Reader Comments – 03-09-09 – CFATS Alternatives

Yesterday another (or maybe the same, who knows) Anonymous reader posted a comment about my blog on the CFATS re-authorization legislation. The comment, in its entirety is listed below.

“....or a bill could be passed that strips out the sunset date. Even if nothing is done, if money is appropriated for the program, that should suffice legally to continue the program even without explicit reauthorization.”

Anonymous is certainly correct; I only gave three potential ways for Congress to deal with the re-authorization issue when I discussed the possible consequences. There are certainly more creative ways for Congress to partially deal with this issue. Lets look at the two suggested by Anonymous.

Amend CFATS Authorization 

The §550 authorization could be amended by either stripping out the wording in §550(b) that terminates the authorization in three years from the date of passage (“Provided, That the authority provided by this section shall terminate three years after the date of enactment of this Act.”). The wording could also be changed to read ‘four years’ or ‘five years’ or what ever number one cares to substitute. Either amendment would extend CFATS. Such an amendment would not need to be in a ‘CFATS’ bill. By common usage and the rules of the House, it would have to be in a bill that related to Homeland Security and preferably infrastructure protection.

Typically this would be slipped into a bill like the Homeland Security appropriation bill, but it could show up in just about anything. This is one of the reasons that I read almost all of the homeland security related bills. An extension of a year would put it passed the current economic problems (hopefully) and into a period when Congress could devote more time to the various issues involved.

Two years would put it on the 112th Congress with what ever personnel and party power changes that comes with that. Removing the ‘sunset’ provision from §550 would leave the current structure in place and leave Congress to modify it in a piecemeal manner. Many of the other changes included in last year’s HR 5577 could be handled on a stand alone basis without major fights in Congress. While the other provisions are not supported by everyone, they do not generate the same level of controversy as IST provisions.

Ignore the Sunset Provision 

I have heard this proposal on other occasions. It is believed that simply authorizing money for the use of the program is all that is needed to allow the program to continue. In other words there is a de facto rather than de jure extension of the program. I am not a lawyer, and certainly not a constitutional authority, so I cannot provide a definitive comment on this idea. Having said that I think that with the level of discussion involved in the October 2009 expiration of the CFATS authorization will ensure that any back door authorization will generate a high level controversy.

Many facilities can be expected to try to avoid the expenditure of large sums of money on apparently unneeded security measures based on the sunset provisions clearly stated in §550. The resulting court and political battles would do little to make chemical facilities more secure. If Congress is going to simply extend the current authorization, I believe that they ought to at least specifically address that extension rather than just adding one more line to the budget authorization.