HR 2868 Revisions Analyzed

As I noted last night, there is a reconciled version of HR 2868 now on the House Rules Committee web site. Sponsored by three committee chairs and three sub-committee chairs, this is clearly the behind the scenes work of a number of committee staffers hopefully with some help from the ISCD people at DHS. Reviewing the New Document I have had a chance to do a detailed review of Title 1, Chemical Facility Security. I’ll take a look at Title 2 and Title 3 over the weekend. This is a lengthy document (171 pages) and to do an effective review I had to compare it to both the Homeland Security Committee and the Energy and Commerce Committee versions of the bill. Title 2, Drinking Water Security, will be a little easier to do since there is only one committee version of HR 3258 that will have to be looked at. I don’t expect to see many revisions others than those necessary to take into account the new provisions in Title 3 for waste water treatment facilities. The two will probably not stand completely separate because of the number of agencies that govern both water treatment and waste water treatment facilities. While I expect that Title 3, Waste Water Treatment Works Security, will be very similar to Title 2, it will have to be looked at very closely. Chairman Oberstar was added as a sponsor because the Transportation and Infrastructure Committee and Ms. Johnson’s Water Resources and Environment Subcommittee have jurisdiction over Waste Water Treatment Works (she is also a co-sponsor of the revised bill). Since this is their first chance to have input on the legislation, I expect that we will find some of their changes in Title 3. The Backbone of Title 1 Title 1 of the ‘new’ HR 2868 is firmly based on the bill amended and reported by the Homeland Security Committee (HSC). This can be seen I the eight sections taken almost word-for-word from the HSC version of the bill. Those sections are:

2101 - Definitions. 2102 - Risk-based designation and ranking of chemical facilities. 2106 - Timely sharing of threat information. 2107 - Enforcement. 2108 - Whistleblower protections. 2109 - Federal preemption. 2114 - Office of Chemical Facility Security. 2118 - Notification system to address public concerns.

Two sections of the revised bill come almost directly from the Energy and Commerce Committee (ECC) version of the bill. Those Sections are:

2115 - Security background checks of covered individuals at certain chemical facilities. 2116 - Citizen enforcement.

The remaining eight sections have substantial revisions made to their language. Four of the revised sections are based substantially on the HSC version and four on the ECC version. Revisions to HSC Sections The following paragraphs were removed from the language from the HSC versions of the indicated sections:

§2103(a)(1)(H) – SVA standards for academic labs; §2103(b)(3) – SSP standards for academic labs; §2103(g)(2)(K) – SSP Emergency Response moved to (J); and §2105(b) – Provision of records to employee reps moved to §2110(b)(2).

The following sections from the HSC version were modified by adding paragraphs from the ECC version of the bill:

§2103(b) – qualifications of participants; §2103(f)(1)(C) – Personnel Surety for MTSA facilities; §2103(g)(2)(J) – Training on mitigation procedures; §2103(g)(3) – Equivalent training provisions; §2104(d) – Adding 100 inspectors in FY2010/2011; §2104(e) – Confidential communications during inspections; §2110(b)(2) – Provisions for sharing info with employee reps; §2110(g)(1)(B)(v) – Protection of drill and training data; and §2113(c) – Allows facility access authorized by other laws or regulations.

Two paragraphs were added to §2112 exempting “any public water system subject to the Safe Drinking Water Act (42 U.S.C. 300f et seq)” and “any treatment works, as defined in section 212 of the Federal Water Pollution Control Act (33 U.S.C. 1292)” from coverage under Title 1 of HR 2868. These were added for obvious reasons. Revisions to ECC Sections There was only one paragraph removed from an ECC section of the proposed bill; §2117(d) – Final agency action provisions. There were three additions to ECC sections that were taken substantially from the HSC version of the legislation:

§2111(b)(1)(A)(i)(IV) – prohibit the switch of hazards to transportation sector; §2111(d) – report on impact on small covered facilities; and §2120(3) – Requiring sodium fluoroacetate review.

Other Revisions There were three other substantial revisions that were made out of whole cloth. These were not arbitrary additions, but items that were some how overlooked in earlier deliberations. They dealt with penalties for information disclosure, evaluation of facility IST assessments, and the interim status of the current CFATS regulations. Section 2110(b)(3) provide specific provisions for penalizing anyone who “discloses protected information in knowing violation of the regulations and orders issued under” these regulations. This section provides that violators “shall be fined under title 18, United States Code, imprisoned for not more than one year, or both, and, in the case of a Federal officeholder or employee, shall be removed from Federal office or employment”. Section 2111(b)(1)(B) addresses the requirement for the Director of the Office of Chemical Security to address in writing the reasons for requiring a facility to implement ‘methods to reduce the consequences of terrorist attack’. An earlier paragraph requires that the decision must be based on the facilities assessment. This paragraph clarifies this by requiring the Director to analyze the facility’s analysis though these is no description of what type of analysis the director is required to do. All of the earlier versions of this legislation terminated the current authorization of the CFATS regulations upon passage of this bill. They then allowed the Secretary 18 months to publish the final rule for implementing this legislation using as much of the current regulations as ‘she’ deemed appropriate. Unfortunately the status of the current regulations in the interim was left in legal limbo. Section 2120(d)(4)(a) allows for the continued enforcement of the current CFATS regulation in the interregnum. Evaluation None of the revisions that were made in this reconciled version of the chemical facility security provisions of HR 2868 produce any major changes in the legislation that will provide anyone with a reason to change their stance on the bill. The changes from the two source versions appear to do a decent job of meshing the two into a bill with reasonable internal consistency. While the final result is not the same as either source, it is true to both of them. That is all that one can ask from this ad hoc process in a democratic system. Now we just wait and see what further revisions can be tacked on and still allow the bill to be passed on the floor of the House. It seems clear to me that the opponents of this bill will probably not be able to stop its passage in the House. Nor do they have the votes to change it to suit their desires. The most they can expect is to slightly modify the provisions that they consider the most onerous. That is what their amendments need to attempt if they want to have any voice in the final product.