Chemical Facility Security News

The Democratic leadership added a new target for the Republicans to shoot at between now and November when they sent an ‘incomplete’ Farm Bill to President Bush for a promised (and delivered) veto. Thirty four pages were missing in the document that went to the White House. Both the House and the Senate voted to overturn that veto and then the mistake was discovered. The House re-voted and the Senate will have their chance after a one week recess.

According to various constitutional scholars the bill is probably as good as law now, but it will certainly be so after the Memorial Day Recess. Lawyers and scholars will have fun debating which date actually counts as the date the bill was past, but for most provisions it will be just an academic debate.

There is one chemical security provision that this debate may effect and that is the 30 day provision for initiating an outreach program to agricultural users of propane (see: "Farm Bill Contains Chemical Security Provisions"). As I mentioned in another blog, I don’t think that this provision is germane any more. The Top Screens that would require that outreach have already been done.

There was an Agricultural Exemption letter that ‘temporarily’ excused agricultural facilities from having to complete a Top Screen. A close reading of the provisions shown below would seem to indicate that Propane was not included in that exemption.

• "Until further notice, or unless otherwise specifically notified in writing by DHS, the Top Screens will not be required for any facility that is required to submit a Top-Screen solely because it possesses any Chemical of Interest, at or above the applicable screening threshold quantity, for use—

• "in preparation for the treatment of crops, feed, land, livestock (including poultry) or other areas of an agricultural production facility; or

• "during application to or treatment of crops, feed, land, livestock (including poultry) or other areas of an agricultural production facility".

That is not to say that there are not probably a number of agricultural facilities that interpreted those provisions so as to include propane in the exemption. Even if that broader interpretation is correct (and it would probably take at least a couple of court reviews to settle the question) the out reach would not be necessary until DHS decides to take on the agriculture lobby. After President Bush’s resounding defeat on the Farm Bill, I don’t expect DHS to try to get agricultural Top Screens done during this administration.

Regardless of whether I think that the provision is germane, it is part of the law. That means that DHS will have 30 days to start this ‘outreach’ program. It will be very interesting to see what kind of program that DHS can put together in 30 days. If I were the Secretary, I would not start the 30 day clock until the Senate completes their second vote, but the work would start today. The Department is going to need every day they can get.

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