Saturday, April 5, 2014

House Subcommittee Amends and Adopts HR 4007

Yesterday the Cybersecurity, Infrastructure Protection, and Security Technologies Subcommittee of the House Homeland Security Committee held a markup hearing for HR 4007, the Chemical Facility Anti-Terrorism Standards Program Authorization and Accountability Act of 2014. The Subcommittee adopted a number of amendments and then recommended amended the bill to the Full Committee by a voice vote.

The Amendments

In addition to the amendment in the form of a substitute that I covered in an earlier blog post, the amendments that were adopted included provisions to:

Include the newly authorized CFATS program as a provision in the Homeland Security Act of 2002 (agreed to by voice vote);
Provide requirements for non-governmental CFATS inspectors (agreed to by roll call vote);
Remove the proposed program termination language (agreed to by voice vote);
Add specific fiscal years covered by the authorizations in the newly renumbered §8 (agreed to by a voice vote);

NOTE: The last two provisions were included in a single amendment.

The amendments that were rejected by the Subcommittee included provisions:

Allowing CFATS inspections to be conducted by “another government entity” (rejected by voice vote);
Expanding the requirements of the CFATS program to include (rejected by voice vote):
- Assign covered facilities to risk-based tiers,
- Require covered facilities to submit vulnerability assessments and to develop and implement site security plans,
- Approve or disapprove the security vulnerability assessments and site security plans submitted by such facilities,
- Audit and inspect covered facilities, and
- Enforce compliance with the requirements of this Act;
Removing the exceptions for MTSA covered facilities, water and waste water treatment facilities, DOD owned/operated facilities, and NRC regulated facilities (rejected by voice vote);
Inserting a new section dealing with Personnel Surety Program (rejected by roll call vote);
Requiring the Secretary (in conjunction with the facility) to conduct an  assessment of inherently safer technologies (rejected by voice vote);
Requiring facilities to include worker participation in the conduct of security vulnerability assessments and site security plan development (rejected by roll call vote);
Providing whistleblower protections;

Important Changes

Two of the three adopted amendments are politically important and those were both introduced by Rep. Clarke (D,NY), the ranking member. The first was the one that makes the provisions of sections 2 thru 9 a new section of the bill the Homeland Security Act of 2002. This makes the requirements for the CFATS program part of the U.S. Code, providing a whole new level of political certainty to the program.

Combine that with the removal of the automatic termination provisions that were an integral part of the original bill (and only slightly extended in the substitute language) and CFATS would become a program of the Federal government that would have to be actually removed by a formal act of Congress, not just a program that could be allowed to lapse. This gives industry their long asked for certainty in the program.

Rejected IST Provision

 As I have noted in a number of posts about a permanent CFATS program, the only way that a permanent CFATS program bill will pass in the current political environment is for it to include some sort of IST provision. The provision that was included this week was simply a requirement to conduct an IST assessment; it provided no requirement for any facility to actually implement any IST changes at the facility.

The thing that caused this provision to be rejected by the Republican majority of the Subcommittee (beyond just the general reluctance of industry to have any IST language in the bill) was the requirement for the Secretary to conduct the assessment under the guise of helping the facility. Beyond the fact that DHS does not have any in-house expertise to conduct such an assessment, there was a simple knee-jerk rejection of any direct assessment of the efficacy of company operations by a government agency.

There will almost certainly be another IST provision when the full committee marks up the bill. If Democrats really want one to pass, they are going to have to craft one that the Republicans and business can accept. And the Republican are going to have to remember that if they want this bill to pass in the Senate (or even just be considered in the Senate) there will have to be some sort of IST language included in the bill.

Employee Participation

Another must have for this bill to be considered by the Senate is a provision requiring facilities to include first line employees in the security processes. Unfortunately, the amendment offered by Rep. Horsford (D,NV) included language requiring ‘bargaining unit’ participation. This was sure to inspire another knee-jerk Republican no-vote. If the amendment had stopped after “at least one non-supervisory employee of the covered chemical facility” there may have been enough Republican votes to allow passage.

Removing CFATS Exemptions

There have been a number of people in both parties over the years that have had problems with the lack of chemical security coverage at water treatment and waste water treatment facilities. The EPA security program for those facilities is rightly focused on the protection of drinking water safety and the safety of water being discharged to the environment. The protection of the water treatment chemicals from release into the atmosphere by a terrorist act is not even on the EPA security agenda. When many of these facilities use chlorine gas there is more than a little concern about the security of that material that is not currently being addressed by regulators.

The amendment this week went way beyond removing the water treatment facility exemption. It removed all of the exemptions including the exemptions for:

• MTSA facilities (security being addressed by the Coast Guard);
• DOD facilities (being addressed by DOD); and
• Nuclear facilities (being addressed by NRC).

While the chemical security programs at these other facilities is at least somewhat lacking in technical expertise in specifically chemical security matters, all of these programs have strong physical security coverage with inspections being conducted by the regulating agency. Lumping these programs in with the weaker EPA security program doomed this amendment to failure.

Just removing the exemption without considering the special place that water treatment facilities have in protecting the populous and the environment from biological threats (particularly the much more common unintentional threats) also made this amendment difficult to endorse. No local politician will gladly allow DHS the authority to shut down a local water treatment facility because of perceived regulatory non-compliance that does not directly affect water quality issues.

The Full Committee could take this issue up again during markup it the proposed amendment were more tightly focused on the water treatment facility exemption and addressed the local control issue.

Moving Forward

It will be interesting to see how soon the full committee holds a markup on this bill. There have been a number of media reports (here for instance) that the House Energy and Commerce Committee Staff helped to write the bill. If that is so, and there is no E&C CFATS bill that has been introduced this session, then this bill may be able to make it to the floor of the House late this month or early May. If that is the case, and some sort of IST and worker participation amendments are adopted, then this bill may be able to make its way to the Senate floor before the summer break.

It the bill is not passed by the Senate before August, it will probably not get passed.

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