Thursday, June 20, 2013

Chemical Security and HR 1947

On Tuesday afternoon the House Rules Committee adopted H Res. 271 for the consideration of amendments to HR 1947, the Federal Agriculture Reform and Risk Management Act of 2013. One of the 103 amendments that was made in order for floor consideration during the debate of HR 1947 was an amendment by Rep. Ross (R,FL) that deals with the security of agricultural chemicals.

The Amendment

The Ross amendment (#95) would add §12317 to the bill, addressing the “Sense of Congress Regarding Agriculture Security Programs”. While a ‘Sense of Congress’ statement in a bill does not actually have the force of law, it does provide the executive branch with congressional guidance concerning the issue at hand. How closely the executive agency follows that guidance falls under the discretionary authority of the agency.

The amendment establishes the ‘fact’ that the Department of Agriculture is agency with the staffing and technical expertise necessary to understand the importance of agricultural chemicals. It then acknowledges that other “Federal departments and agencies have been given lead responsibility to develop and implement security programs affecting the availability, storage, transportation, and use of a variety of chemicals and products used in agriculture” {§12317(4)}.

The amendment then suggests that the Secretary of Agriculture should ensure that there are senior personnel (members of the Senior Executive Service) charged with the “responsibility for coordinating with other Federal, State, and international agencies in the development of regulations, guidance, and procedures for the secure handling of agricultural chemicals” {§12317(6)}.

The goal of the coordination effort would be to ensure that the appropriate regulators would “have the information needed to develop procedures for effective security administration and enforcement that minimize any adverse impact on domestic or international agricultural productivity” {§12317(7)(E)}.

Why Now?

There are a couple of reasons why this proposal is surfacing this year. First, the Infrastructure Security Compliance Division (ISCD) of DHS is in the (very slow) process of reviewing the current ‘temporary’ exemption that DHS provided to agricultural producers from the requirements to complete Top Screen submissions as part of the Chemical Facility Security Anti-Terrorism Standards (CFATS) program. The Ag Lobby has fairly successfully fought against the application of the CFATS regulations to agricultural producers even though there is no indication that such producers would be found to be ‘at high-risk of terrorist attack’ by ISCD.

The second item that is bringing the bright glare of national attention on the chemical stockpiles of the agricultural community was the devastating explosion at West Fertilizer in West, Tx earlier this spring. There have been vociferous calls in the press for DHS to ‘effectively regulate’ agricultural retailers that handle dangerous chemicals like ammonium nitrate (the putative source of the West Fertilizer explosion) and anhydrous ammonia (another agricultural chemical that was at the West Fertilizer site).

The third political incentive to pursue this amendment is the increasing number and volume of calls upon the Environmental Protection Agency to utilize the ‘General Duty’ clause of the Clean Air Act to require chemical manufacturers to use inherently safer technologies (IST) to prevent deliberate or accidental chemical catastrophes. The recent death of Sen. Lautenberg, a long time IST advocate, has increased these demands for IST enforcement in recent days, most recently by former Bush Era EPA Administrator Christie Whitman. Ms. Whitman’s most recent editorial specifically mentions the West Fertilizer explosion as the type of incident that such IST regulations would prevent.

Establishing a conflict within the current Administration where senior staffers are actively in opposition to the implementation of IST by other agencies within the Administration would provide an interesting bureaucratic road block to prevent or at least slow any such implementation.

Moving Forward
When this amendment comes to the floor, probably today (Thursday) and most likely in an en bloc consideration of a number of amendments towards the end of the debate, this bill will almost certainly be adopted by a voice vote. Even if it were to be offered for individual debate, the wording is vague enough that only the most ardent IST proponents would vote against this amendment.

Such an amendment would not stand such a high chance of adoption if it were introduced in the Senate. I don’t think, however, that there would be a strong enough opposition in the Senate to actively try to remove this section if it were contained in a bill being considered by the Senate.

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