HR 553 Passed in Senate and House

On Monday the Senate passed with amendment HR 553, the Reducing Over-Classification Act by unanimous consent. The amendment is essentially the same one that was proposed as substitute language in the report on the bill provided by the Senate Homeland Security and Governmental Oversight Committee. I reported on the details of that change in an earlier blog posting. Among other things, this bill will require DHS to produce unclassified versions of their intelligence reports to make it easier to share counter-terrorist intelligence with State and local governments as well as with potentially affected private sector entities.


Subsequently, on Tuesday the House concurred with the Senate amendment on a voice vote and the bill has been sent to President Obama for signature.

Congressional Hearings Week of 09-27-10

It is another relatively light week for scheduled Congressional hearings that will be of probable interest to the chemical security community with two hearings of peripheral interest. The topics this week will be pipeline safety and intelligence sharing.

The Senate Commerce, Science and Transportation Committee’s Surface Transportation and Merchant Marine Subcommittee will be holding a hearing on Pipeline Security on Tuesday at 3:00 pm EDT. While they will be looking at recent accidents in San Burno, CA and other areas, there is always the chance that some Senator will ask about the possibility of a terrorist attack causing similar or more serious damage since there is effectively no Federal pipeline security program.

The Intelligence, Information Sharing and Terrorism Risk Assessment Subcommittee of the House Homeland Security Committee will be holding a hearing on Wednesday at 3:30 pm EDT looking at how well the DHS Office of Intelligence and Analysis shares information. Typically these hearings focus on communication with law enforcement agencies, but sharing information with potential targets in the private sector is also liable to come up, if only briefly.

Still no word on possible hearings on the Lautenberg water system security bill or on a potential House appropriations bill for DHS. There is more and more talk about a post election session of Congress where Democrats think they will be able to get more support for controversial legislation where members are not being held directly accountable to voters. This certainly may help in the House, but if Republicans make their expected gains in the House and Senate, it is hard to understand where any Republicans will switch sides in a lame duck session in the Senate.

The one exception to this outlook may be HR 2868. The Senate version might pick-up Senate Democratic support because of the three year extension of the CFATS authorization. Democrats may hope that this would allow them to revisit the inherently safer technology issue when re-authorization comes up again. I would still expect to see a floor fight to add IST, labor involvement, and whistleblower protections to the Collins version of HR 2868. If a modified IST assessment and report provision made it into the bill then it could possibly pass when the bill made it back to the House.

HR 553 Reported in Senate

Last week the Senate Homeland Security and Governmental Affairs Committee finally got around to publishing their report on HR 553, the Reducing Over-Classification Act. The Committee held their hearing on this bill back in November of last year and ordered the bill reported favorably; on Wednesday that report was officially filed and the GPO posted the official copy of that report on Friday. This is just one of a number of delinquent reports that we should be seeing in the coming weeks. This report is important because the Committee made some important changes to the legislation, changes that had not been available for public scrutiny until this report was published. Actually the reported version of the bill is a substantial re-write of the original bill that passed in the House back in February of 2009. The original bill was the work of Rep. Harmon (D, CA) and was intended to reduce the over classification of information in the Department of Homeland Security so that more information could be more easily shared with State and local governments and private entities responsible for protecting critical infrastructure and key resources (CIKR). The Senate bill extends the reach of this bill well beyond just DHS and makes it specifically targeted at intelligence information. Classified Information Advisory Officer In DHS it would require the designation of a Classified Information Advisory Officer to “assist State, local, tribal, and private sector entities that have responsibility for the security of critical infrastructure, in matters related to classified materials” (S. Rept 111-200, pg 5). The ‘private sector entities’ would certainly include high-risk chemical facilities under CFATS. The report makes it clear that the Committee intends for this Officer to “serve as both a valuable resource for information and an advocate for these non-federal entities”. Intelligence Dissemination Probably the most important part of this revised bill is the establishment of procedures to try to make counter-terrorism intelligence information more available for those that are actually charged with protecting CIKR. It would specifically task the Director of National Intelligence with ensuring the maximum sharing of intelligence sharing with “appropriately-cleared individuals in federal, State, local and tribal governments” (pg 6). I am disappointed that this section (Section 4) does not include ‘private sector entities that have responsibility for the security of critical infrastructure’, but that is probably because DHS would be the agency responsible for that specific communication. I would still have preferred to see that specifically mentioned in this section. The revised bill would require the standardization of format for intelligence products and require portion marking of those products to ensure that it is clear what portions of the intelligence reports is actually classified (which is already included in the general rules for marking classified documents). Then it would require each intelligence agency to determine which reports “could benefit a state, local, or tribal government, law enforcement agency, or private sector entity” (pg 7) and forward those reports to the Interagency Threat Assessment and Coordination Group (ITACG). The ITACG would then recommend to the DHS Undersecretary for Intelligence and Analysis (DHS I&A) to “produce a product at the lowest possible classification level that can be provided to appropriate entities” (pg 7). While first responders are specifically mentioned as a potential target audience (a great idea) of such reports, I am again concerned that ‘private entities’ are not mentioned. There does appear to be enough ‘buts’ and ‘ifs’ in the language to allow for adequate protection of ‘methods and sources’. This has always been the (semi) legitimate justification for keeping intelligence reports closely held. The parenthetical ‘semi’ is there because this justification has been used on occasion to provide cover for things completely separate from methods and sources. The one short coming in this legislation is that it still solely relies on intelligence agencies to voluntarily share their information with ITACG. While the agency IG’s are tasked with reporting on accurate classification efforts, there is no requirement for independent verification of the sharing of appropriate information with ITACG. I think that it would be beneficial for the provision of a officer in the Office of the DNI to review compliance with this sharing requirement. Preventing Over-Classification Only two sections in the bill address the original intent of HR 553, the prevention of over classification of information. It doesn’t appear that these provisions are nearly as robust at those proposed by Rep. Harmon, but they will have some affect the on the level of classification of intelligence information. The Way Forward This bill is now on the Senate Legislative Calendar and has a reasonable chance of being brought to the floor and being approved by the Senate in June. There doesn’t appear to be anything of significant political interest to delay its consideration. The bill will then have to go to Conference because of the Senate changes to the bill. The House has generally been slow to appoint conferees to bills during this session, so it isn’t clear that the bill could come to a final vote in both Houses before the summer recess. Even so, this bill could probably pass after the summer recess, even in this contentious election year.