INSIGHT: Congress likely to codify site security law as-is

20 January 2011 18:42  [Source: ICIS news]

US Congress expected to renew site security law as-isBy Joe Kamalick

WASHINGTON (ICIS)--Whether Congress can pass this year a permanent reauthorisation of federal rules for antiterrorism security at US chemical facilities is uncertain, but sources on Capitol Hill say that draconian expansion of such federal oversight is off the table.

Those regulations, the Chemical Facility Anti-Terrorism Standards (CFATS), are due to expire in just six weeks, on 4 March, unless Congress acts quickly to renew or extend the four-year-old statute.

US chemical producers and others affected by the federal security mandate very much want to see a permanent reauthorisation of the existing rules - which have been the subject of legislative debate and challenge over the last two years - so that they will have some long-term certainty about their obligations and requirements under the law.

But Hill sources said that House and Senate passage of a permanent reauthorisation for CFATS before 4 March just isn’t possible. In the House, the new majority Republicans are still setting up committee arrangements and hiring more staff. 

It was only this past Saturday, that former Democratic leaders of the House Homeland Security Committee and its subsidiary panels moved out of their leadership offices so that Republicans could move in.

Instead, staffers at the House Homeland Security Committee and the Senate Homeland Security and Governmental Affairs Committee anticipate legislation that would extend the existing CFATS programme yet again, but probably only for a short period, perhaps to mid year.

That would give legislators time to give full consideration to a permanent reauthorisation (codification). If necessary, said Hill sources, the statute might be extended as-is for a second time this year. That raises the possibility that action on a final and permanent CFATS might even slip into 2012.

However, there appears to be greater certainty that congressional reauthorisation for the federal mandate for chemical plant security standards will not be significantly broadened.

In particular, Hill sources said that expanded regulatory measures that the chemicals sector considered draconian will not be part of CFATS when it is finally made permanent by the current 112th Congress.

In the 111th Congress, Democrats had pushed for broader authority for the Department of Homeland Security (DHS) to force security changes at the some 6,000 US chemical facilities deemed to be at high risk for a potential terrorist attack - including departmental power to impose inherently safer technology (IST) measures as a security measure.

If DHS were to be given such authority, chemical and refining industry officials worried that the department would be able to force changes in a given facility’s feedstocks, processes and even end products.

That IST mandate was in the chemical facility security expansion bill (HR-2868) that was approved by the then-Democrat-majority House in December 2009. That bill was never given serious consideration in the Senate.

Also worrisome for chemical producers were indications that some senators and House members wanted a renewed CFATS bill to include private right of action (PRA), a feature that would have allowed citizens to bring suit in federal courts to force DHS to increase security at a specific facility.

Lastly, as in the bill approved by the House in late 2009, advocates of tougher federal rules for chemical plant security opposed federal pre-emption of state regulation in this area.

Those seeking tougher antiterrorism security for chemical plants wanted specific federal authorisation for states to enact their own security requirements if state officials felt the federal programme was not sufficiently strict.

Chemical manufacturers worried that if such a mandate were approved, they would be facing a rash of varying state-level security mandates in addition to the federal law.

But according to Hill sources, an IST mandate, private right of action and independent state regulation of chemical site security are all “off the table” and will not be included in whatever final reauthorisation is approved by Congress this year or next.

Indeed, the new Republican chairman of the House Homeland Security Committee, Representative Peter King of New York, has already indicated that he was opposed to anything like an IST mandate for the enforcing department.

Shortly after the November elections last year, when Republicans won majority control of the House and King was restored as committee chairman, King said that any legislation to update and permanently codify CFATS “will avoid giving DHS unfettered authority to mandate how facilities should manufacture their products”.

In addition, earlier this week Representative Fred Upton (Republican-Michigan), the new chairman of the House Energy and Commerce Committee, released a “key issues” summary that expressed opposition to efforts by “some in Congress and the Obama administration to dramatically expand the CFATS programme into non-security areas”, a reference to IST.

Noting that the existing CFATS programme has not yet been fully implemented, Upton said that permanent reauthorisation of the regulations “should preserve the original focus on security against terrorism”.

Upton, whose committee also has jurisdiction over CFATS, added that any legislative expansion of the existing programme beyond antiterrorism security “could kill domestic investments and jobs”.

In his remarks in November last year, King did hint that he might allow some changes to the existing regulations.  But sources close to King’s committee staffers say he would consider adjustments that would allow DHS to provide more security training for chemical plant personnel at the shop floor or operations level.

That, said the source, would appeal to the Democratic minority on King’s panel and help ensure their support for an otherwise unchanged CFATS reauthorisation.

In the Senate, where Democrats remain in the majority but with a significantly reduced margin of control, Senator Susan Collins of Maine, the ranking Republican on the Senate Homeland Security panel, may re-introduce her bill to extend CFATS as-is for another three years.

That measure was approved by the committee last year - also with some additional worker-training provisions - although it never got to the Senate floor for a full vote.

Collins is said to favour a three-year extension of CFATS as-is so that the programme can be fully implemented and then given informed appraisal by Congress to see if substantive changes are needed.

Senate action on the Collins bill or permanent reauthorisation for chemical plant security is complicated by the fact that the Senate Homeland Security Committee chairman, Senator Joe Lieberman (Independent-Connecticut), has announced that he will not seek re-election when his term expires at the end of 2012.

Lieberman’s certain retirement might affect his views on or interest in CFATS, sources said, so a major conflict between the Democrat-controlled Senate and the Republican majority House might be less likely.

In 2009 Lieberman had expressed interest in legislative changes to CFATS that would give federal courts some sort of intervention authority if DHS appeared to be not adequately enforcing its security mandate. 

However, Lieberman never articulated specific language, and in the end he voted in favour of Collins’s three-year extension of the existing rules.

This suggests that if the Republican House approves permanent reauthorisation for CFATS largely as-is, Lieberman would not stand in the way.

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By: Joe Kamalick
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