Friday, March 27, 2020

Did the Senate Kill CFATS Because of COVID-19?

See corrected information about this post here - [Added 0632 EDT, 3-28-20]

On Wednesday, the Senate passed HR 748 after amending it to become the Coronavirus Aid, Relief, and Economic Security Act. Everyone sighed with relief as the upper chamber actually came to an agreement. After taking care of some minor procedural matters, the Senate then took off for what we will end-up calling the COVID-19 Recess; they are not currently scheduled to return to Washington until April 20th, 2020.

There are, of course, proforma sessions scheduled through out the recess. This has become a standard practice (from well before Trump) to prevent the President from making recess appointments that would not require Senate advice and consent. While the House rules provide for some limited legislative activity during proforma sessions, the Senate used its normal proforma session language in escaping the potential Washington COVID-19 exposure; “with no business being conducted”. This means that no bills will be offered in the Senate and no action will be allowed on existing bills.

The Senate will meet in proforma session on each Monday and Thursday between today and April 16th. They are then next scheduled to meet in a real session on April 20th. This sounds good, the Senate is ‘setting the example’ on isolation and social distancing. Congratulations.

One small problem. The Chemical Facility Anti-Terrorism Standards (CFATS) program’s current authorization expires on April 18th, 2020. And, the Senate failed to take action on the House passed CFATS extension, HR 6160. Nor did it take action on either of the two CFATS bills before the Senate, S 3416 or S 3506 (which has yet to be published by the GPO). This means that no final action on extending the current authorization for the CFATS program is “possible” until April 20th, 2020.

Okay, I put ‘possible’ in quotes for a reason. Anyone that has watched Congress in action for as long as I have knows that there is always a way around the ‘rules’ of Congress. If Sen McConnel (R,TN) decides that HR 6160 needs to be passed before April 18th, he will find a way to pass it. And I do not think that there would be any serious opposition to that passage if it were to happen.

What happens if the Senate does not take action before April 18th? An interesting question. The 18th this year is on a Saturday, so for all practical purposes, nothing happens. The Senate could come back into session on the Monday, the 20th, pass HR 6160 and send it to the President, who would probably sign it that day. There would be some breath holding across the CFATS community, but nothing would really change.

But, even if they did not do that, it might not make a real difference. The CFATS program is currently funded, like the rest of the Federal government, until September 30th, 2020. There are a number of people who feel (myself included) that that provides de facto authority for the continued the operations of the CFATS program through the end of the fiscal year. I do not think that the Infrastructure Security Compliance Division would attempt to formally sanction anyone for CFATS violations during that period (thus forcing a court review of their authority), but I think that routine inspections, Top Screen reviews and Site Security Plan approvals would continue. And I do not think that there would be any serious objection from the regulated community.

And, on October 1st, when the continuing resolution continues to fund the federal government (there will certainly be one this year, perhaps for a full year because of COVID-19) the CFATS program funding and thus unofficial authority would likely continue.

Does this mean that CFATS reauthorization or extension is not needed? Certainly not. At some point ISCD will have to tell a facility to do something that the facility does not want to do and the courts would become involved. The court would then have to rule that the authority for the program had expired and that the facility was not obligated to do what it was told. Then the CFATS program would be dead. Congress does need to act.

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