Friday, June 27, 2014

HR 4007 – CFATS Reauthorization – Reported in House

Earlier this week the House Homeland Security Committee filed their report on HR 4007, the Chemical Facility Anti-Terrorism Standards Program Authorization and Accountability Act of 2014. This bill is now cleared for consideration on the floor of the House. I expect that it will be considered under a rule that limits the amendments that will be considered on the floor.

CFATS Facilities

It is always interesting to go back and read the language of the bill that is included in the report. Readers may remember that I reported that the exempted facility list had been removed from the substitute language that would be offered in the Full Committee markup of this bill. That language exempting MTSA, water, DOD and NRC facilities from coverage has found its way back into §2101(f)(1).

I went back and confirmed that the substitute language that had been on the Committee web site prior to the hearing did not, in fact, include that language. The version of that markup language that is currently on the web site (posted the day after the hearing) does have the language. I would assume that the language had been changed between the time I wrote my post and the time that Committee met.

PSP Redress

In that earlier post I identified the new requirement for a redress procedure for the CFATS personnel surety program. I noted that:

“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.”

The language still reads that way but there is an interesting discussion in the report about this section of the bill. It reads:

“Finally, this subsection requires any such program to make available redress to an individual who wishes to challenge a determination based on DHS vetting.”

Lawyers love to argue the ‘intent of Congress’ based upon this type of language in Committee Reports. Whether or not judges accept that ‘intent’ is another story. This is this is the basis for a lot of lawyer fees. But, in my (non-lawyerly) opinion the language of §2101(d)(3)(A)(iii) still clearly applies only to case where “the personally identifiable information submitted to the Department for such vetting by a covered chemical facility, or its designated representative, was inaccurate”. There is still no relief for an error on the government’s part, the report commentary notwithstanding.

Moving Forward

I fully expect that this bill will be considered by the Full House in early July. It will pass with significant bipartisan support. There will probably be unsuccessful attempts at adding language for some sort of limited IST provision and worker participation.

Since the Senate Homeland Security and Governmental Affairs Committee did not take up a CFATS bill this week I think that there is a good chance that they will take up the bill before the summer recess. If the bill makes it through that Committee without major changes, I think that there will be a good chance of the bill coming to the floor of the Senate before the election as that will be a signal that they bipartisan support for the language in the House Committee has carried over to the Senate. If major IST changes, worker participation changes or civilian law suit enforcement procedures are added, the bill will certainly face Republican filibuster and it will die the same death that we have seen too many times before.

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