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.

House Approves HR 4470 – CFATS Extension

This evening the House took up HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, under the suspension of the rules process. There was about 16-minutes of debate and a recorded vote was demanded. The House voted 409 to 1 to pass the bill. The sole no vote came from Rep Massie (R,KY).

To get this bill to President Biden in time to save the Chemical Facility Anti-Terrorism Standards (CFATS) from expiring, the Senate will have to take up the bill tomorrow under their unanimous consent process. A single objection would kill that process.

Review - HR 4470 Mark Up 7-12-23 – CFATS Extension

Yesterday, the House Homeland Security Committee conducted a markup hearing that include consideration of HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023. Substitute language was adopted by voice vote. Ten other amendments were offered, but none were agreed to. The Chemical Facility Anti-Terrorism Standards (CFATS) program is currently set to sunset (programmatically die) on July 27^th, 2023.

Substitute Language

The substitute language offered by Rep Lee (R,FL) made a relatively simple change to the ‘is amended by’ language of §2 of the bill, changing “by striking ‘July 27, 2023’ and inserting ‘September 30, 2025’” to read “striking ‘2023’ and inserting ‘2025’." This revised language would mean that the CFATS program would sunset (lacking further congressional action) on July 27^th, 2023 instead of September 30^th. This means that a future extension would again require stand-alone legislation instead of an extension being able to be added to a DHS spending bill or CR.

Moving Forward

Typically, we would have to see a written report published by the Committee before the bill could be considered in the House, but the bill could be reported favorably without a written report which could happen as soon as today. The House could take up this bill under suspension of the rules next week which would still leave time for the Senate to consider the bill under the unanimous consent process before the July 27^th deadline.

 

For details about the amendments that were considered but not approved, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-4470-mark-up-7-12-23 - subscription required.

Is CFATS Going to Die?

On July 27^th, 2023 (less than two months away) the authority for the Chemical Facility Anti-Terrorism Standards will terminate (see Notes, 6 USC 622). On that date, the industry supported chemical security program that has been around since 2007 will cease to operate unless Congress takes action to extend the program. To date, the 118^th Congress has not held a single hearing about the CFATS program. Not a single bill has been introduced to extend the program.

This is not an unusual situation for the program. Those of us who have been following the program since its inception will remember the annual extension of the program that was a routine occurrence through 2014. It was not a real big deal, because just a single paragraph was needed in the DHS spending bill to continue the program for another year while the House leadership tried to figure out how to get the two conflicting committees (Homeland Security and Energy and Commerce Committees) to craft a bill acceptable to both. When Congress had to evoke continuing resolutions to get a spending bill passed, a paragraph was included that extended the program.

This happened because the initial authorization for the program was included in the 2007 DHS spending bill. But when Congress finally passed a standalone CFATS authorization bill, that all changed. The termination date was set on a date that was not tied to the spending bill, so even if Congress added a one-year extension to this year’s spending bill, it would come too late to save the program.

While I would prefer to see a comprehensive, long-term CFATS authorization bill, there is no way that that is going to occur in the less than 2 months left before the program terminates. So we need a short term extension of the program. But, since the program is no longer a hot legislative topic, I suggest that we tie the termination date to the end of the fiscal year, so that it can again be extended by a single paragraph in the DHS spending bill. With that in mind I would like to suggest a two-section extension bill.

Section 1. Short Title.

This act may be known as the Chemical Facility Anti-Terrorism Standards (CFATS) Extension Act of 2002.

Section 2. Section 2102 of the Homeland Security Act of 2002 is amended by adding at the end:

“(e) The authority provided under title XXI of the Homeland Security Act of 2002 [6 U.S.C. 621 et seq.], shall terminate on 1 October 2024.”

S 4197 Introduced – CFATS Extension

Earlier this month Sen Johnson (R,WI) introduced S 4197, a bill to extend the Chemical Facility6 Anti-Terrorism Standards (CFATS) program through July 25^th, 2027. This was the third in a series of bills introduced by Johnson to extend that program without legislative changes in the program. This bill was introduced on the same day that the Senate passed S 4148, a shorter-term extension of the CFATS program that was subsequently passed by the House and signed by the President.

Bill Comparison

All three bills were ‘clean’ extensions of the program, with no policy or regulatory changes included in the language. The table shows the two areas of major differences between the three bills.

CFATS Bills	S 4096	S 4148	S 4197
Extension Date	7-27-23	7-27-23	7-25-27
Cosponsors	3-R, 2-D	3-R, 2-D	3-R

As I noted in my post on S 4096, the only difference between that bill and S 4148 was the removal of some minor, unnecessary effective-date language that had been included in S 4096.

The extension date for both S 4096 and S 4148 were far enough down the road that the affected businesses were appeased because they had some regulatory certainty about the program. More importantly, this date was the soonest that Johnson and his fellow Republicans had a reasonable chance that they might yet again ‘control’ both the House and Senate. The 2027 date would, however, give a much more likely date for that to have occurred.

The extension date is important because Congress has shown little appetite for addressing the CFATS program until the program nears its expiration date. Even with an expiration date fast approaching it has been difficult to get consensus on what changes are necessary. Without the impetus of pending termination, there is little incentive for the different factions to come together on a legislatively workable revision to the program.

S 4148 Passes in House – CFATS Extension

This afternoon, shortly after 1:00 pm EDT, the House passed S 4148 to extend the Chemical Facility Anti-Terrorism Standards (CFATS) program through July 27^th, 2023. The bill was considered under the seldom used (in the House) unanimous consent process. The bill now goes to the President for signature. There is currently no indication that Trump will not sign the bill.

Brian Harrell, the CISA Assistant Director for Infrastructure Protection, had this to say about the program’s continuation:

“As you have heard me say before, chemical security is national security. The CFATS program has matured over the years to what it is today- a relevant and streamlined program with the goal of making high-risk facilities more secure. Our inspectors, chemists, engineers, and HQs staff go to work everyday knowing the threat is real and they have long maintained their focus on our national security mission.”

S 4096 Introduced – CFATS Extension

Last month Sen Johnson (R,WI) introduced S 4096, a bill that would extend the Chemical Facility Anti-Terrorism Standards (CFATS) program through July 27^th, 2023.

Two days after this bill was introduced Johnson introduce a second CFATS extension bill, S 4148. That bill would also extend the CFATS program through July 27^th, 2023. S 4148 was passed by the Senate the same day it was introduced.

The bill the Senate passed was the same as S 4096 except that it added a second paragraph:

“(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date that is 1 day after the date of enactment of this Act.”

The House passed their own clean extension of the CFATS program (HR 6160) back in March. It would extend the CFATS program authorization through October 18^th, 2021. Technically, the wording of HR 6160 was made obsolete by the passage of HR 748 as that bill replaced the old “5 years and 3 months” language with an actual date; “July 23, 2020”.

Both the House and the Senate will be back in Washington next week in time to address the pending expiration of the CFATS program authorization on July 23^rd. While the Democrats in the House really want a chance to make some changes to the CFATS program, I suspect that they will go along with the three year extension as they hope to be in a stronger position to send legislation to the President in the 117^th Congress.

Interestingly, after this bill was introduced, Johnson introduced a third CFATS extension bill, S 4197. The language of that bill has not yet been printed, but it did not have any Democratic Senators as cosponsors.

Bills Introduced – 7-2-20

Yesterday with the Senate in Washington and the House meeting in pro forma session (and the extended 4^th of July ‘weekend’ in the offing) there were 79 bills introduced. Two of these bills may receive additional coverage in this blog:

S 4195 A bill to authorize the Cybersecurity Education Training Assistance Program. Sen. Rosen, Jacky [D-NV]

S 4197 A bill to extend the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security, and for other purposes. Sen. Johnson, Ron [R-WI] 

The S 4195 title is the same as the title for the third cybersecurity section added to S 4049 in the substitute language for that bill. It seems odd that Rosen would find it necessary to backstop that provision with a standalone version before the substitute language sees a vote. Anyway, I will look at this bill for language and definitions that would specifically include control system security training.

S 4197 is very interesting. As I noted earlier this morning, the Senate passed a CFATS extension bill (S 4148) the day before this bill was introduced and that bill was also introduced by Johnson. Does Johnson not think that the bill will be passed in the House? The other oddity with this bill is that it only has Republican cosponsors, the two other CFATS extension bills introduced by Johnson this week (S 4148 and S 4096) both were bipartisan bills. Once the GPO gets around to printing S 4197 and S 4096 a review of all three bills could be instructive.

Senate Passes S 4148 – CFATS Extension

On Wednesday (GPO one day behind on printing Congressional Record) the Senate passed S 4148, a three-year extension of the Chemical Facility Anti-Terrorism Standards (CFATS) program. The bill would extend the program through July 27^th, 2023. The bill was passed under the Senate’s unanimous consent process on the same day that it was introduced.

The bill will now go to the House where it will likely be taken up the next day the full House is in session. It is likely to be considered under the suspension of the rules process.

Bills Introduced – 7-1-20

Yesterday with both the House and Senate in session there were 84 bills introduced. Two of those bills may receive additional attention in this blog:

S 4120 A bill to enhance the early warning reporting requirements for motor vehicle manufacturers, and for other purposes. Sen. Markey, Edward J. [D-MA] 

S 4148 A bill to extend the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security, and for other purposes. Sen. Johnson, Ron [R-WI] 

I will be watching S 4120 for language and definitions that would include vehicle cybersecurity in the early warning and defect reporting process for motor vehicle safety.

S 4148 is the second CFATS extension bill reported by Johnson this week. It will be interesting to see what modifications have been made to make this bill more palatable to members of the Senate. Unfortunately, the delays at GPO publishing the text of bills means that we probably will not see the text of either bill until it is considered on the floor of the Senate or after the CFATS program expires on July 23^rd.

I think that this second bill should lay to rest any idea that Johnson does not generally support the CFATS program.

Bills Introduced – 6-29-20

Yesterday with both the House and Senate in session there were 32 bills introduced. One of those bills will receive additional coverage in this blog:

S 4096 A bill to extend the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security, and for other purposes. Sen. Johnson, Ron [R-WI] 

The current authorization for the CFATS program ends on July 23^rd, 2020. The only ‘short term’ extension bill in the Senate (S 3506, extending authorization to July 18th) was bypassed by extension that was included in HR 748, the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The House passed HR 6160 that would extend the program through October 18^th, so not sure why the Senate just does not take up that bill. Will have to wait for the Government Printing Office to get around to printing this bill (they are horribly COVID-19 behind on printing introduced bills) to try to figure out why Johnson introduced this bill.

S 3506 Introduced – CFATS Extension

Last month Sen Lankford (R,OK) introduced S 3506, the Chemical Facility Anti-Terrorism Standards Program Extension Act of 2020. This bill was intended to provide a short-term extension of the CFATS program through July 18^th, 2020.

Moving Forward

While Lankford is a sub-committee chair in the Senate Homeland Security and Governmental Affairs Committee, the committee to which this bill was assigned for consideration, future consideration of this bill has been made problematic since another short-term extension was provided for the program in HR 748 (PL 116-136). That bill extended the program authorization through July 23^rd, 2020.

Commentary

This bill was introduced three days after the House passed HR 6160, a longer-term extension of the CFATS program. That bill would extend the authorization for the program through April 18^th, 2020. The shorter extension in S 3506 would have given the Republican leadership another chance to get S 3416 through Committee and onto the floor of the Senate. Unfortunately, I think the COVID-19 problems are going to effectively block any controversial bills from consideration in the Senate for the remainder of the session.

The only CFATS bill that appears to have any chance of making it to the President is HR 6160. This kicks the can to the 117^th Congress. That Congress (which could be dominated by the Democrats in both the House and Senate) will be focused on re-building the economy after the pandemic has run its course. I expect that the CFATS program is going to run on short term extensions for a while.

There is still a possible monkey wrench that could disable the program. While CFATS generally has wide spread support in Congress, the President’s 2021 budget request proposed shutting down the program and moving the chemical security inspectors into protective security advisor slots. If Trump is serious about closing the CFATS program, then a veto of HR 6160 would certainly be an easy way to do that. I suspect that partisanship in the Senate would overcome CFATS support in preventing an override of that veto.

Rep Thompson (D,MS), Chair of the House Homeland Security Committee, is well aware of the President’s stated opposition to the CFATS program (any regulatory program for that matter) so we may see another short-term reauthorization in the inevitable next COVID-19 relief bill. That extension would probably carry through October 1^st so that repeated CFATS extensions could go back into the DHS spending bill or continuing resolutions where they resided for so many years.

COVID-19 CFATS Extension

I reported earlier today that the Senate had left town without acting on an extension of the authority for the Chemical Facility Anti-Terrorism Standards (CFATS) program which runs out on April 18^th. It turns out that I was mistaken. Thanks to a TWEET® from Douglas A. Leigh III, Director of Legislative Affairs National Association of Chemical Distributors (NACD), I went back and re-searched SA 1578, which became HR 748, Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Sure enough, he was correct; buried well down within Division B, Emergency Appropriations for Coronavirus Health Response and Agency Operations, §16007 (pg S 2136) provides a short-term extension for the CFATS program. That section states:

“Section 5 of the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (Public Law 113–254; 6 U.S.C. 621 note) is amended by striking ‘‘the date that is 5 years and 3 months after the effective date of this Act’’ and inserting ‘‘July 23, 2020’’: Provided, That the amount provided by this section is designated by the Congress as being for an emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control Act of 1985.”

That last “Provided” clause in the section is a technical necessity that really has nothing to do with the actual CFATS extension.

I must admit that it is nice seeing a date-certain for the termination of CFATS authority rather than the previous ‘the date that is 5 years and 3 months after the effective date of this Act’.

The House concurred with the Senate amendment to HR 748, this afternoon. The press reports that the President signed it this evening.

Did the Senate Kill CFATS Because of COVID-19?

See corrected information about this post here - https://chemical-facility-security-news.blogspot.com/2020/03/covid-19-cfats-extension.html [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 20^th, 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 16^th. They are then next scheduled to meet in a real session on April 20^th. 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 18^th, 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 20^th, 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 18^th, 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 18^th? An interesting question. The 18^th this year is on a Saturday, so for all practical purposes, nothing happens. The Senate could come back into session on the Monday, the 20^th, 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 30^th, 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 1^st, 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.

Bills Introduced – 3-17-20

With just the Senate in session this week there were 12 bills introduced yesterday. One of those bills will receive future coverage in this blog:

S 3506 A bill to extend the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security, and for other purposes. Sen. Lankford, James [R-OK]

It is odd to see this bill introduced when there is already a House passed bill, HR 6160 (an official copy of the bill is now available), available for action. Lankford is the Chair of the Subcommittee on Regulatory Affairs and Federal Management of the Senate Homeland Security and Governmental Affairs Committee. That would be the Subcommittee ‘responsible’ for the CFATS program, but based upon past work on CFATS I would have expected Chairman Johnson (R,WI) to be the author of an ‘official’ committee bill. We will have to wait a couple of days to see what this bill actually says. I expect that it will be a shorter-term extension; maybe until November?

House Passes HR 6160 – CFATS Extension

Yesterday (actually early this morning) the House took up HR 6160 under the unanimous consent process and passed the bill. There was no debate and no vote. The bill will extend the current CFATS program through October 18^th, 2021. The program authority is currently set to expire on April 18^th, 2020.

This early action by Rep. Thompson (D,MS) sends the bill to the Senate. The bill will almost certainly be taken up there under similar proceedings.

EC Subcommittee Approves HR 6160 Without Amendments

Yesterday the Environment and Climate Change Subcommittee of the House Energy and Commerce Committee approved HR 6160 without amendment by a voice vote. Comments by Committee Chair Pallone (D,NJ), Chairman Tonko (D,NY) and Ranking Member Walden (R,OR) were all supportive of the bill and the CFATS program in general.

The debate, such as it was (starting at 21:45 in the video), focused on the 18-month length of the extension. Rep. Barragan (D,CA) wants (32:30 in video) new CFATS reauthorization to include look at location of high-risk chemical facilities.

CFATS Extension Hearing – 3-12-20

This evening the House Energy and Commerce Committee announced that the Environment and Climate Change Subcommittee would hold a markup hearing on Thursday that would take up two bills; one of which would be HR 6160, which would extend the Chemical Facility Anti-Terrorism Standards (CFATS) program. Chairman Pallone (D,NJ) is a co-sponsor of the bill; as is Rep Tonko (D,NY), the Subcommittee Chair.

The GPO has not yet printed a copy of the bill, but the hearing website contains a committee draft of the bill. This would be a clean extension of the CFATS program until October 18^th, 2021. That would kick the can down the road to the 117^th Congress.

I do not expect much in the way of amendments to this bill. There will be some proforma objections to the extension of the CFATS program rather than a reauthorization, but the Energy and Commerce Committee has not been able to come up with consensus reauthorization language for HR 3256.

Bills Introduced – 03-09-20

With both the House and Senate in session there were 46 bills introduced. One of those bills will receive future coverage in this blog:

HR 6160 To extend the chemical facility anti-terrorism standards program of the Department of Homeland Security. Rep. Thompson, Bennie G. [D-MS-2]

This is almost certainly a short-term extension of the CFATS program. Disappointingly, there are currently no Republican cosponsors to the bill. This also probably indicates that the Senate bill, S 3416 (which I have not seen yet), is not acceptable to the Democrats in the House (or at least to Chairman Thompson). Nor is there a likely agreement to break HR 3256 out of the House Energy and Commerce Committee. The current authorization ends April 18^th.

House Accepts Senate Amendment to HR 251 – CFATS Extension

Yesterday the House accepted the Senate amendment to HR 251, the Chemical Facility Anti-Terrorism Standards Program (CFATS) Extension Act. The amendments received bipartisan support and the House agreed to the Senate amendments by voice vote.

While all of the speakers on the floor during the short debate on the bill supported the Senate amendment, it is clear that their support was for extending the CFATS program rather than being specifically in favor of the shortened extension period found in the Senate revision.

Rep. Thompson (D,MS), the original author of the bill and Chair of the Homeland Security Committee said:

“I am concerned this abbreviated authorization period provides less stability for DHS and more uncertainty for the regulated community, but unless we act, the CFATS program will expire at midnight tonight.”

Rep. Shimkus (R,IL), a cosponsor of the bill and Ranking Member of the House Energy and Commerce Committee, before urging members to support the amendments to HR 251, said:

"What troubles me, though, about the other body’s amendment is it doesn’t give CFATS much room to make more improvement. One of the major lessons to come out of the hearings we had in my committee on the CFATS program was that, from 2009 to 2014, 1-year authority extensions did not offer program stability and stagnated the program’s improvement.”

The bill now goes to the President for signature. There has been no indication that the President Trump would not sign the bill.