Congressional Hearings – Week of 06-02-13

The House and Senate return to Washington, rested and refreshed from a very long Memorial Day weekend. Work starts to get serious on spending bills as the long summer recess approaches. The House has four spending related hearings scheduled for this week that might be of interest to readers of this blog. Also, floor action is expected on two spending bills; the military construction bill and the DHS FY2014 appropriations bill.

Rule Hearing on Two Appropriations Bills

As I mentioned in an earlier post, the House Rules Committee will be meeting Monday evening to consider the rules for House floor consideration of HR 2016, the military construction bill, and HR 2017, the FY 2014 DHS appropriations bill. I expect that both of these bills will get open rules with nearly unfettered submission of amendments from the floor.

The current floor calendar indicates that HR 2016 will be considered first, so we may not get to a final vote on HR 2017 until next week since the current plan is for the last vote for the week to take place Thursday afternoon.

Subcommittee Markup of Two Appropriations Bills

The House Appropriations Committee will have two subcommittee markup hearings this week; one for the Ag Dept bill and one for the DOD bill. Both hearings will be on Thursday. I usually watch the DOD bill for cybersecurity measures. I’m going to be watching the Ag bill this year for fallout from the West Fertilizer explosion.

Neither subcommittee has published a draft bill or report yet. I kind of expect to see those later this week.

DOD Authorization Bill

HR 1960 as introduced did not have any specific cybersecurity language associated with it. That may change when the full House Armed Services Committee meets on Thursday to markup the bill. At the very least I expect that we will see cybersecurity language in the Committee report on the bill, but we probably will not see that report for a week or two.

The Missing Hearings

As I write this there are no hearing posted for the Senate Environment and Public Works Committee. Sen. Boxer had promised to hold early hearings on the problems identified by the West Fertilizer Explosion in April. At the very least we should be able to expect to see her Committee address the Chemical Safety Board/ATF conflict; the Committee has oversight responsibility for the CSB. Similarly we could expect to see a House hearing from the Energy and Commerce Committee for the same reason.

I would like to think that the homeland security committees in both houses would hold hearings on the CFATS issues raised by the failure of West Fertilizer to complete a Top Screen submission for their holdings of anhydrous ammonia and ammonium nitrate. A possible explanation for there being no word on such a hearing might be that ISCD/NPPD has told the Committees on the QT that even if a Top Screen had been filed, the facility would not have been identified as a high-risk facility due to its rural location.

It may be a little too early yet, the dust is still settling on the CSB-ATF conflict. I would be surprised though if we haven’t seen at least one such hearing before the July 4^th recess. In fact, this might be a good topic for a field hearing during that recess. It would be a good source of fireworks.

HR 2017 to be Considered in the House

Today the House Rules Committee web site was updated to announce that HR 2017, the Continuing Appropriations Act, 2012, is “likely to be considered pursuant to a unanimous consent request” this week. With tomorrow the only remaining day that the House is supposed to meet this week, one would have to conclude that this consideration will take place in that almost pro forma session. It would have been completely pro forma if the Senate had just gone along and passed HR 2608.

Don’t shed any tears for your Representative having to cut their one week working vacation short by a couple of days. I would be surprised if very many of them show up for the consideration of HR 2017. As long as no one officially recognizes that a quorum is not present and no one asks for a vote, this bill will be passed by just a handful of congresscritters.

It will start with an important member asking for unanimous consent and that will start the political ballet that will end with the words, “In the opinion of the Chair, the Ayes have it.” Then everyone will go home for a long weekend and worry about passing HR 2608 on Monday or Tuesday.

Oh yes. Everyone will hold their breaths during that ballet. You see; a single political bomb thrower (‘political bombs’ are always more of a problem than mere explosives) can derail the whole process by muttering the words “I object” or noticing that a quorum is not present. Either will stop the proceedings and we’ll be exposed to the spectacle of most of 435  representatives scrambling to get a flight in to Washington D.C. that would allow them to vote on Friday. That circus might almost be worth the price of admission.

Senate Passes HR 2017

Reading the Daily Digest of the Congressional Record this morning it looks like the Senate passed the DHS Spending bill, HR 2017 with the amendment that I discussed in an earlier blog. Actually Sen. Reid (D,NV) used HR 2017 as the vehicle for a very short term continuing resolution to give the House time to consider the revision for HR 2608 that was also passed last night.

Short and Very Short CR

There is only one difference between the two bills that I can see at first glance. That is in §106(3) the end date for the CR is October 4^th, 2011 for HR 2017 and November 18^th, 2011 for HR 2608. The October 4^th (a week from today) date is the deadline for the House to pass HR 2608. The November 18^th date is the deadline for Congress to pass the regular spending bills for FY2012.

For the chemical security community §129 of both bills provides for the extension of the §550 authority for the CFATS program to the date specified in that §106(3) discussed above. Its interesting that this was included in HR 2107 since that authority already had an expiration date of October 4^th, 2011. This is really just a measure of how automatic the extension of CFATS has become; the staffers that drafted Senate Amendment 666 (conspiracy nuts and ‘end of days’ nuts note that number) did not realize that this was not necessary; they just automatically included it.

Oh, just to make things really confusing there is one more identicallity (that may be a made up word); both bills will be known as the ‘Continuing Appropriations Act, 2012’.

No DHS Appropriations Bill

One final point, HR 2017 was used by Sen. Reid as the ‘vehicle’ for the short term spending extension because a House passed bill was needed. The Constitution requires spending bills to originate in the House. Of course, it could have been any House passed bill, it did not need to be a spending bill; just look at HR 2608.

This does create an interesting problem. There is now no DHS spending bill for the Senate to take up and pass. There are two options. First the House could pass another spending bill (oh wouldn’t that be fun), or the Senate could take another House passed bill and tack their version of HR 2017 passed in Committee onto that bill. This could be done either as an amendment (to another spending bill for example) or as an amendment in the form of a substitute (effectively killing the original House passed bill). It will be interesting to see how this is handled.

More on Senate Markup of DHS Spending Bill

Yesterday I noted that the Senate Appropriations Committee had reported their version of HR 2017, the FY 2012 DHS appropriations bill. I still haven’t seen the actual revised language, but most of the important details are included in the Report (112-74) that I have been able to go through in some detail.

Spending Amounts

A number of commentators will be looking at spending levels in this version of the bill. Looking for numbers that would directly concern the chemical and cyber security communities I came up with the following broad numbers with the appropriate comparison to the House version of the bill.

• TSA Surface Transportation - $134.7 Million vs House $129.7 Million

• TSA Credentialing - $164.0 Million vs House $184.0 Million

   • Crew and Other Vetting Programs - $71.5 Million vs House $91.5 Million

• Infrastructure Security Compliance - $99.3 Million vs House $91.8 Million

• Cybersecurity - $450 Million vs House $438 Million

   • US-CERT $80.0 Million vs House $79.1

Transportation Workers Identification Credential

I don’t see an explanation of how the Committee expects the TSA to absorb the $20 Million in ‘Crew and Other Vetting’ programs. Perhaps they just think that there will be fewer people being vetted by this process; the process that includes the TWIC program, the Hazmat Endorsement for CDL’s and the start of the vetting process for the CFATS program.

In addition the Committee directs the TSA to “TSA to expand Universal Enrollment Centers, which will result in no less than a 50 percent expansion in the number of available TWIC enrollment sites” (page 78). This will make it easier for personnel to apply for and pick-up their TWIC documents. This will be important as many chemical facilities, especially those away from port areas, will have their workers apply for a TWIC as a method for complying with the CFATS personnel surety requirements.

The Report also calls for two separate reports on the TWIC program. The first is a requirement for the TSA to report “act on the projected resource requirements, security impacts, and a potential timeline to effect changes in the TWIC enrollment system to permit cards to be shipped directly to the recipient” (page 78). This is apparently a politically popular idea and a requirement to implement this is embodied in HR 1143. I discussed an earlier GAO report on the topic.

The second report requirement is laid upon the Coast Guard. The Committee want them to report “on the progress being made to implement the recommendations made by the Government Accountability Office [GAO] in report (GAO–11–657) relating to internal control weaknesses of the Transportation Worker Identification Credential program” (page 90).

Chemical Facility Anti-Terrorism Standards

As I mentioned in my earlier blog the Committee, as expected, maintained the inclusion of the one-year CFATS extension in their version of the bill. Section 538 of this version of HR 2017 will continue the CFATS program through October 4, 2012.

According to the Report; “The Committee is concerned that there are not enough inspection, enforcement, and compliance personnel to effectively implement the Chemical Facility Anti-Terrorism Standards.” (page 109) Accordingly they are requiring NPPD to report “on the progress being made to implement the recommendations made by the Government Accountability Office [GAO] in report (GAO–11–657) relating to internal control weaknesses of the Transportation Worker Identification Credential program”.

Cyber Security

Disappointingly all references to cybersecurity that I found in the report include the adjectives ‘network’ or ‘information’; no mention anywhere of control systems.

Senate Appropriations Committee Reports HR 2017

Yesterday the Senate Appropriations Committee reported on their mark-up of HR 2017, Department of Homeland Security Appropriations Act, 2012.  The bill was ordered favorably reported on a very bipartisan vote of 28-2 (that also included two other spending bills). The substitute language for the bill is not yet available on the GPO web site, but the report (Senate Report 112-74) is available.

I haven’t had a chance to do a detailed review yet but Section 538 will extend CFATS authorization for another year.

GPO Publishes House Version of HR 2017

Yesterday the final version of HR 2017 passed last week by the House became available on the GPO web site. This allows us to better understand the effects of the large number of amendments that were adopted during the floor debate on this bill. For readers of this blog probably the most important item is the confirmation that the CFATS extension did remain in the bill, though it is now found at §535.

Budget Numbers

None of the gross budget numbers that I discussed in my earlier blog on the introduction of HR 2017 have changed. There are no indications of changes to any of the program budget numbers identified in that blog as coming from the Committee Report on the bill.

TWIC Amendment

As I noted on the first day of the debate there was an amendment to the bill passed that would affect the operation of the TWIC program. That amendment is now §704 of the bill. It reads:

“None of the funds made available under this Act may be used to require an approved Transportation Worker Identification Credential (TWIC) applicant to personally appear at a designated enrollment center for the purpose of TWIC issuance, renewal, or activation.”

If this provision remains in the final version of the budget, this could have a significant on the operation of the TWIC program. The whole point of the TWIC program is that there has been a biometric confirmation of the identity of the holder of the card. This is going to be difficult to achieve when the applicant for the TWIC cannot be required to show up at the issuing facility at some point in the issuing process. This will certainly require changes in the TWIC procedures and probably the TWIC regulations.

I discussed this issue in more detail in my blog on the GAO report on potential requirements to mail TWIC to approved applicants.

Much Amended HR 2017 Passes in House

While the complete record of the floor debate on HR 2017, the Department of Homeland Security Appropriations Act, 2012, has yet to be published, it is clear that on a vaguely bipartisan vote of 231 to 188 (20 Republicans voting Nay and 18 Democrats voting Aye) the House passed HR 2017. As far as I can tell from the floor summary record on Clerk’s website there was no objection raised to §536, so the CFATS authorization extension appears to remain in the bill. We’ll know for sure when we can see the amended version of the bill published by the GPO; hopefully tomorrow, but more likely next week.

Beyond the two amendments I noted in last night’s blog post, I did not see any other amendments that would be of specific interest to either the chemical security community or the cyber security community.

There was an interesting discussion about CFATS funding at the very start of the one-hour of general debate (before the amendment process) on HR 2017. The colloquy was between Rep. Murphy (R, PA) and Rep. Aderholt (R, AL). Murphy, the sponsor of HR 908, asked about the CFATS funding and authorization in the bill in light of impending action on HR 908. Aderholt replied:

“I congratulate the Energy and Commerce Committee on pursuing the CFATS authorization on an expedited basis this year. We do hope and expect that CFATS will be authorized under regular order prior to the start of the new fiscal year. However, it was important that we include funding for the 2012 appropriation bill for CFATS, and we do not want that line item to appear to be in conflict with the currently enacted sunset date of October 4, 2011.” Congressional Record; June 1st, 2011; pg H3834

Apparently the reasoning behind Aderholt’s comments was sufficient to stop the removal of the CFATS authorization (§536) from HR 2017 that had at least been contemplated by Chairman Upton.

We now get to wait for action on the Senate version of this bill that has yet to be introduced by the Senate Appropriations Committee.

HR 2017 Amendments – 06-01-11

As of 11:00 pm EDT this evening I have only seen two amendments offered to HR 2017 on the floor of the House that might be of interest to the chemical security community. Both deal with different aspects of transportation security.


Surface Transportation Security Funding

Rep. Jackson-Lee (D, TX) offered an amendment (listed as #12 in Tuesday’s Congressional Record) that would have increased the funding for the TSA Surface Transportation Security program by $5 Million. No specific use of the increased funding was specified in the amendment. The amendment failed on a voice vote.

TWIC Administration

Rep. Scalise (R, LA) offered an amendment that would “prohibit the use of funds to require an approved Transportation Worker Identification Credential (TWIC) applicant to personally appear at a designated enrollment center for the purpose of TWIC” (http://clerk.house.gov/floorsummary). This amendment was not published in yesterday’s Congressional Record so the exact language of the amendment (and thus its actual effect) is unclear. The amendment passed on a voice vote.

HR 2017 – More Details

I’ve had more of a chance to review the text of HR 2017 and its accompanying Committee Report so I have a better understanding of the portions of the bill that will be of interest to the chemical and cyber security communities.

Budget Numbers

First there is the examination of the high level budget numbers with a comparison to those passed in the final FY 2011 continuing resolution:

● TSA Surface Transportation - $129,748,000 [FY 2011 - $105,961,000] – 22% Increase

● NPPD Management and Administration - $42,511,000 [FR 2011 - $43,577,000] – 2.5% Decrease

● Infrastructure Protection and Information Security - $891,243,000 [FR 2011 - $840,444,000] – 6.0% Increase

To get a better understanding of the budget at a more practical level you have to read the details in the Committee Report. I’m not going to try to make comparisons to last year in this section because those details were not available in the documentation accompanying HR 1473, the final FY 2011 continuing resolution.

● TSA Surface Inspectors and Canine Teams - $91,234,000 (fully funds 2010 authorized personnel numbers)

● National Computer Security Division - $463,841,000

● Office of Infrastructure Protection - $302,278,000

Cyber Security and HR 2017

The budget numbers for the NCSD are broken out in much more detail and the Committee has broken them out in a little different manner than in past budgets. They include

● US-CERT - $79,116,000
● Critical Infrastructure Cyber Protection - $61,364,000

The Critical Infrastructure Cyber Protection account includes $28,927,000 for Control System Security and $12,901,000 for CIP Cyber Security. There are no explanations of what those two accounts include.

The Appropriations Committee appears to be paying closer attention to control system security problems than anyone else in Congress. They make the following observation on page 94 of their Committee Report:

“The Committee is aware of promising efforts to develop manufacturing standards, guidelines, and compliance procedures for industrial automation and control systems. Integrating agreed-upon industry standards into industrial automation and control systems promises a much higher likelihood of successfully countering cyber vulnerabilities. Since the development of these standards is projected to take up to 10 years, the Committee encourages DHS, in conjunction with industry partners, to accelerate the development timeline for control system security standards and to brief the Committee within 60 days of the date of enactment of this Act on its plans to meet this directive.”

CFATS and HR 2017

There are no specific numbers listed for Infrastructure Security Compliance Division or CFATS in general. That certainly doesn’t mean that the Appropriations Committee is ignoring the CFATS program. As I mentioned in my earlier blog the CFATS §550 authorization would be extended until October 4th, 2013 by §536 of this bill. There are additional areas in the Committee Report that specifically address CFATS related issues.

On page 93 there is a paragraph in the report that deals specifically with inherently safer technology (IST). This is almost certainly in response to repeated Administration comments in support of adding an IST component to CFATS. The Committee directs DHS to complete a study on IST and CFATS and to report back to the Committee. It specifically requires that:

“The report shall detail the Department’s definition of IST; the cost to the Department to implement and oversee statutory or regulatory requirements; and the financial and economic cost to facilities required to implement such requirements. Finally, the report shall include findings detailing unintended consequences of implementing IST related to security and effects on other Federal agencies.”

This might be an interesting addition to the IST debate except for the fact that agency reports to the Appropriations Committee enter a black hole that no one outside of the Committee can see. One would think that the Homeland Security Committee or the Energy and Commerce Committee might be more interested in this report, except that the whole CFATS program is authorized by the Appropriations Committee so they have primary jurisdiction, sort of.

In general, the Appropriations Committee approves of the way that the CFATS program has been administered, noting that “DHS has established a robust screening and inspection program for facilities covered under the 2007 law” (pg 93 Committee Report). Perhaps they haven’t heard that the ‘inspection program’ is proceeding much slower than anticipated. Since they haven’t done any oversight hearings on this program they might not realize the current problems that the program is having. Then again, Committees that have heard the details aren’t concerned with the slow inspection pace so why should the Appropriations Committee?

Another Appropriations Committee authorized chemical security program that will be administered by ISCD is the ammonium nitrate sales regulations that have been wending their way through the administrative bowels of the Executive Branch for over three years now. In a paragraph addressing CFATS and ammonium nitrate on page 93 of the Committee Report the Committee “directs NPPD to expedite publication of its Final Rule for ammonium nitrate regulations and provide an immediate briefing on the anticipated timeline for full implementation of the program.”

That’s a real ambitious directive, given the fact that DHS has yet to publish their notice of proposed rule making for the ammonium nitrate program. To be fair, the rule is currently out of their hands as they submitted it to the Office of Management and Budget for review back on March 3rd. We should be seeing OMB’s reply ‘any time now’.

The big delay on this rule has been political and thus mainly out of NPPD’s hands. This rule would establish some significant performance requirements for a politically vocal and powerful portion of the US economy, the farm sector. Beyond that there are some significant hurdles to controlling these sales because of the wide variety of transaction sizes that must be considered and the way that agricultural commodities like this are moved and sold. For example there may be significant loses of product while moving on barges due to wind blowing the open stacks of ammonium nitrate powder into the river; diversion reporting rules need to take this into account.

Moving Forward

This will be the first appropriations bill that the House has considered in over 18 months (a continuing resolution does not count) and it looks like it will come to the floor this week. No telling yet on how far the Senate Appropriations Committee is on getting their bill together, but it certainly looks possible that we could have a signed bill before the summer recess.

The Republicans have promised an open rule making process for appropriations bills so this could be a very interesting week in the House. We’ll be able to see how interesting when we see the results of the House Rules Committee hearing on Tuesday night. The bill will certainly pass, but it will be interesting to see what changes come through the amendment process.

Congressional Hearings Week of 5-30-11

The Senate is taking a week off from their busy debate schedule (technically they’ll meet Tuesday and Friday in ‘pro forma’ sessions) so we only have to keep track of the House this week. Even so we have three hearings currently scheduled this week that might be of interest to the chemical security community, a cyber security related hearing, a TSA authorization hearing and probably most importantly the FY 2011 DHS budget bill HR 2017.

Cyber Security

The Committee on Oversight and Government Reform will be holding a hearing on Wednesday looking at “Cybersecurity: Assessing the Nation’s Ability to Address the Growing Cyber Threat”. No details about witnesses are yet available on the Committee web site, but this is supposed to be part of a series of ‘in depth’ hearings by this Committee on cyber security related issues. There could always be a mention or two about control system security.

TSA Authorization

The Homeland Security Committee’s Transportation Security Subcommittee will be holding a hearing on authorizing the Transportation Security Administration of DHS. This hearing was postponed from last week. There is no TSA authorization bill currently available for review, but I would not be surprised to see one published this week.

HR 2017

As I mentioned earlier this week HR 2017, the Department of Homeland Security Appropriations Act, 2012, was introduced last week and is scheduled for a Rules Committee hearing on Tuesday. This hearing will establish the rule for the floor consideration of this bill later this week. There are, as of yet, no proposed amendments listed on the Rules Committee web site, but I would expect that to change during the day Tuesday.

HR 2017 Introduced – DHS FY 2012 Appropriations

Yesterday, Rep. Aderholt (R, AL) introduced HR 2017, Department of Homeland Security Appropriations Act, 2012. Since it was just published on the GPO site this morning I haven’t been able to review much, but §536 does extend the CFATS §550 authorization until October 4, 2012. Watch this space for more news; lots of reading material for the weekend.