Reader Comment – CFATS Committee Games

Last Friday an anonymous reader posted a comment on my blog about the hearing for HR 908 correcting a statement I made about the House Homeland Security Committee being required to review the bill. The reader was correct; the bill was referred only to the House Energy and Commerce Committee. I had made the unconscious yet horrendous assumption that the Republican leadership of the House had finally gotten over this serious bit of insanity.

Prestige and Power

Now it would seem to be obvious to anyone with a modicum of intelligence that the House Homeland Security Committee would have at least shared responsibility for the supervision of the Chemical Facility Security Anti-Terrorism Standards (CFATS) program. It is, after all, a counter-terrorism security program operating out of the Department of Homeland Security. Most people would assume that the Homeland Security Committee would have primary oversight responsibility.

‘Most people’ would of course be forgetting that prestige and political power trump reason every time. It would seem that the Energy and Commerce Committee can claim primacy over the extension of the CFATS program because it is not authorized as part of the Homeland Security Act of 2002, but as part of a budget bill. And it seems that the E&C Committee has never gotten over its loss of supervision of other security programs to the upstart Homeland Security Committee; after all that decreased the status and power of its Chairman.

Last session we saw a modicum of cooperation between the two committees in the crafting of HR 2868. At the time it looked like the new Chairman of the E&C Committee was able to get around the change in status, but now it turns out that the only reason for that cooperation was that HR 2868 clearly added water facility security to the bill under provisions of an EPA law, not the Homeland Security Act, ensuring that E&C would have at least shared jurisdiction over CFATS in perpetuity.

I had hoped that with the Republican appointment of a chairman for the E&C committee who was an outsider that this marked a change in the leadership’s willingness to start to address Homeland Security and the other committees that had to surrender part of their power in the consolidation of responsibility for homeland security in a single committee. I guess that I was wrong.

Loss of Limited Oversight

Of course Chairman Shimkus and Ranking Member Waxman are likely to loose all vestige of their authority over CFATS during this session of Congress. Any bill will have to make its way through the Senate Homeland Security Committee and Sen. Collins has made it clear that she expects to make at least cosmetic changes to the program that would include re-writing the authorization as part of the Homeland Security Act. Since there is nothing objectionable to industry in S 473 (and industry actually touted a version of this bill last session that was substituted for HR 2868 in the Senate) it seems likely her bill will make the final legislative cut.

There is a complex way that Shimkus/Waxman can maintain influence over CFATS. If they include language in the bill that would remove the exemption water facility and waste water treatment facility exemption to CFATS. They could start be trying to add the same Title II and Title III from HR 2868 from last session. I doubt that the IST provisions or citizen law suit provisions would make it through the legislative process. The water treatment industry is not that powerful, but I would expect the chemical industry to oppose the inclusion of that language in even parts of the bill that don’t actually affect them.

This would, of course require that Shimkus would have to stall any action on HR 901 and HR 916, the other two House bills that would extend the CFATS authorization. Then he would have to pass HR 908 in Committee (very easily done apparently) and yet not allow it to come to the floor until the House takes up S 473. They he would have to get the House Rules Committee to go along with accepting the language of HR 908 as passed in Committee as a substitute for the language in S 473. Then he would have to maintain enough control of the Conference Committee to keep out of the final bill any mention of the Homeland Security Act. Good luck.

There is a potentially simpler way to maintain a finger in the CFATS pie. Forget HR 908. Take up HR 916. That keeps the authorization language in §550 while adding provisions on training and exercises as amendments to the Homeland Security Bill. This is close to the Collins language and might be passable in the Senate. It would end up giving the two House committees shared responsibility for CFATS, but there is no way to get around that.

Unfortunately, all of these options take away any possibility of comprehensive chemical security legislation. Oh well, that probably wasn’t possible anyway.

Two Remaining CFATS Extension Bills

As I mentioned last week there were four CFATS extension bills submitted in Congress last Friday. I have already reviewed S 473 and HR 901. Today I’ll take a quick look at the two remaining bills; HR 908 and HR 916. Both bills are relatively simple and straightforward.

HR 908

Representatives Murphy (R, PA) and Green (D, TX) introduced HR 908, the Full Implementation of the Chemical Facility Anti-Terrorism Standards Act. This bill has a single provision; it extends the expiration of the current §550 authority for the CFATS regulations until October 4th, 2017. In keeping with the title of the bill the intent seems to be to allow the full implementation of the current CFATS program. Given the current pace of the SSP inspection process, it could easily take until 2017 or even longer.

According to a Houston, TX based blog the Chairman of the House Energy and Commerce Committee, Rep Upton (R, MI) has endorsed this bill. This is important because his Committee is one of two committees that has been assigned to review the three house CFATS bills (the other, of course being Homeland Security).

HR 916

Congressman Dent (R, PA) introduced HR 916, the Continuing Chemical Facilities Antiterrorism Security Act of 2011, a title shared with S 473. This bill is a duplicate of last session’s HR 5186 which was a companion bill to the one offered in the Senate by Sen. Collins (R, ME) (which was amended in Committee to become what is now S 473).

This bill would extend the CFATS authorization until October 4th, 2015 and would add the essentially the same training and exercise provisions found in S 473. The advisory committee and the repeal of §550 from S 473 are not included in Dent’s current bill.

Prospects

So we have four separate bills that would extend the current CFATS authorization. Two are theoretically bipartisan (S 473 and HR 908). Three have the support of committee chairs [S 473 (Collins is the moral equivalent of chair of the Senate Homeland Security Committee), HR 901 (King of the House Homeland Security Committee) and HR 908 (Upton of the House Energy and Commerce Committee)]. We can expect a re-issue of last years’ bills from Sen. Lautenberg, but they won’t make it out of committee; they are too partisan for this Congress.

Any of the three House bills could pass in the House this year, but all would certainly be modified in Committee and on the floor. It will probably come down to HR 901 as King is a co-sponsor and Committee Chair. The Senate bill will be the most heavily modified in a floor debate. Since it probably would not be directly taken up by the House (due to likely weakened IST, labor participation and whistleblower provisions that I expect to see added on the floor of the Senate) the language would most likely be added as a substitute for what ever house bill gets sent to the Senate.

If we get specific CFATS legislation this year (and the chances are probably better than they have ever been) it will probably include at least some of Sen. Collin’s provisions.

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)