HR 908 Hearing

Yesterday the Environment and Economy Subcommittee of the House Energy and Commerce Committee held its initial hearing on HR 908, one of four bills introduced earlier in the month that would provides extended authorization for the CFATS program. Readers might remember that this bill is one of the most straight forward of the four; simply extending the current §550 authorization until October 4th, 2017.

There were no real surprises in the witness selection; three industry representatives favoring the bill and one union official opposing the straight extension as inadequate. The government witness was the NPPD chief, Under Secretary Rand Beers. It was disappointing that Acting ISCD Director Driggers did not share the witness table because Beers just did not have the detailed knowledge of the CFATS program that the hearing clearly called for. But then, he was just there to present the Administration’s policy position.

HR 908 is clearly on the fast track for approval in this Committee. The only negative voice on the questioning side of hearing was provided by Committee Ranking Member Waxman (D, CA). Sub-Committee Ranking Member Green (D, TX) is a co-sponsor of the bill and represents Houston, TX so it is clear that he supports the straight CFATS extension.

SSP Approval Delays

I was hoping for a more detailed grilling of Beers on the delays in SSP review process, but I was sorely disappointed. There was virtually no discussion of the delays in his prepared testimony. The only real questions on the delays came from Rep. Murphy (R, PA), the sponsor of HR 908. He asked how much longer it was going to take to complete the pre-authorization inspections for the Tier 1 facilities. Beers responded that he had instructed his staff to have the Tier 1 PAIs (only 41 to go) done by the end of the calendar year (NOTE: that leaves just something over 4,000 PAI’s left to go). Beers then offered that the delays were due to the desire to have a cooperative exchange with the facilities to work towards increasing the facility security posture.

There were two other takes on how the current delays should affect the approval of HR 908. Waxman questioned rubber stamping a program that was so far behind schedule, noting that four years into the program there were no facilities with approved site security plans. Waxman’s prepared statement urged revisions of the bill similar to those found in the House version of HR 2868 from last session, but had nothing to say about how the program could be changed to make the SSP approval process more effective.

The opposite point of view was taken by Rep. Cassidy (R, LA). He questioned the Administration’s support for adding IST provisions to the CFATS program, asking how they could suggest adding program changes to a process that was clearly overloaded. Beer’s response was that given a reasonable deadline for implementation of the IST provisions and building on the lessons learned from the current implementation he was confident that DHS could manage the added responsibility.

Other Information

There were some interesting bits and pieces of information that did come out of the Beer’s testimony. First, in response to questions from Chairman Shimkus (R, IL), Beers provided details about the CFATS budget request noting that the Administration was requesting just $99 Million in the FY 2012 budget, down from a high of $105 Million just a couple of years ago. He provided no explanation of how the Department intended to continue to hire more inspectors on the reduced budget.

Beers also reported that Secretary Napolitano had directed NPPD and the Coast Guard to come up with a way harmonize the chemical security requirements for CFATS facilities and chemical facilities covered under the Maritime Transportation Security Act that are exempted from the CFATS rules, whether or not there was legislation requiring that harmonization. That was mainly old news, but he then went on to say that the Committee had completed its work and the plan was enroute to the Secretary for approval.

Rep. Green brought up the issue of the personnel surety program, voicing industry concerns about ISCD imposing a new set of background check requirements on top of the TWIC program and the hazmat certification for the commercial driver’s license. Beers noted that ISCD had been working with industry on the program and was ‘near’ the point where they would introduce the program. The number of industry complaints about the Department’s stance on background checks does not reflect much ‘working with industry’, but we will have to wait for the roll out to see how cooperative the Department has been.

While Beers was clearly carrying the Administration’s request for adding IST provisions to the CFATS program, he did little to actually support that position. He told the Sub-Committee that the Department had required the S&T Directorate to take an initial look at IST, but that NPPD had not looked at how the concept could be implemented. This ignores the work done by ISCD in conjunction with the Center for Chemical Process Safety last year on a potential ‘review and report’ IST requirement.

The most surprising information of the hearing concerned the ‘indefinite’ agricultural extension of the Top Screen requirements. In response to questions Beers noted that ISCD had completed some ‘studies’ on the issue but was still not near coming up with a way of dealing with CFATS implementation for agricultural producers. What was surprising was how little anyone in the room knew about the program. Beers essentially told the Sub-Committee that the only chemicals of interest were fertilizers, ignoring department concerns about pesticides. When asked if propane was a potentially covered chemical for agricultural producers, Beers initially stated that propane was not an Appendix A chemical, OOPS. Oh well, that level of program knowledge should have been provided by the missing ISCD Director.

Moving Forward

Chairman Shimkus made it clear that this bill would be marked up in the near future and questions by both Murphy and Green made it clear that they expected to see additions made to the bill. Rep Waxman obviously held out hope of adding IST provisions as well as whistleblower protections and information sharing requirements. This bill will not be as simple as it currently is if/when it makes it to a House floor vote; especially since it still has to go through the Homeland Security Committee.