CFATA Hearing Review

While I did get a chance to watch the CFATA hearing before the House Homeland Security Committee on Tuesday (as my TWITTER followers know) I have had limited opportunities to sit down and put my thoughts and observations together. So, better late than never, here is what I thought about the hearing. The Witnesses The first panel to testify was the dynamic duo from DHS, Deputy Under Secretary Philip Reitinger, and the Director of Infrastructure Security Compliance, Sue Armstrong. All kidding aside the two did provide good representation for the Department. Mr. Reitinger provided the high-level, policy responses while Ms Armstrong provided detailed responses about the current CFATS program. Interesting note: Committee Members did have problems with titles for these two witnesses; more than one promoted Ms Armstrong to Under Secretary. The second panel was not the balanced, pro and con, collection that one typically sees in policy discussion hearings. Chairman Thompson had three high-level opponents to many of the CFATS provisions; Vice President Marty Durbin of the American Chemistry Council, Dr. Neal Langerman representing the American Chemical Society, and Martin Jeppeson the Director for Regulatory Affairs for the California Ammonia Company. There was one semi-advocate for inherently safer technology (IST). Assistant Dirctor Paul Baldauf of the New Jersey Department of Environmental Protection is responsible for the implementation of the New Jersey IST program, but is not one of the nationally known proponents of the IST program proposed in CFATA. It looked like Chairman Thompson was bending over backwards to give his opponents their day ‘in court’. Unusual Bipartisan Opposition While Chairman Thompson included a comment about his hope to be able to continue to build bipartisan support for legislation that has been a hallmark of the Committee during this session, he was hit almost immediately with a comment by the Ranking Member, Congressman King (R,NY) supporting President Obama’s call for a one year extension of the current CFATS regulations. The other Republicans on the Committee that were present were unanimous in their support for the President’s position. Mr. Reitinger confirmed that the Administrations inclusion of the one year extension for CFATS in their budget request was put their to allow DHS to fully implement CFATS and then work with Congress to make any necessary changes. This contradicted Chairman Thompson’s brief contention that the one year extension in the budget was a back-stop to make sure that CFATS would not expire if Congress did not pass reauthorization legislation before October. A New Controversy Before this hearing the main controversy with the proposed reauthorization language was the inherently safer technology (IST) provision that the Democrats had been trying to include in the security regulations since 2005. While there was some perfunctory discussion of IST during the hearing, the bulk of the discussion centered around the new provision to make its way into this year’s bill, §2116 Citizen Lawsuits. This provision would allow people without direct legal interest in the matter to sue in Federal District Court to enforce provision of the bill. Not unexpectedly, the industry representatives on the panel and the Republican members of the Committee were adamant in their opposition. They were joined, again, by Deputy Under Secretary Reitinger. In his opening statement he explained that the Department “has significant concerns with the citizen suit provision” (pg 6 ) included in the legislation. Under questioning, he refused to go into the details of that concern because the Department had not had adequate time to review the legislation that had just been introduced the evening before. Other Interesting Data While most of the hearings of this type are necessary political theater with no one really listening to the questions or answers there were a few interesting tidbits of information that did come out. As one would expect these items came from Ms Armstrong:

Tier 2 notification letters would go out by the end of this month. The first Tier 1 facility inspection would take place in 1 Qtr FY 2010. DHS S&T people are currently doing a literature search on IST technology. There have been 365 full and 135 partial MTSA exemptions claimed under CFATS.

There was one interesting policy suggestion made by Mr. Pascrell (D, NJ). He suggested that DHS might consider allowing state enforcement of CFATS. It will be interesting to see if this makes it into one of the proposed amendments to this legislation. There was little heat in the discussions, but there was very little exchange of ideas. This is too typical of Congressional hearings. Representatives ask questions, but do not really listen to the answers. They especially do not listen to the questions (and responses to those questions) asked by other Representatives. I will give all of these witnesses credit though, there were attempts to answer each of the questions asked instead of responding with talking points.