House Passes Revised HR 3082

This evening the House passed the Senate revised version of HR 3082 by a roll-call vote of 193-165, a nearly party-line vote. This bill amended the continuing resolution passed this last September, extending the expiration date of the CR until March 4, 2011. This also extends the CFATS authorization to the same date.

The 112th Congress will have just about two months (including a 29-day February) to complete the development of 12 spending bills that will be able to be passed in a Senate more evenly divided between the two parties. If the Republicans push the budget cutting envelope too hard, the bill will not pass the majority Democrat Senate; the Republicans will need a number of Democratic defectors to get their legislative agenda passed. Even then they will face the prospects of an Obama veto which they won’t have the votes to overturn in either house.

January and February look to be a very contentious political time unless moderates in both parties can find a way to work together against the more extreme members representing ‘the base’ of each party. I expect that we’ll see more partisan fireworks and not much bipartisan cooperation. I predict that we’ll see at least one more continuing resolution extension before a budget bill is passed.

Oh yes, remember that every day spent working out the details for the FY 2011 budget will take away from preparing for the FY 2012 budget; on the Hill and I suspect at the White House. I’ll have plenty of political fodder for this blog next year.

Middle Length Continuing Resolution

The current plan in the Senate to solve the appropriations situation is offer an amendment (S. Amdt 4885; the text can be found on pages S210742-4 of the December 19th Congressional Record) in the form of a substitute for HR 3082. That amendment would, in turn, amend the Continuing Appropriations Act, 2011 (Public Law 111–242) that was passed in late September. It will extend the date for that Continuing Resolution to March 4, 2011, and will make some relatively minor spending changes.


As of this evening, it does not appear that there will be anything in the S. Amdt 4885 that will directly affect the chemical security community other than the extension of the current CFATS authorization to March 4, 2011. There will be a cloture vote to cut off debate on the amendment tomorrow (12-21-10), and hopefully the bill will pass soon enough to allow the House to vote on agreeing to the amendment before the midnight close of the current continuing resolution.

If Sen. Reid cannot get the necessary votes for cloture on this Amendment (he will almost certainly get the votes in my opinion as this amendment is essentially what both the Senate and House Republicans asked for in the first place, to allow them to set the spending program for the remainder of FY 2011 when the House Republicans come into power in January), the House will have to pass another short term CR (probably until Christmas Eve) to allow a better deal to be worked out.

More Chem Security Details from Omnibus Appropriations Act

NOTE: While I was working on this blog posting last night AP began reporting that Sen. Reid (D, NV) was no longer planning on bringing this amendment to a floor vote due to the lack of enough Republican votes to get a cloture vote. It now appears that the Senate Appropriations Committee will be working on a short term Continuing Resolution with a termination date sometime next February. This whole appropriations thing is far from resolved. I’m still posting this to show what has been under consideration.

As promised I have had a chance to review the DHS explanatory statements from the Congressional Record for December 14th. The Senate Appropriations Committee web site now has a link to the 2nd part of that statement covering the remainder of the bill. The DHS portion of the statement can be found at pages S9709 to S9733 (to view individual pages go to this page and insert the specific page number in the block at the bottom of the page).

Reports Required

The explanatory statement includes requirements for number of reports to Congress about various parts of the CFATS program and other chemical security related programs. The required reports include specific reports listed in the statement and reports included by reference to the Senate Report on S 3607 (Senate Report 111-222). Subjects include:

• Status of expedited hiring of chemical facility inspectors (delayed again this year because of the lack of a DHS spending bill) (Senate Report pg 98)
• Status of “the plans to resolve the differences between and standardize risk evaluations for chemical facilities regulated under Chemical Facility Anti-Terrorism Standards and the Maritime Transportation Security Act” (S9709)
• The “the feasibility and merits of establishing a Deputy Assistant Secretary for Surface Transportation to lead the security programs and personnel for non-aviation transportation security” (S9714)
• The process to expedite industrial control system security standards development (S9717)

CFATS Requirements

The Senate Report specifically mentions the amount of money to be spent on the ‘infrastructure security compliance’ within the Infrastructure Protection Mitigation Programs budget listing. This is the $105 million figure that I have previously reported. The Report notes (pg 97) that this funding “includes the chemical facility and ammonium nitrate security programs”. Interestingly the Department has yet to produce the first draft of the regulations establishing that ammonium nitrate security program, a program that Congress directed to be in place in 2008. The problem that ISCD is having with the political reviews within the Administration bodes ill for the public consideration that this program will receive when the NPRM is finally published.

Both the explanatory notes (page S9716) and the Senate Report (pg 98) take the unusual step of looking at a specific CFATS SSP review measure. While Congress has specifically denied the Secretary the authority to require specific security measures, Senate would direct the Secretary (under RBPS #9) to “consider whether or not a covered facility has an effective communications mechanism between the facility and local law enforcement and other first responders”. The Report goes into some level of detail about a ‘dedicated telecommunications system’ between the covered facility and the ‘local public safety answering point’. These provisions have undoubtedly been inspired by the problems of public-private emergency communications that have been seen in the many recent chemical release incidents in and around Institute, WV.

Moving Forward

As I mentioned in the prefatory note to this post, it looks like the Omnibus Appropriations Act has been still born. It will be interesting to see if any of this language makes it into the Continuing Resolution that is being developed in the Senate. There is a deadline of Saturday for getting something done. It could include a very short term CR to give people time to draft an intermediate term (February) CR, or it could even end up being a vote to pass the House version of HR 3082.

The open question is how many of these provisions from the deceased Omnibus Appropriations Act will make it into any new Continuing Resolution. There are obviously people on the Senate Appropriations Committee (and perhaps its staff) that really want these measures to be included in an appropriations bill. Since there is an open question about how these provisions might survive in the 112th Congress, the provisions may yet make their way into any legislation funding DHS, no matter what the time fram.

At this point there is no telling what is going to happen.

More Info Coming on Omnibus Budget

One of the web sites that I review nearly every morning is the Daily Digest from the Congressional Record. This is a good summary page of the previous day’s activity in Congress and is usually available first thing in the morning. Yesterday it was not available until well after lunch and I found out why last night. Sen. Inouye (D, HW), the Chairman of the Senate Appropriations Committee is paying the cost of cobbling together this bill outside of normal procedures.

Typically, a bill is introduced, referred to Committee and the Committee favorably reports the bill before it comes to the floor for a vote. In the case of appropriations bills, that report is very important as it adds a much greater level of detail about how the government can spend the money provided by the bill. Since this bill did not go through that process, there is not Committee Report. So Sen. Inouye is being forced to provide the information in the form of ‘explanatory statements’ in the Congressional Record. This is the tool that is typically used to explain the results of a Conference Committee report.

Yesterday, the Congressional Record (for Dec 12th) had over 300 pages of ‘explanatory statements’ for the first three Divisions of the Omnibus Appropriations Act that the Senate will try to substitute for the House version of HR 3082. That 300 page installment did not include the DHS Division (Division F). That should be reported in the Congressional Record that is being delayed today (for yesterday) if they keep to the same 3 Divisions per day schedule.

When they are published, I’ll take a look and see if I can glean any more details about the DHS chemical security spending.

BTW: I’m not a legal scholar or a Senate Rules expert, but I don’t think that the Senate can take up this amendment until all of the ‘explanatory statements’ have been published. At the very least it would make for some interesting subsequent legal arguments about the ‘intent of Congress’.

Chemical Security in Senate Appropriations

Well I had a chance to review the DHS portion (pages 644 thru 747) of the Omnibus Appropriations Act published yesterday by the Senate Appropriations Committee along with a published summary of the DHS portion of that bill. There are significant differences between this bill and S 3607 that was reported this summer by the Senate Appropriations Committee and with the HR 3082 version passed in the House last week.

CFATS Extension

As expected the CFATS authorization is extended in this proposed legislative amendment. The extension is found in §545 (pg 726) though there is a minor technical error in that section. As published it reads:

“Section 550(b) of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 6 U.S.C. 121 note) is amended by striking ‘on October 4, 2010’ and inserting ‘on October 4, 2011’.”

The minor error is the fact that §550 has been amended twice by continuing resolutions this year and the current expiration date is December 18, 2010. This is the type of error you expect to see in a 1924 page bill that was cobbled together from twelve separate draft bills and then modified to meet current political conditions. Small stuff slips through the cracks.

CFATS Money

The overall funding for DHS is $43.548 billion, a decrease from President Obama’s ($43.890 billion) budget request but an increase over FY 2010 ($42.665 billion) according to Committee DHS summary. Of this the infrastructure protection and information security programs and activities (which includes the Infrastructure Security Compliance Division) would receive $874,923,000 [vs $878,316,000 in HR 3082 passed in the House and $989,342,000 in S 3607].

That is as close as the actual budget language gets to the CFATS program. It is just too small a program to be actually listed in the document. The DHS summary document does note that the above amount would include “$105 million, as requested, to support the coordination and management of regulating high-risk chemical facilities” (pg 3).

Other Programs of Interest

The surface transportation security program at TSA would receive $137,558,000 (pg 662). This would include the folks that deal with the freight rail security program, though I would suspect that the bulk of that money will go to passenger rail and public transport security measures. It specifically includes, according to the summary, money for the “100 new inspectors and 15 Visible Intermodal Protective Response -- “VIPR” -- Teams added in FY 2010” (pg 3).

There will be “$386 million for cyber security, $7 million above the President’s request” (pg 4). The bulk of that money will go to IT programs, but I think that we can assume that ICS-CERT will continue to get its funding; whether there will be an increase in that funding remains to be seen.

The Coast Guard will receive “$8.92 billion (excluding mandatory retirement funding), $142 million above FY 2010 and $200 million above the request” (pg 2). The MTSA program and various hazmat security programs are too small to be mentioned.

The Way Forward

HR 3082 will not come up in the Senate until sometime after the tax cut bill vote is completed (probably today?). It is not clear that there are enough votes to bring this amendment to an actual vote. Many Republicans want to see a short term continuing resolution (45 days) to allow the new Congress to set the spending priorities for the bulk of FY 2011. There may be enough Republican votes from the members of the Senate Appropriations Committee to close debate.

Of course if this amendment is passed in the Senate, then HR 3082 will have to go back to the House. It would probably be approved there; the Democrats can always point to their attempt to reduce spending and the Republican objections effectively don’t count. Of course, if there is any delay or hold up in the process, there will need to be another very short term continuing resolution; the current CR expires Saturday.

FY 2011 Omnibus Appropriations Act

The Senate Appropriations Committee now has a copy of the FY 2011 Omnibus Appropriations Act available on its web site. It is a .PDF file and is very large (1900+ pages). This will be offered as ‘an amendment in the nature of a substitute’ for HR 3082 when that bill comes before the Senate. I’ll be looking at the DHS stuff and report back when I have more info.

HR 3082 Passes in House

As expected the House passed HR 3082 in a much closer vote (212-206) than one would have expected. Actually the close vote was pre-viewed when the House voted on H. Res. 1775, the Rule allowing for consideration of the bill. That resolution passed by one vote (207-206); with 37 Democrats joining a united Republican vote. As I mentioned in my earlier blog, this bill includes a CFATS extension until October 4, 2011 [Note Corrected Date to '2011' @ 9:42 EST. Thanks to alert reader catching my typo].

I had a chance to watch the floor debate live on CSPAN, a real treat (Sarcasm Alert). Actually, it was surprising to hear so little talk about the budget portion of the bill (certainly the largest part), a large part of the discussion centered on the discussion of the food safety portion of the bill. As I’ve said on many occasions, it is always amazing to see what unrelated stuff gets added to a spending bill.

As I mentioned in an earlier blog, the Rule for the consideration of this bill prevented the presentation of any amendments to the bill. So what was written was what passed; no changes yet. That is certainly expected to change next week when the Senate is expected to take up the budget.

Senate Budget Actions

Many news outlets have reported that the Senate is likely to try to amend this bill with a substitute ‘omnibus’ spending bill. Instead of basically continuing the FY 2010 spending levels (with a whole lot of minor changes) as the House continuing resolution has done, it is expected that the Senate Appropriations Committee will write a single appropriations bill setting the spending levels for the entire government (where they normally write 12 very large spending bills).

To be fair, the Senate Appropriations Committee has done most of the hard work that should be expected to go into such an omnibus bill. They have passed, in committee, the typical 12 budget bills. A single bill could be made by simply pushing those 12 budget bills together into a single MASSIVE bill.

If that is what is done, then we already know what to expect for the DHS and CFATS portion of the bill by looking at the version of S 3607 reported by the Senate Appropriations Committee. For example that bill (according to the Committee Report) would provide $989,342,000 for the Infrastructure Protection and Information Security folks in DHS (vs $878,316,000in the House passed CR).

Unfortunately, there is no real indication that that is what is going to happen in the Senate. I’m sure that the committee bills will form the backbone for the omnibus bill, but there are indications that there is a lot of behind the scenes work fleshing out that bill. We will have to look closely at the product that makes it to the floor in the Senate. I expect that we will have as much advanced look at that bill as we did with HR 3082; much less than 24 hours.

It is not clear that the omnibus bill would be able to pass in the Senate. The Republicans certainly have enough votes to block brining this bill to a vote if they hold together in their opposition. This is one of the reasons that we can expect to see a great deal of back room trading to get enough votes to get this passed.

House Rule on HR 3082

The House Rules Committee just published their rule for the consideration of HR 3082 with the House amendment that will turn the Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2010 into the Full-Year Continuing Appropriations Act, 2011, a continuing resolution funding the entire federal government through September 30, 2010.

The rule, for which a House Resolution number is not yet available, calls for a one-hour debate on the House floor without any amendments allowed.

As I write this the House is voting on H Res 1752 which would allow the Democrats to bring this bill to the floor this afternoon. Interestingly, the vote was ‘declared’ a 15 minute vote. When the clock on CSPAN showed that that time had ‘expired’ the Nays (Republicans) were actually a head in the vote, more than half of the Democrats had not made their way to the House floor to vote so the voting is continuing until the Chair is satisfied that all members have voted. Even an NFL clock is more honest than this. The final vote on H Res 1752 is 215 Yeas and 194 Nays; the resolution passes.

This vote means that almost certainly HR 3082 will come to the floor this afternoon/evening.

DHS Funding in House Proposed Full Year CR

Okay, I’ve now had a chance to review the 423 page proposed amendment to HR 3082 proposed by Rep. Obey (written by the Appropriations Committee Majority Staff, to be sure) and being considered by the House Rules Committee. I hope that you noted that I said ‘reviewed’ not read. No one actually reads this stuff, certainly not in a couple of hours or even a couple of days. Additionally, I’ve looked over the House Appropriations Committee’s summary of the amendment. So here is what I’ve learned.

First off the amendment would rename HR 3082 the Full-Year Continuing Appropriations Act, 2011 (FYCAA). It would act as a continuing resolution funding the federal government until September 30, 2011. With some significant exceptions it would continue funding at the FY 2010 levels. Most of those exceptions will be of no specific interest to the chemical security community. If you’re interested in those details see the committee summary.

CFATS

For the chemical security community the substitute language for the bill would specifically extend the current authorization for CFATS until October 4, 2011. The actual language can be found in §2636:

● “Section 550(b) of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 6 U.S.C. 121 note), is amended by striking ‘on October 4, 2010’ and inserting ‘on October 4, 2011’.”

The bill would not set the funding level for the Infrastructure Security Compliance Division, the organization in DHS that manages the CFATS program. The bill does require (§2601) DHS to provide a spending plan for their planned expenditures at that level to Congress within 30 days of the passage of the bill.

The lowest level specifically addressed of concern to the chemical security community is for the Infrastructure Protection and Information Security folks in the National Protection and Programs Directorate. This group is specifically mentioned (§2614) and their budget is set at $878,316,000. This is a decrease from the FY 2010 budget ($899,416,000), but an increase over the President’s budget request for FY 2011 ($865,965,000). It doesn’t quite split the difference. You can see my budget blog from last February to see how the ISCD folks would expect to fair under this proposal.

Now we just have to wait and see how this proposal makes it through the rest of the legislative process.

NOTE: While I was researching/writing this the House Rules Committee scheduled their meeting on this for 1:00 pm EST today and the House just started their debate on H. Res 1752 which would allow for expedited consideration of this bill, perhaps this afternoon.

HR 3082 Amendment – Year Long Continuing Resolution

The House Rules Committee had a copy of the amendment to HR 3082 that they will be considering as the full year continuing resolution to fund the federal government for FY 2011. AP is reporting that that CR will freeze the Homeland Security Budget at FY 2010 levels. Politico is reporting that as well, but noting that there has been some reprogramming of funds within the DHS budget.

The Committee will act on this today and, if the House passes H. Res 1752, the whole house could consider this legislation today. H Res 1752 would allow the same day consideration of legislation approved by the Rules Committee, something that is not typically allowed by House Rules. There will be some resistance from the Republicans to passing H Res 1752 because it allows for consideration of bills without allowing for detailed review and consideration of the legislation.

I’ll be reviewing this new document for DHS and CFATS information and reporting as soon as I have done so.