Impact of DHS Private Sector Accreditation Program on Roles and Responsibilities

Impact of DHS Private Sector Accreditation Program on Roles and Responsibilities

by Brian Finch

Businesses and other entities wanting to improve preparedness, protect business continuity, or limit potential liability should be aware of the PS-Prep program. DHS is moving to designate standards that are officially voluntary but may well become the measures of due care, as Brian Finch explains.

Mr. Finch writes: Among the many programs established in the Implementing Recommendations of the 9/11 Commission Act of 2007 (the "9/11 Implementation Act") (Public Law No. 110-53, 121 Stat. 266), one in particular stands out with respect to its impact on the private sector. Under section 901 (codified at 6 U.S.C. § 321m), Congress authorized a program designed to create a voluntary system under which private entities could seek accreditation and certification of their preparedness efforts from the Department of Homeland Security ("DHS"). This program, known as the Voluntary Private Sector Preparedness Accreditation and Certification Program ("PS-Prep"), was created with the intent of helping private entities measure their preparedness using objective standards adopted by DHS. Information about PS-Prep is available at http://www.fema.gov/privatesector/preparedness/index.html (last visited Feb. 16, 2010). DHS has announced that it will designate three such standards under PS-Prep, significantly moving the program forward. 74 Federal Register 53,286 (notice Oct. 16, 2009).

Several important questions surround the impact of this program on the private sector, including whether the PS-Prep program is truly voluntary or does in fact raise the standard of care for private entities throughout the United States. A brief examination of the PS-Prep law as well as a critical case in the post-9/11 era reveals that, for many entities, PS-Prep could in fact represent a minimum bar for preparedness against a range of threats, including terrorism.

Background on PS-Prep

PS-Prep, codified at 6 U.S.C. §321l and 321m, is explicit in its intent and the areas to be covered. As DHS itself stated:

The purpose of the PS-Prep Program is to enhance nationwide resilience in an all-hazards environment by encouraging private sector preparedness. The program will provide a mechanism by which a private sector entity - a company, facility, not-for-profit corporation, hospital, stadium, university, etc. - may be certified by an accredited third party establishing that the private sector entity conforms to one or more preparedness standards adopted by DHS.

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Brian Finch is a partner at the law firm Dickstein Shapiro LLP, where he also serves as the head of the firm's homeland security practice. He is a member of the American Bar Association's Homeland Security Executive Committee for the Administrative Law Section. Brian also serves as a Professorial Lecturer in Law at The George Washington University Law School, where he co-teaches Homeland Security Law and Policy. Brian received his B.S. from Cornell University, his M.A. from The George Washington University's Elliott School of International Affairs, and his J.D. from The George Washington University School of Law. Brian can be reached at finchb@dicksteinshapiro.com or at 202-420-4823.