Lame Duck Congressional Hearings – Week of 11-12-12

Well the election is over and the 112^th Congress is coming back to Washington to catch up on some of the work they couldn’t get done, for a variety of reasons, before the election. There are a large number of important topics on their plate to be dealt with in their limited time left in office yet they still have time to conduct hearings on topics that have already been talked to death.

One such topic is Weapons of Mass Destruction (maybe it should be all caps, if you listen to the rhetoric). This coming week the Subcommittee on Counterterrorism and Intelligence of the House Homeland Security Committee will be holding a hearing on “WMD Terrorism: Assessing the Continued Homeland Threat” on Thursday. No witness are currently listed on Committee web site. It is not currently listed as a closed hearing so there will be no real update of intelligence information presented.

The Chair of the Subcommittee, Rep. Meehan (R,PA), is one of the co-authors of HR 2356, the WMD Prevention and Preparedness Act of 2011, that was reported just before the extended election break, so there doesn’t seem to be much of a legislative reason for conducting this hearing unless the testimony is expected to provide additional information to support a House vote on the pending bill during the lame duck session. There has been bipartisan support for this bill, but action is still ‘pending’ on this bill in four other committees with a 'deadline' for their action of November 30^th. It might take a WMD to actually get this bill to the floor.

Committee Report Filed on WMD Bill

Last week the House Homeland Security Committee submitted their report on HR 2356, the WMD Prevention and Preparedness Act of 2011. None of the information presented in the report deal with the threat of chemical weapon attacks based upon terrorist attacks on chemical facilities that could release huge volumes of toxic inhalation hazard chemicals in or near large metropolitan areas.

Leadership Delays

While there continues to be bipartisan support for this limited WMD legislation, the leadership of the House continues to put road blocks in the way of the consideration of this bill. First the Committee leadership took over four months to complete action on their report, guaranteeing that floor action could not take place on the floor of the House before the election.

The three other Committees to which this bill was referred {Committees on Energy and Commerce, Transportation and Infrastructure, Foreign Affairs, and Intelligence (Permanent Select)} have not taken action on the bill. The House leadership extended their deadlines to consider the bill until November 30^th, 2012. If that were not enough to ensure that no action will be taken on this bill during this session, an additional Committee (House Committee on Science, Space, and Technology) was added to the list of Committees to which the bill was referred.

Ignores Industrial Chemical Weapons

I have long maintained that this bill spends too much time concentrating on potential bioweapons, weapons that have as yet not been employed by nation-states, much less terrorists. These potential weapons should certainly be addressed, but ignoring the much easier to employ class of WMD, industrial chemicals, makes little or no sense.

While the CFATS program does address a security at a fraction of the potential facilities holding large quantities of industrial chemicals that could be used as improvised chemical munitions a large number of such facilities have been exempted from the strict security standards of that program. More importantly, however, the CFATS program ignores the emergency response and post-incident clean up requirements that are addressed in this bill for potential bioweapons.

Perhaps the 113^th Congress will be able to more appropriately address the potential problems of the whole range of potential weapons of mass destruction and prioritize the efforts of that program based upon the likelihood of the employment of the various types of weapons.

Homeland Security Markup Results

Yesterday’s markup hearing before the House Homeland Security Committee ended with four bills ordered to be reported favorably to the House. Unusual in this Congress is the fact that three of the four bills were adopted by unanimous consent and the fourth by a voice vote; making these bills poster children for bipartisan support.

The four bills are:

HR 2356, WMD Prevention and Preparedness Act of 2011;

HR 3173, TWIC renewal;

HR 3857, Public Transit Security and Local Law Enforcement Support Act; and

HR 4005, GAPS Act.

Typically when you see four bills covered in a single hearing like this at least two or three of them are passed without additional action. In each of these pieces of legislation there was at least one amendment (HR 3173) offered and adopted. In fact, there were a total of 14 amendments adopted and one was defeated. All but one of the adopted amendments were approved by either ‘unanimous consent’ or a voice vote.

Still nothing in any of these bills that directly affects chemical facility security, but there are a couple of interesting amendments that deserve a second look.

GAPS Act

The Committee did not take my suggestion about avoiding over-classification of the ‘gaps’ report. Rep. Clarke (D,NY) and Rep. Jackson-Lee (D,TX) stood mute on the subject leaving Rep. Sanches (D,CA) to address the issue. Rather than trying to reduce the designation to the legally specified PCII, Ms. Sanchez’ amendment added a new section to the bill requiring that the Secretary to share “relevant information regarding remaining gaps in port security of the United States” {§3}. Recipients should include government agencies as well as ‘port system owners and operators’.

The new section goes on to address the security clearance issue by requiring the Secretary, when appropriate, to “help expedite the clearance process”. This looks like a workable solution until you realize that there will only be a limited number of people that will be getting these clearances in any organization and sharing classified information within the organization is forbidden. Additionally, the physical security requirements for storing classified information (including approval and periodic inspection requirements) will ensure that many organizations that might need access to this information will not be able to get it.

TWIC Renewal

Rep. Sanchez was also responsible for sole amendment to HR 3173. It added another complaint about the current TWIC situation to the findings in §1; the delay in issuing rules for the use of TWIC Readers. This led to a subsequent addition to §2 that it is the ‘Sense of Congress’ that the Secretary should promulgate final TWIC Reader rules “as soon as practicable” {§2(2)}. Why anyone thinks that a ‘as soon as practicable’ requirement will carry any more weight than the original two year time limit is completely beyond me.

There is one additional part to this amendment that may have a practical effect. Section 2(3) extends the expiration of any Port Security Grants that have been awarded for TWIC projects. Such awards would not expire “before the issuance of the final TWIC reader rule”. Unfortunately the staffers need to go back and learn some grammar; this could allow those grants to expire on the date the TWIC Reader rule is published in the Federal Register. I would have suggested that the end of this subparagraph would read “before a period of six months has passed after the effective date of the final TWIC Reader rule.

Republicans Loose Vote

I don’t have much interest in HR 3857; I don’t live in a city with a real public transit system and these systems (where they do exist) do not directly service high-risk chemical facilities. But, it is interesting to note that on the only roll call vote of the hearing the Chairman was on the losing end of the vote and the Ranking Member was on the winning side. Rep. Cuellar (D,TX) proposed an amendment that would require grant recipients for the new ‘specialized patrol teams’ must submit a “sustainment plan for maintaining in future years the capability or capacity achieved with the grant funds”. A bipartisan majority over-rode the chairman; it doesn’t happen often, but when it does its worth looking at.

Moving Forward

It seems that there is little or no reason that these four bills wouldn’t pass if they reach the floor of the House. I don’t see any real reason why they couldn’t pass easily in the Senate as well. It all depends on the legislative inertia; if the leadership doesn’t move on these they languish as so many bills do during an election year.

Congressional Hearings – Week 5-8-12

The House and Senate come back to Washington this week. Two different committees will work on spending bills for DHS and a number of security related bills will be marked up in the House. The full House will consider a spending bill that could have cybersecurity provisions.

DHS Budget Hearings

Wednesday morning the Senate Appropriations Committee’s Homeland Security Subcommittee will hold a hearing to look at the President’s FY 2013 funding request for the Coast Guard. Adm. Papp, the Commandant, will be the sole witness.

Over in the House, at about the same time, the House Homeland Security Subcommittee will be marking up their FY 2013 DHS spending bill. A copy of the bill to be marked up will not be available until after both the subcommittee and the full committee have done their markups and reported the bill.

Security Related Markups

The House Homeland Security Committee will hold a markup hearing on Wednesday, looking at four separate bills. Three of the bills have some relationships to chemical security issues. They are:

• HR 2356, WMD Prevention and Preparedness Act of 2011;

• HR 3173, TWIC Processing; and

• HR 4005, Gauging American Port Security Act

The WMD act looks like it will finally get its time in the sun. There will be an amendment in the nature of a substitute (ANS) offered by Chairman King. This is the same ANS that would have been considered back in February when the markup was previously scheduled. The bill concentrates on biohazards, the personal bête noir of Chairman King. Even the Metropolitan Medical Response System reauthorization contained in the does nothing to direct planning for a response for an attack on a chemical facility.

The TWIC processing bill was introduced last year and almost immediately added to HR 3116, the FY 2012 DHS Authorization bill, in the full committee markup of that bill. Since that bill has died a death of quiet neglect (yet again) the Committee will now try to get this bill passed on its own right. In an effort to make it easier for legitimate port workers to get their TWIC issued or renewed, the provisions of the bill will probably reduce the security of the documents according to the GAO.

The GAPS bill will add another study to the long list of ignored studies conducted by DHS. The bill requires the report to be classified, ignoring the rules for protecting port security information; just another classified report to gather dust.

All three bills will certainly be passed in committee, probably with some measure of bipartisan support. If/when they come to the floor of the House they will all probably pass there as well.

Other Spending Bills

The House will vote on two (maybe three) spending bills this week according to the House web site HR 5326, the appropriations bill for Commerce and Justice will be considered this week under rule (Rules Committee Hearing on Monday). There isn’t much in the actual bill about cybersecurity, but the Appropriations Committee Report briefly describes the FBI setting up cybersecurity equivalents of Joint Terrorism Task Forces. I’ll watch this for more cybersecurity coverage.

Two bills (one unnumbered as of today and HR 4966) would attempt to bypass some or all of the sequester provisions of last year’s spending bill will be considered this week. There is only a slim chance that security provisions could be included in the bills.

WMD Markup Postponed

The House Homeland Security Committee posted a brief note on their web page yesterday that the markup hearing scheduled for today has been postponed to a date and time to be announced. Readers will recall that this hearing was supposed to include a markup of HR 2356, the WMD Prevention and Preparedness Act of 2011. No reason has been given for the postponement.

HR 2356 Substitute Language

As I noted in my congressional hearing blog post this weekend the House Homeland Security Committee will be marking up HR 2356, the WMD Prevention and Preparedness Act of 2011. The Committee Chair, Rep King (R,NY), will be offering an amendment in the nature of a substitute and that will be the basis for the bill that will ultimately be approved by the Committee.

I have now had a chance to take a fairly close look at the substitute language. As is typical with these amendments, the vast majority of the changes are fine tuning the wording of the bill. There were some wholesale deletions of material, a few minor additions and one section was entirely re-written. None of the changes substantially change the almost paranoid focus of the bill on countering biological attacks on the United States. The bill still essentially ignores the most probable form of WMD attack, an assault on chemical facilities that would unleash a toxic chemical attack on the local community.

Deletions

The following sections were deleted from the original bill:

§2104. Export enforcement for counterproliferation.

§2124. Laboratory biosecurity information sharing.

§2136. Federal law enforcement training to investigate biological threats.

There is no explanation given for any of these changes so we can only guess at the reasons. The deletion of the first section is due to the re-write of §2103 that establishes the National Export Enforcement Coordination Center. The last section deleted is almost certainly due to the inability to come up with the necessary funding to support a realistic law enforcement training effort. For the life of me, I can’t imagine why the information sharing section was deleted.

Additions

The following sub-paragraphs were added:

§2101(a)(4) “support homeland security-focused risk analysis and risk assessments of the homeland security hazards described in paragraphs (2) and (3), by providing relevant quantitative and nonquantitative threat information;”

§2102(c)(2) “allocation of resources for research and development for chemical, biological, radiological, and nuclear attack prevention, protection, response, and recovery;”

It doesn’t appear that either of these are substantive changes to the language of the bill. I would be interested in having someone explain to me what ‘quantative threat information’ is.

Technical Error

The technical error that I identified in my post last summer on the introduction of the bill remains in the substitute language. The error is found in §2142 in the discussion of responsibilities for recovery from a CBRNE attack or incident. Paragraph (b) provides a listing of items that should be included in guidance to be developed for “for clean-up and restoration of indoor and outdoor areas, including subways and other mass transportation facilities, that have been exposed to chemical, biological, radiological, or nuclear materials” {§2142(a)}.

Sub-paragraph (5) reads “maintenance of negative air pressure in buildings”. That requirement only makes sense in labs or facilities where CBRNE materials are stored or released so that the release will remain contained in the building. All other buildings in an affected area will want to maintain positive air pressure to keep the CBRNE materials out of the building.

For locations where a CBRNE attack takes place within a public building, this provision makes some sort of sense during the decontamination process, but that purpose is not made clear in the wording of this section. Even in this case building ventilation would be the most effective and safest decontamination for many toxic chemical agents as long as proper precautions are taken.

Major Shortcoming

The major shortcoming of this bill, and every WMD bill that I have seen to date, is that it does not address the easiest WMD attack mode, attacks on chemical facilities or transportation assets that release toxic chemicals into the community. While the CFATS program addresses security measures to help prevent such attacks on facilities and TSA rail security regulations work to prevent attacks on rail cars containing toxic materials (and no one is looking at protecting truck-load shipments of these materials), there are no provisions in either of those programs for community planning for response to successful attacks on those chemical assets.

At the very least the Metropolitan Medical Response System Program (MMRS) outlined in §2136 of this bill should require facilities that maintain significant inventories of toxic inhalation hazard chemicals to provide local medical facilities with material safety data sheets for those chemicals. Potentially affected medical facilities should be required to have a plan for responding to a mass casualty event involving those specific chemicals, including outlining initial and follow-up treatment regimens for the injuries expected from exposure to those specific toxic chemicals found in local industries.

Congressional Hearings – Week of 2-13-12

This week starts to heat up the happenings on Capitol Hill. President Obama will finally publish his FY 2013 Budget Request Monday, and a long parade of political appointees will start to appear in congressional hearing rooms; Secretary Napolitano starts the DHS parade with two appearances this week. The Senate Homeland Security and Governmental Affairs Committee will finally debut their new cybersecurity legislation. Finally the House Homeland Security Committee will markup a WMD bill.

FY 2013 Budget

Secretary Napolitano will make two trips to the House committee rooms on Wednesday to explain the President’s request for spending in FY 2013. In the morning she will start with the hearing before the Homeland Security Subcommittee of the House Appropriations Committee. In the afternoon she will repeat her statement at the House Homeland Security Committee.

There will be a lot of questions about pet projects from committee members, but nothing of substance will be agreed to in this round of discussions. CFATS might come up, but it will be a high level discussion, again no details. The most interesting thing for CFATS will be to see if the Administration again requests a two year extension of the program’s authorization.

Cyber Security

The Senate Homeland Security Committee Staff has been working hard with other committee staffs to develop a comprehensive cybersecurity bill that address the major concerns of all of the cyber players in the Senate. It will be introduced this week and Chairman Lieberman’s Committee will hold the first hearing on the bill on Thursday. There is little likelihood that control systems will receive any major attention in the bill, but we can always hope.

WMD Markup

The full House Homeland Security Committee will meet Wednesday morning to markup four separate bills, a sure sign that Chairman King doesn’t expect much in the way of opposition to any of the bills. The last of the four to be listed for consideration (though that does not mean it will be the last to be taken up at the hearing) is HR 2356, the WMD Prevention and Preparedness Act of 2011. I discussed the provisions of this bill back in July when it was introduced and am quite surprised that it took this long for the Committee to take it up; its a favorite topic of Rep. King. Substitute language will be offered by Chairman King, but at first glance it doesn’t seem to change much about the areas I previously discussed. I’ll look at it more closely before the hearing.

HR 3116 Introduced – DHS Authorization

As I noted in my congressional hearing blog post on Monday, Rep. King (R,NY) introduced HR 3116, the Department of Homeland Security Authorization Act for Fiscal Year 2012, last week. On Monday he also published an amendment in the nature of a substitute on his Committee’s web site for today’s markup of that bill. Since it is that substitute language that will actually get marked up today, I’ll use that for this review of the chemical security provisions of the bill.

No CFATS Language

As would be expected there is no language in this bill that would authorize or modify the CFATS program. While nearly everyone is firmly in favor of keeping this program in operation the wording of program extension would be very controversial. That controversy might actually prevent the consideration of the bill.

A clean, one-year extension like we see in the spending bills would not be a problem, but switching that extension to the authorization bill, might not allow the program to continue. Congress must pass spending bills each year (in some form or another), but an authorization bill is not really required. Note: there has not been a DHS authorization bill passed since the Homeland Security Act of 2002 brought the Department into being.

Weapons of Mass Destruction

Sections 501 through 510 are pretty much a ‘lite’ version of the bioweapons provisions of HR 2356. As I noted in my blog on the introduction of that bill, there is nothing in this lite version that would directly address the use of chemical facilities or transports as defacto chemical weapons. As in HR 2356 there are provisions here that might have effects on chemical security and emergency response planning and execution. Those provision include:

• Sec. 502. Weapons of mass destruction intelligence and information sharing;

• Sec. 503. Risk assessments;

• Sec. 504. Individual and community preparedness;

• Sec. 507. Communications planning;

• Sec. 508. Response guidelines concerning weapons of mass destruction;

• Sec. 509. Plume modeling; and

• Sec. 510. Disaster recovery.

None of these provisions specifically address chemical security, rather they include the generic terminology ‘chemical, biological, radiological, or nuclear attack’ (CBRN). One would hope that any supporting regulations would emphasize the fact that attacks on chemical facilities or transport would be the easiest way to effect a CBRN attack, but I wouldn’t hold my breath.

I addressed most of these provisions in some depth in my posting on HR 2356 and see nothing here that would require a change in those comments.

SARS Immunity

Title VIII provides for immunity for reports of suspected terrorist activity or suspicious behavior and response. This is essentially the same wording as found in King’s HR 495 that I addressed in an earlier blog posting on that bill. Nothing new to see here, keep moving.

Moving Forward

Actually, that’s all there is; for chemical security issues at least. Completely overlooked is any mention of cyber security issues or programs within DHS. Since both Rep. King and Sen. Lieberman (I,CT), chairs of their respective homeland security committees, want to see a DHS authorization bill passed, I don’t see any reason why some version of this bill or S 1546 (see my posting on that bill) could not pass in this session; besides consideration of appropriations, jobs and other politically important legislation, of course.

HR 2356 Introduced – Weapons of Mass Destruction

As I mentioned in an earlier blog on the House Homeland Security Committee’s dual subcommittee hearing on weapons of mass destruction, Rep. Pascrell (D, NJ) introduced HR 2356, the WMD Prevention and Preparedness Act of 2011. The bill, which finally became available on the GPO web site late last week, was co-sponsored by a bipartisan group of Committee members including Chairman King (R, NY) and Ranking Member Thompson (D, MS).

I had expected that this would be a re-introduction of HR 5057 from last session, but it is not. It is a complete re-write of that earlier bill. As in the earlier bill, the primary focus of this legislation is preventing and responding to bio-attacks by terrorists, surely a high-consequence but low-probability event. There are, however, many more inclusions of the all-hazards terminology; “chemical, biological, radiological, and nuclear threats” (CBRN), potentially making provisions of this bill applicable to preventing and responding to the use of industrial chemicals in a terrorist attack.

Risk Assessment

One of the primary areas where this all-hazards approach is most evident is found in the proposed amendments to the Homeland Security Act, particularly the inclusion of proposed §2102, Risk Assessments. This would require the Secretary to produce a risk assessment of CBRN threats. It requires an “integrated risk assessment that assesses all of those threats and ranks them against one another according to their relative risk” {§2102(a)(2)}.

While the detonation of a nuclear device would certainly kill more people and a biological attack could affect a larger area of the country, any real assessment of attack probability would have to take into account the relative ease of conducting chemical attacks using industrial chemicals. An integrated risk assessment of the type required by this section should clarify that relative risk.

Individual and Community Preparedness

Another area that is not specifically directed at counter-bioweapons actions is the area of community response. Section 2106 calls for FEMA to “assist State, local, and tribal authorities in improving and promoting individual and community preparedness and collective response to terrorist attacks involving chemical, biological, radiological, and nuclear materials against the United States” {2106(a)}.

This is further expanded under §2131 where the Secretary is required to develop for “police, fire, emergency medical services, emergency management, medical and public health personnel, voluntary guidance for responding to a release of chemical, biological, radiological, or nuclear material” {§2131(a)(1)}. The guidance would also be required to be disseminated to “State, local, and tribal authorities, including primary and secondary school administrators, nongovernmental organizations, the private sector, and the public”{§2131(a)(2)}.

The guidance developed under this section is specifically required to be “voluntary, risk-based guidance”{§2131(b)} and is required to include “specific information regarding the effects of the chemical, biological, radiological, or nuclear material on those exposed to the agent”{§2131(b)(2)}. The latter is going to be a difficult mandate to meet due to the wide variety of effects of an even wider variety of materials of concern for anything but ‘nuclear material’.

I think that it would be appropriate to include language in this section requiring high-risk chemical facilities to work with local authorities and response organizations to develop and communicate this type of information for all release toxic chemicals of interest (COI) that the facility might have on hand.

Plume Modeling

A major concern in the emergency response planning for any of these WMD attacks is determining where the CBRN agent might be expected to spread once released. The tool used to predict this spread is plume modeling. Section 2132 of this proposed legislation would require the Secretary to “acquire, use, and disseminate the best available integrated plume models to enable rapid response activities following a chemical, biological, nuclear, or radiological attack or event”{§2132(a)(1)}.

It is interesting that this section includes the ‘attack or event’ language. This plume modeling software would certainly be beneficial to response planning and execution for accidental chemical releases as well as terrorist attacks.

I am a little concerned about the wording of the requirement for local officials to establish mechanisms for disseminating ‘integrated plume models’ to “nongovernmental organizations and the public to enable appropriate collective response activities”{§2132(a)(2)(B)}. There seems to be some confusion between the tool (the integrated plume model) and the information produced by the model once appropriate timely local information is fed into the tool. The information should certainly be shared with the public in the event of an incident and the tool should be shared with appropriate NGO’s involved in emergency response planning.

An important component that is missing from this section is the requirement to include the news media in the requirements for ensuring that “that guidance and training in how to appropriately use such models are provided” {§2132(a)(2)(C)}. The news media needs to clearly understand the information produced by these models as they will be the ones disseminating live information to the public during any emergency. Again, a clear distinction needs to be made between the operation of the model and understanding the output of the model.

Recovery from CBRN Attacks or Incidents

The final area of this legislation that is of potential importance to the chemical security community is §2142 that deals with the recovery from a CBRN attack or incident. Again, the importance of including ‘incidents’ is especially important for high-risk chemical facilities with large holdings of toxic release COI. Accidental releases are much more likely than a release as of a result of a terrorist attack and current emergency response rules totally ignore the recovery aspect of a release incident.

The Secretary is required to develop the appropriate guidance “for clean-up and restoration of indoor and outdoor areas, including subways and other mass transportation facilities, that have been exposed to chemical, biological, radiological, or nuclear materials”{§2142(a)}. The Secretary is required to consult with the appropriate authorities is almost every department of the Federal government in developing this guidance.

A significant part of this guidance includes the requirement to “clarify Federal roles and responsibilities for assisting State, local, and tribal authorities”{§2142(b)}. The same paragraph outlines risk-based recommendations for a wide variety of expected actions that will need to be taken.

Again, I have a concern about the specific wording for one of these recommendations. Section 2142(b)(5) requires recommendations for “maintenance of negative air pressure in buildings”. This level of detail should not be included in a piece of legislation because it could lead people to believe that ‘negative air pressure’ is needed in most incidents when it is only appropriate when the release is within the building in question. Positive air pressure is needed when the contamination is outside of the building.

Exercises

The final section of the bill is devoted to the planning of exercises. Unfortunately, the actual wording of this section is severely defective. The single sentence contains too many qualifying phrases and phrases expanding the requirement, but there is never a specific requirement for what the Secretary is supposed to do beyond the fact that the “Secretary shall develop exercises”. It reads as if the entire section was a last minute after thought.

Moving Forward

I am much happier with the wording of this bill than I was with the language in last sessions HR 5057. I still think that there is entirely too much concern with the extremely low probability biological attack by terrorists. But the general provisions for identifying, preventing, responding and recovery to and from general CBRN terrorist attacks makes up for that excessive concern.

I expect that the Homeland Security Committee in the House will formally take up this legislation fairly quickly. There is general support for this type of legislation in the Senate Homeland Security Committee, but there will need to be some coordination of efforts if this bill is to make it through the legislative process this session.