Reader Comment 03-16-10 Is HR 2868 Dead

There was an interesting reader comment from Anonymous posted yesterday to my earlier blog about whether CFATS is dying. The writer made some comments about how some readers could equate CFATS and HR 2868 as being the same thing, even though that isn’t actually correct. Then Anonymous asks me: “So the question, perhaps, remains --- is HR 2868 (and it's Senate version) dead? ie: Will the bill go to the President for signature?” DHS to Draft CFATS Legislation I believe that, after watching the webcast of the Senate Homeland Security and Governmental Operations Committee hearing on March 3rd, HR 2868, as passed in the House, will not be considered or reported by that Committee. Sen. Lieberman’s comments to Secretary Beers about the DHS draft of legislation for making CFATS permanent indicates that it will be that DHS document that the Committee will consider, mark-up and report. Now I have not yet seen a copy of that draft (nor has it apparently yet been approved by the White House) so I don’t know how much it differs from HR 2868 (as passed in the House). I would bet that there are significant differences or the Department would not be offering this draft for the Senate to consider. I would think that the Department’s bill would make it clearer that the current rules would remain in place and enforce until they were modified by subsequent regulations. I would also bet that the Department would phase in the new requirements (whatever they are) by Tier; with Tier 1 facilities being required to implement first. Legislative Process Now, let’s look at the mechanics of how the ‘DHS’ bill would be handled in the halls of Congress. First it is remotely possible that Sen. Lieberman would introduce an entirely new bill based on the DHS language. There is a certain amount of propriety associated with doing things this way, since it is really entirely new legislation. Unfortunately, politics is usually messier than this. What is more likely to happen is that Sen. Lieberman would call for the Committee to conduct a Mark-Up hearing on HR 2868. The first amendment to be considered would be for the Chairman to offer an ‘amendment in the form of a substitute’. This would allow everything but the bill number to be erased and the DHS language to be substituted for the House language. After appropriate additional amendments and modifications the new HR 2868 (DHS version) would be reported favorably to the floor of the Senate. There it would undergo additional modifications and amendments. When (or more appropriately if) the final Senate version of HR 2868 is passed it is likely to be completely unrecognizable to those members who voted in favor of HR 2868 last November. But, it will have been passed on both houses, so it will go to a Conference Committee to work out the ‘differences’ between the two bills. That Committee will revise and amend the bill to a form that the managers (probably Sen. Lieberman and Rep. Thompson) feel can pass in their respective bodies. Typically, the Conference Report version of the legislation will then be passed in each the House and the Senate. If that happens, it then goes to the President for signing into law (or veto). It does rarely happen that the managers misgauge the attitude of their respective body and the conference reported bill get further modifications in one or both houses. Then, further back and forth is needed to get both bodies to finally vote on the same language to pass the bill. This could happen with the CFATS legislation being written by DHS. I don’t believe however, that such a bill would get White House clearance in time to get through the wheels of the process in the Senate before the summer recess. With the fall elections staring Congress in the face nothing of substance will get done between the summer recess and the elections. Then there is the question of a post-election session of the lame-duck Congress. If the Democrats loose (or substantially loose) control of the House and/or the Senate in the fall elections, there might be an attempt by the Democratic Leadership to push through consideration of a new CFATS bill (this is how CFATS actually got established after the Republicans lost control of the House). I firmly believe that such a lame duck push will be rebuffed in the Senate. If the Democrats retain substantial control of both houses, then CFATS is likely to be shelved until the 112th Congress. HR 2868 is Dead So the short answer to the original question is that I truly believe that HR 2868 is dead. I don’t think that the White House has the political will (or time) to get their draft legislation approved and sent to Sen. Lieberman in time for it to be acted upon before the summer recess. Any CFATS legislation reported out of the Homeland Security Committee after the return from that recess will spend time in political purgatory to face re-birth in the 112th Congress. Oh yes. As an important sidelight to that question, the one year extension of CFATS will certainly be included in the final version of the FY 2011 DHS Budget bill, so CFATS will survive for another year (and probably continue to do so until a reasonable compromise on many CFATS issues are worked out). HR 2868 is dead… Long Live CFATS.