Monday, April 28, 2014

Homeland Security Committee Publishes CFATS Substitute Language

Today the Homeland Security Committee added a note to their web page for their Wednesday markup hearing (that I discussed this weekend) reporting that Rep. Meehan (R,PA) will be offering another set of substitute language for HR 4007. Since there is not an official version of the bill as marked up by Meehan’s Subcommittee it is difficult to sort out the ‘small’ changes in the language. The big changes are easy to see.

Personnel Surety

This bill continues to try to deal with industry complaints about the personnel surety program under development by DHS. The wording gets more confusing and it seems the only intent of the new wording is to eliminate the personnel surety program. The legislation spends much more time explaining what DHS cannot do than it does defining what should be accomplished by the program.

The one positive new addition in this portion of the bill is a requirement for DHS to “to expedite the development of a common credential that screens against the terrorist screening database on a recurrent basis and meets all other screening requirements of this title” §2101(d)(3)(C)(i). Unfortunately this is a far cry from a legislative mandate for a CFATS equivalent of the MTSA TWIC. Only a clear legislative mandate will make this a program that will be accepted by the entire chemical industry.

One of the objections that the Democrats have always had with all of the personnel surety programs discussed to date for CFATS is the lack of a redress process for personnel that believe they have been incorrectly identified as having terrorist ties. New language has been added to this bill to address that concern, kind of. The new language requires the Secretary to establish a personnel surety program that provides redress to an individual “who believes that the personally identifiable information submitted to the Department for such vetting by a covered chemical facility, or its designated representative, was inaccurate” §2101(d)(3)(A)(iii). This completely ignores that possibility of being incorrectly identified as having terrorist ties due to an error on the part of the Government.

Rail Facility Exemption

DHS has long maintained that the responsibility for regulating the chemical security of rail facilities lies with TSA. This was specifically addressed in the pre-amble to the CFATS interim final rule in the Federal Register (72 FR 17688-17745) (see page 17699 for that discussion). Apparently, someone has had some concerns with the final sentence in that discussion:

“DHS may in the future, however, re-evaluate the coverage of railroads, and would issue a rulemaking to consider the matter.”

In any case §2104(c)(1), Rail Transit, makes it explicitly clear that any rail facilities regulated under 49 CFR 1580 will not be affected by the new CFATS regulation. Those facilities would certainly include designated ‘rail secure areas’ for all railroad hazmat shippers handling rail sensitive materials {§1580.107(a)(2)} and for all railroad receivers in high threat urban areas receiving rail sensitive materials {§1580.107(a)(2)}.  

Then §2104(c)(2) goes one step further and exempts all railroad facilities as defined in 1580.3 as being exempt from requirements to submit a Top Screen. That definition states:

Rail facility means a location at which rail cargo or infrastructure assets are stored, cargo is transferred between conveyances and/or modes of transportation, where transportation command and control operations are performed, or maintenance operations are performed. The term also includes, but is not limited to, passenger stations and terminals, rail yards, crew management centers, dispatching centers, transportation terminals and stations, fueling centers, and telecommunication centers.”

This would specifically exempt most crude oil train loading facilities from CFATS regulations. This is even though the security at those facilities is not regulated by TSA since crude oil is not a rail sensitive material as defined in §1580.100(b).

Other Exemptions Removed

All language exempting other facilities from the CFATS coverage has been removed from this bill. This means that the following facilities would be required to submit a Top Screen to DHS if they had one or more of the 300+ DHS chemicals of interest (COI) listed in Appendix A to 6 CFR Part 27 at or above the screening threshold quantity set for that chemical in that Appendix:

• MTSA covered facilities;
• Public water systems;
• Treatment works;
• DOD owned facilities; and
• NRC regulated facilities

The language maintaining the current CFATS statutory exemption for these facilities had been found in the definition of ‘Covered Facility’ in what is now §2101(f)(1). There is no trace of that language there, or anywhere else in the bill. This is certainly a sweeping addition of responsibility for the folks at the DHS Infrastructure Security Compliance Division (ISCD). It is particularly surprising given the new exemption for rail facilities that are not covered by any security scheme.

Still Missing

This bill is still missing any language that would allow it to be considered successfully in the Senate. There is no mention of employee participation or inherently safer technology. Without even the most stripped down language addressing these areas there is no way that this bill, no matter how quickly it is passed in the House, would ever begin to see debate in the Senate, much less pass a cloture vote.

Democrats will certainly offer such language in Wednesday’s hearing. It will be interesting to see if they can craft language that will be acceptable to the Republican majority on the panel. If they cannot, then this bill will be effectively dead.

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