Saturday, January 17, 2009

CFSIA – No Federal Funds

HR 261, the Chemical Facility Security Improvement Act of 2009 (CFSIA) proposes to use the Congressional control of the purse strings to control how provisions of CFATS are implemented. It prohibits the use of Federal funds “to approve a site security plan for a chemical facility unless the facility meets or exceeds security standards and requirements” set by the appropriate State or local governments. As DHS is preparing to start implementing the Site Security Plan provisions of CFATS, passage of this legislation could have a significant impact on DHS implementation plans. This type of financial control is a classic tool when there is an adversarial relationship between Congress and the Executive Branch. It does not tell the Executive Branch agency how to do something, or even exactly what to do. It just stops the agency from spending money in a broadly defined set of circumstances. It is unusual to see such a proposal at the start of a new Administration, especially when the same party controls both the Executive and Legislative branch. Lack of Definition This proposed legislation does provide a limited number of definitions in § 2(a)(2). It defines both ‘site security plan’ and ‘chemical facility’ by referring to section 550 of the Department of Homeland Security Appropriations Act, 2007, the authorizing legislation for the CFATS program. Those are the only terms that are defined. What is lacking is the definition of two concepts central to proposed control of spending. Those concepts deal with what DHS actions constitute ‘approve a site security plan’ and how DHS is supposed to determine whether the facility ‘meets or exceeds security standards and requirements’. Finally, the CFSIA does not explain what DHS should do with the facility when the site security plan can be neither approved nor disapproved; the legislation does not give DHS authority to disapprove a site security plan based on the facility failure to meet State or local standards. Finally, there is the problem of the missing definition of ‘State and local government’. These are very broad and overly inclusive terms. In the grandest terms this would include any board, committee or officer constituted or authorized by law. In the broadest terms this could include constables, school boards, or zoning boards. Approval of Site Security Plan In its most basic, the ‘approval’ of a Site Security Plan is nothing more than the preparation and sending of a letter to the facility that it’s proposed Site Security Plan is approved. While there is a minimal cost of the materials and work that go into the preparation of that letter, those costs are part of the fixed cost of the Department. It cannot be truly said that DHS is expending any funds in those actions; they will be spent whether or not the letter is drafted, prepared and sent. The greatest costs associated with the facility site security plan take place in the review process before the plan is approved and in the implementation inspection process that takes place after the plan is approved. The pre-approval review process is again a fixed cost, so it cannot be effectively ‘prohibited’ by this legislation. The travel costs of the post-approval implementation inspections are clearly assignable costs. But those costs come after the approval process is completed, so they would not be controlled by CFSIA. Determining ‘Meets or Exceeds’ The biggest question left unanswered in this proposed bill is who determines that the facility does or does not ‘meet or exceed’ State and local requirements. I suppose that we should assume that Ms Jackson-Lee intends that the State or local authorities would make the go-no go determination. That still leaves the question of how DHS is supposed to know that the requirements exist, who has evaluation authority, and whether that evaluation has taken place. Additionally, the bill does not address how court challenges to the ‘standards and requirements’ or the local government ruling on the facility’s status with regards to those standards will affect the decision of DHS to approve or not act on the Site Security Plan. Provisions Unenforceable As the provisions of this bill currently stand they are effectively unenforceable. There are no identifiable funds being expended in the approval process that Congress can actually control. The definition of the standard to be applied by DHS is poorly defined and overly broad. And there is no suggestion of how DHS is supposed to apply the definition. Looking Forward The practical effect of this legislation, if passed, would be to tie DHS up in litigation and effectively stopping the implementation of Site Security Plans. This would give many facilities every excuse to stop spending money on continued work on CFATS implementation. Lacking any legislation extending CFATS passed its current expiration in October of this year, it could effectively stop any further work on increasing security at high-risk chemical facilities. If it is the intent of Congress to more completely involve the States in the security of high risk chemical facilities within their boundaries (a proposal surely to be subject to vociferous debate) then that should be included in any re-authorization legislation. Any such provisions should address the problems identified above.

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