HR 901 Marked Up in Sub-Committee

As noted in yesterday’s blog post, the Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies of the House Homeland Security Committee held a mark-up of HR 901, the Chemical Facility Anti-Terrorism Security Authorization Act of 2011, that was sponsored by Chairman Lungren. The Subcommittee made no changes to the bill and voted to favorably recommend the Full Committee.

HR 901 Provisions

HR 901 is the middle ground legislation of the three CFATS extension bills currently under consideration in the House. It goes further than HR 908 in that it takes the current CFATS authorization out of the appropriations bill and re-writes the current authorization as an amendment to the Homeland Security Act of 2002. This would change the primary oversight authority in the House to solely a responsibility of the Homeland Security Committee.

As I mentioned in my initial blog on this bill, that there are some other minor changes in the wording of the authorization language, but nothing that would require any significant changes to the CFATS process. It would authorize continuation of the current CFATS program through September 30th, 2018.

Chairman Lungren made it clear in his opening statement that he wants no changes made to the current program. He noted that:

“Although implementation has been slower than Congress wanted, CFATS is working [sic]. It is building a foundation of security in the chemical industry which will protect our citizens and our economy from future terror attacks. Is it a perfect plan? No. Are there gaps? Probably. But our priority should be to extend this working chemical security program and not allow the perfect plan to be the enemy of the good.” (Pages 1-2)

Amendments Offered

Three minor amendments were offered by Democratic members of the Subcommittee. The three amendments addressed issues of facility coverage, process safety, and employee participation in the development of security plans.

Rep. Clarke (D, NY) offered an amendment expanding the coverage of the CFATS program. Her amendment would have continued the current exemption for CFATS coverage only for DOD and DOE owned or operated facilities. In order to avoid further overtaxing the folks at ISCD, the amendment would have required the Secretary to delegate CFATS authority to:

• The Nuclear Regulatory Commission (NRC) for those facilities currently “subject to regulation by the Nuclear Regulatory Commission” {§2101(b)(3)(A)};

• The Commandant of the Coast Guard for facilities currently covered under the Maritime Transportation Security Act (MTSA); and

• The Administrator of the EPA for water treatment and waste water treatment facilities.

Rep. Richardson’s (D, CA) amendment would have required the CFATS regulations to add “requirements for chemical facility process safety reviews” {§2101(a)(3)}. Typically those requirements are covered under less than effective EPA and OSHA regulations. A large number of the CFATS covered facilities do not fall under those regulations for a variety of reasons. The term was not defined, but would have allowed the CFATS regulations to include inherently safer technology provisions as those provisions are really process safety issues.

Rep. Richmond (D, LA) would have required employee participation in “developing, revising, updating, or implementing a chemical facility security vulnerability assessment or site security plan” {§2101(f)}. This has been a priority for Democrats for some time as they maintain that hourly employees understand what actually goes on in the facility better than does management. There would be less management objection to these provisions if they did not mandate union involvement in the process, though Union involvement in work-rule development in support of the security requirements would be difficult to avoid at facilities covered by labor agreements.

All three amendments were voted down on straight party-line votes.

Moving Forward

The bill will next be considered by the full committee. I expect that there will be other amendments offered in the full committee mark-up that will touch on these issues. And they are just a certainly going to fail on party-line votes. It would be interesting, however, to see how an employee participation provision that does not specifically require union representation in the process would fare.

COMMITTEE WEB SITE NOTE: Readers might be surprised that I did not give more advanced notice of this mark-up hearing. It wasn’t because the Committee web site didn’t provide notice; it was because they keep mark-up meeting notices on a separate web page from their hearing notices. Most committees combine those notices on the same page. I’ll watch both Homeland Security Committee pages from now on.