Thursday, January 13, 2011

HR 225 Introduced – CFATS

On January 7, 2011 Rep. Jackson-Lee (D, TX) introduced HR 225, the Chemical Facility Security Improvement Act of 2011. Almost exactly two years earlier she introduced a nearly identical bill {‘2009’ vs ‘2011’ and the earlier bill was co-sponsored by Rep. Thompson (D, MS) while this bill has no co-sponsors}, HR 261.

As I noted in my comments about the original bill, there are two separate parts of this bill. The first part {§2(a)}limits the use of federal funds in approving site security plans at CFATS facilities, and the second (much larger) part {§2(b)} fulfills the “other purposes” portion of the long title of this bill. As I noted in my posting about these ‘other purposes’ in the earlier bill, I think that this particular attempted abuse of legislative power, hiding potentially extensive and significant changes in an existing regulatory program behind the words ‘other purposes’, deserves to be dismissed out of hand, regardless of the merits of the suggested changes. See that earlier post for a detailed discussion of those proposed regulatory changes.

Limitation on the Use of Funds

As I explained in my discussion of §2(a) of the earlier bill, this bill would effectively prohibit DHS from approving a CFATS facility Site Security Plan unless it already knew that the facility met any existing State or local chemical facility security regulations. It would change the relationship between Federal, State, and local regulations, making DHS an enforcer of State and local chemical security regulations.

The wording of the bill would certainly not allow DHS to send chemical facility inspectors to a facility to do the post-SSP submission inspection until the Department had determined that it was in compliance with all State and local laws designed to prevent any kind of terrorist attack on the facility. Given the patchwork nature of such regulations, it is not clear how DHS would make this determination and who would be responsible for reporting such compliance.

The phrase ‘No Federal funds may be used’ could even be extended to mean that facilities could not even be allowed to submit an SSP since the operation of the CSAT tool certainly requires the expenditure of ‘Federal funds’. Thus, HR 225 has the potential capability to paralyze the CFATS program.

I certainly understand the desire of communities to establish and enforce higher chemical security or chemical safety standards than those set by the Federal government. This provision, however, goes far beyond the issue of Federal pre-emption; it effectively makes DHS the enforcement arm of potentially 50 States and uncounted regional, county, city and district governments.

This bill saw no committee hearings or other legislative work in the 111th Congress. I suspect it will receive even less consideration in the 112th.

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