House Accepts Senate Amendment to HR 251 – CFATS Extension

Yesterday the House accepted the Senate amendment to HR 251, the Chemical Facility Anti-Terrorism Standards Program (CFATS) Extension Act. The amendments received bipartisan support and the House agreed to the Senate amendments by voice vote.

While all of the speakers on the floor during the short debate on the bill supported the Senate amendment, it is clear that their support was for extending the CFATS program rather than being specifically in favor of the shortened extension period found in the Senate revision.

Rep. Thompson (D,MS), the original author of the bill and Chair of the Homeland Security Committee said:

“I am concerned this abbreviated authorization period provides less stability for DHS and more uncertainty for the regulated community, but unless we act, the CFATS program will expire at midnight tonight.”

Rep. Shimkus (R,IL), a cosponsor of the bill and Ranking Member of the House Energy and Commerce Committee, before urging members to support the amendments to HR 251, said:

"What troubles me, though, about the other body’s amendment is it doesn’t give CFATS much room to make more improvement. One of the major lessons to come out of the hearings we had in my committee on the CFATS program was that, from 2009 to 2014, 1-year authority extensions did not offer program stability and stagnated the program’s improvement.”

The bill now goes to the President for signature. There has been no indication that the President Trump would not sign the bill.

Senate Amends and Passes HR 251 – CFATS Extension

Yesterday the Senate amended and passed HR 251, the Chemical Facility Anti-Terrorism Standards Program (CFATS) Extension Act. The amendments were adopted, and the bill passed at the end of yesterday’s session under the unanimous consent process. There was no debate and no votes.

Two amendments were adopted. The first changed the ‘6 years’ change to amend 6 USC 621 Note (Effective and Termination Dates) to read ‘5 years and 3 months’ (15 months extension to March 17^th, 2020). The second amendment changed the title to read: “An Act to extend by 15 months the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security, and for other purposes”.

The amendments were proposed by Sen. Johnson (R,WI) and Sen. Peters (D,MI), the Chair and Ranking Member respectively of the Senate Homeland Security and Governmental Affairs Committee. The Hill.com had a brief article last night on the deal making surrounding these amendments.

The House is scheduled to concur with the Senate’s amendments later today. That will take place under the suspension of the rules process with no amendments and a super majority (2/3) vote to pass. The House will almost certainly concur with the Senate amendments. There has been no comment from the President on whether or not he will sign the bill, but neither Rush Limbaugh nor Putin have voiced any opposition. (Okay, the last comment was more than a little flip and over the top, sorry).

HR 251 Passed in House – CFATS Extension

Yesterday the House passed HR 251, the Chemical Facility Anti-Terrorism Standards (CFATS) Program Extension Act, by a strongly bipartisan vote of 414 to 3. The debate on the bill was even more one-sided as no one spoke in opposition. The only negative comments dealt with non-security related safety issues at chemical facilities.

It is looking more and more like emergency response and community communications are going to be major issues for the Democrats in the House in crafting a long-term extension of the CFATS program. Both of these issues are certainly related to security programs at these facilities, but the clamor from Democrats makes it clear that they are concerned about these issues at chemical plants that are not currently covered by the CFATS program.

While current EPA and OSHA regulations do address these issues, what is clear is that the proactive enforcement seen with the CFATS program ensures that processes are put in place to address regulatory issues and those processes

 are subsequently maintained. The active CFATS inspection process is much better at ‘enforcing’ regulatory compliance than either the EPA’s or OSHA’s reactive inspection process.

To be fair, both of these agencies cover a much larger (at least an order of magnitude larger) regulated community and neither agency has the budget or personnel available to implement an inspection scheme as effective as the CFATS process.

Perhaps it is time to look at modifying the EPA’s Risk Management Program to establish a special high-risk category of facilities that would be required to comply with a risk-based regulatory process like that seen in the CFATS program where a risk-analysis and risk-prevention planning process were required with an EPA approval of the risk prevention plan with subsequent periodic compliance inspections for plan compliance.

This risk prevention plan would certainly be expected to address the emergency response and community communication concerns that have been expressed by Democrats in their discussions about the CFATS program. Those processes would probably be better covered under the EPA’s mantle of protecting the environment and local communities from accidental chemical releases than under the DHS anti-terrorism standards.

HR 251 Introduced – CFATS Extension

Yesterday Rep. Thompson (D,MS) introduced HR 251, the Chemical Facility Anti-Terrorism Standards Program (CFATS) Extension Act. While an official copy of the bill is not currently available, a copy is available from the Majority Leader’s web site as the bill will be considered on the floor Tuesday under suspension of the rules. This is essentially a re-introduction of HR 7188 from the last session with a change in the sponsor. That late bill did not see any action in the House.

This bill is a ‘clean extension’ of the CFATS program. It would amend 6 USC 621 Note (Effective and Termination Dates) by changing “4 years” to “6 years”. This would change the program expiration date from January 17^th, 2019 to January 17^th, 2021.

Moving Forward

Thompson is the Chair of the House Homeland Security Committee and his seven cosponsors include:

• Rep. Rogers (R,AL) – Ranking Member, HS Committee;

• Rep. Richmond (D,LA) – Chair, Cybersecurity and Infrastructure Protection Sub-Committee;

• Rep. Pallone (D,NJ) – Chair, House Energy and Commerce Committee;

This bill will have widespread, bipartisan support in the House and the Senate. The bill will pass in the House this week. The big question is will it be stalled in the Senate by Sen. Johnson, the Chair of the Senate Homeland Security and Governmental Affairs Committee. Johnson made it clear last session that he opposed any CFATS extension that did not include program reforms. At this point it is not clear what his intentions are with respect to this bill.

Commentary

The two-year clean extension is almost certainly necessary to provide time for the three committees (two in the House) to work out a deal so that a long-term extension of the bill can be passed in both houses.

Johnson clearly want business friendly reforms to the program including a removal of explosives from the chemicals covered by CFATS and the use of industry recognition programs to reduce inspection requirements. The first of those is opposed by DHS. We have not had any recent public declarations of the House Democrats desires for program reforms, but in the past there has been interest in provisions that would address whistleblower protections, employee involvement in facility security planning, and implementation of inherently safer technology to reduce risk. Last year in the House Energy and Commerce Committee hearing there was also a lot of interest in expanding the emergency response planning and community communication processes in the CFATS program.

It is going to be interesting to see how the House and Senate work together on these issues. For the next two years, at least, the Senate will be tending to represent the interests of business organizations and the House will be supporting advocates for workers and the environment. Unfortunately, too many people think this makes for a zero sum game where a win for one side must be a loss for the other.

And we cannot forget the wildcard that hangs over all of this; President Trump. Anyone that thinks that they can predict how the President will react when legislation is placed before him for signature is kidding themselves. Currently, the President has made no comment about the CFATS program and may not even know that it exists. Keeping the conflicts between the House and Senate low-key will go a long way to keeping the President out of the conflict.

NOTE: I found the copy of HR 251 while going through and updating my links to House web sites for the 116^th Congress. Lots of changes already made; more to come.

Bills Introduced – 01-04-19

Yesterday with both the House and Senate in session there were 32 bills introduced. Of these, two will probably receive further coverage in this blog:

HR 251 To extend by two years the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security, and for other purposes. Thompson, Bennie G. [D-MS-2] 

S 29 A bill to establish the Office of Critical Technologies and Security, and for other purposes. Sen. Warner, Mark R. [D-VA]

HR 251 has been sponsored by a significant bipartisan list of members from both the House Homeland Security and Energy and Commerce Committees. I suspect that there will be early action on this bill.

A press release about S 29 notes that the White House office that would be created by this bill would be targeting telecom security issues, particularly supply chain issues concerning Chinese telecom companies. Definitions will be important in this bill.