HR 4470 Not Considered in Senate 7-26-23 – CFATS Extension Dead?

The Congressional Record for July 26^th, 2023, was just published. HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, was not passed in the Senate yesterday. There is no indication that it was offered (and objected to) under the unanimous consent process. This leaves just one day (today) before the Chemical Facilities Anti-Terrorism Standards (CFATS) program terminates. According to the posts of @SenateCloakroom (that tweets updates on actions taken on the Senate floor) on TWITTER, HR 4470 has not yet been considered on the floor (and the Senate just finished acting on S 2226, the Senate version of the NDAA) and there is little time left for action until the Senate returns to Washington in September.

The actual termination language for CFATS is found in the Notes (Effective and Termination Dates) portion of 6 USC 621 (as added by PL 116–150, §1(a), July 22, 2020, 134 Stat. 679) reads:

“The authority provided under title XXI of the Homeland Security Act of 2002 [6 U.S.C. 621 et seq.], as added by section 2(a), shall terminate on July 27, 2023."

It does not say when the authority will terminate on that day, I will leave it to lawyers to argue that, but certainly by midnight tonight (at the latest) CISA will no longer have authority to conduct operations under the CFATS program. That means that CISA can no longer conduct inspections, require facilities to report, or evaluate data under the provisions of 6 USC 621 et seq. The currently agreed upon site security plans cease to exist as an enforceable requirement and might have to be renegotiated if/when Congress reauthorizes the program.

The authority to pay salaries and expenses is a separate matter. That should continue through September 30^th. Interestingly, the salaries and expenses of the chemical security inspectors does not come directly through the CFATS program office (Office of Chemical Safety). That funding comes from CISA’s Integrated Operations Division (see a post I did about split and another on the potential problems of that dichotomy). CISA with some careful management could keep the CSI on the job without the CFATS program in the new fiscal year, expanding the ChemLock program or helping out overworked Protective Security Advisors.

If the Senate does not act tonight (increasingly likely), then the language of the newly introduced S 2499 becomes very important. The bill could set the clock back to today and re-establish the program as it existed as of one-minute after midnight on July 27^th, 2023. The deadline for action on that bill is probably September 30^th, unless appropriators keep funding for the CFATS program in the DHS spending bill, which would probably require specific language in the bill or spending tables. But there is a good (I know bad choice of words) chance that that bill will never get passed. But that is a bigger problem than the continuation of the CFATS program.