HR 2868 and HR 3258 Markup 10-21-09

Today the full House Energy and Commerce Committee conducted a markup hearing on four pieces of legislation, two of which are of direct interest to the chemical security community; HR 2868 and HR 3258. Both bills, after amendment, were individually ordered to be reported favorably. Republican members of the Committee were given the required two days to prepare a minority report on each bill to be submitted as part of the Committee reports. HR 3258 was approved on a voice vote and HR 2868 was approved on a recorded vote of 29-18. In today’s blog I’m just going to look at the revised provisions of HR 2868. I’ll leave HR 3258 for another day. HR 2868 as Amended Mr. Markey (D, MA) offered an amendment ‘in the nature of a substitute’, Congressional short hand for a large number of changes. Most of the changes were minor, technical changes. There were two changes made to the IST provisions of the legislation. The first was small, but significant and the latter was larger and probably not as significant. In the version of the bill reported by the Energy and Environment Subcommittee last week the proposed revision provided for the Director of the Office of Chemical Security to require a facility to implement an IST provision “based in part on an assessment conducted pursuant to subsection (a)” {§2111(b)(1)(A)}. This implied that the Director could ‘make-up’ an IST provision that had not been reviewed by the facility. Mr. Markey’s amendment removed that language, returning to the older version that allowed the Director to require an IST implementation “using the assessment conducted pursuant to subsection (a)”. The second revision was the addition of §2111(c). This provided that the Secretary would provide guidance to ‘Farm Supplies Merchant Wholesalers’ (FSMW), “tools, methodologies or computer software” to aid such wholesalers in complying with the IST requirements of this legislation. Once again, the agricultural special interests have managed to carve out special treatment under the chemical facility security rules. Background Checks for Employee Representatives Only two other amendments to HR 2868 were accepted by the Committee. Mr. Scalise (R, LA) was allowed to add language that required that ‘employee representatives’ that would participate in the security process at a facility would be required to undergo the same background checks as would the employees of the facility with similar access. The inclusion of the words “including any designated employee representatives” to §2115(a)(1)(B)(ii) insure that there is no confusion about the status of labor representatives involved in the security process. Just a quick side note; there should probably be similar language for contractors and consultants, just to be fair. As I noted in my discussion of last year’s HR 5577 employee representative provisions, the regulations for the personnel surety of employee representatives (and contractors and consultants) will be difficult to write and enforce. Labor unions would be very reluctant to provide personal information on their employees to facility management. Would union (contractor, consultant) management then be held responsible for the conduct of the background check? Would they certify that check to the facility security officer or DHS? If there were potentially disqualifying information found in the check would the employer (union, contractor, or consultant) make the access decision or would the facility? These are just some of the tough questions that will have to be addressed in developing these regulations. Agriculture Strikes Again The only other amendment to HR 2868 that was approved today was one offered by Mr. Ross (D, AR) and Mr. Space (D, OH). They wanted further special treatment for the agriculture industry and modified Mr. Markey’s agricultural amendment. They added a grant program to assist FSMW with conducting their IST assessments. They also added ‘aerial commercial applicators’ to the definition of FSMW. They also included language requiring DHS to prepare a report to Congress on the affect of these regulations on FSMW. It would include the number of FSMW that were covered facilities under the CFATS rules and how many of those were Tier 1 and Tier 2 facilities. More importantly it would require the Secretary to identify known IST methods for FSMW that did not require the elimination of pesticides or fertilizers, including the assessment of costs of implementation and the evaluation of technical feasibility. It just goes to show that the conventional chemical industry (ACC, SOCMA, NPRA, etc) are rank amateurs in their lobbying efforts. Instead of lobbying against the IST provisions that they objected to, they just should have insisted that DHS do the assessments for them, being careful not to identify anything that would require them to give up any hazardous or toxic chemicals, and then provide the chemical industry grants for using the DHS assessments. The Way Forward The Energy and Commerce Committee report cannot be filed before the 23rd. When the report is filed, there will be two different ‘as amended’ versions of the bill. I do not know how the differences will be resolved. I assume that there will be some sort of ad hoc committee formed to ‘reconcile’ the two versions of the bill. That will provide a third report on the bill. There is a long way to go before we will know how this bill will turn out. It is not clear that this bill can clear the House before Congress adjourns for the year. If the bill has not completed its journey through both the House and the Senate before that date, the whole process will start all over again next year.