More Chem Security Details from Omnibus Appropriations Act

NOTE: While I was working on this blog posting last night AP began reporting that Sen. Reid (D, NV) was no longer planning on bringing this amendment to a floor vote due to the lack of enough Republican votes to get a cloture vote. It now appears that the Senate Appropriations Committee will be working on a short term Continuing Resolution with a termination date sometime next February. This whole appropriations thing is far from resolved. I’m still posting this to show what has been under consideration.

As promised I have had a chance to review the DHS explanatory statements from the Congressional Record for December 14th. The Senate Appropriations Committee web site now has a link to the 2nd part of that statement covering the remainder of the bill. The DHS portion of the statement can be found at pages S9709 to S9733 (to view individual pages go to this page and insert the specific page number in the block at the bottom of the page).

Reports Required

The explanatory statement includes requirements for number of reports to Congress about various parts of the CFATS program and other chemical security related programs. The required reports include specific reports listed in the statement and reports included by reference to the Senate Report on S 3607 (Senate Report 111-222). Subjects include:

• Status of expedited hiring of chemical facility inspectors (delayed again this year because of the lack of a DHS spending bill) (Senate Report pg 98)
• Status of “the plans to resolve the differences between and standardize risk evaluations for chemical facilities regulated under Chemical Facility Anti-Terrorism Standards and the Maritime Transportation Security Act” (S9709)
• The “the feasibility and merits of establishing a Deputy Assistant Secretary for Surface Transportation to lead the security programs and personnel for non-aviation transportation security” (S9714)
• The process to expedite industrial control system security standards development (S9717)

CFATS Requirements

The Senate Report specifically mentions the amount of money to be spent on the ‘infrastructure security compliance’ within the Infrastructure Protection Mitigation Programs budget listing. This is the $105 million figure that I have previously reported. The Report notes (pg 97) that this funding “includes the chemical facility and ammonium nitrate security programs”. Interestingly the Department has yet to produce the first draft of the regulations establishing that ammonium nitrate security program, a program that Congress directed to be in place in 2008. The problem that ISCD is having with the political reviews within the Administration bodes ill for the public consideration that this program will receive when the NPRM is finally published.

Both the explanatory notes (page S9716) and the Senate Report (pg 98) take the unusual step of looking at a specific CFATS SSP review measure. While Congress has specifically denied the Secretary the authority to require specific security measures, Senate would direct the Secretary (under RBPS #9) to “consider whether or not a covered facility has an effective communications mechanism between the facility and local law enforcement and other first responders”. The Report goes into some level of detail about a ‘dedicated telecommunications system’ between the covered facility and the ‘local public safety answering point’. These provisions have undoubtedly been inspired by the problems of public-private emergency communications that have been seen in the many recent chemical release incidents in and around Institute, WV.

Moving Forward

As I mentioned in the prefatory note to this post, it looks like the Omnibus Appropriations Act has been still born. It will be interesting to see if any of this language makes it into the Continuing Resolution that is being developed in the Senate. There is a deadline of Saturday for getting something done. It could include a very short term CR to give people time to draft an intermediate term (February) CR, or it could even end up being a vote to pass the House version of HR 3082.

The open question is how many of these provisions from the deceased Omnibus Appropriations Act will make it into any new Continuing Resolution. There are obviously people on the Senate Appropriations Committee (and perhaps its staff) that really want these measures to be included in an appropriations bill. Since there is an open question about how these provisions might survive in the 112th Congress, the provisions may yet make their way into any legislation funding DHS, no matter what the time fram.

At this point there is no telling what is going to happen.