HR 901 – A lack-of-power play

The status of HR 901, Chemical Facility Anti-Terrorism Security Authorization Act of 2011, was once again updated on Friday while the House met in a pro forma session. The House Energy and Commerce Committee was granted another extension of time to review the legislation; this time until June 8th, 2012. This is the sixth such extension granted since the bill was co-referred to the Committee in March of last year.

Any reasonably intelligent observer of congressional committee politics knows that the Energy and Commerce Committee will not report this bill. It would give explicit jurisdiction for oversight of the  CFATS program to the House Homeland Security Committee. The current situation gives co-oversight responsibility for that program to the Energy and Commerce Committee. This is part of the legacy of creation of the Department of Homeland Security and the inability of congressional leadership, particularly in the House, to rationalize oversight of that department.

The indecisiveness of the House Republican leadership (not that the Democratic leadership in the previous Congress was any more decisive in this regards) has led us to the point where two house bills, HR 901 and HR 908, attempting to provide long-term extension of the CFATS program, both duly reported, have not, and probably will not, come to a vote on the House floor.

Homeland Security Committee Marks-up and Adopts HR 901

Today the House Homeland Security Committee held a markup of HR 901, the Chemical Facility Anti-Terrorism Security Authorization Act of 2011. The final version of the bill was adopted by a resoundingly bipartisan vote of 26 to 5. A total of 15 amendments were considered by the Committee, including the two amendments in the form of substitutes that I discussed in earlier blogs (6-18-11, and 6-20-11). Five {including Rep. Lungren (R, CA)} were adopted by the Committee.

Adopted Amendments

The Lungren substitute language only changed the authorization level for the funding for the CFATS program {§2107}, reducing it to the current budget program level outlined by the House. All of the remaining adopted amendments modified the language of this amendment.

ISCD Processing Time Limits

Rep. Sanchez (D, CA) proposed amendment 1B that would establish a time limit of 180 days for DHS to approve or disapprove a submitted security vulnerability assessment (SVA) or site security plan (SSP). This is response to the current slow pace of inspecting facilities and approving SSPs. Unfortunately, this does not take into account the reasons for the problems that ISCD is having getting the necessary data for the approval process; reasons that Congress has never questioned.

This language would inevitably result in a large number of facilities being formally notified that their SSP submission was disapproved rather than DHS working with the facility to get the required information put into a revised SSP submission. A formal disapproval may have unintended consequences for a facility such as increased liability insurance rates. It will certainly not speed up the approval process.

Security Background Checks

Rep. Jackson-Lee (D, TX) proposed amendment 1D that would add language concerning security background checks. The amendment would require the Secretary to establish regulations for the use of a TWIC, or other mandated security checks as an alternate method of performing the necessary personnel surety checks. This process is already being implemented by ISCD, though maybe not in the manner intended by Rep. Jackson-Lee.

This amendment fails to distinguish between the provisions in the current regulations for a background check to be accomplished by the individual facility and the submission of information to allow DHS to check for appearance in the Terrorist Screening Data Base (TSDB).

Jobs Impact

Rep. Davis (D, IL) proposed amendment 1H that would have mandated annual reports by the Secretary to Congress on the effect that the CFATS program had on job creation and elimination. The report would estimate the number of jobs created or eliminated because of implementing security programs under CFATS. It would also require the Secretary to provide feedback from owner/operators on how the program could be changed to have a more positive jobs impact.

The current economic situation certainly served as the impetus for the submission of this amendment. The recorded vote of 28-2 also shows that there was a personal reason for supporting this amendment in many of the Committee members. The demand for a voice vote on such lopsided votes indicates that the members wanted to be able to point to this vote in their future re-election campaigns as an example of their efforts to protect jobs.

If this provision remains in a CFATS authorization bill that makes it to the President’s desk, I foresee ISCD creating another tool in CSAT to allow for the easy collection and collating of this information for the annual report. It will be a relatively small addition to the CSAT burden imposed by the current CFATS program.

Small Business Assistance

Rep. Hochul (D, NY; the newest member of the Committee) proposed amendment 1I which would require the Secretary to provide technical assistance in the preparation and submission of SVAs and SSPs by covered facilities that meet the legal definition of being a ‘small business’. Presumably this is being done to help those facilities avoid the cost of hiring consultants to perform this function.

This provision will put the Department in a difficult legal position. This bill continues the current prohibition of the Secretary mandating any particular security measure as a pre-requisite for obtaining approval of an SSP. If a DHS inspector/assistor was to tell a facility to install a particular security device, then that would be de facto (and probably de jure) a violation of that prohibition.

Furthermore, the ISCD inspection force would be severely taxed by this requirement. It would take much more time for an inspection team to ‘assist’ a facility in the preparation and submission of SVAs and SSPs than it currently takes to approve an SSP. And, the SSP approval process would still require a pro-forma inspection of those facilities that received DHS assistance.

It would have made a lot more sense to include a small business grant program or tax credit to allow these small business covered facilities to hire the necessary contractors. It would have also provided more jobs for contractors.

The 29 to 1 recorded vote on this amendment again provides a good clue as to the real nature of this amendment. It is little more than a re-election publicity vote that will have unintended adverse consequences on the CFATS program.

Amendment Summary

None of these amendments to Rep. Lungren’s bill were even slightly controversial and will have little practical effect either on the CFATS program or the potential for this bill to be considered by the Senate.

The fact that these amendments and the final bill received so many Democratic votes is certainly noteworthy. In the confrontational 112th Congress this bipartisanship is something to be recognized and encouraged.

Crafting a Senate Actionable Bill

I noted in a blog last week nine items that if addressed in House CFATS legislation would help to ensure that the Senate would actually consider and likely pass the bill. These nine items are issues of importance to the environmental and labor activists that still exert substantial influence in the Senate. These items are:

• Inherently safer technology (IST)

• Employee participation

• Personnel-surety redress procedures

• Training/drills

• Whistleblower protections

• Emergency response planning

• Water/waste-water facility coverage

• MTSA facility coverage

• Public disclosure of CFATS status

I firmly believe that a carefully crafted compromise language can be found that would allow substantial support from centrists in both parties and minimize active opposition from the more extreme wings of either party.

Some of these items were addressed in amendments that were considered by the Committee today. Unfortunately, none of them met the ‘carefully crafted compromise language’ standard necessary to get bipartisan support.

Additional Facility Coverage

Ranking Member Thompson came closest to meeting the challenge in his amendment 1A that would have extended CFATS coverage to NRC, MTSA and water treatment facilities. It provided that the authority to ‘maintain and enforce’ these regulation in those facilities would be given to the NRC, Coast Guard and EPA respectively. The sticking point for most opponents to such coverage is the failure to address language that allows for extensive fines and potentially closing the facility for failure to comply with the regulations. If those sanctions had been specifically with drawn for the water treatment and power generation facilities, this might have had a better chance of passing.

Whistleblower Protections

Rep. Richardson (D, CA) proposed amendment 1C that addressed whistleblower protections. It was almost a direct copy of the same provisions found in HR 2868 from last session. There was little vocal opposition to this in the last session, but the business community has always had reservations on any restrictions on their personnel actions. Actively involving the business community in writing the terms of this might have made a difference in the final vote.

Redress Procedures

Rep. Clarke (D, MI) proposed amendment 1J that mandated the establishment of a redress procedure for actions taken under the security background check requirements. It includes establishment of standards for crimes and findings that would automatically bar someone from having unaccompanied access to restricted and/or critical areas within covered facilities. It would also require the establishment of an appeals process for questioning the legitimacy of the background check findings.

The problem that industry has always had with this language (again essentially taken from HR 2868) is that it makes no provision for a company having tighter standards for allowable ‘criminal’ conduct. Addressing this issue would make this provision easier to support for many people.

Leadership Decision

The House Leadership will now have to decide which CFATS authorization bill moves to the floor of the House. There may be one more hurdle for HR 901 to clear before this decision is made. The bill was originally referred to both the Homeland Security Committee and the Energy and Commerce Committee. Technically, the Energy and Commerce reporting on HR 908 does not count their review of HR 901. The Speaker could simply order HR 901 discharged from the Energy and Commerce Committee if it was decided to move forward with HR 901.

Moving Forward

Again, it is clear that either of these bills would satisfy industry desire to have a longer term on the current CFATS rules to provide a known regulatory environment in which they are spending lots of money for security upgrades. Additionally, there are certainly enough moderate Democrats that could support either bill when it came to the floor of the House to allow for a claim of bipartisan passage in the House.

It does not appear, however, that either bill, in their current form, would avoid the ire of powerful interests in the Senate that are influenced by labor and environmental activists. These people are senior enough and numerous enough to ensure that neither bill ever makes it to the floor for possible consideration.

The House has two more chances to make appropriate changes to which ever of these bills that is selected to move forward. There will be a Rules Committee hearing where limited amendments may be considered. And then there will be the floor debate where amendments may be authorized.

Congressional Hearings Week of 6-20-11

Two weeks in a row with both houses of Congress in Washington, what a concept. The hearing schedule is beginning to reflect the approach of the summer vacation period with lots of increased activity with seven hearings this week of potential interest to the chemical and cyber security communities. As I mentioned yesterday there will be a markup of HR 901; additionally there will be two cyber security hearings, a budget hearing, a rail security hearing, a suspicious activity reporting immunity hearing and the political favorite, a WMD hearing. There will also probably be a House Rules Committee hearing on the rule for HR 2219 that I mentioned last night.

Cyber Security

Two different committees will be looking at the Obama Administration’s cybersecurity proposal. On Tuesday the Subcommittee on Crime and Terrorism of the Senate Judiciary Committee will hold their hearing with witnesses scheduled from the Department of Justice, DHS-NPPD, and the National Institute of Standards and Technology.

On Friday the Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies of the House Homeland Security Committee will hold their hearing on the subject. There is no witness list available yet for this hearing.

As I noted in an earlier blog, there are significant a control systems provisions in the President’s cybersecurity proposal, but that is no guarantee that they will even be mentioned in these hearings. The inclusion of NPPD and NIST witnesses does provide the possibility that this topic will be covered in the Senate hearing, but a lot will depend on the questioning from the Senators. Being a Judiciary Committee panel, I don’t hold out a lot of hope for the Senate hearing, but I do expect a better chance of substantive covereage of control systems security issues in Friday’s hearing.

Coast Guard Budget

The Oceans, Atmosphere, Fisheries, and Coast Guard Subcommittee of the Senate Commerce Committee will be holding an oversight and budget hearing on Thursday looking at the Coast Guard. This is kind of late in the season for a budget hearing, but the Senate is way behind the House in the budget process this year. I doubt that there will be much in the way of MTSA coverage in this hearing. No witness list is currently available, but we can certainly expect the Commandant to be on hand.

Rail Security

The Senate Homeland Security and Governmental Affairs Committee will be holding a hearing on Wednesday looking at rail security operations. The recovery of information from the Bin Laden compound indicating an interest in attacking rail targets on the 9/11 anniversary is bringing some attention to this neglected area. If last week’s hearing before the Senate Commerce Committee is any indication, there will be no substantive discussion of the existence of a freight rail threat; but we can always hope. Those hopes are partially dashed by the fact that there is no railroad witness on the current witness list.

See Something Say Something

The Subcommittee on the Constitution of the House Judiciary Committee will be holding a hearing on HR 963, the See Something, Say Something Act of 2011, on Friday. This is bill introduced by the Judiciary Committee Chair to provide immunity to people making good-faith suspicious activity reports. There are no witnesses currently listed for this hearing.

WMD

Late last session Rep. King (R, NY) introduced HR 5057 that dealt with defenses against terrorist uses of weapons of mass destruction. King’s bill focused almost exclusively on nuclear and biological weapons to the exclusion of chemical weapons. That bill is apparently pending re-introduction and will be the subject of a hearing before the Cybersecurity, Infrastructure Protection, and Security Technologies Subcommittee of King’s Homeland Security Committee on Thursday.

HR 901 Markup Scheduled

This week the House Homeland Security Committee will be conducting a full committee markup of HR 901, Chemical Facility Anti-Terrorism Security Authorization Act of 2011. The hearing will be held on Wednesday “subsequent days as may be necessary”. As currently written this bill is just a codification of the current CFATS authority as an amendment to the Homeland Security Act of 2002 with an extension of that authority until September 30th, 2018.

The Committee web site notes that an amendment in the form of a substitute will probably be offered by the bill’s sponsor, Rep. Lungren (R, CA). The only change that I can find in that amendment is in §2107 where the annual authorization rate is changed from $93 Million to $89.9 Million; the same figure that was included in the marked-up version of HR 908.

The comment on the web site that this might be a multiple day hearing may indicate that Chairman King (R, NY) is trying to craft a revision to this bill that might have a better chance of being considered and passed in the Senate. This might include provisions addressing one or more of the following issues:

• Inherently safer technology (IST)
• Employee participation
• Personnel-surety redress procedures
• Training/drills
• Whistleblower protections
• Emergency response planning
• Water/waste-water facility coverage
• MTSA facility coverage
• Public disclosure of CFATS status

Any of the above provisions would have to be carefully crafted to allow passage both in the House (where industry concerns about the provisions would have to be addressed) and in the Senate (where environmental and labor activists have substantially more influence). Industry desire for a long term extension of the CFATS authority may make a reasonable compromise on some of these issues possible.

Another factor that must be considered in the markup of this bill is the fact that there is an alternative bill (HR 908) reported by the Energy and Commerce Committee that also provides for a long term extension of the CFATS program. The House leadership will have to decide which bill to bring to the floor of the House for consideration. The chance of this bill being the one selected would probably be increased if a water treatment facility provision were added to the bill as this would ensure that the Energy and Commerce Committee would have some oversight responsibility for the CFATS program. This would be similar to the compromise reached last session on HR 2868.

The Senate bill extending the CFATS authorization (S 473) has not yet been brought up in Committee. This may be a case of the Senate waiting to see what the House approves before they consider their options. This is what happened in the last session.

HR 901 Marked Up in Sub-Committee

As noted in yesterday’s blog post, the Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies of the House Homeland Security Committee held a mark-up of HR 901, the Chemical Facility Anti-Terrorism Security Authorization Act of 2011, that was sponsored by Chairman Lungren. The Subcommittee made no changes to the bill and voted to favorably recommend the Full Committee.

HR 901 Provisions

HR 901 is the middle ground legislation of the three CFATS extension bills currently under consideration in the House. It goes further than HR 908 in that it takes the current CFATS authorization out of the appropriations bill and re-writes the current authorization as an amendment to the Homeland Security Act of 2002. This would change the primary oversight authority in the House to solely a responsibility of the Homeland Security Committee.

As I mentioned in my initial blog on this bill, that there are some other minor changes in the wording of the authorization language, but nothing that would require any significant changes to the CFATS process. It would authorize continuation of the current CFATS program through September 30th, 2018.

Chairman Lungren made it clear in his opening statement that he wants no changes made to the current program. He noted that:

“Although implementation has been slower than Congress wanted, CFATS is working [sic]. It is building a foundation of security in the chemical industry which will protect our citizens and our economy from future terror attacks. Is it a perfect plan? No. Are there gaps? Probably. But our priority should be to extend this working chemical security program and not allow the perfect plan to be the enemy of the good.” (Pages 1-2)

Amendments Offered

Three minor amendments were offered by Democratic members of the Subcommittee. The three amendments addressed issues of facility coverage, process safety, and employee participation in the development of security plans.

Rep. Clarke (D, NY) offered an amendment expanding the coverage of the CFATS program. Her amendment would have continued the current exemption for CFATS coverage only for DOD and DOE owned or operated facilities. In order to avoid further overtaxing the folks at ISCD, the amendment would have required the Secretary to delegate CFATS authority to:

• The Nuclear Regulatory Commission (NRC) for those facilities currently “subject to regulation by the Nuclear Regulatory Commission” {§2101(b)(3)(A)};

• The Commandant of the Coast Guard for facilities currently covered under the Maritime Transportation Security Act (MTSA); and

• The Administrator of the EPA for water treatment and waste water treatment facilities.

Rep. Richardson’s (D, CA) amendment would have required the CFATS regulations to add “requirements for chemical facility process safety reviews” {§2101(a)(3)}. Typically those requirements are covered under less than effective EPA and OSHA regulations. A large number of the CFATS covered facilities do not fall under those regulations for a variety of reasons. The term was not defined, but would have allowed the CFATS regulations to include inherently safer technology provisions as those provisions are really process safety issues.

Rep. Richmond (D, LA) would have required employee participation in “developing, revising, updating, or implementing a chemical facility security vulnerability assessment or site security plan” {§2101(f)}. This has been a priority for Democrats for some time as they maintain that hourly employees understand what actually goes on in the facility better than does management. There would be less management objection to these provisions if they did not mandate union involvement in the process, though Union involvement in work-rule development in support of the security requirements would be difficult to avoid at facilities covered by labor agreements.

All three amendments were voted down on straight party-line votes.

Moving Forward

The bill will next be considered by the full committee. I expect that there will be other amendments offered in the full committee mark-up that will touch on these issues. And they are just a certainly going to fail on party-line votes. It would be interesting, however, to see how an employee participation provision that does not specifically require union representation in the process would fare.

COMMITTEE WEB SITE NOTE: Readers might be surprised that I did not give more advanced notice of this mark-up hearing. It wasn’t because the Committee web site didn’t provide notice; it was because they keep mark-up meeting notices on a separate web page from their hearing notices. Most committees combine those notices on the same page. I’ll watch both Homeland Security Committee pages from now on.

HR 901 Markup Hearing Today?

The Daily Digest of the Congressional Record (pg D411) today notes that the Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies of the House Homeland Security Committee will be holding a mark-up hearing today at 10:00 on HR 901, the Chemical Facility Anti-Terrorism Security Authorization Act of 2011. The Homeland Security Committee web page does not list any hearings today.

HR 901 Introduced – CFATS Extension

As I noted in an earlier blog Rep. Lungren (R, CA), along with House Homeland Security Chairman King and six Republican members of that Committee, introduced HR 901, the Chemical Facility Anti-Terrorism Security Authorization Act of 2011, this week. The bill essentially re-writes the authorization language of §550 of the Homeland Security Appropriations Act of 2007 (PL 109-295) as an amendment to the Homeland Security Act of 2002. The GPO has yet to print the official copy of this bill, but a committee draft is available.

CFATS Extension

This legislation would essentially reauthorize the current CFATS regulations through September 30th, 2018. It also authorizes the appropriation for the support of these regulations the sum of $93 Million per year through FY 2018.

Anti-Terrorism Focus

Beyond formatting differences there are just a few differences between this legislation and the §550 authorization language. For example the original authorization never mentioned the words ‘terrorism’ or ‘terrorist attack’. Technically, this would have allowed for the expansion of the security program to include the prevention of thefts of chemicals for economic gain or for the manufacture of illegal drugs like methamphetamines. This legislation specifically establishes that the focus of these regulations is “to protect chemical facilities against terrorism and potential terrorist attacks” {§2101(a)}.

This change will have no practical effect on the current regulations. The provisions of 6 CFR part 27 are clearly written to be anti-terrorism regulations. It would, however, reduce the flexibility of DHS to adapt those regulations in the future to other security threats that may arise. DHS would have to go back to Congress to get such authorization if this legislation passes as written.

No Specific Security Measure

This legislation would continue to prohibit the Secretary from disapproving a site security plan “based on the presence or absence of a particular security measure” {§2101(d)(2)}. This is almost certainly going to cause problems when the Department finally gets around to rolling out its personnel surety program as it will prohibit the Secretary from requiring any high-risk chemical facility to use the screening methodology established by the Department based on the TSA terrorism screening data base. The problems would also occur under the current authorization which may be part of the reason for the current delay in rolling out that background screening program.

Information Sharing

In addressing information sharing with State and local governments, the current authorization “does not prohibit the sharing of such information, as the Secretary deems appropriate, with State and local government officials possessing the necessary security clearances, including law enforcement officials [emphasis added] and first responders” {§550(c)}. That wording has been modified in this bill to read “does not prohibit the sharing of such information, as the Secretary determines appropriate, with State and local government officials possessing the appropriate security clearances, including emergency response providers [emphasis added]” {§2102(b)(1)}.

Since in common usage the term ‘emergency response providers’ is focused on fire and rescue personnel this language would seem to exempt law enforcement personnel from the requirement from having ‘necessary security clearances’. This would codify the current DHS interpretation that allows for some security program information sharing with law enforcement personnel without a requirement for police officers to have a security clearance.

There is another information sharing provision included in this legislation that was not included in the original authorizing language. Section 2102(b)(2) states that:

“CONGRESS.—Nothing in this title shall permit or authorize the withholding of information from Congress or any committee or subcommittee thereof.”

While this provision is certainly useful, it does nothing to address the issues raised in the fiasco that arose when Bayer CropScience tried to restrict access to information by the Chemical Safety Board during the CSB investigation of the fatal accident at the company’s facility outside of Institute, WV. The language of this section should be modified to specifically address the sharing of information with the CSB and other Federal investigative agencies.

No IST Provisions

No one who is familiar with the inherently safer technology (IST) debate that has been on-going in Congress since almost September 12th, 2001 will be surprised to note that there is absolutely no reference to IST in this legislation. In fact, IST proponents have been quick to point out that this bill continues to prohibit DHS from requiring any form of IST.

Unfortunately, this studious avoidance of the IST issue continues to prohibit DHS from addressing the issue of risk transference. Currently there are significant financial incentives for facilities to move inventories of DHS chemicals-of-interest (COI) off-site to avoid being covered by CFATS or being assigned to a lower tier level ranking. This could include the switch from rail-car shipments of COI to more frequent smaller shipments by truck. This has the effect of increasing both the safety and security risk associated with those shipments.

While I understand (but don’t necessarily agree with) the opposition to an IST mandate in the CFATS program DHS needs to be given the authority to remove the financial incentive to transfer security risk from regulated facilities to unregulated areas like transportation. This could be done by specifically requiring the Secretary to consider risk transference when re-evaluating a facility’s security situation for determining whether or not a change in tier level or removal from the list of high-risk facilities is an appropriate response to changes in the facility’s security situation.

The Way Forward

There is little doubt that this bill will find little difficulties in being approved by the House Homeland Security Committee. Reauthorization of CFATS has been a priority for Chairman King and relatively quick action is expected in his Committee. It is less clear that it will be a priority for the Energy and Commerce Committee. I don’t expect any significant opposition there, just a different set of legislative priorities.

Passage in the full House is probably assured. If an open rule is provided for this bill, there will be a lengthy debate as people try to add provisions for IST mandates, whistleblower protections, employee participation and any number of other chemical safety and security provisions. Based upon the HR 1 debate, it is apparent that some of these provisions, depending on specific language, have the potential to be added to the bill.

Debate in the Senate is going to be even more problematic. There would problems with getting this straight reauthorization language past the Senate Homeland Security Committee, especially with a bill crafted by the Ranking Member of that Committee, Sen. Collins (R, ME) actively under consideration. It would never survive in its current form in a floor debate in the Senate. Some sort of accommodation with labor and environmental interests will have to be reached for this bill to pass in that body.

CFATS Extension Legislation

Yesterday, Congress started the process for a more formal extension of the Chemical Facility Anti-Terrorism Standards (CFATS) program with the submission of four separate bills to extend the authorization for that program. None of the bills have yet been published by the GPO (and probably won’t until sometime next week), so we don’t know what provisions are included or for how long each bill would extend the authorization.

The four bills with sponsors are listed below:

● S 473 – Senators Collins (R, ME), Landrieu (D, LA), Portman (R, OH), and Pryor (D, AR) [8:21 pm 03-04-11 Corrected party affiliation of Sen. Collins]

● HR 901 – Representatives Lungren (R, CA), King (R, NY), Long (R, MO), Marino (R, PA), McCaul (R, TX), Rogers (R, AL), Walberg (R, MI), and Walsh (R, IL)

● HR 908 – Representative Murphy (R, PA) and Green (D, TX)

● HR 916 – Representative Dent (R, PA)