Congressional Hearings – Week of 1-12-14

Well Congress will be back to work with a vengeance this week. There are a number of interesting hearings coming, two spending bills and maybe the introduction of a stand alone CFATS authorization in the House. The hearings include cybersecurity, intelligence, transportation and another DHS nomination.

Transportation

The House Transportation and Infrastructure Committee is starting the surface transportation reauthorization process off with a full committee hearing on Tuesday. Looking at the witness list it doesn’t look like there will be any specific look at chemical transportation issues, but the topic of crude train hazards could rear its ugly head. That discussion would focus on concerns of affected parties not on any solutions.

The hearing web page does have a link to a nice summary document of the reauthorization coverage; again, no specific mention of chemical transportation issues.

DHS Nominations

The Senate Homeland Security and Governmental Affairs Committee will hold a business meeting on Tuesday. According to the agenda they will be discussing the nominations of Susanne Spaulding to be Under Secretary of DHS for NPPD and John Roth for DHS IG. Ms Spaulding is holding the acting job of Under Secretary while Rand Beer was acting Secretary. Now that he has moved to the White House, it looks like she will get the job full time.

Terrorism Intelligence

Under the heading of you can’t protect against what you don’t understand there will be an interesting open intelligence hearing held by the House Homeland Security Committee on Wednesday. Since this is an open hearing don’t expect much in the way of intel details especially since the witnesses; two former congresscritters of note and a retired Army general, are more politically oriented than intelligence analysts.

Those witnesses are:

• Honorable Joe Lieberman, former Connecticut Senator

• Honorable Jane Harman, former California Congresswoman; Director, Wilson Center

• General (Ret.) Jack Keane, former Vice Chief of Staff of the United States Army

Cybersecurity

The Cybersecurity, Infrastructure Protection and Security Technologies (whew these subcommittee names are getting long) Subcommittee of the House Homeland Security Committee will hold a mark-up hearing on Wednesday looking at HR 3696, the National Cybersecurity and Critical Infrastructure Protection Act of 2013.

As I noted in an earlier post, this is a fairly comprehensive critical infrastructure cybersecurity bill with broad bipartisan support. Cybersecurity bills have had a tough road to travel with nothing of significance getting to the White House. This bill may have a chance to complete the trip if it gets to the Senate floor by July 4^th. This is the first step on that journey; there won’t be any delay’s on Wednesday.

Spending Bills

As I mentioned in yesterday’s bill introduction post HJ Res 106 is a three-day continuing resolution. It will set the stage for the consideration of a bill that isn’t quite yet finished later this week. The current deadline is January 15^th, but HJ Res 106 will extend that to Saturday. The House leadership is taking quite a chance on this short term resolution as it will be considered under suspension of the rules (vote scheduled for Tuesday) which requires a 2/3 vote margin to pass. The Democratic leadership is on-board for the short term extension so it should pass as long as no one upsets the fiscal conservative Republicans too much in the meantime.

Since we haven’t seen the final bill being crafted by the two Appropriations Committees (it will probably be introduced on Monday or Tuesday), it is hard to judge how smooth that consideration process will be. Right now there doesn’t appear to be any discussion/threats of another federal funding fiasco so maybe things will work out for a final vote in the Senate on Saturday.

CFATS Extension

Also mentioned yesterday is the possiblility of CFATS extension bill introduction from Rep. McCaul (R,TX), probably on Thursday. It appears that the House Homeland Security staff has touched all of the appropriate bases on the bill, but no one seems interested in talking about what they have been told. McCaul has been doing a good job lately with bipartisan bills so this one may have a chance of passage.

Unfortunately, the big impediment to passage in the House is not the votes, but rather the committee conflict with the Energy and Commerce Committee (and to a lesser extent the Appropriations Committee) over who will be responsible for overseeing the program. One would expect a bill from the Homeland Security Committee Chair to cut out the other two committees and that might stop the bill from ever getting to the floor.

It will be interesting to see how McCaul tries to finesse that problem.

Welcome to 2012

Today is the first business day of the New Year and marks the official end of the Holiday Season. It also is a good time to review what is in store for the chemical- and cyber-security communities for the new year.

Congress

In case you hadn’t noticed this is another election year with all of the House members, 1/3 of the Senate and the President up for election. As we proceed with the year the amount of influence that these pending elections will have on Congressional Action will become more and more pronounced.

We finally got the FY 2012 budget settled at nearly the last minute of last year. Today marks the start of the new budget process. The President will submit the FY 2013 budget request later this month. Congress will hold some hearings where the Department Secretaries explain what the President is asking for, but will otherwise ignore the budget request. There will again be major disputes between the House and Senate and most of the budget will be resolved in a lame duck session in November and December.

We may get stand-alone CFATS legislation passed in the House before the Summer Recess, but that might get held-up by hearings on the ISCD report. There are still no indications about which House bill will get considered, but which ever makes it to the floor will almost certainly get passed. I do expect some interesting amendments will come out of the ISCD problems. There will almost certainly not be any Senate action on the bill before the elections. Lame duck action will depend on the election results.

Cyber security legislation will almost certainly pass early this year. The main focus of the legislation will be on IT and personal information security issues as well as the security of federal computer systems. Only minor bones will be thrown to the control system community.

DHS

Problem solving at ISCD will further slow the implementation of site security plan approvals for the first part of the year. It’s hard to tell for sure how long without seeing the actual report, but it could get further slowed by Congressional assistance. Hopefully we will see ISCD action on at least some of the following promised actions:

• CFATS De-enrollment Tool;

• Personnel Surety Tool;

• Update of SSP Tool;

• Update of Appendix A; and

• MTSA Harmonization.

We will almost certainly not see any further action on the Ammonium Nitrate Security Program in 2013.

There may be some movement on MTSA related issues this year as we are expecting to see some new rulemaking for CFATS harmonization, a variety of TWIC issues and the long expected TWIC Reader Rule. Unfortunately, none of that will be final rules.

TSA could be the surprising actor this year with action on the long-overdue trucking and railroad security training rules. There could be more backing into regulatory action on pipeline security. Again we are a long way from final rules on any of that.

Hacktavism

I’ll go out on a very thick limb here and predict that we are going to see major new action in the merger of political activism, the anarchy movements, and computer hacking. This will be the source of major news stories for this year. I would not be surprised to hear that DOW gets major attention for their sponsorship of the Olympics and it could include one or more control system hacks, most likely a DOS type attack shutting down one or more production facilities.

Congress Returns Today

Today marks yet another return of the lame duck session of Congress, this time after a nine (or ten) day Thanksgiving weekend. There are a lot of high-priority issues that must be dealt with by the end of the calendar year and it is unlikely that the legislative year will last past Christmas Eve. Only one of these high-priority issues, the budget, has the potential for directly affecting chemical security issues. But there are other legislative issues that might come up that might be of interest to the chemical security community.

The Budget

As of last night there was still no indication on the web sites for either the House or Senate spending committees that there was any movement on the budget. Since something must be done by midnight Friday (or the federal government will ‘shut down’), that means that there is almost certainly ‘behind closed doors’ work being done on the budget. I don’t have the kind of contacts necessary to tell you what is being discussed, but I would surmise that it falls into one of three categories:

• A short term continuing resolution with an end date of no later than December 24th;
• A long term continuing resolution with an end date after the first of the year; or
• An Omnibus spending bill.

The later would indicate that they had reached at least some form of agreement with the current Republican membership in the Senate that would allow for some of the spending priorities of the Democrats to be included in the budget. The first will take place if the Democratic leadership thinks that they have a decent chance wearing down opposition on at least some of their additional spending priorities in an Omnibus spending bill. If Reid sees no chance of getting any of the Democrats priorities included in the budget, we can expect to see them punt the problem to next year where the Democrats will do their best to ensure that the Republicans take the blame for any budget.

Any of the above options will almost certainly include specific language extending the authorization for CFATS. Now this is where it gets potentially interesting. Since it appears that any Omnibus bill will come out of the Senate (to be tacked onto one of the two budget bills passed by the House in June before the House Appropriations Committee stopped work for the year), a very important player in the bill will be Sen. Lautenberg (D, NJ) who is acting chairman of the Homeland Security Subcommittee.

Sen. Lautenberg has very definite views about what should be included in the CFATS program; for example he has been an active supporter of IST and of limiting federal pre-emption of State chemical security rules. Two years ago, Sen. Lautenberg was at least influential in the addition of revised federal pre-emption language in the Homeland Security spending bill.

It is highly unlikely that a full blown IST provision would be added to a spending bill; that would draw the ire of Sen. Collins, a vote that would be necessary for the Democrats to pass the bill in the Senate. Some other, carefully crafted, expansions of the CFATS authorization might make it past her opposition in the larger Omnibus bill. Any Lautenberg proposals would almost certainly pass, this year, in the House; not so likely next year.

CFATS Legislation

It continues to be unlikely that any CFATS specific bill will pass this year. The Senate Homeland Security Committee has yet to publish their report on HR 2868, the only bill that has any chance of being passed, so any consideration of that bill in the Senate is being delayed. A vigorous floor debate on that bill is a certainty, with Democrats sure to try to get IST and whistleblower provisions, at a minimum, added to the bill. This will be their last chance for at least two years to get such measures considered, much less passed.

The only other bill that has even a remote possibility for consideration is Lautenberg’s S 3598, the water facility security bill. Since Sen. Boxer’s Committee has not officially looked at the bill (their one hearing this summer was generic) and does not have a mark-up hearing planned, this bill will not make it to the floor for consideration. Even if it did, it would not garner enough votes for cloture.

Cyber Security Legislation

There are a number of bills in various stages of the legislative process that deal with cyber security measures and only one, HR 6423, actually addresses control system security. None of them is likely to be brought to a floor vote in either house. Sen. Lieberman (I, DE) made this point clear in the Stuxnet hearing earlier this month when he promised to re-introduce S 3480 early in the next session.

Inserted Stuff

This late in the session, and with a change in control coming in the next session, we are going to have to watch closely any controversial legislation that passes. Deals are going to be made and there are a number of people that have only a very limited number of options to get favorite things passed into law. This is a great prescription for little noticed items added to various bills, especially spending bills. We’ll have to watch for these additions.

Lame Duck Congress

While many pundits are focused on prognostication about the 112th Congress that will start in January, next week the 111th Congress will return to finish out the last month and a half of their term. The same people will be in charge and the same issues have to be addressed. The big difference is that many won’t be returning, so they won’t need to worry about what the voters think while others know that they will have more power to persevere in the next Congress. These two facts will color what can be done.

Chemical Security Legislation

The current CFATS authority expires on December 3rd. Congress will take some sort of action on legislation to continue that program. The most likely effort will be a one year extension in the DHS budget bill. If an actual budget doesn’t pass (a very real possibility if the Democrats try to stuff a budget bill with last minute attempts to add programs that won’t have a chance in the upcoming Republican controlled House) any continuing resolution will contain a CFATS extension for the length of the CR. I won’t be surprised to see a couple of short term continuing resolutions to give the 111th more time to pass their budget bill (probably a single, huge bill).

There are a number of bills that specifically address CFATS ranging from HR 2477 (which makes the current program permanent), thru HR 2868 (which slightly modifies and extends CFATS for three years), to S 2996 (which extends CFATS for five years). The only one that has any chance of passage is HR 2868 and I’ve discussed a number of possible scenarios that might result in passage in earlier blogs (most recently), but I won’t waste any money on betting on passage.

Adding chemical security requirements to water treatment facility security requirements is currently only addressed by one bill (the Senate version of HR 2868 removed the House provisions that included this), S 3598. The Senate has held only one hearing on this bill and the Environment and Public Works Committee is unlikely to report this bill. If it does, the Democrats are unlikely to be able to muster 60 votes (because of the current IST provisions in the bill) to force a vote on this bill. If it does get to a floor vote, it would almost certainly pass and could be taken up and passed in the House if the Senate vote comes early enough. Needless to say that Greenpeace is pushing for this bill to be passed.

Cyber Security Legislation

There were a number of cyber security bills introduced in the 111th Congress. None really specifically address control system security issues. Only one has come to a floor vote, HR 4061, and it passed easily. No action has been taken in the Senate on that bill, no hearings and no committee votes. While it is unlikely to come to a floor vote, it would probably pass. It could make it to the floor at the very end of the session if the leadership really wanted to get some sort of cyber security bill passed and nothing else worked. If there were no floor amendments, this bill would not need to go back to the House for further action.

S 3480 is the Senate bill that is best positioned to come to a floor vote. As I have mentioned on a number of occasions, we have been waiting for the Senate Homeland Security and Governmental Affairs Committee’s report on this bill since June. There is some opposition to some provisions of this bill so there would probably be a fairly extensive number of floor amendments that would be faced. This would make this a time consuming bill to pass, making it difficult in this short session. If the leadership on both sides of the aisle could agree to limit the amendment process this bill could probably pass, but not in enough time to make it through the House.

Other Legislation of Interest

HR 2200, the TSA authorization bill, has been ordered reported in the Senate (last year), so it could come to the Senate floor. New concerns about cargo screening, and passenger screening technology could lead to a large number of floor amendments, again making this a time consuming bill to pass. It would have to go back to the House, because of changes made in committee. That makes it more difficult to pass in the short session.

HR 4842, the DHS S&T authorization bill, passed in the House but has had no action taken in the Senate. This could be a sleeper bill that could slide through a floor vote in the Senate if the leadership decides to take it up.

Watch Them Closely

While many people have called the 111th a ‘do nothing’ Congress, there have actually been a significant number of things passed. We will probably see a large number of little noticed bills making their way quickly through the legislative process in the lame duck session. Most will be mainly non-controversial, but lots of stuff can get tacked onto these bills. The budget bill(s) will be particularly vulnerable to stuffing with a number of Congress Critters trying one last time to get their personal favorite idea into law. This session could get very loud and very ugly, but we’ll have to pay close attention to the quiet stuff.

SOCMA News on CFATS

There are two interesting Tweets this evening from the SOCMA Fly-in event in Washington D.C.; the first about comments from Sen. Collins (R, ME) about CFATS legislation and the second about comments from Rep. Lungren (R, CA) about IST provisions in CFATS legislation. Of course, given the character limit in these communications, there is little additional detail provided. CFATS Mark-up Hearing While I have been saying for some time that I thought that CFATS legislation was essentially stalled in the Senate, Sen. Collins, the ranking member of the Senate Homeland Security and Governmental Affairs Committee apparently told the SOCMA gathering that there could be a CFATS markup hearing as early as next week. While a markup hearing is still a long way from getting a bill to the floor and through conference, it is still much more progress than has been made to date on stand alone CFATS legislation. Of course, the Senate Committee has a very poor track record of getting from a markup hearing to actually publishing a report on controversial legislation. For example S. 1649, the WMD bill co-sponsored by Lieberman and Collins was marked-up in November and the bill has still not been reported. The other unanswered question in the Tweet is which CFATS legislation will be marked up. There is the House passed HR 2868, the Collins introduced S 2996, and the yet to be seen DHS version. And of course Sen. Lautenberg (D, NJ) has been threatening to introduce CFATS legislation for over a year now. Though to be fair, a Lautenberg bill would not get marked up in the Homeland Security Committee next week. IST in CFATS The Lungren Tweet urges the SOCMA attendees to continue to apply pressure on Congress to keep IST out of CFATS. Rep Lungren’s opposition to IST is hardly news, but it is indicative of the continuing controversy surrounding this issue. This is probably the key issue that will hold up the ultimate passage of CFATS legislation this session. Lungren’s position does not take into account the current efforts in DHS-ISCD to consider administratively adding an IST reporting requirement to the current CSAT SSP tool. I’ve reported on this in the current issue of the Journal of HAZMAT Transportation (Vol 21:1, pg 12). Nor does it reflect the work being done by ISCD and the Center for Chemical Process Safety (CCSP) to address the issue of IST being a safety tool not a security tool; the two organizations are trying to define limited security related tools for evaluating IST proposals. Continue to Watch the Senate In any case, it sounds as if we may have some sort of movement on CFATS reauthorization in the coming weeks. I will certainly share any news that I hear.

CFATS Legislative Outlook

Yesterday a kind reader pointed me at an interesting article at ACOEL.org (American College of Environmental Lawyers). The article by Susan Cook looks at the possibility of CFATS re-authorization legislation passing this year and concludes that such passage is unlikely. Now readers of this blog will remember that I came to the same conclusion back in March when the Senate Homeland Security Committee decided to wait for a DHS draft of a bill before proceeding with consideration of such legislation. BP as an Incentive to Action Ms Cook does raise an interesting issue, noting that “the recent oil spill in the Gulf of Mexico could engender renewed interest in the earlier adoption of an IST provision which has been the subject of the greatest discussion”. She says that ‘one Greenpeace blog’ (no link provided) makes this particular claim. I guess the argument runs that since we can’t trust big oil companies (and by extension big chemical companies) to take appropriate safety precautions, we can’t trust them to take appropriate security precautions. Most of the Greenpeace supporters don’t need a new example to make them mistrust big oil/chemical companies; such mistrust is a hallmark of the beliefs of most environmental activists. While this current example may be a bit of a stretch, there are certainly enough other examples (more than a few from BP) that could be used to justify such beliefs. I certainly don’t think that the current BP fiasco will be a sufficient political incentive to get the CFATS bills moving. I agree with Susan that, unless there is “absent a major catastrophe on land or connected to a terrorist plot involving a chemical facility or refinery here in the United States” there will be no action taken on the CFATS authorization beyond extending it for another year in the DHS budget bill that has yet to be introduced. Post Election Action Actually, she says that such action “is not expected to occur until after the fall elections”. I’m not sure that the election can change much this year. If the Republican’s take control of the Senate and House (unlikely but possible) then they will almost certainly oppose consideration of any bill that would include a serious IST provision. Since the next action must take place in the Senate, it would almost certainly be a dead issue because of a Republican filibuster. If the Democrats get a stronger majority in the Senate (even more unlikely), then they would wait until the new Senators take their seats next year to proceed. With less of a possibility there would be a better chance for a more stringent IST provision to be included in the legislation. If the election is less decisive (a much more likely possibility) there will be much more pressure to consider something more of a middle road on the CFATS re-authorization issue. The two bills (HR 2868 and S 2996) currently before the Senate are nearly polar opposites in their treatment of IST and a number of other provisions. A more divided Congress may actually make it possible for a middle ground to be achieved on this issue. But that would still have to wait for the 112th Congress to become reality. The one thing that is clear is that Greenpeace is certainly doing their best to make the CFATS reauthorization and IST a political issue in this year’s election. It will be interesting to see how much this actually becomes part of the election debate in the coming months. If it does get some serious play, Greenpeace has positioned itself as a major voice defining the issue.

Reader Comment 05-02-11 Who Changed?

Earlier today Anonymous posted a question to yesterday’s blog on new CFATS legislation. Anonymous wrote: “Am curious who that one Member is that has apparently changed their tune since passage... as you mention in paragraph 3.” Sorry, I should have provided a link. This was addressed in an earlier blog about an article in the Houston Chronicle from April 5th. Here is a quote from that article:

“But [Rep.] Gene Green [D,TX], who voted for the enhanced regulations in November, said he's now wondering whether it's wise to expand the legislation at this point. “‘If they've only inspected that few nationwide, then we need to know if CFATS is working or not before we overlay another level of regulation,’ he said. ‘But we need to have inspections and make sure they are complying with the law.’”

A companion article to that piece announced that Rep. Jackson-Lee (D,TX) who chairs the Subcommittee on Transportation Security and Infrastructure Protection of the House Homeland Security Committee promised to hold hearings on the slow pace of CFATS inspections. I haven’t heard anything about these hearings actually being scheduled. Now, hearings sometimes take time to set up; matching schedules and such. Other times, the committee staff will find out appropriate information and hearings will be found not to be necessary. No word on which is the case here.