CFATS Legislation Update

Back in the last week of February the American Bar Association had their 4th Annual Homeland Security Law Institute. Unfortunately I don’t have a travel and entertaining budget that would allow me to attend events like this, no matter how much I would like to. Fortunately, I do have a variety of readers that do attend events like this and they do share information that they hear and see at such events. Most of them attend on corporate or government accounts and cannot allow me to quote or identify them in my blog. So, with that explanation, here is my outlook based on the second and third hand accounts of what came out about potential CFATS re-authorization legislation this year. House Action Much of the information here mirrored that that came out at the Homeland Security Policy Institute at George Washington University the week before. Drafts of the legislation are circulating between the two committees (Homeland Security and Energy and Commerce) and their staffs. According to reports by Homeland Security Committee staffers, the markups should be done before the Memorial Day recess. This could bring the bill to the House floor before the July 4th recess. Senate Action The Senate is a different story. There has been no word, official or unofficial, coming out the Senate committee on any work being done on CFATS re-authorization legislation. This may be part of the residual fall-out between Senators Collins and Lieberman over the 2006 IST debate in the Senate Homeland Security committee. In any case, it has been reported that Michael Bopp, the former staff director for Sen. Collins, thought that the CFATS re-authorization legislation would be too controversial for the Senate to take up. Presidential Priorities While enacting permanent chemical facility security legislation is one of the ‘priorities’ listed on the White House Homeland Security page, it is not clear that it remains a priority for the President this year. For example, PJ Crowley, a homeland security advisor to the President, did not include it on his list of legislative priorities presented at the ABA Conference. Without Executive Branch pressure it is unlikely that a House passed bill will clear the Senate. What If? There are a couple of different scenarios that could play out from this combination of political forces. First there could be no action on re-authorization and CFATS would die in October. Second a one year extension of the current authorization could be added to the 2010 authorization bill, putting off the debate for another year. A more remote possibility would be that the House could craft a bill with an IST provision that would be acceptable to most of the chemical industry; such a bill could probably be passed by the Senate. The first possibility would stop the CFATS process before it was anywhere near complete. Facilities would not spend money on expensive security measures that would no longer be required without the regulations in forces. DHS would not have sufficient time to take enforcement actions. This would be a severe set back for the chemical facility security process. Under the second case would allow most facilities to complete their site security plans and implement all but the longest lead time projects. Some facilities, however, will use the uncertainty of continuing the regulations to justify not completing their work on facility security. They will be betting that the enforcement process will not be able to go to completion prior to the expiration of the extended bill. The final possibility would provide for the most continuity for the facility security program. It would allow for the current CFATS process to go through to completion and the added IST provisions could be applied over that format. Of course it would require that both sides of the IST debate realize that it need not be an either/or proposition. And it would require some work and compromise on both sides to bring it about.