House Rules Committee Approves Open Rule for HR 2017

Last evening the House Rules Committee approved an open rule for the floor consideration of HR 2017, the Department of Homeland Security Appropriations Act, 2012. The rule allows for one hour of general debate of the bill and then allows for floor submission of amendments to the bill as it is read ‘by paragraph’. Amendments do not have to be cleared by the Rules Committee but priority will be given to those amendments published in the Congressional Record.

This will lead to a lengthy debating process as each member will be able to talk for up to five minutes on each amendment. It also makes it nearly impossible to tell in advance which amendments will be offered. Additionally, it will probably delay the daily publication of the Congressional Record, making it difficult to analyze the published amendments in advance of their consideration.

Some measure of order will be maintained by the provision of the rule requiring that amendments must be submitted when the paragraph that they would affect is read. Once the Clerk proceeds to the next paragraph, no amendments to the preceding paragraphs will be considered. At the end of the reading of the bill, there will still be time to submit amendments that will provide restrictions on the spending of money allocated in the bill.

CFATS Extension in Jeopardy

In recent years there has been a tendency to add provisions to spending bills that don’t really belong there, in technical violation of House Rules (Rule XXI, clause 2). The one that readers of this blog will be most familiar with is the §550 authorization for the CFATS program, but there are a number that are routinely included in each appropriations bill. Typically these technical violations are protected by a Rules Committee waiver of ‘points of order’ against these provisions.

As I have mentioned in previous blogs, we find the familiar one-year extension of the CFATS program included in §536 of this bill. Last night the rule for the consideration of HR 2017 exempted §536 from the protective waiver. This was done at the request of the Chairman of the House Energy and Commerce Committee; the reasoning being that the passage of HR 908 which was reported by the Energy and Commerce Committee last week would make it unnecessary to continue with authorizing of the program under the DHS appropriations bill.

What will probably happen is that when § 536 is read by the Clerk, Chairman Upton would rise to object to the section under Rule XXI. The Chairman of the Committee of the Whole would then rule that §536 does violate Rule XXI and it would be removed from the bill. Someone could then object to the ruling which would then require a vote on whether or not the Chair ruled properly. This vote would not technically be on the actual provision of §536 but on whether or not the Chair ruled properly.

Force Senate Action

What is apparently being done is that Chairman Upton is attempting to force the Senate to take action on a CFATS extension bill that would be passed by the House. Rumors have it that the consideration of HR 908 by the full House is being held up pending the reporting of HR 901 by the Homeland Security Committee, then some sort of deal would be reached about which of the two (or combination of the two) would be voted upon by the House. What ever final bill arose from that deal would almost inevitably be passed by the House.

As I mentioned in an earlier blog, unless that bill passed by the House included provisions of interest to certain Democrats in the Senate (worker participation, whistleblower protections, and perhaps IST), it would be unlikely that the Senate would even consider the bill, effectively killing it. They would be able to do this (as they did last year) because the CFATS extension in the appropriations bill would continue the program. This move by Chairman Upton would remove that cover.

Except… HR 2017 is not the final word on the DHS budget. There will be a separate bill written in the Senate Appropriations Committee (typically that is, no such bill was written last year) and that bill would certainly include the expected CFATS extension. The Senate wording will be substituted for the House passed language in HR 2017 when that bill is considered in the Senate. That will force the CFATS extension to be worked out in Conference. At this point it is an open question about what would occur then.

Move Could Backfire

This move to force the Senate to consider HR 908/901 could backfire. It is very likely that getting a bill that could pass in the Senate would require adding provisions like those so studiously avoided by the Energy and Commerce Committee in last week’s markup. Whether or not they could be forced out in a resulting Conference Committee action is not certain.

At the very least, the language from Senator Collin’s bill (S 473) would be substituted for the House language. This bill would change the authorization to an amendment to the Homeland Security Act of 2002. Unless there was language added removing the water treatment facility exemption to CFATS, this process would place responsibility for CFATS oversight squarely on the House Homeland Security Committee, effectively taking the Energy and Commerce Committee out of the CFATS picture.

Finally, I have had at least two different lawyers tell me that passage of reauthorization language is not really necessary to continue the CFATS program. The simple act of allocating money for the program in the budget (and it is buried in there in the infrastructure protection and information security programs portion of the budget) will effectively continue the authorization of the program. No one wants to see this tested.

All of this will make following the House debate of HR 2017 more important than normal to the chemical security community.