Monday, October 6, 2008

The Continuing Saga of CFATA

As continuing readers of this blog are certainly aware, I have been a tad bit confused and upset about the way that Speaker Pelosi has handled the one serious bill this session that has dealt with issues of security at high-risk chemical facilities, HR 5577, the Chemical Facility Anti-Terrorism Act of 2008. It seems that the final act is now being played and I am still confused and upset.


While the financial system bailout played out over the last week or so Speaker Pelosi has continued to extend the time that the limit given to the House Committee on Energy and Commerce to ‘act’ on HR 5577. After the last extension I reported on (see: “HR 5577 Status Update – 9-29-08”) Speaker Pelosi granted extensions on September 28th, September 29th, October 2nd, and October 3rd. The final extension gave this committee until January 3rd, 2009 to complete their work on the bill.


If I remember my civics lessons correctly, all un-passed bills die at the end of a Congress; the 110th Congress dies on January 3rd when the 111th is formed. There are no plans for Congress to meet again until January 3rd.


Work on HR 5577


The House Homeland Security Committee completed their action on this bill when it was introduced by Chairman Thompson on March 11th, 2008 and published their report on the 14th. Granted that they had been working on the bill for some time; holding sub-committee and committee hearings; talking to industry, labor, academia, special interest groups and DHS. They took a hard look at the current CFATS regulations and determined what short comings they thought needed to be addressed. While I do not agree with all of the problems they identified, or all of the solutions they came up with, Ido think that they put a lot of work into a document that is as reasonably crafted as any political document I have seen in many years.


Since the bill was assigned to the Energy and Commerce Committee only one sub-committee hearing has been held. That hearing only solicited one new piece of information (see: “House Subcommittee Hearing on HR 5533 and HR 5577”) dealing with an IST analysis done by the Metropolitan Water District of Southern California (MWDSC). No other public work has been done since. I had to qualify that statement as there is no telling what, if any, work has been done on this bill by the committee staff.


Political Games


There is nothing in the Constitution or the rules of the House that guarantees, or even suggests, that every bill introduced in that body will make it to the floor for a vote. With over 7,000 bills introduced in this session, only a small number have made it out of committee and an even smaller number have made it to the floor. Most bills do not even make it to a committee hearing room.


Political decisions are made every day about what bills deserve to be considered and what bills will never make it past their initial entry into the Congressional Record. Those decisions are made by the House leadership (principally the Speaker and Majority Leader) and Committee Chairmen. Frequently this is done for purely partisan reasons, the leadership does not like the bill, but more often it is simply a matter of priorities, there is only so much time.


How can the average citizen tell what is political games and what is simply legislative management? One has to look at the seriousness of the legislation, the timeliness of the legislation, and how similar legislation is handled.


Serious Legislation


Chemical facility security is an issue that congress has been slow to deal with since 9-11 made people realize that there was a serious possibility of additional terrorist attacks in the United States. There has been a combination of resistance to regulation by industry and a general mistrust of the chemical industry on the two extremes of the issue that has prevented the formation of a consensus capable of passing a chemical security bill.


The outgoing 109th Congress did manage to authorize DHS to craft a limited set of regulations providing for security at high-risk chemical facilities. There were many observers that though this was a political maneuver by a ‘pro-business’ Republican majority trying to pre-empt the new ‘anti-business’ Democratic majority in the 110th Congress from drafting chemical facility security legislation.


HR 5577 addresses many of the limitations of the current regulations. Congress exempted all water treatment plants from the security regulations, even when many of them have large amounts of TIH chemicals on hand. Other areas that were addressed include employee participation, whistleblower protections, contract inspectors, and inherently safer technology. Each of these areas has important constituencies that support or oppose those provisions. Most traditional supporters of the Democratic Party, including labor, environmental, and community safety organizations, generally expressed support for HR 5577.


Timeliness of Legislation


The congressional authorization for the current CFATS regulations expires in October of 2009. Legislation that just extends that authorization (like HR 5533) only needs to be passed just before the current authorization expires to continue to CFATS uninterrupted. That wouldn’t make for efficient planning on the part of DHS, but it would be legally sufficient.


Legislation that extends the current program, while making major revisions to the requirements for the regulations (like HR 5577), really need to be passed substantially before the expiration of the current authority. That would give DHS time to draft, review and receive comments on the changes to the regulations required to implement the legislative intent.


The longer it takes to pass comprehensive legislation extending and expanding the authority for CFATS the more difficult it becomes to draft implementing regulations in a timely manner. HR 5577 calls for most of the new provisions to go into effect in October of next year. Secretary Chertoff formally notified the Homeland Security Committee this summer that passage of HR 5577 this last summer would have caused DHS problems with drafting the supporting regulations and implementing the current staged security program at the same time.


Handling of Similar Legislation


There was only one other chemical facility security bill introduced this year. HR 5533 was introduced just before HR 5577. It would have made permanent the authorization for the current CFATS regulations while requiring only small, cosmetic changes to those regulations. DHS and many in the chemical industry would have enthusiastically supported this bill if there had been the slightest indication of support by the House leadership.


Both HR 5533 and HR 5577 were assigned to the Energy and Commerce Committee. HR 5533 was never referred to the Homeland Security Committee, the committee with primary over-site responsibility for DHS. The Energy and Commerce Committee was given an initial two month deadline to complete its work on HR 5577; no deadline was given for HR 5533. This seemed to indicate that the House leadership was interested in bringing HR 5577 to a floor vote. The second tier committee assignment and the lack of a deadline for work on HR 5533certainly indicated that there was no leadership support for that bill.    


Expired Deadlines


As established deadlines were missed with little or no work being done by the committee, Speaker Pelosi continued to extend the deadlines. This either indicated that she lacked the political power to discipline her committee chairmen, or she had no inclination to exercise what power she did have. Unfortunately for Ms Pelosi re-setting deadlines that continue to be ignored make her look weak and ineffective. In politics the appearance of weakness is a fatal illness.

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