HR 901 Introduced – CFATS Extension

As I noted in an earlier blog Rep. Lungren (R, CA), along with House Homeland Security Chairman King and six Republican members of that Committee, introduced HR 901, the Chemical Facility Anti-Terrorism Security Authorization Act of 2011, this week. The bill essentially re-writes the authorization language of §550 of the Homeland Security Appropriations Act of 2007 (PL 109-295) as an amendment to the Homeland Security Act of 2002. The GPO has yet to print the official copy of this bill, but a committee draft is available.

CFATS Extension

This legislation would essentially reauthorize the current CFATS regulations through September 30th, 2018. It also authorizes the appropriation for the support of these regulations the sum of $93 Million per year through FY 2018.

Anti-Terrorism Focus

Beyond formatting differences there are just a few differences between this legislation and the §550 authorization language. For example the original authorization never mentioned the words ‘terrorism’ or ‘terrorist attack’. Technically, this would have allowed for the expansion of the security program to include the prevention of thefts of chemicals for economic gain or for the manufacture of illegal drugs like methamphetamines. This legislation specifically establishes that the focus of these regulations is “to protect chemical facilities against terrorism and potential terrorist attacks” {§2101(a)}.

This change will have no practical effect on the current regulations. The provisions of 6 CFR part 27 are clearly written to be anti-terrorism regulations. It would, however, reduce the flexibility of DHS to adapt those regulations in the future to other security threats that may arise. DHS would have to go back to Congress to get such authorization if this legislation passes as written.

No Specific Security Measure

This legislation would continue to prohibit the Secretary from disapproving a site security plan “based on the presence or absence of a particular security measure” {§2101(d)(2)}. This is almost certainly going to cause problems when the Department finally gets around to rolling out its personnel surety program as it will prohibit the Secretary from requiring any high-risk chemical facility to use the screening methodology established by the Department based on the TSA terrorism screening data base. The problems would also occur under the current authorization which may be part of the reason for the current delay in rolling out that background screening program.

Information Sharing

In addressing information sharing with State and local governments, the current authorization “does not prohibit the sharing of such information, as the Secretary deems appropriate, with State and local government officials possessing the necessary security clearances, including law enforcement officials [emphasis added] and first responders” {§550(c)}. That wording has been modified in this bill to read “does not prohibit the sharing of such information, as the Secretary determines appropriate, with State and local government officials possessing the appropriate security clearances, including emergency response providers [emphasis added]” {§2102(b)(1)}.

Since in common usage the term ‘emergency response providers’ is focused on fire and rescue personnel this language would seem to exempt law enforcement personnel from the requirement from having ‘necessary security clearances’. This would codify the current DHS interpretation that allows for some security program information sharing with law enforcement personnel without a requirement for police officers to have a security clearance.

There is another information sharing provision included in this legislation that was not included in the original authorizing language. Section 2102(b)(2) states that:

“CONGRESS.—Nothing in this title shall permit or authorize the withholding of information from Congress or any committee or subcommittee thereof.”

While this provision is certainly useful, it does nothing to address the issues raised in the fiasco that arose when Bayer CropScience tried to restrict access to information by the Chemical Safety Board during the CSB investigation of the fatal accident at the company’s facility outside of Institute, WV. The language of this section should be modified to specifically address the sharing of information with the CSB and other Federal investigative agencies.

No IST Provisions

No one who is familiar with the inherently safer technology (IST) debate that has been on-going in Congress since almost September 12th, 2001 will be surprised to note that there is absolutely no reference to IST in this legislation. In fact, IST proponents have been quick to point out that this bill continues to prohibit DHS from requiring any form of IST.

Unfortunately, this studious avoidance of the IST issue continues to prohibit DHS from addressing the issue of risk transference. Currently there are significant financial incentives for facilities to move inventories of DHS chemicals-of-interest (COI) off-site to avoid being covered by CFATS or being assigned to a lower tier level ranking. This could include the switch from rail-car shipments of COI to more frequent smaller shipments by truck. This has the effect of increasing both the safety and security risk associated with those shipments.

While I understand (but don’t necessarily agree with) the opposition to an IST mandate in the CFATS program DHS needs to be given the authority to remove the financial incentive to transfer security risk from regulated facilities to unregulated areas like transportation. This could be done by specifically requiring the Secretary to consider risk transference when re-evaluating a facility’s security situation for determining whether or not a change in tier level or removal from the list of high-risk facilities is an appropriate response to changes in the facility’s security situation.

The Way Forward

There is little doubt that this bill will find little difficulties in being approved by the House Homeland Security Committee. Reauthorization of CFATS has been a priority for Chairman King and relatively quick action is expected in his Committee. It is less clear that it will be a priority for the Energy and Commerce Committee. I don’t expect any significant opposition there, just a different set of legislative priorities.

Passage in the full House is probably assured. If an open rule is provided for this bill, there will be a lengthy debate as people try to add provisions for IST mandates, whistleblower protections, employee participation and any number of other chemical safety and security provisions. Based upon the HR 1 debate, it is apparent that some of these provisions, depending on specific language, have the potential to be added to the bill.

Debate in the Senate is going to be even more problematic. There would problems with getting this straight reauthorization language past the Senate Homeland Security Committee, especially with a bill crafted by the Ranking Member of that Committee, Sen. Collins (R, ME) actively under consideration. It would never survive in its current form in a floor debate in the Senate. Some sort of accommodation with labor and environmental interests will have to be reached for this bill to pass in that body.