Market Intelligence: Bill closes terror gaps

17 July 2014 18:17 Source:ICIS Chemical Business

A new US house bill - passed unanimously - closes gaps in chemical site security law which should provide enforcement and budgeting certainty

The US House has passed legislation that improves requirements for chemical facilities seen as high-risk for possible terrorist attack, including a key measure to ensure that people entering those sites have been screened.

Although the Chemical Facility Anti-Terrorism Standards (CFATS) are now almost seven years old, to this day they lack a reliable means of ensuring that employees, contractors, vendors and visitors entering chemical production, storage or distribution sites are properly vetted for any hint of links to terrorist groups or movements.


Improving security at chemical sites is a top priority

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CFATS gives the Department of Homeland Security (DHS) authority to mandate anti-terrorism security standards for high-risk facilities, although site operators may decide which precautionary measures to take to meet the standards, subject to inspection and approval by DHS.

The bill, HR-4007, was passed in the House with a voice vote described as “unanimous”. The vote was significant because only those bills seen as non-controversial and certain of approval are treated to voice votes.

That voice vote also is strong indication that HR-4007 has solid bipartisan support and that it, or a parallel measure, should be able to get through the US Senate in the months ahead without major labour pains.

In addition to the personnel surety issue, the bill approved by the House in July provides other critical improvements or provisions that the chemicals industry had long sought.

Topping the list of industry complaints about the current CFATS was that it has been subject to annual review and renewal by Congress under the appropriations process.

Chemicals sector trade groups complained often and loudly that those annual renewal procedures created needless uncertainty for regulated companies, who worried that Congress on a whim might make changes to the law and thus render at least part of their five-year budget and operational plans moot.

But HR-4007 provides for a three-year extension of CFATS.

US chemical sector officials welcomed House passage of the bill, saying the measure will provide enforcement and budgeting certainty.

The House’s “unanimous voice vote is a huge step forward for this important piece of the legislation that would impact hundreds of manufacturers across the nation and thousands of jobs,” said Bill Allmond, vice president for government and public relations at the Society of Chemical Manufacturers and Affiliates (SOCMA).

“A multi-year CFATS authorisation provides that added level of certainty,” said Allmond, “giving our members the confidence they need to continue implementing the program.”

Allmond said that the bill’s three-year extension “gives affected businesses time to make appropriate logistical and financial decisions needed for successful compliance”.

The American Chemistry Council (ACC) also welcomed the House passage, saying that the bill would “give DHS and industry the long overdue certainty that is necessary for a strong and effective chemical security program”.

The council said that the measure would “encourage industry to continue to make long-term capital commitments to enhance security”.

The American Fuel & Petrochemical Manufacturers (AFPM) also welcomed the three-year extension, but the refining and petrochemicals group focused more on the crucial personnel surety issue.

AFPM president Charles Drevna said that the bill “recognises that cyber and physical security at our facilities must be an inherent practice that requires confidence in the personnel screening process”.

Drevna noted that the bill “addresses the personnel surety program by codifying the screening process for vetting individuals against the Federal Terrorist Screening Database maintained by the Federal Bureau of Investigation [FBI]”.

“Amid growing concerns about domestic terrorist attacks,” said Drevna, the House is to be commended “for putting the nation’s safety first by approving a bill that will allow refiners and petrochemical manufacturers to enhance security measures at their facilities.”

In other areas, the House bill allows DHS to approve alternative security programs established by the private sector - such as chemical companies and trade groups - or state or local authorities, providing they meet CFATS criteria.

This is important because it means that many plant site operators will be spared the necessity of re-inventing the wheel by submitting for DHS approval security plans long in place under such guidelines as the Responsible Care programme.

DHS inspection of plant sites currently requires that certification of anti-terrorism measures be done by department employees. HR-4007 allows the use of third-party inspectors, providing they meet professional criteria set by DHS. This would enable faster vetting and approval of protection plans by not having to rely solely on the department’s understaffed inspection crew.

Under the personnel surety provisions of HR-4007, the department must provide complying companies with feedback when the name of an employee or someone else with access to the site is put forward to DHS for terrorist screening.

The bill also provides that employees and other individuals whose names are checked against the terrorist database have a means of redress if information about them proves erroneous.

HR-4007 requires that DHS “shall share with the owner or operator of a covered chemical facility such information as the owner or operator needs to comply” with the law. Industry officials in the past have complained that the department must disclose information - perhaps confidential government intelligence details - that in fairness they need to make adequate arrangements for their facilities.

Because regulated companies must provide to DHS very detailed information about their plant sites, processes and products, the industry has long been concerned that critical business information (CBI) might be subject to disclosure by the department in response to Freedom of Information Act (FOIA) requests or otherwise.

The bill protects that information from public disclosure, but it also provides that sensitive site security data be provided to state and local first-responders and other officials, if they hold necessary security clearances.

HR-4007 also bars private right of action (PRA) lawsuits, meaning that only DHS is authorised to enforce CFATS and that private interest groups cannot go into court to try to force changes at plant sites via CFATS criteria.

By Joe Kamalick