CRS Reports – Lame Duck Sessions of Congress

With the House and Senate scheduled to meet on Monday, it is appropriate to look at the history of Lame Duck sessions of the US Congress. To this end, the Congressional Research Service published two reports this week looking at the topic:

Lame Duck Sessions of Congress, 1935-2020 (74th-116th Congresses), and

The Enactment of Appropriations Measures During Lame Duck Sessions,

In addition to the FY 2023 spending bill, the Congress still needs to complete work on the National Defense Authorization Act and a number of other ‘must pass’ authorization bills, including the intelligence and Coast Guard authorization bills. We will probably see a number of these bills folded into the final spending bill.

Additionally, the 118^th Congress will informally begin work on organization, including the selection of party leaders.

Public Input to Congressional Hearings

One of the things that I do on a routine basis is to look at a variety of Congressional web sites to keep track of upcoming hearings and votes. While Congress is on an extended recess, I do this much less frequently because changes do still occur. The latest change of note is a change in the format of the House Energy and Commerce Committee web site. Of particular interest is the addition of a public comment feature on the Hearing pages (see for example).

Public Comments – Old Style

Now people have always been able to get information entered into the record by sending it to a friendly congresscritter. Of course, if that critter didn’t agree with the point of view of the personal submission it wasn’t likely to get into the record. And, of course, money talks, so the big lobbying organizations were more likely to get their letters entered into the record than was JQ Public.

The down side of that type of submission has always been that it is seldom part of the ‘public record’. Well officially it is there and available if you dig hard enough, but I have never seen any of these letters published on a congressional hearing web page; that is the real public record even though it may not legally qualify as such.

The New Public Comment Form

What the folks at Energy and Commerce have done is to add the same type of public comment tool that you see on many web sites now days. It includes a place for name (no indication if anonymous comments will take), email address (not to be made public?), web site address (if you have such a thing), and a block for your comments. There is no word about how long the comment may be.

More importantly, there is no indication if comments filed via this tool will become part of the ‘real public record’ or will be just shunted to a file cabinet somewhere, to be read only by Committee Staffers tabulating points of view.

Since I saw this form first on the web site for an upcoming hearing about the CFATS program {The Chemical Facility Anti-Terrorism Standards Program – A Progress Report; September 11^th, 2012}, I thought that I would post a comment to see what happens. So the next section contains the text of the comment that I will be submitting. We’ll see how it shows up in the ‘record’.

CFATS SSP Comments

Since the Committee will be looking at the progress of the CFATS program, here are some of points that I would like to see addressed by the Committee and the witnesses at the hearing. They all are pertinent to the lack of progress on the authorization of Site Security Plans.

1. Since Congress, in its §550 program authorization, has forbidden DHS from establishing specific criteria that facilities must implement to have their security plans authorized, ISCD is not legally able to tell facilities what security measures should be implemented to achieve authorization. How, then, does ISCD communicate deficiencies in the Site Security Plan to owners so that they might make appropriate corrections to their plans?
2. ISCD has stated on a number of occasions that part of the delay in authorizing SSPs has been an inadequate amount of details in the submissions made via the SSP tool in CSAT. This would seem to indicate that the SSP tool was lacking in the information that it was requesting, either in specificity about particular areas or by not asking the appropriate questions. Why hasn’t the SSP tool been modified to correct those deficiencies?
3. Since alternative security plans must still meet the 18 risk-based performance standards set out in the CFATS regulations (6 CFR 27.230) no one has explained how a facility might gain an advantage by using an ASP. Did Congress intend for the certification authorities supporting security programs developed, for example, by the American Chemistry Council, to be used as SSP authorizations instead of having ISCD perform the necessary SSP reviews?
4. Early in the CFATS process DHS established the Chemical Facility Security Academy as a training venue for its Chemical Facility Security Inspectors. The Anderson-Wulf memo apparently implies that there is no current training program for CFSI. Why was the CFSA discontinued?

Congress Comes Back to Washington

While the second session of the 112^th Congress technically started in their pro-forma meetings last week, the practical start will be on Tuesday when the House will return to an abbreviated session that will elect a Sergeant-at-Arms for the Chamber. The only other action on the agenda for the House this week will be consideration of HJ Res 98, opposing the President’s announced intention to raise the National Debt Limit.

There are some House Committee meetings scheduled for this week, but nothing of particular interest to the chemical security or cybersecurity communities.

No word yet on Senate activities on any of the web sites, but they don’t usually do any business until the State of the Union Address, which happen on  January 24^th this year. The committees that I typically track don’t even have any hearings listed on their sites yet. Nothing unusual here; it’s just the way the Senate operates.

CFATS Success

I received an interesting email from a reader about the CFATS delay blog that I wrote earlier this week. He noted that Congress would not get upset about Beer’s less than complete testimony about SSP delays because “CFATS is a success”. In many ways I have to agree. As I have said on numerous occasions, DHS has done a great job in getting this program up and running. A major reason for their success to date is that they have really worked with industry to put into place a workable and effective regulatory program that actually increases security at high-risk chemical facilities.

What I am afraid of is that all of that could get ruined if DHS has to start cutting corners in this program because it does not have the necessary resources to complete the SSP review/approval process. In an era of increasing budgetary constraints it would become very easy for this process to turn into a rubber stamp of submitted site security plans. If that happens, then CFATS will go the way of EPA and OSHA chemical safety programs; responsive only after the fact. Unfortunately an after-the-fact inspection in the DHS sense could mean the deaths of thousands of people as the result of a terrorist attack.

My friends at SOCMA and ACC are quick to point out that they have been working hard at security long before CFATS and that is true. I worked at a facility that worked hard at getting their Responsible Care certification, but did not have a real effective security program because they just did not understand security. It wasn’t that they tried to take shortcuts to try to skate by, but they did take shortcuts because no one had ever told them the proper way to do things.

If this could happen at a Responsible Care facility, just think about the security measures that are routinely found at smaller facilities. One just has to look at the number of anhydrous ammonia releases at farm supply stores across this country because of theft by amateur methamphetamine manufacturers to see how lax security is at many potentially high-risk facilities.

Until we get an effective CFATS process down to the Tier 3 and 4 facilities across this country, the vast number of the covered facilities, we can’t really call the CFAT program a success. And it won’t continue to be a success if it starts to take the easy way out on SSPs; high-risk facilities must be held to standards that favor security.

Congressional Long Weekend

Congress has now adjourned for the long 4th of July weekend. Where most working folks have a three day weekend, Congress is out-of-town today and won’t be back until either July 12th (Senate) or 13th (House). To be fair, it won’t be all kicking-back and watching fireworks; 1/3 of the Senate and everyone that isn’t retiring in the House will be working hard on their election campaign. There will be lots of meetings and barbeques to attend before they get back to work. When our representatives come back to Washington they will have just about two weeks to get anything done before they depart for their month long summer recess. Just to review, we are waiting for a Senate mark-up hearing on a CFATS re-authorization bill (either HR 2868 or S 2996 or a bill yet to be introduced ‘any day now’ by Sen. Lautenberg) and a number of committee reports in both the House and Senate on bills where markups have been completed in the last 9 months or so. We are also waiting on the introduction of the first of any of the twelve budget bills (DHS will probably be the first). Once that summer recess is over Congress will be increasingly (if that is even possible) deadlocked by electioneering. As September runs into October and on to the first Tuesday in November it will become even more difficult for Congress to get anything of substance completed. There will be lots of talk as our representatives try to convince voters back home that they deserve to be sent back to the halls of government along the Potomac.

Long Weekend

Congress finished their work yesterday afternoon and took off for the long Memorial Day weekend; they won’t be back to work until June 7th (the Senate) or June 8th (the House). Not that they will actually be taking much time off, this is an election year so most of them will be spending lots of time talking to constituents back home. With the number of upsets so far this year in just the primary elections, electioneering is likely to be even more of a factor in the deliberations of Congress this year. Democrats will likely to try to bring up some measures for votes that their liberal base want to see passed, even though any realistic observer would be well aware that Senate Republicans, appealing to their conservative base, would certainly block actual votes. All posturing for the base, but it will take up time and make it more difficult to get any real work done.

This year it is possible that electioneering might even interfere with passage of the DHS budget. Typically the Defense budget and the DHS budget get passed even if the rest of the government gets covered by a continuing resolution until after the election. This year, because of immigration issues, the DHS budget might get held up as well. Then we will have to pay particular attention to the actual language of the continuing resolution to make sure that it actually continues the CFATS program that currently expires on October 4th.

Adjourned Sine Die

Congress finally completed their work on December 24th and adjourned for the remainder of the year. Unfortunately the only work they completed on the chemical security front was to include a one year extension of the authorization for the CFATS regulations in the DHS budget bill. The House did pass two authorization bills for DHS components (TSA and the Coast Guard) and HR 2868, the Chemical and Water Security Act of 2009. With Congress adjourned and members back in their districts, many of my readers will be taking a vacation for the next two weeks. I’ll be spending more time on some other projects that I have been working on. But this blog won’t be adjourned. There could still be significant news in chemical security to look at, so I’ll still be watching for that. CFATS Legislation The Senate Homeland Security Committee staff will continue working on HR 2868 in the coming weeks. The staffs of Sen. Collins and Sen. Lautenberg are supposed to be working on preparing CFATS re-authorization of their own to counter their very divergent views of the problems with the House bill. The issue that will continue to be the most contentious in this area will be the Inherently Safer Technology (IST) requirements. Last year, before the HR 2868 language became available, I wrote a series of blogs about the IST issue. This week, I will be re-posting those blogs. I think that they can contribute to the work that continues to be done in the (at least) three Senate staffs currently working on this issue. Politics of Re-Elections One last political reminder to readers of this blog; if you thought politics was contentious this year, you haven’t seen anything yet. The first session of the 111th Congress was marked by party division. The second session of any Congress is always more affected by pre-election posturing by both parties; this one will certainly follow that model. The party-line division will, if anything, get worse in the lead up to October. While major issues drew a lot of ‘conflict press’ in the first session, there were a number of issues where there was bipartisan support for less controversial legislation. The number of such bipartisan bills will probably be reduced during the second session and will draw even less press coverage. What were minor disagreements last session will become ‘stands on principal’ this session as part of the Congressional re-election process. Fortunately for the chemical security community, this will be less evident in the Senate because less than 1/3rd of the Senate is up for re-election this year. That means that most Senators will probably not be looking at their short-term re-election benefit when deciding how to vote on HR 2868. Hopefully, that will allow for some reasonable compromises on IST and other issues.

Congress Returns on Tuesday

The summer congressional recess ends next Tuesday afternoon. No doubt there are a large number of controversial items on the agenda when they get back to work, but I’ll try to concentrate on just those of potential interest to the Chemical Security Community. DHS Budget Bill Both the House and the Senate passed slightly different version of the Administration’s DHS budget bill well before the summer recess. All that remains now is for the Conference Committee to get together and iron out the differences between the two versions. The Senate named their members of the Conference when they passed the bill back on July 9th, the House has yet to name their Conferees. There really should be no problem to work out the differences and get the final bill passed and signed. Both houses agreed to the provision extending the CFATS authorization for one year so that will almost certainly be in the final bill. CFATS Extension Bill HR 2868, the House bill that would extend CFATS coverage and make it permanent still needs to be considered by the House Energy and Commerce Committee and the House Judiciary Committee before September 30th (that date could of course be extended). The Energy and Environment Subcommittee has a hearing scheduled on HR 2868 and its companion bill HR 3258 for 9-11. Green Peace and a number of other environmental groups have been making a concerted publicity push in local and regional newspaper throughout the break to get this bill passed. They have been using their standard argument of eliminating dangerous chemicals at specific plants as the basis for those local pushes. While the articles have all been written by local activists, they have pretty much used the same general template. SOCMA and the ACC have both pushed back at each of these pushes by the pro-IST activist with letters to the editors of these papers countering the arguments and pointing out the progress made to date in protecting these local facilities from terrorist attack. Again these letters were signed by local chemical industry executives, but they also used a common template to formulate their replies. Interestingly they all pointed out that the Administration supported a one-year extension of the current CFATS regulation to avoid proceeding too quickly on the IST issue. In my mind it is still an open question if these bills will come to floor votes this year or not. There is a much higher probability of making it to the floor of the House than the Senate since nobody in that body is currently banging the chemical security drum the way that Chairmen Thompson and Waxman are. There is still a possibility that this will pass before the Congress closes up for the year, but it will depend on how large and bloody the fight gets on the health care and global warming issues. Cyber Security Issues There are a number of cyber security bills that might yet get considered in committee. The strongest possibility to date is the Senate bill S 773 that is supported by both Rockefeller (D, WV) and Snow (R,ME). That has faced some criticism for its ‘control of the Internet’ issue, but rumors are going around that there is a new, less threatening version being circulated in the halls of the Senate. There isn’t really much in there about control system issues. Chairman Thompson’s bill in the House (HR 2195) does address control systems issues, but only in the electrical power industry. We’ll probably see hearings on both bills later this year, but not much more. Hearings Next Week Congress is still out of town so it is not unusual that most committees have not yet update their web sites (the House Homeland Security site is still officially in August), but there are two chemically related hearings that have been posted for next week. First, the previously mentioned Energy and Environment Subcommittee hearing on Friday at 10:00 a.m. on HR 3258 and HR 2868 is now post, but without any details about who will be there. The other newly posted hearing will be before the House Transportation and Infrastructure Committee on Thursday at 10:00 a.m.. It will look at Hazardous Material Safety and the Pipeline and Hazardous Material Safety Administration (PHMSA). No details available yet on that hearing either.

Post-Election Congress

I may have to take back some of my disparaging comments from today’s earlier blog (see: “Push for New Chemical Facility Security Law”). The letters to current Congressmen may be useful if the article I just read on Politico.com is correct. The article says that a post-election congressional session “seems all but certain” because Speaker Pelosi wants to pass an economic stimulus package before the end of the year. Of course, nothing was said in the article about a chemical facility security bill. One thing about Congress though, it isn’t a state legislature that can be called back into ‘special session’ to only address a single issue. If Congress is in session, anything can (but seldom does) happen. I’ll keep an eye on the Homeland Security and the Energy and Commerce Committees to see if they take any action on chemical facility security legislation. As of this morning, no hearings have been scheduled in either committee.