S 3109 Introduced – FY 2019 DHS Spending

Last week Sen. Moore (R,WV) introduced S 3109, the Department of Homeland Security Appropriations Act, 2019. This bill does not contain language for a one-year extension of the Chemical Facility Anti-Terrorism Standards (CFATS) program, but it does continue to provide funding at FY 2018 levels for that program. There are numerous cybersecurity mentions and one unmanned aircraft system (UAS) provision that may be of interest to readers of this blog.

Cybersecurity

The Committee provided funding for the National Computer Forensics Institute to continue training “to bolstering State and local cyber capabilities and supports USSS Electronic Crimes Task Forces” (pg 75). Funding was provided at $25 million; an increase of $6.2 million over FY 2018 and $21 million more than the Trump Administration requested.

Funding for the National Cybersecurity and Communications Integration Center (NCCIC) was set at $279 million with $186 million of that going to “Computer Emergency Response Teams”; presumably ICS-CERT and US-CERT. They also allocated $29.4 million of the NCCIC funds for “for election security through NCCIC activities, including vulnerability scans and incident detection and response” (pg 82).

DHS Science and Technology (S&T) received $6.5 million for ‘cyber physical systems’ research. This includes $1.5 million “to continue collaborating with the Department of Energy on Cybersecurity of Energy Delivery Systems, which utilizes critical large scale electric power transmission test facilities and relies on active cooperation and integration with operational utility providers” (pg 111).

Counter UAS

The Report allocates $13 million for “supports continued investments in research, development, testing, and evaluation of Counter-Unmanned Aerial Systems” (pg 109) but notes that: “Committee is extremely disappointed that the Department is unable to carry out many such activities because it does not currently have the necessary legal authorities to do so.”

Moving Forward

The Senate Appropriations Committee adopted the bill by a vote of 26 to 5 (pg 122). This level of bipartisan support is necessary to bring the House bill (which is being marked up this week) to the for a vote. This cooperative work in the Senate on spending bills this year provides the best chance we have seen in quite some time for actually getting individual spending bills to the President instead of having to wait for a series of continuing resolutions and a massive spending bill at the last (or beyond the last) minute.

Commentary

I really expected to see language providing a one-year extension of the CFATS program in this bill. Either the Committee was sure that the normal order would prevail and an as-of-yet unwritten authorization bill will pass before the end of the year (and that possibility does exist), or they are relying on the fact that this DHS spending bill continuing the funding for the CFATS program (listed as ‘Infrastructure Security Compliance’ on page 81 of the report) will be sufficient to carry the program through what ever legislative delay occurs between January 18^th, 2019 and a final bill being signed by the President.

An argument can be made that funding the program past the ‘expiration date’ is a defacto continuing authorization. In fact, DHS has not seen authorization language since it was formed in 2002. The difference, though, is that the Homeland Security Act did not include an expiration date for DHS.

I have heard a number of legally knowledgeable individuals say that continued funding is all the program really needs to keep going. I am not enough of a legal scholar to really comment on that. I do know, however, that industry is going to look askance at any program directives that come out of the DHS Infrastructure Security Compliance Division (ISCD) after January 18^th lacking a reauthorization bill, especially if complying with those directives costs any money. And there would be a natural tendency of corporate lawyers to argue against any enforcement actions on the basis of ISCD lacking reauthorization. Such arguments could take years to resolve in the courts.

We could still see a short-term extension of the CFATS program in the House bill, or one could be added in the floor amendment process in either house. I would expect, however, for such an amendment to carry the day that it would have to be authored by the Chair and Ranking Member of the respective homeland security committee. Such an amendment would signal the end of the prospects for a CFATS authorization bill in this session.