Rule for Consideration of Senate Amendment to HR 1

Early this morning the House Rules Committee finished up their own min-votarama on potentially adding provisions for floor amendments to the consideration of the Senate amendment to HR 1, the One Big Beautiful Bill Act. By a final vote of 7 to 6 (pg14), {with Rep Roy (R,TX) and Rep Norman (R,SC) joining the Democrats in voting ‘Nay’} approved the rule for the consideration of the bill with limited debate (1 hour) and no floor amendments to be considered. The House is scheduled to take up the rule today at 9:00 am and then (if the rule is approved) consider the Senate version of HR 1.

There is really nothing in this bill that is of specific importance here. There are just three mentions in the 870 pages of the bill of the word ‘chemical’, two of them mentions in passing of ‘fentanyl precursor chemicals’. The term ‘cybersecurity’ gets mentioned five times, four of those mentions coming from §200006, Enhancement of Department of Defense resources for improving the efficiency and cybersecurity of the Department of Defense. Most of that section deals with DOD audits, but paragraph (4) allocates $20 million for defense cybersecurity programs of the Defense Advanced Research Projects Agency. That is the only specific cybersecurity spending mentioned in the bill. There are no mentions of UAS or drone spending, much less new funding for counter UAS activities.

The votes against the rule by Roy and Norman may indicate that the House may have problems adopting the Senate amendment. There are a total of ten House members that regularly (not always to be sure) vote against bills along with Roy and Norman for ideological reasons. If all members are present (and that is an open question of how many will show up for this vote) the Republican leadership will fail to pass this bill if just four Republicans vote against the bill (and no Democrats support it), there is no provision for a tie breaking vote in the House.

Actually, not passing the bill today does not necessarily kill HR 1. This vote is on the Senate amendment. After a failed vote on that amendment, there might be a motion made to insist on the originally passed House language and request a conference committee be formed to work out the differences between the two bills. That would move behind closed doors the battles over details that we have been seeing for the last couple of weeks with another up and down vote in both bodies possible before the August recess.

Committee Hearings – Week of 3-26-23

This week, with both the House and Senate in Washington, there is a relatively heavy hearing schedule. A major focus remains on budget hearings, but we also have two cybersecurity related hearings, one oversight hearing, a markup hearing, and another look at the East Palestine derailment.

Budget Hearings

Budget Hearing	House	Senate
NSA	Intel Subcommittee
CISA	Appropriations Subcommittee
TSA	Appropriations Subcommittee
EPA	Appropriations Subcommittee
DOD	Armed Services Committee	Armed Services Committee
DHS	HS Committee
FDA	Appropriations Subcommittee

Cybersecurity

On Wednesday, the Cybersecurity Subcommittee of the Senate Armed Services Committee will hold a hearing on “To Receive Testimony on Enterprise Cybersecurity to Protect the Department of Defense Information Networks”. The witness list includes:

• John B. Sherman, DOD CIO, and

• LTG Robert J. Skinner, USAF

Probably very little discussion about operational technology issues.

On Thursday, the Cyber, Information Technologies, and Innovation Subcommittee of the House Armed Services Committee will hold a hearing on “Cyberspace Operations: Conflict in the 21st Century”. The witness list includes:

• John F. Plumb, DOD,

• Gen Nakasone, Cyber Command

Again, probably very little discussion about OT technology issues.

DHS Oversight

On Tuesday, the Senate Judiciary Committee will hold a hearing on “Oversight of the Department of Homeland Security”. No witness list is currently available, so it is hard to tell where the focus will be in this hearing.

Markup Hearing

On Wednesday, the Senate Homeland Security and Governmental Affairs Committee will hold a business meeting that will include markups of 28 bills, five of which have not yet been introduced. Bills of potential interest here include:

S. ___, Securing Open Source Software Act of 2023,

S. ___, Reporting Efficiently to Proper Officials in Response to Terrorism (REPORT) Act,

S. 885, DHS Civilian Cybersecurity Reserve,

Derailment Hearing

On Tuesday, the Environment, Manufacturing, and Critical Minerals Subcommittee of the House Energy and Commerce Committee will hold a hearing on “Government Response to East Palestine: Ensuring Safety and Transparency for the Community”. The witness list includes:

• Debra Shore, EPA,

• Wesley Vins, Columbiana County General Health District, and

• Anne M. Vogel, Ohio EPA

On the Floor

The House will be considering HR 1 this week, the Republican’s signature energy bill. While the Republicans criticized large omnibus type bills, this is a typical politically-focused conglomerate of 17 previously introduced bills that we have come to expect from the House of Representatives. 153 amendments have been proposed to the House Rules Committee. The Committee will meet today to decide which amendment will be considered on the floor. Only two of those amendments may be of potential interest here:

#102 Ocasio-Cortez (D,NY) - Prevents oil and gas companies that have been found responsible for chemical spills or environmental disasters in the past 20 years from accessing reduced royalty rates.

#147 Schiff (D,CA) - Directs the Secretary of Energy to create a task force that would work with frontline communities to examine the environmental and public health impacts of petrochemical refineries, including local, global, and cumulative impacts. Requires the task force to research alternative options for energy security and offer recommendations to improve energy security in the United States.

Bills Introduced – 3-14-23

Yesterday with the Senate in Washington and the House meeting in pro forma session, there were 80 bills introduced. One of those bills may receive additional attention here:

HR 1 Lower Energy Costs Act Scalise, Steve [Rep.-R-LA-1]

This bill will be a major symbolic effort of House Republicans in this session. It will certainly be passed in the House on a straight party line vote, but will not be considered in the Senate. There is nothing currently in the text of the bill that would normally be covered in this blog, but I suspect that there may be additions to the bill made in committee dealing with issues of interest here.

This bill does show how generous the Republican leadership can be in their definition of ‘single topic’ in their requirement that a bill contain only a single topic. This bill is currently only 175 pages long, but the version that comes up for a vote on the House floor is likely to be much larger.

HR 1 Passes in Senate – Sandy Relief

On Friday the Senate passed HR 1 after renaming it an “Act making appropriations for disaster relief for the fiscal year ending September 30, 2013, and for other purposes”. Why they just couldn’t rename it the Sandy Relief Act, nobody knows. The vote was a mixed 62 – 32 in favor, hardly a ringing endorsement.

No CFATS Coverage

The bill did not address the effects of Sandy on the security of high-risk chemical facilities in the covered area as I suggested in an earlier blog posting. I am disappointed that the Senate was not interested in the continuing security of the CFATS covered facilities in the area, but I am not surprised. After all there were more important things like the agreement between the US and Palau for the response to the 2010 Super Typhoon Bopha (SA 3344; which failed by the way by a vote of 52 – 43, 60 being required to pass).

Well, maybe this will be taken up when the House considers the Senate action on HR1, though the bill did not make the long list of bills on today’s agenda for the House. So maybe we will have to start all over again in the 113^th Congress.

In any case I have developed some suggested language to either be added to a comprehensive CFATS bill (yep, we’ll soon be talking about that again) or to a Sandy Relief bill lacking that. Actually, it will probably have a better chance of passing on a Sandy related bill than on a CFATS bill. The language below would be in the form of an amendment to the Homeland Security Act of 2002.

Suggested Language

§21XX; Natural Disasters Affecting CFATS Covered Facilities

(a) In the event that the President declares a natural disaster in any political subdivision of the United States (eg: county, borough, parish, or tribal area) that contains a facility covered by the Chemical Facility Anti-Terrorism Standards (CFATS), the Secretary, acting through the Director of the Infrastructure Security Compliance Division (the Director), will dispatch appropriate Chemical Facility Security Inspector (CFSI) teams to assess the effect of that natural disaster on the security of covered facilities in the declared disaster area. Those teams will:

(I) Visit each covered facility in the area as soon as safely practicable;

(II) For Tier 1 and Tier 2 facilities in the declared natural disaster area, the CFSI Commander will determine if there is an immediate need for additional security personnel to prevent unauthorized access to the covered facility. Any such needs will be immediately communicated to the Responsible Federal Official for that disaster area as well as to the Director;

(III) Conduct an assessment of the damage to existing site security measures resulting from the natural disaster;

(IV)For facilities without an approved site security plan:

(A) Meet with the owner/operator of the facility;

(B) Determine the damage to currently existing critical security infrastructure at the facility;

(C) Determine the repairs necessitated by that damage that would allow the facility to deter, detect and delay intruders to the standards required by existing risk based performance standards (RBPS) applicable to the tier level, or interim tier level assigned to that facility;

(D) In consultation with the owner/operator prepare a report on the expected costs to effect the repairs outlined in (C) above;

(V) For facilities with an approved site security plan:

(A)  Meet with the owner/operator of the facility;

(B) Determine the damage to the current security measures described in the approved site security plan;

(C) Determine the repairs necessitated by that damage to return those security measures to the standards required by existing risk based performance standards (RBPS) applicable for the tier level assigned to that facility;

(D) Of the repairs determined in (C) above determine which repairs would be required to allow the facility to deter, detect and delay intruders to the standards required by existing RBPS for the tier level assigned to that facility

(E) In consultation with the owner/operator prepare a report:

(i) On the expected costs required to effect repairs outlined in (D) above; and

(ii) On the expected costs required to effect repairs outlined in (C) above less the cost determined in (i);

(VI) All reports required (IV) and (V) will be submitted to the Director within 1 week of CFSI being allowed into the declared disaster area;

(b)  Within two weeks of CFSI being allowed into the declared disaster area the Director will compile and forward reports to:

(I) The Administrator of the Federal Emergency Management Agency recommending that disaster recovery grants be awarded to covered facilities for the costs reported in (a)(IV)(D) and (a)(V)(E)(i);

(II) The Administrator of the Small Business Administration recommending that no cost disaster recovery loans be provided to covered facilities for the costs reported in (a)(V)(E)(ii); and

(III) Copies of both reports will be forwarded to the Homeland Security Committees in the House and Senate along with a summary of any recommendations made in (a)(II);

(c) Within one year of CFSI being allowed into the declared disaster area the Director will:

(I) Ensure that each facility inspected in (a) has been re-inspected to ensure that the required repairs have been made; and

(II) Report to the Homeland Security Committees in the House and Senate on the status of the repairs at covered facilities in the declared disaster area.

Explanation

Basically the bill would require Chemical Facility Inspectors to check all covered facilities in the disaster area. The ISCD Director would recommend grants for fixing damaged security measures directly affecting Deter, Detect, and Delay to the appropriate tier level standards set forth in the RBPS Guidance document. Facilities with approved site security plans would have their other security related repairs recommended for no cost loans from the Small Business Administration. The actual awarding of those grants or loans would be determined by the appropriate Administrators.

Remember, the whole purpose of the CFATS program it to protect the communities surrounding these high-risk chemical facilities. The companies have had to pay the cost of getting their facility security measures up to the minimum standards established. They shouldn’t have to pay for the costs of re-establishing those security measures after a natural disaster. And it is in the best interests of the Nation that the necessary repairs are done in a timely manner.

HR 1 Fails in Senate

Yesterday the Senate voted on HR 1, the FY 2011 continuing resolution that would have provided funding for the federal government until October 1st. Under a deal worked out in advance the Senate voted upon both the House approved version of the bill and substitute language offered by Sen. Inouye (D, HI) the chair of the Senate Appropriations Committee. Neither version got enough votes to pass.

The House (essentially Republican) version failed by a vote of 44 to 56 with three Republicans {Demint (R, SC), Lee (R, UT) and Paul (R, KY)} voting in the negative. The Senate (essentially Democratic) version failed by a vote of 42 to 58 with ten Democrats and one Independent voting in the negative.

The twin votes demonstrate the problem Congress is going to have with budget matters this session. The three negative Republican votes on the House version were probably votes in favor of further cuts. The negative Democratic votes on the Senate version went both ways; some thought that the cuts in that version were too much while others thought that the cuts did not go far enough.

The votes were less close than they appeared because the agreement to allow the two versions to be considered required a 3/5ths majority for passage. This is the same hurdle as would have been required to close debate on the bill without the agreement. This shows how much work has to be done on a compromise to develop a version of the FY 2011 budget that can pass in both Houses.

Various news agencies are reporting that there will be another short term continuing resolution offered in the House to allow more time to negotiate a full term bill that can be passed in both Houses. What will be interesting to see is if that new short term resolution will have more cuts than the previous short term bill as some Republicans are suggesting. There will be some point where the increasing cuts in the short term bill will be unacceptable to Democrats in the Senate.

HR 1 Moves to Senate

The Senate is set to start their official look at HR 1 this week with the first procedural vote on Tuesday. That cloture vote would allow the actual debate on HR 1 to start. One of the first items to be discussed will likely be the substitute language being offered by the Senate Appropriations Committee Chair, Sen. Inouye (D, HI). Senate Amendment (SA)149 is a complete reworking of the bill that falls generally mid-way between the President’s FY 2011 request and the House bill.

Chemical Security Provisions

Once again chemical security programs are too small to show up as line items in this debate. We have to look at the larger program areas and guess the ultimate effects on chemical security issues. The three areas we look at are TSA Surface Transportation (truck and freight rail security), Coast Guard Operations (MTSA) and NPPD (CFATS and ICS-CERT).

• TSA Surface Transportation – SA 149 (§1614) - $105 Million – Same as HR 1 (§1614)

• CG Operations – SA 149 (§1618) - $6.9 Billion - $43 Million more than HR1 (§1619)

• NPPD – SA 149 (§1623) - $874 Million - $69 Million more than HR 1 (§1624)

As we have come to expect there is a CFATS authorization extension specifically included in SA 149; a one-year extension to October 4th, 2011 is included in §1649.

HR 1 Passed in House

Late on the legislative day on Friday, which was actually early on Saturday morning, the House passed HR 1 by a roll call vote of 235-189 on a mainly party line vote. The bill was debated over four days on the floor with 583 amendments offered. Of those 162 had some formal action taken on the floor. A total of 66 amendments were passed and 59 were rejected by recorded votes. A total of nine were withdrawn by their authors and 28 were rejected by the Chair due to their violations of House Rules.

Of the twenty amendments that had something to do with DHS spending only two were considered and passed; the Pascrell (D, NJ) amendment that I discussed in an earlier blog and one submitted by Rep. Lowey (X, XX) that limits the grants under the Urban Area Security Initiative under section 2003 of the Homeland Security Act of 2002 (6 U.S.C. 604) to no more than 25 high-risk urban areas.

While the Democrats found little to like in the final bill, and none voted for it, that was due to their lack of votes, not a lack of chances to have their voices or ideas heard. They certainly have a voting record that they can take to the voters in 2012 to see if their view of this budget proposal better matched that of the voters.

The bill will go to the Senate when both the Senate and House return from their President’s Day district work session on February 28th. It is unlikely to nearly the point of impossibility that HR 1 will be approved in its current form by the Senate. In fact, there is a very good chance that it will not be brought to the floor of the Senate for consideration.

The deadline of March 4th is unlikely to be met by ultimate passage of this bill. There is a lot of finger pointing and posturing on whether or not there will be any budget action by that date. President Obama has threatened to veto HR 1 if it does reach his desk in anything close to its current form and it is unlikely that there would be enough votes in the Senate to overturn such a veto.

The one thing that is likely when Congress returns next week is that there will be lots of yelling and screaming about the FY 2011 budget. And Congress still has to consider FY 2012 spending.

BTW: The 'engrossed' version of the bill is not yet available on the GPO web site due to the Presidents Day Holiday.

HR 1 Floor Amendments Analyzed

Well I’ve now had a chance to go back and look at all 583 potential amendments to HR 1 that were published in the Congressional Record for February 14th and February 15th. Of the 583 only 20 deal specifically with DHS related expenditures and some of those are duplicates or corrections of earlier submitted amendments. None of the amendments deals with the amounts that would be appropriated for the National Protective Programs Directorate (NPPD) so ISCD and CFATS would be unaffected.

TSA does get targeted by a number of these amendments, though none specifically target the Surface Transportation side of the agency; those parts that would affect pipeline, rail or truck security. There are a couple of amendments that would target staffing levels at TSA HQ and Regional Offices [Mica (R, FL) – 440 and Mica – 543].

Substitute Amendment

There is one amendment [LaTourette (R, OH) – 540] that is a complete re-write of the HR 1, essentially an ‘amendment in the form of a substitute’. This would be a much shorter bill (less than two pages in the Congressional Record) and would use FY 2010 as the base year for calculating expenditures. Adjustments to those expenditures would range from 69.18% (Dept of Agriculture) to 101.30 (Dept of Defense). DHS would fall on the high side, receiving 95.25% of their FY 2010 authorization. The shortened amendment continues essentially all programs requiring periodic reauthorization in a general provision (§104) but provides specific authorization for the §550 CFATS authorization (§116) until September 30, 2011.

Amendments Processed to Date

The debate and voting continue in the House today but as of 3:45 this morning (when the House adjourned to get some well needed rest) they had dealt with, in one way or another 66 of the 583 amendments. It will be interesting to see how much longer they can continue on the present pace of operations. The table below provides a summary of the actions to date.
Action                  2-15-11             2-16-11

Agreed to                 2                       10

Rejected                   6                       15

Withdrawn                1                         2

Points of Order         4                       13

Postponed              15                       13

NOTES:

1. ‘Points of Order’ are amendments that the Chair of the Committee of the Whole has agreed (sustained) with a member’s opinion that the presented amendment violated one or more of the House rules for processing amendments.

2. ‘Postponed’ are amendments where a vote was ‘demanded’ by a member. They group these votes so that members don’t have to keep running back and forth to the floor of the House.

DHS Amendment Passed

As of the end of yesterday’s session only one of the 20 amendments that addresses DHS issues has been considered. It was Pascrell (D, NJ) Amendment #223. It was agreed to (Recorded vote - 318 to 113). It increased funding for Firefighter Assistance Grants by $510 Million, while reducing DHS S&T spending by the same amount.

HR 1 Floor Debate

Well, the Republican leadership in the House has kept their promise and is allowing an open debate and amendment process in their consideration of HR 1, the bill that will provide for funding the Federal government for the remainder of FY 2011. The resolution providing for that debate, H. Res 92, allows any member to propose amendments to the bill and insures that those amendments will be debated and voted upon by the Committee of the Whole House. The only restriction is that they must be published in the Congressional Record on February 14th or February 15th.

There were 403 amendments published in the Congressional Record for the 14th. There were a number of duplicative amendments and I’m sure that most will not actually be brought to the floor by the submitting representative. Even so this process will be a time consuming process as can be seen by the late debate last night.

Another interesting thing about this process, given the rules of this session of the House, is that for any increase in funding for one program must be offset by a decrease in spending on another. It makes for some interesting amendments. You see things like [from amendment #227 by Mr. Goodlatte (R, VA)] :

“Page 252, line 15, after the first dollar amount, insert ‘(reduced by $5,000,000)’.
“Page 359, line 11, after the dollar amount, insert ‘(increased by $5,000,000)’.”

In the February 14th list of amendments I counted six that would modify the DHS portion of the bill. I haven’t had a chance to look at them in enough detail to see if any would specifically address chemical security issues. It will take some time to get through all of this. Watch this space.

HR 1 Introduced – Continuing Resolution

On Friday Rep. Boehner (R, OH) and Rep. Rogers (R, KY) introduced HR 1, the Full-Year Continuing Appropriations for Fiscal Year 2011 (actually only the title for Division B of the bill). Division B is intended to serve as the vehicle for the continued funding of the Federal government after the current Continuing Resolution expires on March 4th.

Chemical Security Provisions

There are lots of things going on in this bill and political pundits will have lots to say about a lot of those provisions. In this blog post (at least) I will try to focus on those provisions of specific interest to the chemical security provisions.

First and perhaps foremost is that §1116 will extend the §550 authorization for the CFATS program until September 31, 2011. This is a slightly different provision than we have seen in the past that provided an October 4th date for the termination of authorization. It is a purely technical difference since these extensions have been based in the DHS budget which practically speaking means the end of the fiscal year is the ‘real’ expiration.

Now for the money; this bill (§1624) would authorize the annual spending level for “Department of Homeland Security, National Protection and Programs Directorate, Infrastructure Protection and Information Security” (the agency that includes ISCD/CFATS and CERT) would be set at $805,965,000. [FY 2011 Request - $865,965,000; FY 2010 Authorized - $899,416,000]. There is no indication in the bill where the in NPPD the actual spending would be cut. We will have to wait to see the Appropriations Committee report on this bill to get some sort of idea.

Similarly the bill (§1615) would reduce funds for “Department of Homeland Security, Transportation Security Administration, Surface Transportation Security” to $105,961,000 [FY 2011 Request - $137,558,000; FY 2010 Authorized - $110,516,000]. Again, there are no details of where those cuts would be applied.

Politics and HR 1

I can’t imagine any Democrats in the House voting for this bill, and I imagine that there will be some Republican defections on the final vote. Will those defections be enough to kill this bill in the House? Probably not.

What will be interesting in the House is how much this bill will be subject to amendment. That will be determined in tomorrow evenings Rules Committee Hearing. On one hand the Republicans have promised more open rules, on the other hand there is an approaching deadline of March 4th for some sort of action.

An entirely different reality faces this bill in the Senate. The Chairman of the Senate Appropriations Committee, Sen. Inouye (D, HI) has essentially declared this bill dead in the Senate. In an official press release he explains:

“It is clear from this proposal that House Republicans are committed to pursuing an ineffective approach to deficit reduction that attempts to balance the budget on the back of domestic discretionary investments, which constitute only a small percentage of overall federal spending.”

Sen. Reid (D, NV) has been quoted as saying:

“Although Democrats have repeatedly urged them to join us in responsibly cutting waste and excess, Republicans have taken a meat ax to the initiatives that invest in our economy and create jobs for the sake of appeasing their base.”

I would like to assume that the Republicans will cast a symbolic vote (ala healthcare) on HR 1 and then get down to some serious negotiations on a bill that is marginally acceptable to mainstream Republicans and Democrats. I’m hopeful that the talk of shutting the government down over this budget is just so much noise.

If the CR Stalls – Whither CFATS?

If the two sides fail to make a reasonable deal and no budget bill or continuing resolution passes by midnight on March 4th, what happens to CFATS? Well that answer is simple, along with most of the rest of the Federal government, it shuts down. When (no ‘ifs’ about it) a budget bill is finally passed it will contain a provision essentially the same as §1116 of HR 1, and CFATS will continue on until the next budget bill or someone finally gets around to passing a ‘permanent’ or ‘long-term’ reauthorization bill.