Wednesday, June 22, 2011

Homeland Security Committee Marks-up and Adopts HR 901

Today the House Homeland Security Committee held a markup of HR 901, the Chemical Facility Anti-Terrorism Security Authorization Act of 2011. The final version of the bill was adopted by a resoundingly bipartisan vote of 26 to 5. A total of 15 amendments were considered by the Committee, including the two amendments in the form of substitutes that I discussed in earlier blogs (6-18-11, and 6-20-11). Five {including Rep. Lungren (R, CA)} were adopted by the Committee.

Adopted Amendments

The Lungren substitute language only changed the authorization level for the funding for the CFATS program {§2107}, reducing it to the current budget program level outlined by the House. All of the remaining adopted amendments modified the language of this amendment.

ISCD Processing Time Limits

Rep. Sanchez (D, CA) proposed amendment 1B that would establish a time limit of 180 days for DHS to approve or disapprove a submitted security vulnerability assessment (SVA) or site security plan (SSP). This is response to the current slow pace of inspecting facilities and approving SSPs. Unfortunately, this does not take into account the reasons for the problems that ISCD is having getting the necessary data for the approval process; reasons that Congress has never questioned.

This language would inevitably result in a large number of facilities being formally notified that their SSP submission was disapproved rather than DHS working with the facility to get the required information put into a revised SSP submission. A formal disapproval may have unintended consequences for a facility such as increased liability insurance rates. It will certainly not speed up the approval process.

Security Background Checks

Rep. Jackson-Lee (D, TX) proposed amendment 1D that would add language concerning security background checks. The amendment would require the Secretary to establish regulations for the use of a TWIC, or other mandated security checks as an alternate method of performing the necessary personnel surety checks. This process is already being implemented by ISCD, though maybe not in the manner intended by Rep. Jackson-Lee.

This amendment fails to distinguish between the provisions in the current regulations for a background check to be accomplished by the individual facility and the submission of information to allow DHS to check for appearance in the Terrorist Screening Data Base (TSDB).

Jobs Impact

Rep. Davis (D, IL) proposed amendment 1H that would have mandated annual reports by the Secretary to Congress on the effect that the CFATS program had on job creation and elimination. The report would estimate the number of jobs created or eliminated because of implementing security programs under CFATS. It would also require the Secretary to provide feedback from owner/operators on how the program could be changed to have a more positive jobs impact.

The current economic situation certainly served as the impetus for the submission of this amendment. The recorded vote of 28-2 also shows that there was a personal reason for supporting this amendment in many of the Committee members. The demand for a voice vote on such lopsided votes indicates that the members wanted to be able to point to this vote in their future re-election campaigns as an example of their efforts to protect jobs.

If this provision remains in a CFATS authorization bill that makes it to the President’s desk, I foresee ISCD creating another tool in CSAT to allow for the easy collection and collating of this information for the annual report. It will be a relatively small addition to the CSAT burden imposed by the current CFATS program.

Small Business Assistance

Rep. Hochul (D, NY; the newest member of the Committee) proposed amendment 1I which would require the Secretary to provide technical assistance in the preparation and submission of SVAs and SSPs by covered facilities that meet the legal definition of being a ‘small business’. Presumably this is being done to help those facilities avoid the cost of hiring consultants to perform this function.

This provision will put the Department in a difficult legal position. This bill continues the current prohibition of the Secretary mandating any particular security measure as a pre-requisite for obtaining approval of an SSP. If a DHS inspector/assistor was to tell a facility to install a particular security device, then that would be de facto (and probably de jure) a violation of that prohibition.

Furthermore, the ISCD inspection force would be severely taxed by this requirement. It would take much more time for an inspection team to ‘assist’ a facility in the preparation and submission of SVAs and SSPs than it currently takes to approve an SSP. And, the SSP approval process would still require a pro-forma inspection of those facilities that received DHS assistance.

It would have made a lot more sense to include a small business grant program or tax credit to allow these small business covered facilities to hire the necessary contractors. It would have also provided more jobs for contractors.

The 29 to 1 recorded vote on this amendment again provides a good clue as to the real nature of this amendment. It is little more than a re-election publicity vote that will have unintended adverse consequences on the CFATS program.

Amendment Summary

None of these amendments to Rep. Lungren’s bill were even slightly controversial and will have little practical effect either on the CFATS program or the potential for this bill to be considered by the Senate.

The fact that these amendments and the final bill received so many Democratic votes is certainly noteworthy. In the confrontational 112th Congress this bipartisanship is something to be recognized and encouraged.

Crafting a Senate Actionable Bill

I noted in a blog last week nine items that if addressed in House CFATS legislation would help to ensure that the Senate would actually consider and likely pass the bill. These nine items are issues of importance to the environmental and labor activists that still exert substantial influence in the Senate. These items are:

• Inherently safer technology (IST)

• Employee participation

• Personnel-surety redress procedures

• Training/drills

• Whistleblower protections

• Emergency response planning

• Water/waste-water facility coverage

• MTSA facility coverage

• Public disclosure of CFATS status
I firmly believe that a carefully crafted compromise language can be found that would allow substantial support from centrists in both parties and minimize active opposition from the more extreme wings of either party.

Some of these items were addressed in amendments that were considered by the Committee today. Unfortunately, none of them met the ‘carefully crafted compromise language’ standard necessary to get bipartisan support.

Additional Facility Coverage

Ranking Member Thompson came closest to meeting the challenge in his amendment 1A that would have extended CFATS coverage to NRC, MTSA and water treatment facilities. It provided that the authority to ‘maintain and enforce’ these regulation in those facilities would be given to the NRC, Coast Guard and EPA respectively. The sticking point for most opponents to such coverage is the failure to address language that allows for extensive fines and potentially closing the facility for failure to comply with the regulations. If those sanctions had been specifically with drawn for the water treatment and power generation facilities, this might have had a better chance of passing.

Whistleblower Protections

Rep. Richardson (D, CA) proposed amendment 1C that addressed whistleblower protections. It was almost a direct copy of the same provisions found in HR 2868 from last session. There was little vocal opposition to this in the last session, but the business community has always had reservations on any restrictions on their personnel actions. Actively involving the business community in writing the terms of this might have made a difference in the final vote.

Redress Procedures

Rep. Clarke (D, MI) proposed amendment 1J that mandated the establishment of a redress procedure for actions taken under the security background check requirements. It includes establishment of standards for crimes and findings that would automatically bar someone from having unaccompanied access to restricted and/or critical areas within covered facilities. It would also require the establishment of an appeals process for questioning the legitimacy of the background check findings.

The problem that industry has always had with this language (again essentially taken from HR 2868) is that it makes no provision for a company having tighter standards for allowable ‘criminal’ conduct. Addressing this issue would make this provision easier to support for many people.

Leadership Decision

The House Leadership will now have to decide which CFATS authorization bill moves to the floor of the House. There may be one more hurdle for HR 901 to clear before this decision is made. The bill was originally referred to both the Homeland Security Committee and the Energy and Commerce Committee. Technically, the Energy and Commerce reporting on HR 908 does not count their review of HR 901. The Speaker could simply order HR 901 discharged from the Energy and Commerce Committee if it was decided to move forward with HR 901.

Moving Forward

Again, it is clear that either of these bills would satisfy industry desire to have a longer term on the current CFATS rules to provide a known regulatory environment in which they are spending lots of money for security upgrades. Additionally, there are certainly enough moderate Democrats that could support either bill when it came to the floor of the House to allow for a claim of bipartisan passage in the House.

It does not appear, however, that either bill, in their current form, would avoid the ire of powerful interests in the Senate that are influenced by labor and environmental activists. These people are senior enough and numerous enough to ensure that neither bill ever makes it to the floor for possible consideration.

The House has two more chances to make appropriate changes to which ever of these bills that is selected to move forward. There will be a Rules Committee hearing where limited amendments may be considered. And then there will be the floor debate where amendments may be authorized.

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