr. Snowden or even have copies of such ‘publicly
available’ documents in their possession.
There is a good reason for this as the public printing of a
purportedly classified document does not mean that it is a true copy of that
document or even that such a classified document actually exists. As long as
the government can continue to maintain the fiction that the document is not
real, the secret continues to be at least partially kept.
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