HR 901 Report Published – CFATS Extension

Last week the House Homeland Security Committee filed their report on HR 901, the Chemical Facility Anti-Terrorism Security Authorization Act of 2011.This report is based upon the markup hearing that the Committee held back in June. Readers will recall that HR 901 is essentially a codification of the §550 CFATS authorization language as an amendment to the Homeland Security Act of 2002. Along with providing nearly permanent authorization for the program (it would technically expire on September 30^th, 2018) it would essentially provide the House Homeland Security Committee primary jurisdiction for oversight of the program.

The Report

Nothing really new in this report as the Committee  markup hearing documentation on their web site was quite extensive and included the exact language for each of the amendments considered during the consideration of the bill. What’s important here is that the Committee has now officially completed their work on the bill.

The Democratic Staff of the Committee did not do as good a job in their preparation of the “Additional Views” section of the report in explaining the reasons for their objections to this bill as did the staff of the Energy and Commerce Committee did on their report on HR 908. Instead they focused on the amendments (both adopted and rejected) offered by the Democrats during the markup process. Even with this difference in focus, the “Additional Views” section of the bill provides an important discussion of the issues that will make this bill difficult to pass in the Senate.

Extended Committee Consideration

What was really important in the legislative process on this bill was not the publication of this Report (though that was a prerequisite to further consideration of the legislation; ‘a’ prerequisite not ‘the’). More important was the announcement that the Republican leadership in the House had given the Energy and Commerce Committee additional time to complete their ‘review’ of this bill. Their deadline for consideration of the bill is now November 11^th.

Actually the word ‘deadline’ is not really appropriate as that implies that there is a requirement for the Committee to take action by that date. The actual term used in the House is ‘granted an extension’ and even that is misleading as it would seem to imply that the Leadership actually expects the Committee to take action by that date; that may or may not happen.

The problem in this case is that the Energy and Commerce Committee has already taken action on CFATS extension legislation, HR 908. The important difference between the two bills is that HR 908 would maintain the current §550 language and just change the expiration date. This keeps that Committee’s shared (with the Appropriations Committee) oversight responsibility (as yet unexercised) for the program. Thus, there is no political incentive for the Energy and Commerce Committee to consider this bill.

Moving Forward or Not

The real importance of this consideration extension is that it indicates that the leadership does not intend to consider this bill before the Whole House before November 11^th. What is not clear is whether it intends to consider this bill at all. The leadership has not indicated which version of the CFATS extension it actually favors.

Whichever bill comes to the House floor (and only one will make it to the floor) will almost certainly pass, likely with substantial Democratic support. Since neither bill will likely be actually considered by the Senate (at best an amendment in the form of a substitute putting the Senate Homeland Security bill, S 473, language will replace the House language) the bill that makes it to the floor will be less about the CFATS extension than about the oversight of homeland security issues.

If HR 901 makes it to the floor, it will be a sign that the Republican leadership is starting to change the current confusion in oversight responsibility for homeland security issues; providing the Homeland Security Committee with primary oversight of those issues. If HR 908 makes it to the floor, it will be a sign that the leadership has no intention of fighting the political power of the committee chairs that will have to give up their fractured oversight of portions of the Department of Homeland Security.

I’m pretty sure that this extension of the consideration of HR 901 is an indication that the leadership would really rather just have this issue go away for now. It is a distraction from the economic and regulatory issues that are a current priority in the Republican battles with the White House. If it weren’t for the chemical industry pressing for a long term extension of the CFATS program, neither bill would make it to the floor this session.

Oh, yes, the Democrats are not in any hurry for either of these bills to make it to the floor either. They know that they are unlikely to get any of their issues addressed in the current political environment. This means that they would be better off stalling consideration of the bill until the next session when they might be in charge of the House and better able to get their program included in the long term authorization. That is a long shot as it is unlikely that either party will get actual control of the Senate.