The Washington Times today editorially examines House passage of H.R. 2868, the Chemical Facility Anti-Terrorism Act, a seriously flawed piece of legislation that will raise costs for manufacturers and discourage creation of private-sector jobs.

The editorial, “Chemical insecurity,” argues that having the government, in this case the Department of Homeland Security, impose the substitution of chemicals under the theory of “inherently safer technologies” actually works against safety.

The forced switching of chemicals could result in companies having to replace products they have long used without incident with new chemicals and processes. There is wide agreement among corporate safety executives and outside experts that inexperience is one of the major causes of accidents.

Ill-considered mandates could slow the manufacture of products used throughout the economy, from fertilizer to pharmaceuticals, potentially creating shortages of some goods and even lost jobs when some products cannot be produced because key ingredients are outlawed.

The Times also notes the inclusion of provisions allowing private lawsuits against the Department of Homeland Security over its regulation of chemical manufacturing facilities, noting the similarities to the Endangered Species Act, in which lawsuits can stop projects and turn the federal government into a land-use planning agency. We ask: Jobs?

We wrote about the third-party lawsuit provisions at Point of Law, noting the defeat of an amendment by Rep. Michael McCaul (R-TX) to remove the language. McCaul said:

Allowing any third party–anybody– to sue the Secretary is both reckless and unnecessary. This provision would be a boon to trial lawyers and to environmentalists at the expense of the Department of Homeland Security and national security interests. Citizen suits have no place in a national security context, and this would be the very first time that Congress would be authorizing such suits in the homeland security arena.

The House Committee on Homeland Security on Tuesday held a hearing on H.R. 2868, the Chemical Facility Antiterrorism Act of 2009. (Earlier post.)

On Thursday, the full committee marks up the legislation, getting it ready for passage. That’s expeditious.

We notice that this year’s version of the bill includes new language establishing a private right of action, i.e., inviting “citizen suits” to run parallel to or even supersede regulatory compliance. The Department of Homeland Security has its concerns, as noted in the prepared statement of Philip Reitinger, deputy under secretary:

The Department has significant concerns with the citizen suit provision being contemplated under some legislative proposals.The Department is concerned about the potential for disclosure of sensitive or classified information in such proceedings. Similarly, the Department urges that it retain discretion in determining the manner and extent to which information about the reasons for placing a facility in a given tier is divulged, as those reasons may involve classified information.

For more on the “citizen suit” provision see our post over at Point of Law.com, “Private suits against chemical manufacturers prevent terrorism, how?“

USA Today reports that the Department of Homeland Security says it cannot meet a 2012 congressional deadline for scanning 100 percent of cargo containers headed to U.S. ports, and instead will gather more information about the cargos’ origins and handling.

The recognition of 100 percent scanning’s impracticality is good, but the information-gathering process could also impose real anti-competitive burdens on manpower and schedules.

“Two wrongs don’t make a right,” says Frank Vargo of the National Association of Manufacturers. He says Chertoff’s plan will slow trade and could cost the industry as much as $20 billion a year. “It will result in a two-day — maybe a five-day — delay before that container (is cleared) and can be loaded onto a ship.”

Security experts agree that 100% scanning would be very difficult to achieve. “It’s not practical, and there’s no threat that justifies it,” says James Carafano of the Heritage Foundation, a conservative think tank.

Heritage’s Foundry blog has more, “Common Sense Prevails at DHS.”

The information-gathering program is known as 10+2 and has also sparked considerable concern in the private sector about new costs and delays. In July, the NAM joined 40 trade associations in calling for a pilot project to ascertain the impact of 10+2. From our news release:

“The rule proposed by Customs requires 10 new categories of data on U.S. bound shipments 24 hours before loading in foreign ports,” said Catherine Robinson, Associate Director for High Tech Trade Policy. “That would add tremendous cost to U.S. manufacturing at a time when increasing global competition and a slowing domestic economy are creating new stresses on U.S.-based manufacturers from every sector. National security and trade facilitation need not be mutually exclusive. National security can be enhanced without impeding commerce.

“A prototype program would enable customs to get it right and save U.S. business and the government from having to make multiple changes to their operations,” Robinson said.

From CQ, “Lawmakers call for trial run of new cargo security rule“, a story about the proposed 10+2 rule:

A bipartisan group of House lawmakers want the Homeland Security Department to delay a cargo security rule from taking effect, saying it would likely disrupt the balance between security and commerce.

The department’s Customs and Border Protection unit drafted the new rule in response to a major port security law enacted in 2006, when Republicans controlled the body.

The rule would require importers to submit 10 new categories of data on cargo containers before they are shipped to the United States by sea. Customs could put the rule into effect as early as November.

But in a letter to Homeland Security Secretary Michael Chertoff and CBP Commissioner Ralph Basham, the lawmakers say Customs should do a test program with a small group of importers to see what impact the rule will have before it goes into effect worldwide. They said the rule could create delays in the import supply chain.

Rep. Earl Blumenauer (D-OR) is taking the lead .

The story cites a statement from NAM President and CEO John Engler  praising the letter and asking the Department of Homeland Security to promote a pilot program. Key quote: “A prototype program is the best method for evaluating the impact of the proposed rule on national security and trade facilitation and for identifying ways to improve the rule before the government and industry invest billions of dollars to comply.”

Secretary Chertoff and the folks at the Department of Homeland Security (DHS) are continuing their public relations campaign promoting E-Verify and increased immigration worksite enforcement. In the Secretary’s latest blog post from July 9, he attempts to separate fact from fiction about the DHS and Social Security Administration’s employment verification program. However, check out item #5 which starts out with, “E-Verify is a proven tool currently used by more than 73,000 employers nationwide, with another 1,000 employers enrolling every week. I’d venture to say that if the system didn’t work or was riddled with errors, very few employers would want to use it.”

Let’s explore what is wrong with this logic. There are approximately seven million employers in the country. Seventy-three thousand enrolled employers only represent 1.04% of all employers. If a manufacturing company made a consumer product that only 1% of the population wanted, that would be considered a big flop. Employers are finding problems with the system, which is why very few employers want to use it.

And on that point about 1,000 employers signing up each week – they are not signing up by choice. Many have been forced to enroll due to new mandates by state governments. Prior to these mandates, the program had a total enrollment over a decade that was less than 30,000 – hardly a groundswell of support and buy-in from the employer community.

As to the rest of point #5, check out this podcast from Cato where they have begun to examine some of the details behind those tentative non-confirmation numbers. Let’s just hope someone from DHS listens to it too.