Reader Comment 03-16-10 Is HR 2868 Dead

There was an interesting reader comment from Anonymous posted yesterday to my earlier blog about whether CFATS is dying. The writer made some comments about how some readers could equate CFATS and HR 2868 as being the same thing, even though that isn’t actually correct. Then Anonymous asks me: “So the question, perhaps, remains --- is HR 2868 (and it's Senate version) dead? ie: Will the bill go to the President for signature?” DHS to Draft CFATS Legislation I believe that, after watching the webcast of the Senate Homeland Security and Governmental Operations Committee hearing on March 3rd, HR 2868, as passed in the House, will not be considered or reported by that Committee. Sen. Lieberman’s comments to Secretary Beers about the DHS draft of legislation for making CFATS permanent indicates that it will be that DHS document that the Committee will consider, mark-up and report. Now I have not yet seen a copy of that draft (nor has it apparently yet been approved by the White House) so I don’t know how much it differs from HR 2868 (as passed in the House). I would bet that there are significant differences or the Department would not be offering this draft for the Senate to consider. I would think that the Department’s bill would make it clearer that the current rules would remain in place and enforce until they were modified by subsequent regulations. I would also bet that the Department would phase in the new requirements (whatever they are) by Tier; with Tier 1 facilities being required to implement first. Legislative Process Now, let’s look at the mechanics of how the ‘DHS’ bill would be handled in the halls of Congress. First it is remotely possible that Sen. Lieberman would introduce an entirely new bill based on the DHS language. There is a certain amount of propriety associated with doing things this way, since it is really entirely new legislation. Unfortunately, politics is usually messier than this. What is more likely to happen is that Sen. Lieberman would call for the Committee to conduct a Mark-Up hearing on HR 2868. The first amendment to be considered would be for the Chairman to offer an ‘amendment in the form of a substitute’. This would allow everything but the bill number to be erased and the DHS language to be substituted for the House language. After appropriate additional amendments and modifications the new HR 2868 (DHS version) would be reported favorably to the floor of the Senate. There it would undergo additional modifications and amendments. When (or more appropriately if) the final Senate version of HR 2868 is passed it is likely to be completely unrecognizable to those members who voted in favor of HR 2868 last November. But, it will have been passed on both houses, so it will go to a Conference Committee to work out the ‘differences’ between the two bills. That Committee will revise and amend the bill to a form that the managers (probably Sen. Lieberman and Rep. Thompson) feel can pass in their respective bodies. Typically, the Conference Report version of the legislation will then be passed in each the House and the Senate. If that happens, it then goes to the President for signing into law (or veto). It does rarely happen that the managers misgauge the attitude of their respective body and the conference reported bill get further modifications in one or both houses. Then, further back and forth is needed to get both bodies to finally vote on the same language to pass the bill. This could happen with the CFATS legislation being written by DHS. I don’t believe however, that such a bill would get White House clearance in time to get through the wheels of the process in the Senate before the summer recess. With the fall elections staring Congress in the face nothing of substance will get done between the summer recess and the elections. Then there is the question of a post-election session of the lame-duck Congress. If the Democrats loose (or substantially loose) control of the House and/or the Senate in the fall elections, there might be an attempt by the Democratic Leadership to push through consideration of a new CFATS bill (this is how CFATS actually got established after the Republicans lost control of the House). I firmly believe that such a lame duck push will be rebuffed in the Senate. If the Democrats retain substantial control of both houses, then CFATS is likely to be shelved until the 112th Congress. HR 2868 is Dead So the short answer to the original question is that I truly believe that HR 2868 is dead. I don’t think that the White House has the political will (or time) to get their draft legislation approved and sent to Sen. Lieberman in time for it to be acted upon before the summer recess. Any CFATS legislation reported out of the Homeland Security Committee after the return from that recess will spend time in political purgatory to face re-birth in the 112th Congress. Oh yes. As an important sidelight to that question, the one year extension of CFATS will certainly be included in the final version of the FY 2011 DHS Budget bill, so CFATS will survive for another year (and probably continue to do so until a reasonable compromise on many CFATS issues are worked out). HR 2868 is dead… Long Live CFATS.

HR 2868 Status 11-09-09

Yesterday HR 2868 was formally received in the Senate. According to Thomas.LOC.gov, the bill was assigned just to the Homeland Security and Governmental Affairs Committee. Many observers had also expected it to be assigned to the Commerce, Science and Transportation Committee because of the two titles dealing with security at water facilities. Those facilities and the EPA are normally covered under the Commerce Committee not Homeland Security. Additional Senate Action InsideEPA.com reported yesterday [subscription required] that two Senators, Susan Collins (R, ME) and Frank Lautenberg (D, NJ) were preparing to submit their own versions of chemical facility security legislation. At least one major difference between the two of them was expected to be IST provisions. Sen. Collins has been an opponent of government mandated IST while Sen. Lautenberg has been a supporter. I have no idea why Lautenberg has waited so long to introduce this legislation. With Sen. Collins one would guess that she has been avoiding a repeat of the 2006 intra-committee conflict she had with Sen. Joe Lieberman (I, DE). This has been one of the few bones of contention between these two leaders of the Senate Homeland Security Committee. Having said that, these two will be the pair most likely to craft a truly bipartisan approach to the IST issue.

CFATS Hearing on September 11th

Last week William_Allmond reported on Twitter that there would be a CFATS hearing before the House Energy and Commerce Committee on Friday, September 11th. That would be the end of the first week back from recess. I have been able to confirm that there will be a hearing of the Energy and Environment Subcommittee at 10:00 a.m. that day. This is apparently the same Subcommittee hearing that was cancelled before the recess because of the Committee being tied up with the mark-up of the health care reform bill. That mark-up is still pending, of course, but it appears that the Democrats are confident that they can get that finished earlier in the week. It is way too early to have this hearing appear on the Energy and Commerce Committee web site, but I have been told that Under Secretary Rand Beers has been asked to testify and he will probably bring along Sue Armstrong from ISCD as he did in the similar hearing before the House Homeland Security Committee last June. He would discuss policy, she would supply answers on details of the program. This hearing is likely to look at both HR 2868 and HR 3258 as they are essentially companion bills. With that in mind I would expect that Beers and Armstrong would be joined by someone from the EPA for the first panel of the hearing. It is unlikely that these two bills will make it to the House floor (much less the Senate) before the current CFATS authorization expires on October 4th. The DHS budget bill that would extend the CFATS authorization one year is still stalled, waiting for Speaker Pelosi to appoint the House Conferees. Once the Conference Committee can meet it should not take long to iron out the differences between the two version of that bill. Quick passage in both the Senate and House should follow relatively quickly if things don’t get bogged down on the health care and the cap and trade bills.

HR 2868 Status – 07-31-09

As everyone expected neither the House Judiciary Committee nor the House Energy and Commerce Committee got around to holding hearings on HR 2868 prior to the House departure for a five week working vacation. One of the last acts of the House leadership last Friday was to grant both committees ‘an extension for further consideration’ on that bill with a new completion date of September 30, 2009. Since the House returns to Washington on September 8th, this should provide both committees with an adequate amount of time to hold an appropriate hearing and to mark-up the bill. Neither committee is expected to make major changes, though I do expect that the Energy and Commerce mark-up will include language exempting water treatment facilities from coverage. This would only make sense given their introduction of HR 3258 providing for security at those facilities. One additional point that I’ll include here so as to avoid having another very short blog on a similar subject; the DHS budget bill (HR 2892) has not yet been passed and signed into law. This means that the current CFATS authorization still terminates shortly after October 1st. Both the House and the Senate have passed differing versions of the bill. The Senate has appointed their conference committee members (on July 9th) but the House has yet to do so. I have not heard anything about why Pelosi has yet to name the conferees. Until a conference committee can meet to iron out the differences between the two bills (and both houses pass the conferenced bill) there is still no guarantee that CFATS will be allowed to continue. While most observers assume that the CFATS provision will remain in the bill (there has been no significant opposition), it is not certain that the bill will be passed before October first. In that case a continuing resolution would be necessary. I have heard from at least a couple of lawyers that such a resolution would keep CFATS in effect even if it is not specifically mentioned, but it would still be disheartening for the fine folks over at Infrastructure Security Compliance Division and open the door to potential legal challenges.

HR 2868 Hearings Next Week

Yesterday afternoon wallmond (William Almond, Washington, DC) posted the following Tweet on Twitter yesterday afternoon:

“House Energy & Commerce Cmte likely to hold CFATS hearing next week. Enviro'lists & labor unions (not security experts or industry) to star” Note: please forgive the abbreviations but Twitter does have a 140 character message limitation.

I have looked at the Energy and Commerce Committee web site for next week’s schedule and HR 2868 does not show up yet. They do have three days (Mon, Tue, and Wed) scheduled for a full committee mark up of HR 3200 (America’s Affordable Health Choices Act of 2009). That is a full hearing schedule that is likely to get delayed by floor votes, etc. I’ll be slightly surprised if HR 2868 get a hearing next week and I suspect that if it does occur it will be before the Energy and the Environment subcommittee. That would be appropriate since they handle water issues. Remember, this is the committee that essentially killed HR 5577 last year because they did not want to give up authority over water treatment facilities. Dingell was the chairman then, not Waxman, but the Committee is still going to try to retain some oversight responsibility for CFATS at water treatment facilities. This Committee has not had a full court press by the pro-IST people yet, so it is probably fitting that they start off with those folks. Besides the pro-IST people have not had a chance to testify this year. And they really want to shut down the chlorine gas use at water treatment facilities. The AWWA will also be present in some form to ‘balance’ the presentation. We shouldn’t expect to see non-water related industry at these hearings. They were covered at Homeland Security.

HR 2868 Status Update – 7-13-09

According to information available on Thomas.LOC.gov the House Homeland Security Committee has filed their report on HR 2868 (House Report 111-205), though as of 11:40 am EDT today neither it nor the marked up version of HR 2868 were available on the GPO website. There was some sketchy information another interesting development provided on the same web site; HR 2868 was also referred “sequentially to the House Committee on the Judiciary for a period ending not later than July 31, 2009 for consideration of such provisions of the bill and the amendment as fall within the jurisdiction of that committee”. At this point I’m not sure why this referral was made, but I will start watching the Judiciary Committee for action on this bill. Additionally, the House Energy and Commerce Committee was granted “an extension for further consideration ending not later than July 31, 2009”. While this appears to be similar to what happened last year with HR 5577, I won’t be so quick to complain about the delay this year; there are some higher priority items being considered by that committee. Besides, we don’t have an October electioneering deadline to worry about this year. I expect that the GPO web site will probably have a copy of the bill and the report available either late today or tomorrow on their web site.

CFATA Passes in Committee

The House Homeland Security Committee held their third and final markup hearing on HR 2868 yesterday. This final meeting was held so that the committee could finish voting on three amendments that were considered last week. All three amendments failed on the recorded votes. The amended bill was passed and will be reported favorably to the full house. All votes today were on straight party lines. Members will have two days to submit their comments to be included in the report to the House. This means that the committee report and the amended language will probably not be available until at least Thursday. With no hearing currently scheduled on this bill before the Energy and Commerce Committee, the full House will not take up this bill before the 4th of July recess. With the August recess fast approaching it is unlikely that this bill will be taken up in the Senate until September or October. It is certainly beginning to look like inclusion of a CFATS extension in the appropriations bill was a smart move on the part of the Administration.