Review - CFATS and Chemical Plant Expansions

I was reading an article last week about the expansion of a hydrogen peroxide manufacturing facility in Texas, and I thought about the security implications of such expansions, the need for an updated security plan and security planning for the construction process. That inevitably brought me back to thinking about the problems the Senate imposed on chemical manufacturers by not reauthorizing the Chemical Facility Anti-Terrorism Standards (CFATS) program last July. If the CFATS program were still up and functioning, CISA would be a partner in the security planning process for the expanding facility.

These are just some of the chemical security issues that the Senate caused by their failure to take up and approve HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, that was passed in the House by a vote of 409 to 1. The Senate can solve these problems by passing HR 4470. The longer they wait, the longer it is going to take CISA to get the program back into smooth operation.

 

For a more detailed look at the security issues involved in plant expansions, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/cfats-and-chemical-plant-expansions   - subscription required.

Review - CFATS and Congress

Last week, the authorization for the Chemical Facility Anti-Terrorism Standards (CFATS) program expired due to inaction upon the part of the Senate. I have talked about the implications of the program termination, industry support, as well as some about the mechanics of the shutdown. Today, I would like to talk about the process in Congress that resulted in the termination.

HR 4470

On July 6^th, 2023, Rep Lee (R,FL) introduced HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, which would have extended the termination date through September 30th, 2025. That date would have made it possible to add language to Continuing Resolutions and DHS spending bills to further extend the program in a must pass bill. On July 12^th, the House Homeland Security Committee took up HR 4470 and adopted a single amendment that changed the bill’s termination date to July 27^th, 2025. The House approved the bill on July 25^th, by a vote of 409 to 1.

Action in the Senate

On July 26^th, at about 4:00 pm (S3572) when the Senate returned from a short recess, Sen Peters, after a short speech in support of the CFATS program asked for unanimous consent to immediately consider HR 4470. When the Presiding Officer asked if there were any objections, Sen Paul (R,KY) requested to be recognized and said: “I rise today to object to the quick passage of H.R. 4470, which seeks to extend the Chemical Facility.” Paul went on to explain his opposition to passage of the bill. His discussion takes up almost a full page (S3573) of the Congressional record, but the only part that is really applicable to the CFATS program comes early in his discourse:

“This measure, though, which would reauthorize this regulatory program for another 2 years, I think is being rushed through the Senate without due consideration or, really, any consideration at all. The Homeland Security Committee has jurisdiction over the program, yet we have not had any hearings to discuss this program or its effectiveness.”

This is certainly a good point, since there has not been an oversight hearing on the program in either the 117^th or 118^th Congress. Of course, Sen Paul bears some culpability for that fact in the 118th Congress since he is the ranking member of the Senate Homeland Security Committee. While not ‘in charge’ in a closely divided congress he has a larger measure of influence than normally seen in even that Committee. If he had called for a CFATS oversight hearing earlier this year, I suspect Peters would have acquiesced.

But, looking to the end of the speech, we see that Paul really does not have objection to passing HR 4470, what his objection is designed to do is to allow him to request that an amendment unrelated to the CFATS program. That amendment would add language that would establish under 31 USC a process to require the Comptroller General of the United States to analyze certain legislation in order to prevent duplication of and overlap with existing Federal programs, offices, and initiatives. We do not have a copy of his proposed amendment (it was apparently never formally offered so it is not included in the record, but we can see this proposal outlined in S 780, the Duplication Scoring Act of 2023.

This is a common ploy utilized by Paul and a number of other Senators to get less than popular legislation considered. This is one of the major drawbacks to the Senate’s unanimous consent process.

Moving Forward

While the CFATS program is dead, it can still be resurrected. There is another CFATS extension bill (S 2499) that may end up (no language available yet) being the tool used for that resurrection, but no action can be taken on that bill until the Senate comes back from their summer recess on September 5^th. Unfortunately, this will be a low priority for the Senate because the rapidly approaching end of the fiscal year will be driving spending bills and other must pass legislation. The only way that a standalone CFATS bill could make it through the Senate before the end of the fiscal year would be by using the same unanimous consent process that Paul used to push his own less-than-popular agenda with HR 4470.

If there was any chance that an FY 2024 DHS spending bill could make it to the President’s desk before the end of September (see here for my discussion about why that is unlikely) that would be the easiest way to get the CFATS program re-instated.

 

For more information on this process, including a the legislative history of the CFATS program, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/cfats-and-congress - subscription required.

HR 4470 Not Considered in Senate 7-26-23 – CFATS Extension Dead?

The Congressional Record for July 26^th, 2023, was just published. HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, was not passed in the Senate yesterday. There is no indication that it was offered (and objected to) under the unanimous consent process. This leaves just one day (today) before the Chemical Facilities Anti-Terrorism Standards (CFATS) program terminates. According to the posts of @SenateCloakroom (that tweets updates on actions taken on the Senate floor) on TWITTER, HR 4470 has not yet been considered on the floor (and the Senate just finished acting on S 2226, the Senate version of the NDAA) and there is little time left for action until the Senate returns to Washington in September.

The actual termination language for CFATS is found in the Notes (Effective and Termination Dates) portion of 6 USC 621 (as added by PL 116–150, §1(a), July 22, 2020, 134 Stat. 679) reads:

“The authority provided under title XXI of the Homeland Security Act of 2002 [6 U.S.C. 621 et seq.], as added by section 2(a), shall terminate on July 27, 2023."

It does not say when the authority will terminate on that day, I will leave it to lawyers to argue that, but certainly by midnight tonight (at the latest) CISA will no longer have authority to conduct operations under the CFATS program. That means that CISA can no longer conduct inspections, require facilities to report, or evaluate data under the provisions of 6 USC 621 et seq. The currently agreed upon site security plans cease to exist as an enforceable requirement and might have to be renegotiated if/when Congress reauthorizes the program.

The authority to pay salaries and expenses is a separate matter. That should continue through September 30^th. Interestingly, the salaries and expenses of the chemical security inspectors does not come directly through the CFATS program office (Office of Chemical Safety). That funding comes from CISA’s Integrated Operations Division (see a post I did about split and another on the potential problems of that dichotomy). CISA with some careful management could keep the CSI on the job without the CFATS program in the new fiscal year, expanding the ChemLock program or helping out overworked Protective Security Advisors.

If the Senate does not act tonight (increasingly likely), then the language of the newly introduced S 2499 becomes very important. The bill could set the clock back to today and re-establish the program as it existed as of one-minute after midnight on July 27^th, 2023. The deadline for action on that bill is probably September 30^th, unless appropriators keep funding for the CFATS program in the DHS spending bill, which would probably require specific language in the bill or spending tables. But there is a good (I know bad choice of words) chance that that bill will never get passed. But that is a bigger problem than the continuation of the CFATS program.

Bills Introduced – 7-26-23

Yesterday, with both the House and Senate in session and preparing to depart for their month-long summer recess, there were 134 bills introduced. Two of those bills will receive additional attention in this blog:

HR 4915 To amend title 10, United States Code, to codify the program of the Office of Small Business Programs of the Department of Defense known as Project Spectrum, and for other purposes. Joyce, David P. [Rep.-R-OH-14] 

S 2499 A bill to extend the authorization of the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security. Peters, Gary C. [Sen.-D-MI] 

I am still waiting to see the Congressional Record for yesterday’s meeting to see if HR 4470 was taken up by the Senate. It could be a while as the Senate did not adjourn until after midnight. If HR 4470 did pass, then the introduction of S 2499 does not make much sense. If it did not pass then S 2499 would be a rewrite of S 2178 that would include language to resurrect the CFATS program which will die today if not reauthorized by Congress.

Funding exists for CFATS through September 30^th to keep the staff paid while the program winds down, but authority to take any actions (inspections, approvals, even requiring/accepting Top Screen information) disappeared (will disappear at midnight? I am not sure) if HR 4470 was not passed yesterday. So, a new bill would be required to re-instate the previous authority and provide an extension of the authority through a future date. The chance of S 2178 passing in the Senate and House today or tomorrow are slim (but not impossible) and the current plan is for both bodies to adjourn tomorrow and not return until September 5^th for the Senate and September 12^th for the House. While those plans are always subject to change, it does not look likely at this time.

House Approves HR 4470 – CFATS Extension

This evening the House took up HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023, under the suspension of the rules process. There was about 16-minutes of debate and a recorded vote was demanded. The House voted 409 to 1 to pass the bill. The sole no vote came from Rep Massie (R,KY).

To get this bill to President Biden in time to save the Chemical Facility Anti-Terrorism Standards (CFATS) from expiring, the Senate will have to take up the bill tomorrow under their unanimous consent process. A single objection would kill that process.

Committee Hearings – Week of 7-23-23

This week, the last week before the summer recess, is a busy week in Congress with spending bills being the high-profile topic. There are also two markup hearings in the Senate, as well as DHS oversight and self-driving car hearings in the House. A CFATS extension bill is due for action on the floor in the House (and hopefully) in the Senate.

Spending Bills

Today, the House Rules Committee will hold a rule hearing that will include consideration of HR 4666, the Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2024. There was nothing in the bill or its accompanying report of specific interest here, but it is the first spending bill of the season and does contain a significant number of social issues of interest to Republicans (and opposed by Democrats). There have been 101 amendments proposed, again none of specific interest here.

On Wednesday, the House Rules Committee will hold a rule hearing that will consider HR 4368, the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2024. See my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-4368-introduced - subscription required for a look at the items of import here with this bill. There have been 178 amendments propose for this bill, none of specific interest here.

See my post: “Coming FY 2024 Spending Bill Logjams” about potential problems in dealing with these spending bills. These two bills are the first of twelve that the House has to (well, should have to) consider before the end of September and August is a vacation month.

Markup Hearings

On Wednesday, the Senate Homeland Security and Governmental Affairs Committee will hold a business meeting that will address an FCC nomination and 21 pieces of legislation. One of those bills is S 2256, the Federal Cybersecurity Workforce Expansion Act. This is a federal cybersecurity workforce development bill, which I have not yet reviewed. I will publish a post on this later this week.

On Thursday, the Senate Appropriations Committee will hold a business meeting to markup the following spending bills; Defense, IER, LHE, and DHS.

DHS Oversight

On Wednesday the House Judiciary Committee will hold an oversight hearing which will “examine the agency's operational failures, the unprecedented border crisis, and the abandonment of immigration enforcement under Secretary Mayorkas.” This may end up being a preliminary to an impeachment process against Sec Mayorkas.

Self-Driving Cars

On Wednesday, the Innovation, Data, and Commerce Subcommittee of the House Energy and Commerce Committee will hold a hearing on: “Self-Driving Vehicle Legislative Framework: Enhancing Safety, Improving Lives and Mobility, and Beating China”. The hearing will be in support of a new (not yet introduced) bill, the SELF DRIVE Act. The witness list includes:

Mark Riccobono, National Federation of the Blind,

John Bozzella, Alliance For Automotive Innovation,

Gary Shapiro, Consumer Technology Association, and

Philip Koopman, Carnegie Mellon University

Congress is still trying to deal with the complexities of self-driving vehicles. It has not been able to reach a consensus on how these vehicles should be regulated.

On the Floor

Today, the House is scheduled to take up 13 pieces of legislation under the suspension of the rules process. This number would not have been unusual last session, but this session’s leadership appears to be less interested in bipartisan legislation. There are two bills of interest here:

HR 1345 – the NTIA Policy and Cybersecurity Coordination Act, and

HR 4470 – Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023

HR 4470 needs to be signed by the President before (well, on would probably work) Thursday, or the Chemical Facility Anti-Terrorism Standards (CFATS) program will cease to exist. If the bill passes today, the Senate could take up the bill under the unanimous consent process tomorrow, so we may be okay. That is presuming that someone does not want to make a political point at the expense of a successful chemical security program. Those of us who have followed this program over the years, are somewhat used to these last-minute legislative shenanigans, but the uncertainty is not good for the program.

Review - HR 4470 Mark Up 7-12-23 – CFATS Extension

Yesterday, the House Homeland Security Committee conducted a markup hearing that include consideration of HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023. Substitute language was adopted by voice vote. Ten other amendments were offered, but none were agreed to. The Chemical Facility Anti-Terrorism Standards (CFATS) program is currently set to sunset (programmatically die) on July 27^th, 2023.

Substitute Language

The substitute language offered by Rep Lee (R,FL) made a relatively simple change to the ‘is amended by’ language of §2 of the bill, changing “by striking ‘July 27, 2023’ and inserting ‘September 30, 2025’” to read “striking ‘2023’ and inserting ‘2025’." This revised language would mean that the CFATS program would sunset (lacking further congressional action) on July 27^th, 2023 instead of September 30^th. This means that a future extension would again require stand-alone legislation instead of an extension being able to be added to a DHS spending bill or CR.

Moving Forward

Typically, we would have to see a written report published by the Committee before the bill could be considered in the House, but the bill could be reported favorably without a written report which could happen as soon as today. The House could take up this bill under suspension of the rules next week which would still leave time for the Senate to consider the bill under the unanimous consent process before the July 27^th deadline.

 

For details about the amendments that were considered but not approved, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-4470-mark-up-7-12-23 - subscription required.

House Committee to Markup HR 4470 – CFATS Extension

Today, the House Homeland Security Committee announced today that it would hold a markup hearing on July 12^th, 2023. One of the three bills that will be considered is HR 4470, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2023. The official version of the bill has not yet been published by the Government Printing Office, the announcement provides a link to a Committee print of the bill.

According to that Committee print, this is a clean extension of the bill through September 30^th, 2025. That date is important because it allows for future extensions to be made part of DHS spending bills or continuing resolutions. This makes extensions relatively easy to accomplish while the politicians continue to workout whatever problems are arising out crafting a reauthorization bill.

No one, not CISA or industry, want to see short-term extensions of the program. Such year to year continuation of the program leaves a large measure of uncertainty about the continuation of the program which causes personnel issues for CISA and security-budgeting issues for industry. Having said that, a short-term extension is much better than allowing the program to expire.

Bills Introduced – 7-6-23

Yesterday, with the House and Senate meeting in pro forma session, there were 38 bills introduced. One of  those bills will receive additional coverage in this blog:

HR 4470 To extend the authorization of the Chemical Facility Anti-Terrorism Standards Program of the Department of Homeland Security. Lee, Laurel M. [Rep.-R-FL-15] 

With just 20 days left (July 27^th, 2023) until the current authorization for the CFATS program expires, this is now the second bill (S 2178 was the first) to be introduced dealing with extending that authorization. The last oversight hearing held on the program was by the House Energy and Commerce Committee on September 11^th, 2019.

Mention in Passing

Yesterday’s bills included 17 bills introduced by Republican Representatives concerning election administration issues. While many dealt with issues specific to voting in the District of Columbia, most dealt with broader, national issues. Those bills were:

H.R.4471, H.R.4472, H.R.4474, H.R.4476, H.R.4477, H.R.4479, H.R.4484, H.R.4486, H.R.4487, H.R.4488, H.R.4492, H.R.4493, H.R.4494, H.R.4496, H.R.4500, H.R.4501, and H.Res.576