Committee Hearings – Week of 09-09-18

In a much abbreviated week with both the House and Senate in Washington, there will only be a limited number of committee hearings. There will be two of potential interest to readers of this blog; one dealing with the national threat landscape (including cyber) and the other a look at the status of the implementation of positive train control (PTC) systems.

Threat Landscape

On Thursday the Senate Homeland Security and Governmental Affairs Committee will be holding a hearing looking at “Evolving Threats to the Homeland”. The witness list includes:

• Kevin Mandia, FireEye, Inc.;

• Cathy Lanier, National Football League;

• Scott McBride, Idaho National Laboratory; and

• Jennifer Bisceglie, lnteros Solutions, Inc.

It certainly looks like cybersecurity will be an issue at this hearing, just not the only one.

PTC Update

On Thursday the House Transportation and Infrastructure Committee will hold a hearing on “The State of Positive Train Control Implementation in the United States”. The witness list includes:

• Ronald L. Batory, Federal Railroad Administration;
• Robert Sumwalt, National Transportation Safety Board;

• Susan A. Fleming, Government Accountability Office;
• Scot Naparstek, Amtrak;
• Edward Hamberger, Association of American Railroads;
• Jeffrey D. Knueppel, Southeastern Pennsylvania Transportation Authority;

• Stacey Mortensen, Altamont Corridor Express

This hearing could get contentious with the relatively poor performance of the passenger rail lines in complying with the PTC requirements. The Committee Staff has prepared a detailed background document on the PTC program.

On the Floor

It is looking increasingly likely that the House could take up the Conference Report on HR 5895, the EWR spending bill. The Conference Committee completed their work yesterday, but a copy of the report has not yet been issued. This bill is likely to be taken up in at least the House this week. This is the first of the three mini-bus bills that has made it out of conference; HR 6147 and HR 6157 still remain to be addressed.

There is at least one news report that claims only two of the three mini-busses will be approved before the end of the month, meaning that the expected 3-department continuing resolution would have to be expanded to 6 departments. The article does not name the bill that will not make it out of conference, but I suspect that it is HR 6157. The conflict between the House and Senate there was the inclusion of the Health and Human Services spending in with the DOD bill; just too many controversies in the House version of the HHS spending.

Committee Hearings – Week of 09-02-18

This week the House and Senate will both be back in Washington with spending bills high on the priority list for the month. There is one cybersecurity hearing of potential interest this week.

Cybersecurity Hearing

On Thursday two subcommittees of the House Homeland Security Committee will be holding a hearing on “Understanding Cybersecurity Threats to America’s Aviation Sector”. There is no witness list available at this time.

While aircraft cybersecurity is a very likely topic, I expect that the main focus will be on cybersecurity for FAA systems, including airspace management systems.

On the Floor

We have two bills that will be considered in the House this week under their suspension of the rules process that may be of interest to readers of this blog. Again, this process calls for limited debate, no floor amendments and a super-majority to pass; generally speaking these are non-controversial bills. The two bills of interest this week are:

• Today - HR 6438 – DHS Countering Unmanned Aircraft Systems Coordinator Act;

• Wednesday - HR 5576 – Cyber Deterrence and Response Act of 2018

There are two spending bills from the Senate that may see some action this week. First is the motion to go to conference on HR 6157, Department of Defense Appropriations Act, 2019 and Democrat Motion to Instruct Conferees; this is mainly a proforma vote, though there is a remote (very remote) possibility that the House could accept the Senate amendments. That vote is expected today. Next is the expected conference report on HR 5895 – Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs. This vote will come possibly later this week or next.

Senate Consideration of HR 5895 – FY 2019 EWR Spending

The Senate took up debate on HR 5895, the Energy and Water Development and Related Agencies (EWR) Appropriations Act earlier this week. The bill, as passed in the House, also included language from the Legislative Branch, and Military Construction and Veterans Affairs spending bills.

Senate Amendments

Senators proposed about 240 amendments to the bill over a period of four days. Only two of those amendments will be of specific interest to readers of this blog; SA 2910 (pg S3985) from Sen. Shelby (R,AL) and SA 2983 (pg S4053) from Sen. Bennet (D,CO)

Shelby’s amendment is this substitute language for the Senate version of the bill. The EWR language in the amendment comes from S 2975. Senate language from the Legislative Branch, and Military Construction and Veterans Affairs spending bills was also included.

Bennet’s amendment would require the DOE and DOD to conduct an evaluation of military facilities to determine “at which it would be cost-effective to establish a partnership with community colleges, institutions of higher education, and the private sector to train veterans and members of the Armed Forces transitioning to civilian life to enter the cybersecurity, energy, and artificial intelligence workforces”. A report to Congress would be required and no funding is provided.

Moving Forward

After considering (and mostly adopting) a large number of amendments, the Senate finally adopted the Shelby substitute language on Thursday. The Bennet amendment was not considered.

The Senate is scheduled to conduct their final vote on the bill Monday evening.

House Passes HR 5895 – FY 2019 EWR Spending

Today the House completed consideration of HR 5895, the Energy and Water Development and Related Agencies (EWR) Appropriations Act, 2019. The House passed the bill by a somewhat bipartisan vote of 235 to 179 (23 Democrats voting AYE and 16 Republicans voting NAY). The version of the bill debated, amended and passed by the House included language from HR 5894, and HR 5786; essentially combining three of the twelve annual spending bills.

As I have noted earlier, the Senate will not actually take up the language passed in the House today. Instead they will substitute the language from S 2975 that was recently reported in the Senate and amend that language. Then a conference committee will be formed to work out a compromise between the two versions of the bill.

If this process can move forward for this bill, then there is a chance that for the first time in recent history we may have spending bills to the President before the end of the fiscal year ends and will not need a series of continuing resolutions leading to a post-election omnibus bill. If this bill does not move forward (and it is the least controversial of the spending bills) then we will again be forced to hold our collective breaths again, waiting to see if intermediate compromises can be worked out to get interim funding approved.

S 2975 Introduced – FY 2019 EWR Spending Bill

Last month Sen. Alexander introduced S 2975, the Energy and Water Development and Related Agencies Appropriations Act, 2019. Like HR 5895, the bill’s counterpart in the House, S 2975 includes the “Cybersecurity, Energy Security, and Emergency Response” (CESER) reporting category. This version, however, includes a much larger amount of spending on that category; $260 million vs $146 million.

CESER

Since this is a new spending category, it is clear that the two appropriations committees have different ideas on what should be included in the category. The House version only shows three line items; cybersecurity for energy delivery systems, infrastructure security and energy restoration, and program direction. The Senate Report shows those same categories plus (pg 117) from the ‘old’ Electricity Delivery category:

• Transmission reliability;

• Resilient distribution systems;

• Energy storage;

• Transformer resilience and advanced components; and

• Transmission permitting and technical assistance;

The Senate allocation of funds for each of the line items is significantly less than provided in the House bill. For example, the ‘cybersecurity for energy delivery systems’ line item draws only $80.8 million in S 2975 versus $116.5 million in HR 5895. The only reason that the CESER funding is higher is because of the additional line items.

There is a little more cybersecurity detail in the comments portion of the Senate report. For instance, they note that the “Committee recommends $10,000,000 for the DarkNet project to explore opportunities for getting the Nation’s critical infrastructure off the Internet and shielding the Nation’s electricity infrastructure from disruptive cyber penetration” (pg 78).

There is also an interesting comment about grid security research. The Report notes (pgs 80-1):

“The Committee supports the establishment of an EMP/GMD testing facility that can, without posing risk to the existing grid, replicate EMP/GMD events and cyber-attacks on a real-world configuration of critical grid components and systems. Such a facility is necessary to expose entire substations, including devices such as Extra High Voltage Transformers and subsystem components, to the combined effects of the complete composite EMP Waveform for early stage research and development, as well as testing and validation purposes at both the transmission and distribution levels.”

Moving Forward

This bill was reported favorably by Committee with just one vote in opposition. This type of bipartisan support is necessary for a bill this important to move forward to the floor of the Senate. Actually, the Senate will probably not take up this bill. Usually the Senate takes up the House version of the bill (HR 5895 in this case) and immediately substitutes the language from this bill for the House passed language.

The two different versions of the bill that come out of this process will be cleaned up by a conference committee. One of the important things coming out of this year’s committee will be a determination of which line item will end up being reported under the CESER heading in subsequent years.

HR 5895 Debated in House – FY 2019 EWR Spending Bill

Today the House began consideration of HR 5895, the Energy and Water Development and Related Agencies (EWR) Appropriations Act, 2019. The debate began under the rule that I had previously reported and is continuing under provision of an additional rule approved today by the House Rules Committee. That rule added one new amendment concerning a cybersecurity related provision to the Cybersecurity, Energy Security, and Emergency Response (CESER) section of the bill.

The Sato amendment that I previously described (adding $1 million to the CESER account) passed by a voice vote at about 5:30 pm EDT this afternoon.

The new amendment (originally #93 on the Division A list; but now #5 in the new rule) was offered by Rep. Hasting (D,FL) would add another $5 million to the CESER account. The money would come from the Fossil Energy Research and Development (page 24 of the Committee Print). That account was initially set at $785 million.

The Hastings amendment was considered at about 10:05 pm EDT this evening and was defeated by a voice vote.

As I write this the debate is continuing with about 20 possible amendments still to be considered. The final vote is likely to come early in the morning.

Committee Approves Rule for HR 5895 – EWR Spending Bill

Yesterday the House Rules Committee approved the rule for the consideration of HR 5895, the Energy and Water Development and Related Agencies Appropriations Act, 2019. As I noted earlier, the Committee has combined two other spending bills into this bill to speed the consideration of spending bills this year. The approved rule provides for a structured debate with only a limited number of amendments approved for debate on the floor. Additional amendments will be considered by the Rules Committee in their meeting today.

In that earlier post I identified one cybersecurity related amendment in the 173 amendments submitted to the Committee, Soto Amendment #59. That amendment made the cut to be included in the 39 amendments to be approved for consideration by this initial rule. It is likely to be included in an en bloc amendment to further speed the debate on HR 5895.

Committee Hearings – Week of 06-03-18

This week with both the House and Senate back from their extended Memorial Day Weekend spending bills will be the major topic on the Hill. There will also be two other hearings of potential interest to readers of this blog. The first will be a committee markup of a number of homeland security related bills. The second will be a hearing dealing with drone defense and S 2836.

Spending Bills

In addition to the Rules Committee hearings and floor consideration of HR 5895 that I mentioned in an earlier post, there will be some additional spending bills marked up this week:

• Tuesday – Senate – Subcommittee - Transportation, Housing and Urban Development (THUD), and Related Agencies;

• Tuesday – Senate – Subcommittee - Military Construction, Veterans Affairs, and Related Agencies;

• Wednesday – House – Committee - Interior, Environment, and Related Agencies;

• Thursday – House – Subcommittee – DOD;

• Thursday – Senate- Committee – THUD;

Markup Hearing

On Wednesday the House Homeland Security Committee will be holding a markup hearing to look at 10 bills. Of those, three may be of specific interest to readers of this blog:

• HR 5733, the DHS Industrial Control Systems Capabilities Enhancement Act of 2018;

• HR 5729, the Transportation Worker Identification Credential Accountability Act of 2018; and

• HRes 898 Directing the Secretary of Homeland Security to transmit certain documents to the House of Representatives relating to Department of Homeland Security policies and activities relating to homeland security information produced and disseminated regarding cybersecurity threats posed by the ZTE Corporation, headquartered in Shenzhen, China.

The resolution is effectively a subpoena to be issued by Congress. It was introduced by Rep. Thompson (D,MS). It is a straightforward listing of the types of documents that Thompson expects to be provided by DHS without any of the politically loaded ‘Congressional findings’ that frequently accompany such documents. Practically speaking, since Thompson is the Ranking Member of the Committee, he should be influential enough in his own right to have this resolution considered by the Committee, but I suspect that there will be at least some bipartisan support for the resolution.

Drone Defense

On Wednesday the Senate Homeland Security and Governmental Affairs Committee will hold an informational hearing on S 2836 and Countering Malicious Drones. The witness list includes:

• David J. Glawe, Department of Homeland Security;

• Hayley Chang, Department of Homeland Security;

• Scott Brunner, Federal Bureau of Investigation; and

• Angela H. Stubblefield, Federal Aviation Administration

This hearing will be focused on policy and the legal aspects of counter-drone operations. I suspect that the witnesses will be generally supportive of S 2836, but it will be informative looking at how down into the weeds they get into the legal aspects.

I am glad to see Chairman Johnson holding this type of hearing before moving to a markup of his bill. I think that it would also be helpful if the Committee held a hearing looking at the types of technology currently available to conduct counter-drone operations.

Rules Committee to Meet on HR 5895 – FY 2019 EWR Spending

The House Rules Committee will meet twice this coming week (Tuesday and Wednesday) to formulate the rule for consideration of HR 5895, the Energy and Water Development and Related Agencies Appropriations Act, 2019. The version of the bill that will be affected by the two rules (general debate and amendment consideration) will include language from HR 5894 (Legislative Branch Appropriations Act, 2019) as Division B and HR 5786 (Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2019) as Division C.

The date for the submission of amendments to be considered by the Rules Committee has passed. A total of 173 amendments were submitted for all three divisions of the bill. Only one of the amendments may be of specific interest to readers of this blog:

Division A, #59, Soto (D,FL) – Increases funding to the Cybersecurity, Energy Security, and Emergency Response (CESER) program by $1,000,000 to further facilitate the Department of Energy’s effort to secure the nation’s energy infrastructure against all hazards, reduce the risks of and impacts from cyber events, and assist with restoration activities.

The amendment would take the $1 million from the DOE salary and administration account; decreasing that account to $279.5 million. It would increase the CESER account to $147 million.

The bill is currently scheduled to come to the floor of the House on Thursday.

HR 5895 Introduced – FY 2019 Energy and Water Spending

Last week Rep. Simpson (R,ID) introduced HR 5895, the Energy and Water Development and Related Agencies (EWR) Appropriations Act. For the first time the bill contains a separate reportable category for “Cybersecurity, Energy Security, and Emergency Response”.

CESER

The new ‘Cybersecurity, Energy Security, and Emergency Response’ section (under Title III) of the bill covers “expenses including the purchase, construction, and acquisition of plant and capital equipment, and other expenses necessary for energy sector cybersecurity, energy security, and emergency response activities” (pg 22). The spending is set at “$146,000,000, to remain available until expended”.

The Committee Report notes (pg 88) that this is $50.2 million more than requested by the President and $50 million more than was included for similar activities in the FY 2018 spending bill. The spending tables for CESER (pg 126) show three-line items:

• Cybersecurity for Energy Delivery Systems - $116.5 million;

• Infrastructure Security and Energy Restoration - $18.0 million; and

• Program Direction - $11.5 million

The bulk of the funding increase ($48.5 million) is found in the first category with the remainder put into Program Direction spending.

The Report also explains that (pg 89):

“Within available funds for Cybersecurity for Energy Delivery Systems, $10,000,000 is for research and development on concepts to simplify and isolate automated systems and remove vulnerabilities that could allow unauthorized access to the grid through digital software systems.”

Moving Forward

The Appropriations Committee markup of this bill has been completed so the next step is to move to the floor of the House. I expect that we will see this bill on the floor sometime in June. There will be amendments from the floor during the debate, but those will be limited by a Rule. The bill is likely to pass with significant bipartisan support and some conservative opposition. The Minority Views section (pgs 192-6) of the Committee Report indicates strong Democratic opposition to many elements of this bill, but the bill will probably pass with just Republican support [added 5-31-18, 12:23 am EDT].

The Senate will take up their own version of the bill, probably in July, if some level of bipartisan support can be found [added 5-31-18, 12:23 am EDT]. A conference committee will work out the inevitable differences in the two bills. There is a distinct possibility that a final version of this bill could be on the President’s desk before the end of the fiscal year.

Bills Introduced – 05-21-18

With both the House and Senate back in town yesterday, there were 25 bills introduced. Of those, two may be of specific interest to readers of this blog:

HR 5895 Making appropriations for energy and water development and related agencies for the fiscal year ending September 30, 2019, and for other purposes. Rep. Simpson, Michael K. [R-ID-2]

S 2887 A bill to amend title 10, United States Code, to provide for the establishment and operation of reserve component cyber civil support teams, and for other purposes. Sen. Cantwell, Maria [D-WA]

As is usual with these spending bills, I will be watching for items of potential interest to readers of this blog. With HR 5895 I will be specifically looking for cybersecurity and chemical safety provisions.

There has been a great deal of talk about these type units over the last couple of years. It will be interesting to see how Cantwell addresses the issue in S 2887. As always, I will be watching for definitions and provisions that specifically address control system security issues.