HR 901 Markup Scheduled

This week the House Homeland Security Committee will be conducting a full committee markup of HR 901, Chemical Facility Anti-Terrorism Security Authorization Act of 2011. The hearing will be held on Wednesday “subsequent days as may be necessary”. As currently written this bill is just a codification of the current CFATS authority as an amendment to the Homeland Security Act of 2002 with an extension of that authority until September 30th, 2018.

The Committee web site notes that an amendment in the form of a substitute will probably be offered by the bill’s sponsor, Rep. Lungren (R, CA). The only change that I can find in that amendment is in §2107 where the annual authorization rate is changed from $93 Million to $89.9 Million; the same figure that was included in the marked-up version of HR 908.

The comment on the web site that this might be a multiple day hearing may indicate that Chairman King (R, NY) is trying to craft a revision to this bill that might have a better chance of being considered and passed in the Senate. This might include provisions addressing one or more of the following issues:

• 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

Any of the above provisions would have to be carefully crafted to allow passage both in the House (where industry concerns about the provisions would have to be addressed) and in the Senate (where environmental and labor activists have substantially more influence). Industry desire for a long term extension of the CFATS authority may make a reasonable compromise on some of these issues possible.

Another factor that must be considered in the markup of this bill is the fact that there is an alternative bill (HR 908) reported by the Energy and Commerce Committee that also provides for a long term extension of the CFATS program. The House leadership will have to decide which bill to bring to the floor of the House for consideration. The chance of this bill being the one selected would probably be increased if a water treatment facility provision were added to the bill as this would ensure that the Energy and Commerce Committee would have some oversight responsibility for the CFATS program. This would be similar to the compromise reached last session on HR 2868.

The Senate bill extending the CFATS authorization (S 473) has not yet been brought up in Committee. This may be a case of the Senate waiting to see what the House approves before they consider their options. This is what happened in the last session.