HSGA Markup Hearing – No CFATS Bill – 3-11-20

Earlier this week the Senate Homeland Security and Governmental Affairs Committee held a business meeting to markup 14 pieces of legislation. S 3416, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2020, was not considered. Two other bills of interest here (S 3045, Cybersecurity Vulnerability Identification and Notification Act of 2019; and S 3207, Cybersecurity State Coordinator Act of 2020) were amended and adopted by the Committee. I will discuss those revisions in separate posts.

Where was S 3416?

S 3416 was removed from the agenda early this week, shortly after the introduction of HR 6160, the House CFATS extension bill. That bill, if passed (and it will almost certainly be passed next month), would take pressure of the Committee to address the CFATS program in a more complicated fashion. That is one of the contributing factors to S 3416 not being considered on Wednesday.

The other consideration is almost certainly the inability of the Committee to come up with some sort of consensus language for S 3416. Chairman Johnson (R,WI) knows that for a bill to make it to the floor of the Senate under the unanimous consent process (the only way a stand-alone CFATS bill is going to be considered in the Senate) is with the active support of Ranking Member Peters (D,MI) and, probably more importantly, the support of Sen. Carper (D,DE) who effectively killed Johnson’s last attempt at CFATS legislation, S 3405, in the 115^th Congress.

Commentary

Johnson has never been a strong supporter of the Chemical Facility Anti-Terrorism Standards (CFATS) program, basically because he does not like regulatory programs. He has voted for CFATS bills in the past because the program allows for regulatory standards to be negotiated at the facility level, so it is not a one-rule-fits-all style regulation. The fact that industry is generally supportive of the program also provides Johnson with some political cover.

With the President’s budget proposal to eliminate the CFATS program in FY 2021, Johnson was put in a tough position of trying to decide who to support, the President or industry. HR 6160 looks like his easy out, kicking the can down the road for 18 months. One thing Johnson should consider, however, is that 18 months puts the problem before the 117^th Congress.

With the potential for COVID-19 tanking the economy between now and November, Johnson should not assume that he will chair the HSGA Committee next session. There is now a definite possibility that the Democrats will control the Hill and the White House next year, possibly (depending on how bad things get) with strong, veto-proof majorities. This could be Johnson’s last chance to have a major say in how the CFATS program proceeds.