HR 2868 Amendments

The Rules Committee has posted a summary of the 20 amendments that it had received by yesterday’s deadline for their consideration in formulating the rule that will be used to consider HR 2868 on the floor of the House later this week. The actual amendments are not currently available, so I can’t go into any great detail on their provisions, but I will take a general look at what is available and make my predictions on what would happen if they make it to the floor discussion. Doomed Amendments There are a number of amendments that have been proposed by Republican members of either the Energy and Commerce Committee or Homeland Security Committee that are almost certainly pro-forma amendments that are doomed to failure before they are even debated. Most of these were already voted down on a party line vote in committee. I’ll put these into three groups; anti-IST, anti-citizen enforcement or pro-CFATS Extension. There are a number of amendments that fall into the anti-IST category in that they would void or greatly restrict the provisions of §2111. These include: Austria (R, OH) #6, Barton (R, TX) #14, #16, #18, #20, Dent (R, PA) #5, and Upton (R, MI) #17. I would expect that two or maybe three of these would get to the floor for consideration. There are two anti-citizen enforcement provisions; McCaul (R, TX) #1, and Upton (R, MI) #15. One of these should make it to a floor vote. Then there are two amendments that would strike Title I of the bill and simply extend the current CFATS authorization; Dent (R, PA) #4, and Olson(X, TX) #9. Depending on the wording of the actual length of the extension, both bills might make it to a floor vote. Possible to Pass Once again, I am only able to see summaries, so I can only make a semi-educated guess as to which of the remaining amendments have a chance to pass a floor vote. This will be almost as accurate as a football bowl pool list; you don’t go for absolute accuracy, just play the percentages. The only Republican amendment left on the list is amendment #3 submitted by Rep. Flake (R, AZ). He has been a single minded crusader against earmarks this year and his amendment reflects that; it would prohibit earmarks of DHS grants established under this legislation. Since there are no earmarks in the current bill, it might pass. A shoe-in for passage on the floor is the amendment submitted by Chairman Thompson. This will make “a number of technical corrections and fixes typos and verbiage issues”. These almost always pass. The next best chance for floor passage is amendment #10 from Rep Hastings (D, FL). It would establish the position of Deputy Director of the Office of Chemical Facility Security responsible for interagency coordination and liaising with State and local government officials. Not only is this probably necessary, but it is added bureaucracy, always a good bet in legislation. Another good bet for passage is a GAO report required by amendment #8 submitted by Rep Titus (D, NV). This would require GAO to “determine best practices for transporting the chemicals that are used and produced at the facilities covered by the underlying legislation”. While this may sound like a straight hazmat transportation issue it may be an effort by the American Railroad Association to get the government to side with it its arguments with shipper reference hazmat liability issues. If the later is the case, the chances of passage go down significantly. There are two IST amendments that have a chance of passing. The first is from Rep Schrader (D, OR) and Kissell (D, NC) that would require DHS to report on the potential impacts of the IST provisions on ‘manufacturers or retailers of pesticide or fertilizer’. Studies only require time and effort on the part of DHS so this will probably pass. Rep. Cardoza’s (D, CA) amendment would require the Administrator to choose between the lower cost IST alternatives. This may not pass because it apparently ignores the fact that the Administrator will seldom make this decision, State officials will. Members may not see that distinction though so it still may pass. I know, I’m waffling. Amendment #2, submitted by Rep Halvorson (D, IL) was almost a waste of time to submit. According to the summary it would “permit [emphasis added] the Secretary to provide guidance, tools, methodologies, or software to assist small covered chemical facilities in complying with the security requirements”. Permit, but not require; it can’t hurt anyone so it should pass. Rep Marshall (D, GA) submitted amendment #7 that would “provide for the use of E-Verify as an additional measure designed to verify and validate legal authorization to work in the U.S.” as part of the background check provisions of §2115. This should pass because no one wants illegal to take good paying jobs that might be security related positions. Deserves to Fail The only remaining amendment listed on the Rules Committee web page is one that deserves to fail in my opinion. It is amendment #8 by Rep Foster (D, IL) and Lujan (D, NM) that gives special treatment to university and academic labs. It would require the Secretary to develop “appropriate protocols and security procedures” for these facilities if they were determined to be high-risk facilities. It is interesting that just before I read these summaries of amendments I had an exchange of emails with a PHD chemist who was concerned about a letter he had received from the American Chemical Society that included a brief letter that they wanted him to send to his representative about the upcoming consideration for HR 2868. He sent it to me because he objected to the following passage about academic labs:

“The Chemical Facility Anti-Terrorism Act of 2009 (H.R. 2868) is expected to direct the Department of Homeland Security (DHS) to design separate regulations for academic laboratories. As member of the American Chemical Society, I strongly support this regulatory distinction. Laboratories operate much differently than manufacturing sites. They often use more kinds of chemicals, but at much smaller amounts, on different timescales, and in experiments and processes that are frequently modified. This measure reduces the possibility that academic labs, a wellspring of our nation's scientific and technological innovation, would be forced to grapple with rules intended for industrial-scale facilities.”

He objected because he knows from personal experience that many (more probably most) academic labs suffer a severe blind spot when it comes to both safety and security. Now I have only been in one University chemistry lab (where I got my BS degree), but this reader confirms what I have heard from a number of graduates from a number of different universities, that university people dislike the inconvenience of security measures. They get in the way. The problem is that beyond the Top Screen, only facilities with significant amounts of dangerous chemicals are covered by the CFATS regulations. If a facility is determined to be a covered facility it needs to have rigorous security measures in place. It doesn’t matter if it is a university lab or chemical manufacturing facility, or a water treatment facility. If the risk is there the security measures need to be there. This is just one more instance of another group thinking that their place in life or society is more important than everyone else’s. They are demanding special attention because they are special. If they put our safety at risk, it is just too bad. It just gets in their way to try to establish minimal levels of security. This demand for special attention deserves the same treatment as all other such requests; a quick and firm denial. Moving Forward The Rules Committee will meet this afternoon and decide which of these amendments will make it to the floor. They will then craft a resolution explaining how the debate will be conducted. That resolution will not be printed at the GPO until tomorrow afternoon at the earliest. Fortunately the Rules Committee realizes this and will post a copy on their web site this evening. When that happens I will prepare a brief post outlining the rule. Then we wait and see when the matter actually comes to the floor. I keep hearing Wednesday, but that never comes directly from anyone in the Democratic House Leadership, so we don’t know for sure yet. Maybe we will hear something today.