Monday, January 12, 2009

HR 261 Text Available

The actual text of HR 261, the first chemical facility security legislation introduced in the 111th Congress, is now available on the web site. It is still not available on the GPO site. It is interesting reading and proof that the phrase ‘and for other purposes’ can cover a lot of ground, especially when it is used to circumvent House rules that require legislative titles to reflect what they cover. Ms Jackson-Lee (D, TX) introduced HR 261 last week as I noted in an earlier blog. In addition to a snappy short title (Chemical Facility Security Improvement Act of 2009, surely to be abbreviated to CFSIA) it has a lengthy, descriptive title:
“To provide that no Federal funds may be used by the Secretary of Homeland Security to approve a site security plan for a chemical facility, unless the facility meets or exceeds security standards and requirements to protect the facility against acts of terrorism established for such a facility by the State or local government for the area where the facility is located, and for other purposes.”
This bill certainly sets out to accomplish the first part of description in the title. Section 2(a) is entitled ‘Limitation on Use of Funds’ and contains two sub-paragraphs. The first plainly states the ‘no Federal funds …’ requirement while the second provides the essential definitions of ‘site security plan’ and ‘chemical facility’. So far, everything is perfectly clear.

Amendments to Existing Law Relating to Approval of Security Plans

The second paragraph in Section 2 gets a little more deceptive. Someone reading the title to this paragraph; ‘Amendments to Existing Law Relating to Approval of Security Plans’ could be expected to assume that this would provide more details concerning the funding limitations set forth in the first, or at least more details concerning the ‘approval of security plan’. That would be a seriously wrong assumption. It does concern amendments to § 550 of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109-295; 120 Stat. 1388), but those amendments have little to do with the approval of security plans or funding of DHS enforcement actions. What follows in § 2(b) is a series of cryptic amendments (insert this, delete this, etc) that quickly fade into confusing obscurity; confusing that is until one goes back and actually marks-up a copy of § 550. Then the provisions of this bill become more clear.

Pause for Bloviation

I try to keep my discussions in this blog on a practical plane. While I may harp on a subject from time to time, I try to keep things on an emotionally even keel. But from time to time I have to blow off some steam. This is one of those times. The way this bill is presented and worded is one of the worst examples of underhanded politics that I have ever had the displeasure to read. This bill was deliberately worded to confuse and obscure. There is no excuse for that in legislative practice unless someone is trying to accomplish something that is anti-democratic or crooked; I see nothing crooked here. Legislation should be clear in its intent. This allows for discussion on its merits and should allow for it to stand or fall on those merits. This legislation obfuscates and confuses, implying that it has no merits in the eyes of its author. Regardless of the merits of its actual intent this bill should be sent to legislative oblivion without further consideration. Now, back to a rational discussion of the contents of this legislation.

Clarifying Security

The first two changes to § 550 call for the addition of the words ‘terrorist attack’ in the first paragraph. In both cases these apparently serve to qualify what chemical facilities are being secured against. Since ‘security’ could also apply to criminal activity this may be appropriate. On the other hand, it could be an effort to remove authority to protect against the theft of chemicals of interest from chemical facilities. This would have the effect of removing a large number of facilities from the high-risk category and thus coverage under the CFATS regulations. A large number of facilities in Tier 4 are there solely because they have chemicals on site that could be used to further a terrorist attack elsewhere. This change could exempt those facilities from the expensive security requirements necessary to prevent those thefts.

Particular Security Measures

The next amendment removes the phrase that disallows the Secretary from disapproving a site security plan because of the presence or lack of a particular security measure. It did leave the requirement to judge the SSP using risk-based performance measures. Since the amended authority does not require a particular security measure, it is hard to see how effective this would be in accomplishing a particular purpose. It would serve to give the Secretary more latitude in disapproving SSPs.

Modifying CVI Protections The next three provisions for changing § 550 all deal with the protections of Chemical-Terrorism Vulnerability Information (CVI). It looks like this is part of a continuing effort to bring some order to the variety of ‘sensitive but unclassified’ information controls that have popped up over the last decade or so. It treats vulnerability assessments and site security plans as Sensitive Security Information like similar information about chemicals in transit.

Expanding Potential Enforcement Authority

The last change to the original authorizing legislation included in this bill removes ‘sole enforcement’ authority from the Secretary of DHS. This could potentially allow ‘interested parties’ to sue in Federal Court to enforce provisions of the CFATS regulations that are not being ‘adequately enforced’ by the Secretary. This change is probably not sufficient to allow that, but it could allow for changes in the regulations to allow such private law suits. A variety of state and federal laws were written to allow, and even encourage, private law suits to enforce those laws. It helps to reduce the government costs of enforcement. It also makes for unequal enforcement.

Public Discourse

None of the provisions that I have described here seem to be outrageous. They all have their ups and downs. There are legitimate arguments to be made on both sides of the issues. If this bill is to be seriously considered during the 111th Congress (and not all legislation proposed will be considered) it deserves a full public scrutiny and public discussion. It should not be passed in the House on the day before a holiday by voice vote and then included as an obscure section in a spending bill.

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