Tuesday, April 8, 2008

Federal Preemption Rules under HR 5577

This is part of a continuing series taking a detailed look at the provisions of the new Chemical Facility Anti-terrorism Act of 2008 recently introduced in Congress (HR 5577IH). Today’s entry looks at Section 2107 that deals Federal preemption rules under CFATA of 2008.


Previous blogs in this series include:


·        CFATA of 2008 Introduced as HR. 5577

·        Personnel Background Checks and HR 5577

·        Ranking of Chemical Facilities by HR 5577

·        General SVA and SSP Requirements under HR 5577

·        Minimum SVA Requirements under HR 5577

·        Minimum SSP Requirements under HR 5577

·        Risk Based Performance Standards under HR 5577

·        Alternative Security Programs under HR 5577

·        Record Keeping and Site Inspections under HR 5577

·        DHS Review of SVA’s and SSP’s under HR 5577

·        Whistleblower Provisions of HR 5577

·        Penalties allowed under HR 5577


Federal preemption has been an item of contention since the draft CFATS regulations were issued in December 2007. Last year, as part of the Consolidated Appropriations Act of 2008, Congress provided additional ‘guidance’ on the preemption issue. While we are still waiting for DHS to revise the preemption wording in CFATS, we will look at the proposed preemption requirements of this legislation in comparison to the wording in Section 534 of last year’s budget bill.


Preclude or Deny Any Right


Both this legislation and the current law contain similar language about “shall not preclude or deny any right” to adopt and enforce “any regulation, requirement, or standard of performance” about chemical facility security “that is more stringent than a regulation, requirement, or standard of performance” established by law or DHS rule.

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The new legislation adds an interesting phrase; “to deter, detect, or respond to a chemical facility terrorist incident” after “chemical facility security”. This seems to limit, slightly, the “with respect to chemical facility security” that it follows. I’m not sure what it would exclude, but it certainly does not seem to add any regulatory territory of significance.


Both documents state that the law will not “otherwise impair any right or jurisdiction of any State with respect to chemical facilities within that State”. There is an additional phrase in the new legislation that expands that to “political subdivision thereof”. The earlier portion of the preemption section of both documents includes the same phraseology, so this seems to correct a shortcoming in the Section 534 wording. It certainly expands the number of parties that fall within the second part of the exemption.


Unless There is a Direct Conflict


While the wording to this point gives rights to state and local governments to regulate the security of chemical facilities, the last portion of the ‘general’ provisions of Section 2107 delineates where federal rules and regulation prevail. The wording of Section 2107 is significantly different than the current provisions of Section 534.


Section 534 finishes the preemption sentence with the phrase “unless there is an actual conflict between this section and the law of that State”. It continues to ignore the “political subdivision thereof” as it did in the earlier portion of the document. And it restricts the conflict to the “law of that State”.


Section 2107, however, changes the wording to “a direct conflict” instead of the more general “actual conflict” of Section 534. It continues to recognize the rights of “political subdivision(s) thereof”. It also expands “law” to include “the regulation, requirement, or standard of performance”.


Other Requirements


Section 2107(b) adds a whole new dimension to the potential areas of conflict between state and federal rules. The ‘other requirements’ portion of the section states that:


Nothing in this title shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce any regulation, requirement, or standard of performance relating to environmental protection, health, or safety.”


There have been a number of comments by environmental and labor activists that the CFATS regulations will allow the Secretary to ‘make secret’ too many things of interest to these two groups. While I believe that their concern is overstated, this section was certainly written to address those issues.


The way that it is written it allows a back door way for state or local governments to do things that may be specifically prohibited in the federal law. For example, this legislation prohibits the Secretary from requiring an IST provision that would simply move the hazardous material to another facility, especially if that facility was not already a high-risk facility. This provision could allow a state environmental law to restrict the use of the same chemical within that state, forcing that prohibited move.


Minor Differences are Not Minor to Lawyers


Linguistically these changes appear to be rather minor and subtle. Minor and subtle differences in verbiage are meat and potatoes to a lawyer; especially when those differences result from changes in legislative authority. Subtle changes in wording signify changes of legislative intent. When that intent is not specifically addressed in the legislative history, lawyers are free to infer whatever intent they please.

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