Thursday, May 1, 2014

Homeland Security Committee Amends and Adopts HR 4007

Yesterday the House Homeland Security Committee held a markup hearing on HR 4007 (and two other bills; HR 3283 and HR 4228) during which 12 amendments were introduced to the substitute language offered by Rep. Meehan (R,PA). All of the amendments, and the substitute language, were adopted by the Committee by voice vote.

The amendments were:

• Meehan Amendment 1A removed amendments to ammonium nitrate security program (6 USC 488a) {§3};
• Thompson (D,MS) Amendment 1B1 requires Secretary to notify facilities within 14 days of an SVA or SSP being found deficient {§2101(d)(2)};
• Thompson Amendment 1B2 requires Secretary to commission a 3rd party study to assess the vulnerability to acts of terrorism associated with the current CFATS program;
• Sanchez (D,CA) Amendment 1C1 requires the Secretary to keep records of reasons for tiering changes and removal from CFATS program {§2101(e)(3)};
• Sanchez Amendment 1C2 requires Secretary to publish a plan to reach out to chemical facilities of interest {§2107};
• Sanchez Amendment 1C3 requires the Secretary to report on the number of facilities that filed Top Screens as a result of Department outreach efforts;
• Sanchez Amendment 1C4 requires the Secretary to publish a plan for utilization of metrics to evaluate the efficacy of the CFATS program;
• Clarke (D,NY)  Amendment 1D1 makes subtle changes to wording authorizing the use of non-governmental entities to conduct CFATS inspections {§2101(d)(1)};
• Clarke Amendment 1D2 requires reporting of any inspector issues to the Secretary within 24 hours {§2101(d)(1)(B)(vi)};
• Clarke Amendment 1D3 requires the Secretary to establish training standards for Department inspectors and auditors {§2101(d)(1)(C)};
• Clarke Amendment 1E adds a simplified whistleblower section to the bill {§2104};
• Jackson-Lee (D,TX) Amendment 1F adds a requirement for the Secretary to prepare program to assist small chemical facilities in developing their security plans {§2107}; and
• Higgins (D,NY) Amendment 1G expands slightly the information sharing provisions of the bill.

Bipartisan Support

I have mentioned on a number of occasions that I thought that there were three topics that would have to be included in some form for there to be true bipartisan support for a CFATS bill to pass in both the House and Senate. Those topics include: inherently safer technology (IST), worker participation and whistleblower protection. Only one of those was added to this bill; whistleblower protections; and that was a bare bones requirement.

And still, the bill passed today by a voice vote. You don’t get much more bipartisan than that (okay a unanimous recorded vote is the ultimate bipartisan vote, but that is asking a bit much). Does this mean that the Democrats have given up on the other two of their big three? Probably not, but it does mean that they appear to have accepted that this is going to be the best bill that they are going to get for the foreseeable future.

The Republicans did not need the votes of the Committee Democrats to pass this bill in the House. And yet obviously there has been a great deal of work done by both sides to get to a point where yesterday’s vote could happen. The Committee leadership is to be commended for being able to solve what has been since 2001 an intractable problem, developing a consensus approach to chemical facility security. The question now will be to see if that consensus holds up in the larger arena.

IST Flack

There has been a major PR push by the labor and environmental activist organizations to push for federal enactment of inherently safer technology requirements for the chemical industry. For the last 13 years or so the chemical facility security program has been a major focus of that effort. Acceptance of this bill without IST language will be a major blow to that effort.

It will be interesting to see in the weeks ahead how those groups treat this language, or more importantly, lack of language. I don’t think that any of them will accept it. But they may acquiesce, accepting that the EPA might be a more appropriate venue to press for an IST requirement. They have certainly been focusing on that possibility ever since the President introduced his chemical safety and security executive order.

Moving Forward

I expect that this bill will be reported quickly and the bill will move to the full House, probably by the end of May. I expect that the bill will probably be considered via a structured rule with a reasonable number of amendments. I certainly expect to see both an IST amendment and a worker participation amendment. The first will certainly fail along party lines, but it will give Democrats a certain amount of cover with their constituents. A worker participation amendment might be able to pass if it does not include specific mention of union participation.

The bill will certainly pass in the House. The level of bipartisan support on the final vote will give the best indication of the possibility of this bill passing in the Senate. There will be some hardcore hold outs for an IST provision. If they can muster enough votes in the Senate to force Sen. Reed to go to the Republicans for a deal to get this past a cloture vote then the bill will never get to the Senate floor. If the number of hard core resisters is less than about ten, I think that Reed would be able to move this to the floor without having to make a deal.

If this is going to get done it will happen before the summer recess. This bill will never see the light of day in the lead up to the mid-term elections; it is potentially too controversial for the Democratic base. After the first Tuesday in November it will depend on whether or not the Democrats retain control of the Senate. If they do, the bill will die with the 112th Congress. If they don’t, many pragmatic Democrats will pull this bill through, fearing what they would see passed in Republican controlled Congress.

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