Review - CFATS and Congress

Last week, the authorization for the Chemical Facility Anti-Terrorism Standards (CFATS) program expired due to inaction upon the part of the Senate. I have talked about the implications of the program termination, industry support, as well as some about the mechanics of the shutdown. Today, I would like to talk about the process in Congress that resulted in the termination.

HR 4470

On July 6^th, 2023, Rep Lee (R,FL) introduced HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, which would have extended the termination date through September 30th, 2025. That date would have made it possible to add language to Continuing Resolutions and DHS spending bills to further extend the program in a must pass bill. On July 12^th, the House Homeland Security Committee took up HR 4470 and adopted a single amendment that changed the bill’s termination date to July 27^th, 2025. The House approved the bill on July 25^th, by a vote of 409 to 1.

Action in the Senate

On July 26^th, at about 4:00 pm (S3572) when the Senate returned from a short recess, Sen Peters, after a short speech in support of the CFATS program asked for unanimous consent to immediately consider HR 4470. When the Presiding Officer asked if there were any objections, Sen Paul (R,KY) requested to be recognized and said: “I rise today to object to the quick passage of H.R. 4470, which seeks to extend the Chemical Facility.” Paul went on to explain his opposition to passage of the bill. His discussion takes up almost a full page (S3573) of the Congressional record, but the only part that is really applicable to the CFATS program comes early in his discourse:

“This measure, though, which would reauthorize this regulatory program for another 2 years, I think is being rushed through the Senate without due consideration or, really, any consideration at all. The Homeland Security Committee has jurisdiction over the program, yet we have not had any hearings to discuss this program or its effectiveness.”

This is certainly a good point, since there has not been an oversight hearing on the program in either the 117^th or 118^th Congress. Of course, Sen Paul bears some culpability for that fact in the 118th Congress since he is the ranking member of the Senate Homeland Security Committee. While not ‘in charge’ in a closely divided congress he has a larger measure of influence than normally seen in even that Committee. If he had called for a CFATS oversight hearing earlier this year, I suspect Peters would have acquiesced.

But, looking to the end of the speech, we see that Paul really does not have objection to passing HR 4470, what his objection is designed to do is to allow him to request that an amendment unrelated to the CFATS program. That amendment would add language that would establish under 31 USC a process to require the Comptroller General of the United States to analyze certain legislation in order to prevent duplication of and overlap with existing Federal programs, offices, and initiatives. We do not have a copy of his proposed amendment (it was apparently never formally offered so it is not included in the record, but we can see this proposal outlined in S 780, the Duplication Scoring Act of 2023.

This is a common ploy utilized by Paul and a number of other Senators to get less than popular legislation considered. This is one of the major drawbacks to the Senate’s unanimous consent process.

Moving Forward

While the CFATS program is dead, it can still be resurrected. There is another CFATS extension bill (S 2499) that may end up (no language available yet) being the tool used for that resurrection, but no action can be taken on that bill until the Senate comes back from their summer recess on September 5^th. Unfortunately, this will be a low priority for the Senate because the rapidly approaching end of the fiscal year will be driving spending bills and other must pass legislation. The only way that a standalone CFATS bill could make it through the Senate before the end of the fiscal year would be by using the same unanimous consent process that Paul used to push his own less-than-popular agenda with HR 4470.

If there was any chance that an FY 2024 DHS spending bill could make it to the President’s desk before the end of September (see here for my discussion about why that is unlikely) that would be the easiest way to get the CFATS program re-instated.

 

For more information on this process, including a the legislative history of the CFATS program, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/cfats-and-congress - subscription required.