Reader Comment 10-21-09 Uncertainty

On Wednesday evening our good friend Anonymous posted the following comment to my earlier blog posting on the uncertainty principal in CFATS:

“Lack of certainty isn't only tied to the legislative action. All of CFATS is only a rule based on Section 550. 550 is not very specific. DHS could come out with a proposed new CFATS rule tomorrow with a whole new set of RBPS. It would have to go through the rulemaking process, but it could happen, especially with a new administration.”

Anonymous is legally correct, the broad mandate of the §550 authorization provides a great deal of discretion to the Secretary as to the shape and scope of the resulting regulations. But one does not even have to look for a re-writing of the CFATS regulations, a simple programming change in the Top Screen evaluation program and you could see a significant change in the Tier Ranking System. You could double (or halve) the number of High-Risk facilities with little fanfare and no notice. After all, §550 gives the Secretary sole authority to determine what facilities are at ‘high-risk’ of terrorist attack. This is the conundrum that faces Congress whenever it crafts legislation creating a new regulatory scheme. It can either be very specific in the rules that are to be established or it can provide a broad mandate. A broad mandate gives the Executive branch the maximum flexibility to establish a responsive regulatory framework. A specific set of narrowly crafted requirements almost ensures that the Executive’s regulations will have unnoticed holes and unintended consequences. There are, of course, a wide variety of checks and balances written into our Constitution and reinforced in the regulatory framework established on that base over the years. There are rules that govern the regulatory process and an Administration that violates those rules faces both the wrath of Congress and the Courts. When Congress and the Executive are of the same point of view, the Courts still exist to hamper the potential abuses of power of the majority. And, finally, the voters ultimately control who holds that legislative and executive power. As any student of American history could quickly point out, the system is not perfect and there are numerous examples that could be pointed to as exemplars of the abuse of executive power. The ebb and flow of political power in this country has, however, corrected the most egregious examples of that abuse. This is why business leaders generally behave as if the current regulations will be fairly and reliably enforced. This provides the framework for their long term business decisions. This is one of the unspoken reasons that much of the chemical manufacturing establishment generally opposes sweeping changes to the CFATS regulations. While the current regulations may be expensive and complex, they are at least known. Significant changes in the authority upon which those regulations are based will inevitably result in large and somewhat unpredictable changes in the regulatory scheme in which these companies must work