HR 908 Amended and Passed In Committee

As expected the House Energy and Commerce Committee amended and reported favorably on HR 908. With a final vote of 33 – 16, the supporters of this bill can claim bipartisan support, but there is nothing here that labor or environmentalists will find even minimally acceptable.

Two Amendments Adopted

The Committee approved two amendments, both proposed by Rep. Shimkus (R, IL). The first deals with background checks while the second modifies the dates listed in the bill to provide for a full six year extension of the bill. The original bill showed the current expiration of §550 as October 4, 2010 and extended it until October 4, 2017. The date changing amendment corrected the current expiration to 2011 as provided in the FY 2011 budget bill. Then it modified the new expiration date to so that the full extension of the bill would match the original intent of the bill. Rep. Green (D, TX) attempted to reduce this by two years, but his amendment to the amendment was rejected.

The background check amendment adds language to §550 that specifically states that no “security background check is required under this section for an individual holding a valid transportation security card [a Transportation Workers Identification Credential (TWIC)] issued under section 70105 of title 46, United States Code” {§3(i)(1)}. If that wasn’t clear enough it goes on to state that a facility owner/operator can allow individuals with a TWIC or a ‘qualifying alternate security background check’ to “have access to restricted areas or critical assets of such facility without the satisfaction of any other additional requirements” {§3(i)(3)}.

There is an added provision that will certainly draw the ire of organized labor. The final sub-paragraph of the amendment states that:

“Nothing in this subsection shall be construed to prohibit an owner or operator of a chemical facility from requiring, for reasons other than compliance with this section, that prospective or current employees or contractors undergo any additional background checks in addition to that required under the risk-based performance standards issued under this section.” {§3(i)(4)(B)}.

Labor organizations have been complaining that the CFATS background check requirements, vague as they are, would/could be used by management to retaliate against labor organizers or union members. This provision along with the lack of specific language on redress procedures (currently loosely covered under § 70105 title 46 USC) will be seen by labor leaders as another justification for their concern about CFATS. I think that the wording of the Shimkus amendment attempted to deal with that concern, but I doubt that the opposition will see the subtle wording as adequate.

Major Changes Attempted

Ranking Member Waxman (D, CA) attempted to completely rewrite the legislation with his amendment. Unfortunately, the copy of the Waxman amendment provided on the Committee web site has been corrupted some how; many pages appear to be missing. It appears though that he intended to replace the §550 authorization with a bill similar to that passed in the House in the last session. The limited number of pages provided do not allow me to determine if the amendment actually included coverage of water treatment facilities.

It is not surprising that the Republican controlled Committee did not approve the Waxman amendment. The final vote was 18 – 26 on this amendment. I would assume that it was a party line vote, but we can’t tell as the Committee web site does not list the actual votes of the members only the total numbers. We’ll have to wait to see the Committee report to be sure. I will say that the Committee web site for this markup does not appear to comply with the intent of the new Republican rules for an ‘open’ Congress.

Minor Changes Attempted

The remaining amendments offered by the Democrats were relatively modest, and expected, changes to the wording of §550. The most controversial was offered by Rep. Waxman; he proposed to require that the Secretary either approve or disapprove a site security plan within 180 days of submission. Anyone seeing the current pace of the SSP approval process can understand the reason for this proposed amendment. Unfortunately, I think that this amendment probably would have been counter-productive, resulting in disapproved SSPs instead of the current procedure of DHS working with facilities. Something clearly needs to be done to resolve this problem, but I don’t think that this would have addressed the underlying problem.

The amendment offered by Rep. Capps (D, CA) also attempted to address this issue by making a minor word change in §550(a), changing from ‘may disapprove’ to ‘shall disapprove’. While more subtle than the Waxman amendment, this still would have changed the cooperative atmosphere between covered facilities and DHS.

Whistleblower protection would have been added by the Butterfield amendment, but the Chairman ruled that the amendment was “Nongermane” so the amendment never came up for a vote. I didn’t get a chance to actually watch the hearing, nor was a web cast available on the Committee site as of last night so I don’t know what held up this amendment. Again, a page appears to be missing from the copy of the amendment provided on the Committee web site. This is getting to look like really sloppy staff work.

Rep. Green (D, TX), a co-sponsor of the bill, proposed an amendment that would have added language providing a requirement for employee participation in the security processes required under § 550. This has long been a desire of organized labor as it also provided for participation of labor unions (excuse me, bargaining agent) in the planning process. The language here was much simpler than the provisions found in previous bills.

No Bipartisan Bill

The final vote on the amended bill was 33 – 16. Again the actual details of the vote are not available on the website, but it appears that there was probably a couple of Democrats (most likely including the co-sponsor, Rep Green) that voted for favorably reporting the bill. Even with a few Democrats signing off on the bill, I would hardly call this a bipartisan approval. There is nothing in this bill that would allow for enough Democrats in the Senate to vote for this bill to allow its passage.

Industry will (and has quite quickly) provide support for this bill, but labor and environmental organizations will fight this bill. In a divided Congress this will make it difficult to get action completed. If the marked up Homeland Security spending bill that we expect to see come to the floor next week contains, as expected, a one-year extension of the current CFATS authorization, there will be no pressure for the two sides to reach some sort of compromise on this issue.

If the chemical industry really wants a long term extension of the CFATS program to provide some level of predictability for the program, they are going to have to figure out what they can give to the opposition to allow them to agree to that extension. This bill does not do that.