HR 2868 Status – 07-31-09

As everyone expected neither the House Judiciary Committee nor the House Energy and Commerce Committee got around to holding hearings on HR 2868 prior to the House departure for a five week working vacation. One of the last acts of the House leadership last Friday was to grant both committees ‘an extension for further consideration’ on that bill with a new completion date of September 30, 2009. Since the House returns to Washington on September 8th, this should provide both committees with an adequate amount of time to hold an appropriate hearing and to mark-up the bill. Neither committee is expected to make major changes, though I do expect that the Energy and Commerce mark-up will include language exempting water treatment facilities from coverage. This would only make sense given their introduction of HR 3258 providing for security at those facilities. One additional point that I’ll include here so as to avoid having another very short blog on a similar subject; the DHS budget bill (HR 2892) has not yet been passed and signed into law. This means that the current CFATS authorization still terminates shortly after October 1st. Both the House and the Senate have passed differing versions of the bill. The Senate has appointed their conference committee members (on July 9th) but the House has yet to do so. I have not heard anything about why Pelosi has yet to name the conferees. Until a conference committee can meet to iron out the differences between the two bills (and both houses pass the conferenced bill) there is still no guarantee that CFATS will be allowed to continue. While most observers assume that the CFATS provision will remain in the bill (there has been no significant opposition), it is not certain that the bill will be passed before October first. In that case a continuing resolution would be necessary. I have heard from at least a couple of lawyers that such a resolution would keep CFATS in effect even if it is not specifically mentioned, but it would still be disheartening for the fine folks over at Infrastructure Security Compliance Division and open the door to potential legal challenges.