HR 3116 Introduced – DHS Authorization

As I noted in my congressional hearing blog post on Monday, Rep. King (R,NY) introduced HR 3116, the Department of Homeland Security Authorization Act for Fiscal Year 2012, last week. On Monday he also published an amendment in the nature of a substitute on his Committee’s web site for today’s markup of that bill. Since it is that substitute language that will actually get marked up today, I’ll use that for this review of the chemical security provisions of the bill.

No CFATS Language

As would be expected there is no language in this bill that would authorize or modify the CFATS program. While nearly everyone is firmly in favor of keeping this program in operation the wording of program extension would be very controversial. That controversy might actually prevent the consideration of the bill.

A clean, one-year extension like we see in the spending bills would not be a problem, but switching that extension to the authorization bill, might not allow the program to continue. Congress must pass spending bills each year (in some form or another), but an authorization bill is not really required. Note: there has not been a DHS authorization bill passed since the Homeland Security Act of 2002 brought the Department into being.

Weapons of Mass Destruction

Sections 501 through 510 are pretty much a ‘lite’ version of the bioweapons provisions of HR 2356. As I noted in my blog on the introduction of that bill, there is nothing in this lite version that would directly address the use of chemical facilities or transports as defacto chemical weapons. As in HR 2356 there are provisions here that might have effects on chemical security and emergency response planning and execution. Those provision include:

• Sec. 502. Weapons of mass destruction intelligence and information sharing;

• Sec. 503. Risk assessments;

• Sec. 504. Individual and community preparedness;

• Sec. 507. Communications planning;

• Sec. 508. Response guidelines concerning weapons of mass destruction;

• Sec. 509. Plume modeling; and

• Sec. 510. Disaster recovery.

None of these provisions specifically address chemical security, rather they include the generic terminology ‘chemical, biological, radiological, or nuclear attack’ (CBRN). One would hope that any supporting regulations would emphasize the fact that attacks on chemical facilities or transport would be the easiest way to effect a CBRN attack, but I wouldn’t hold my breath.

I addressed most of these provisions in some depth in my posting on HR 2356 and see nothing here that would require a change in those comments.

SARS Immunity

Title VIII provides for immunity for reports of suspected terrorist activity or suspicious behavior and response. This is essentially the same wording as found in King’s HR 495 that I addressed in an earlier blog posting on that bill. Nothing new to see here, keep moving.

Moving Forward

Actually, that’s all there is; for chemical security issues at least. Completely overlooked is any mention of cyber security issues or programs within DHS. Since both Rep. King and Sen. Lieberman (I,CT), chairs of their respective homeland security committees, want to see a DHS authorization bill passed, I don’t see any reason why some version of this bill or S 1546 (see my posting on that bill) could not pass in this session; besides consideration of appropriations, jobs and other politically important legislation, of course.

HR 963 – SAR Immunity – Passes in Committee

As was expected last week, the House Judiciary Committee passed HR 963, the See Something, Say Something Act of 2011. After defeating four amendments from Democrats, three by voice vote and one by a lopsided 16-4 vote (which may have been closer if more Democrats had showed up for the hearing), the bill was approved by a voice vote.

Readers may remember that I had commented on the fact that a nearly identical version of this bill (HR 495) had been introduced earlier by Rep. King (R, NY). That bill was passed over by the Committee to take up this bill that had been subsequently introduced by Chairman Smith (R, TX). This was obliquely addressed by Smith’s official statement on this markup of HR 963. He said:

“I’d like to thank Chairman Peter King of the Homeland Security Committee, who has long advocated for this and other measures to keep America safe.”

With that left-handed endorsement buried in the historical record, Chairman Smith’s name will now be the sole name associated with this legislation, a fact that will almost certainly show up in future campaign literature. Unless, of course, the Senate takes up S 505, the companion bill to HR 495, that was introduced by Senators Lieberman (I, CT) and Collins (R, ME) before the whole House passes HR 963.

This bill will almost certainly pass in the full House. Democrats will again attempt to get anti-profiling language added to the bill, but that will not be successful. Senate passage is also likely, but the lack of restrictions on racial profiling could interfere with the bill being considered there. It is hard to see how such restrictions could be effectively worded when dealing with suspicious activity reports by civilians since ‘profiling’ definitions typically depend on patterns of activity not individual cases.

HR 963 Introduced – SARS Immunity

Last week Rep. Smith (R, TX), the Chairman of the House Judiciary Committee, introduced HR 963, the See Something, Say Something Act of 2011. Now if you think that this sounds familiar it is because I wrote last week about S 505 which had the same title. In fact, the observant reader might remember that I wrote that the earlier bill was a companion measure to HR 495.

I explained in the blog about S 505 that a companion bill is an identical bill introduced into the second house of Congress to make it easier to get the bill through committees in an expeditious manner. The language in S 505 and HR 495 are identical.

HR 963 is not technically a companion bill to S 505 and it can’t be a companion bill to HR 495, having been introduced into the same house of Congress. I say that it cannot ‘technically’ be considered a companion bill because it is not identical; it differs in just one word from the other two bills. In §890A(b)(1) S 963 says, in part; “authorized official as defined by section (d)(1)(A)”. The other two bills say; “as defined by sub-section”. As you can clearly see this is a substantial difference (SARCASM ALERT).

The earlier bill, authored by Rep. King (R, NY) was assigned to the House Judiciary Committee for consideration, the Committee chaired by Rep. Smith (R, TX). It is obvious that Chairman Smith and his committee staff are extremely diligent in reviewing legislation referred to their committee (I know there was already one sarcasm alert in this post). Anyone want to bet which bill gets reported out of Committee?

BTW: In my listing of legislation, I am going to tack HR 963 to the listing for HR 495 to which I have already tacked S 505. Sorry about that Rep. Smith, but here I try to go first come, first serve.

S 505 Introduced – SAR Immunity

Yesterday Senators Collins (R, ME) and Lieberman (I, CT) introduced S 505, the See Something, Say Something Act of 2011. The language in this bill is identical to that found in HR 495 that was introduced last month by Rep. King, making it a ‘companion bill’. Introduction of companion bills allows committee work to proceed in both houses of Congress at the same time, increasing the likelihood of passage and potentially shortening the time needed for consideration.

Early consideration in Committee in both the Senate and House is probable because the bills were introduced the Chairs (effectively co-chairs in the Senate) of each Committee. A further indication of the relative importance of this bill is the fact that a link to a copy of the committee draft was placed on the Senate Homeland Security and Governmental Affairs Committee. This makes a copy of the legislation publicly available before the bill is officially available on the Government Printing Office Site.

BTW: HR 963 introduced yesterday by Rep. Smith (R, TX) apparently addresses the same issue but a copy of the bill is not yet publicly available.

HR 495 Introduced – SAR Immunity

Almost two weeks ago Rep. King (R, NY) and 12 fellow Republicans introduced HR 495, the See Something, Say Something Act of 2011. This bill provides immunity from civil action for people that make good faith reports of “any suspicious transaction, activity, or occurrence indicating that an individual may be engaging, or preparing to engage, in a violation of law relating to an act of terrorism” {§809(d)(2)}. It also extends similar immunity to law enforcement personnel.

As a means of enforcement mechanism, the bill provides for the collection from the plaintiff “all reasonable costs and attorney fees” {§809(c)} if the court finds that the individual is immune from civil liability under the provisions of this legislation.

This bill is obviously designed to protect individuals supporting the Department’s expanding “See something, say something” program. This would seem to be an important legal protection to support that program. Without this protection, once the first civil suit against a person making a report made it to public notice, the effectiveness would be reduced because of concerns against facing such law suits.

This is particularly important for corporate reporting of suspicious activity. Since corporations are seen as having deep pockets, they are much more likely to face such civil suits. This bill addresses this issue by using the legal term ‘person’ which includes corporate entities.

In my opinion, the owners and employees of high-risk chemical facilities should actively support this bill and urge Chairman Smith (R, Tx) to bring this before the House Judiciary Committee for immediate consideration. They should also urge their congress critter to support this bill when it comes up for a vote, both in Committee and on the floor.