Monday, May 30, 2011

HR 2017 – More Details

I’ve had more of a chance to review the text of HR 2017 and its accompanying Committee Report so I have a better understanding of the portions of the bill that will be of interest to the chemical and cyber security communities.

Budget Numbers

First there is the examination of the high level budget numbers with a comparison to those passed in the final FY 2011 continuing resolution:

● TSA Surface Transportation - $129,748,000 [FY 2011 - $105,961,000] – 22% Increase

● NPPD Management and Administration - $42,511,000 [FR 2011 - $43,577,000] – 2.5% Decrease

● Infrastructure Protection and Information Security - $891,243,000 [FR 2011 - $840,444,000] – 6.0% Increase
To get a better understanding of the budget at a more practical level you have to read the details in the Committee Report. I’m not going to try to make comparisons to last year in this section because those details were not available in the documentation accompanying HR 1473, the final FY 2011 continuing resolution.

● TSA Surface Inspectors and Canine Teams - $91,234,000 (fully funds 2010 authorized personnel numbers)

● National Computer Security Division - $463,841,000

● Office of Infrastructure Protection - $302,278,000
Cyber Security and HR 2017

The budget numbers for the NCSD are broken out in much more detail and the Committee has broken them out in a little different manner than in past budgets. They include

● US-CERT - $79,116,000
● Critical Infrastructure Cyber Protection - $61,364,000
The Critical Infrastructure Cyber Protection account includes $28,927,000 for Control System Security and $12,901,000 for CIP Cyber Security. There are no explanations of what those two accounts include.

The Appropriations Committee appears to be paying closer attention to control system security problems than anyone else in Congress. They make the following observation on page 94 of their Committee Report:

“The Committee is aware of promising efforts to develop manufacturing standards, guidelines, and compliance procedures for industrial automation and control systems. Integrating agreed-upon industry standards into industrial automation and control systems promises a much higher likelihood of successfully countering cyber vulnerabilities. Since the development of these standards is projected to take up to 10 years, the Committee encourages DHS, in conjunction with industry partners, to accelerate the development timeline for control system security standards and to brief the Committee within 60 days of the date of enactment of this Act on its plans to meet this directive.”
CFATS and HR 2017

There are no specific numbers listed for Infrastructure Security Compliance Division or CFATS in general. That certainly doesn’t mean that the Appropriations Committee is ignoring the CFATS program. As I mentioned in my earlier blog the CFATS §550 authorization would be extended until October 4th, 2013 by §536 of this bill. There are additional areas in the Committee Report that specifically address CFATS related issues.

On page 93 there is a paragraph in the report that deals specifically with inherently safer technology (IST). This is almost certainly in response to repeated Administration comments in support of adding an IST component to CFATS. The Committee directs DHS to complete a study on IST and CFATS and to report back to the Committee. It specifically requires that:

“The report shall detail the Department’s definition of IST; the cost to the Department to implement and oversee statutory or regulatory requirements; and the financial and economic cost to facilities required to implement such requirements. Finally, the report shall include findings detailing unintended consequences of implementing IST related to security and effects on other Federal agencies.”
This might be an interesting addition to the IST debate except for the fact that agency reports to the Appropriations Committee enter a black hole that no one outside of the Committee can see. One would think that the Homeland Security Committee or the Energy and Commerce Committee might be more interested in this report, except that the whole CFATS program is authorized by the Appropriations Committee so they have primary jurisdiction, sort of.

In general, the Appropriations Committee approves of the way that the CFATS program has been administered, noting that “DHS has established a robust screening and inspection program for facilities covered under the 2007 law” (pg 93 Committee Report). Perhaps they haven’t heard that the ‘inspection program’ is proceeding much slower than anticipated. Since they haven’t done any oversight hearings on this program they might not realize the current problems that the program is having. Then again, Committees that have heard the details aren’t concerned with the slow inspection pace so why should the Appropriations Committee?

Another Appropriations Committee authorized chemical security program that will be administered by ISCD is the ammonium nitrate sales regulations that have been wending their way through the administrative bowels of the Executive Branch for over three years now. In a paragraph addressing CFATS and ammonium nitrate on page 93 of the Committee Report the Committee “directs NPPD to expedite publication of its Final Rule for ammonium nitrate regulations and provide an immediate briefing on the anticipated timeline for full implementation of the program.”

That’s a real ambitious directive, given the fact that DHS has yet to publish their notice of proposed rule making for the ammonium nitrate program. To be fair, the rule is currently out of their hands as they submitted it to the Office of Management and Budget for review back on March 3rd. We should be seeing OMB’s reply ‘any time now’.

The big delay on this rule has been political and thus mainly out of NPPD’s hands. This rule would establish some significant performance requirements for a politically vocal and powerful portion of the US economy, the farm sector. Beyond that there are some significant hurdles to controlling these sales because of the wide variety of transaction sizes that must be considered and the way that agricultural commodities like this are moved and sold. For example there may be significant loses of product while moving on barges due to wind blowing the open stacks of ammonium nitrate powder into the river; diversion reporting rules need to take this into account.

Moving Forward

This will be the first appropriations bill that the House has considered in over 18 months (a continuing resolution does not count) and it looks like it will come to the floor this week. No telling yet on how far the Senate Appropriations Committee is on getting their bill together, but it certainly looks possible that we could have a signed bill before the summer recess.

The Republicans have promised an open rule making process for appropriations bills so this could be a very interesting week in the House. We’ll be able to see how interesting when we see the results of the House Rules Committee hearing on Tuesday night. The bill will certainly pass, but it will be interesting to see what changes come through the amendment process.

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