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The final report of the National Commission on Terrorist Attacks upon the United States is the definitive account of Sept. 11, 2001. Commonly referred to as the 9/11 Commission Report, it spans nearly 600 pages and offers 41 recommendations to make the nation safer. A promise to implement all 41 recommendations helped propel Democrats to victory in November and was among the first orders of business when the new Congress convened. The U.S. House of Representatives swiftly passed the Implementing the 9/11 Commission Recommendations Act of 2007-symbolically deemed H.R. 1-on Jan. 9. Safeguarding American-bound shipping containers and cargo transported on passenger aircraft are two provisions of H.R. 1 that have sparked controversy between Congress and the White House. These provisions mandate 100% radiation scanning within five years and 100% security inspections within three years, respectively. Much of the debate focuses on whether current technology can detect rogue cargo without affecting the flow of commerce. Yet a less controversial provision of H.R. 1 regarding homeland security preparedness has received little attention but is equally important. Many critical infrastructure owners and operators-such as power plants and communications providers-continue to enhance security voluntarily without a defensible homeland security standard of care. At the same time, the prospect of liability for failing to take reasonable measures to thwart terrorism has increased: The terrorists attacks of Sept. 11 and subsequent attacks around the world make virtually all terrorist plots foreseeable. The In re September 11 consolidated litigation-currently ongoing in the U.S. District Court for the Southern District of New York-has brought this issue into focus. In this case, the plaintiffs allege, among other things, that the owners and operators of the World Trade Center were negligent because they failed to take reasonable steps to prepare for emergencies.A liability vacuumThe 9/11 Commission recognized that the absence of a homeland security standard of care left the private sector in a liability vacuum while undermining any hope of security uniformity. As such, the 9/11 Commission Report endorsed the National Fire Protection Association 1600 Standard on Disaster/Emergency Management and Business Continuity Programs. The standard establishes basic risk-management practices to plan for, and respond to, major emergencies, including terrorism. And the 9/11 Commission Report did not stop there. It suggested “that compliance with the standard should define the standard of care owed by a company to its employees and the public for legal purposes.” For the first time since the publication of the 9/11 Commission Report in July 2004, proposed legislation would require the secretary of the Department of Homeland Security to “develop and implement a program to enhance private sector preparedness for acts of terrorism and other emergencies.” To do so, H.R. 1 compels the department to develop standards that utilize the National Fire Protection Association 1600 standard as a guiding principle. While H.R. 1 stops short of defining the National Fire Protection Association 1600 standard as an explicit standard of care for legal purposes, the practical effect is the same: Compliance (or the lack thereof) with a congressionally backed program intended to shepherd private-sector homeland security preparedness would define liability de facto. This is especially true for civil liability associated with acts of terrorism, because precedent and case law remain nascent. An uphill fight Whether H.R. 1 becomes law remains to be seen, but the political season suggests an uphill fight. Procedurally, among other things, the bill must first win approval in the Senate Committee on Homeland Security and Governmental Affairs before the narrowly divided Senate takes up the measure. If the Senate were to present the bill to the president, a veto is possible. According to the White House Statement of Administration Policy, the administration does not “support House passage of the bill in its current form.” However, private-sector preparedness is more important than a single bill. Invoking the National Fire Protection Association 1600 standard as the guidepost for private-sector preparedness is a common-sense proposal, and its enactment-in this or other legislation-would make America more secure and provide certainty where there is none. Lesser- known H.R. 1 provision is crucial. Steven Roberts, an NLJ columnist, is an associate in the Washington office, and in the global security and enforcement practice, of Atlanta-based Alston & Bird.

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