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.

Senate Takes Up HR 6147 – Another Mini-Bus

Last week the Senate started consideration of HR 6147, the Interior, Environment, Financial Services, and General Government Appropriations Act, 2019. The Senate is considering substitute language (SA 3399) that adds language from S 2976 (FY 2019 ARF) and S 3028 (FY 2019 THUD spending). During the week there were a large number of amendments offered (see here, here, here and here), but only two of those may be of specific interest to readers of this blog. Once concerns unmanned aviation systems (UAS) and one addresses positive train control (PTC) implementation grants. Neither of the two amendments have been considered on the floor of the Senate to date.

UAS Amendment

SA 3516 (pg S5308) was proposed by Sen. Gardner (D,CO). It would amend 18 USC by adding a new section making it illegal to operate unauthorized unmanned aircraft over wildfires. This amendment is very similar to S 3132 which I have only briefly addressed.

PTC Grants

SA 3527 (pg S 5310) was proposed by Sen. Blumenthal (D,CT). The amendment would make available $150 million of existing grant monies specifically available for “for the implementation of positive train control” projects with priority being provided to projects relating to commuter rail operations.

Moving Forward

A cloture vote on the substitute language is scheduled for this week. Once action on the substitute language takes place, a cloture vote will be held on HR 6147. There is the possibility that additional amendments (possibly including the two listed above) may be considered under unanimous consent motions during the remaining debate.

The revised language being considered by the Senate means that this bill will have to go back to the House for consideration. This will almost certainly result in the House insisting on their language (particularly since the Senate language is drastically different than the House language in the Agriculture section of the bill (seen in HR 5961) and will result in a conference committee. There is an outside chance that the call for a conference committee could come during a pro forma session in August. Absent that, it will be September before the conference could meet; pushing the deadline for a final vote by September 30th.

HR 6147 Passed in House

Yesterday the House passed HR 6147, the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2019 by a strongly partisan vote of 217 to 199 (15 Republicans did note Nay). The floor amendment process took three days, but none of the amendments were of specific interest to readers of this blog.

The Senate is scheduled to start consideration of this bill on Monday after the vote on the Wilke nomination at 5:30 pm EDT. No amendments have been proposed yet in the Senate (that will start on Monday as well), but one of the first will be substitute language taken from S 3073. That bill would also include full funding for the Chemical Safety Board, but at $11 million dollar (FY 2018 level) instead of the $12 million in the House bill.

Committee Hearings – Week of 07-15-18

With both the House and Senate in Washington there will be a fairly active committee schedule, but little of specific interest to readers of this bill. There will be a rules hearing on a spending bill that will be considered this week in the House.

HR 6147 – IER Spending

Today the House Rules Committee will hold a rules hearing to establish a structured rule for the consideration of HR 6147, Department of the Interior, Environment, and Related Agencies Appropriations Act, 2019. Actually, this will be another mini-bus consideration as HR 6258, the Financial Services and General Government Appropriations Act, 2019, is being added to the bill for consideration in the House.

The Committee has received 170 amendments for the IER portion of the bill, but none of them are of specific interest to readers of this blog. The Committee will select a portion of those (and of the 85 offered for the HR 6258 portion of the bill) to be considered on the floor of the House later this week.

On the Floor

As noted above, HR 6147 will come to the House floor either Tuesday or Wednesday of this week. It will pass, but there is little likelihood that the bill will receive substantial bipartisan support.

We have seen substantial progress this year on spending bills in the House but have yet to see any real action in the Senate. Part of this is due to the backlog of nominations that still plagues the Senate and the procedural delays in the consideration of those nominations. Another part of the problem is an unintended consequence of the decision to reduce the length of the summer recess in the Senate. This has reduced some of the pressure on the Senate to act early on the spending bills that have passed in the House.

Unfortunately, this could backfire on the leadership. The House has not announced a reduction in their summer recess schedule. This means that they will likely be recess when the Senate completes action on at least some of the spending bills. This means that a vote to go to conference will likely be delayed on those bills until the House comes back to Washington in September.

There is a way out of that dilemma, but it would require a great deal of cooperation and trust between Ryan and Pelosi. Since the House will meet in pro forma session throughout their recess there could be unanimous consent votes on going to conference during the proforma sessions. With no one calling for role call votes, the two representatives representing the Speaker and the Minority Leader could go through the procedural dance of initiating the conference committees. Unfortunately, with pressure of both Ryan and Pelosi from their party’s more radical elements, this is unlikely to take place.

HR 6147 Introduced – FY 2019 IER Spending

Earlier this week Rep. Calvert (R,CA) introduced HR 6147, the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2019. The only thing of note for the purposes of this blog is that the bill continues funding for the Chemical Safety Board (CSB) and that would not be news except for continued budget suggestions from the Administration that the CSB be disbanded. Water treatment facility security is briefly addressed in the Committee Report.

CSB Funding

The bill funds the CSB at $12 million dollars. This is $1 million above last year’s spending and $3.5 million above the amount recommended in the President’s budget to close out the agency. The Committee Report notes that (pg 84):

“The Board has the responsibility of independently investigating industrial chemical accidents and collaborating with industry and professional organizations to share safety lessons that can prevent catastrophic incidents and the Committee expects this work to continue.”

Water Treatment Facility Security

There is a brief note in the Report on funding for a Water Security Test Bed. No specific funding is allocated, just the note that:

“For both fiscal year 2019 and future budget requests, the Committee recommends that EPA include adequate funding for advancing full scale applied research and testing capabilities to address threats to drinking water and drinking water infrastructure.”

Moving Forward

The Report does not include any record of the votes in Committee on this bill, but the Dissenting Views portion of the Report (pgs 217-20) makes it clear that there are serious concerns about many items included in the bill. There will not be any significant bipartisan support for this bill when it makes it to the floor of the House. With the Republicans firmly in control in the House, this will not stop the bill from moving forward.

Again, as with all spending bills this may not be an impediment to the bill’s consideration in the Senate. We have yet to see the Senate version of the bill, but if we continue to have the strong bipartisan activity that we have seen to date in the Senate Appropriations Committee, the bill coming out of that Committee (which will form the basis for substitute language for this bill) will allow the Senate to take up this bill without regard to the Democrats documented objections to this bill.

Commentary

I am certainly glad to see the Committee’s continued strong support for the CSB. The on-going effective activity of this organization is still, however, in the President’s hands. With the resignation of the CSB Chair Sutherland, the President can slow kill the agency by failing to appoint a new chair. While Dr. Kulinowski, the Interim Executive Authority, is fully capable of overseeing the day-to-day operations of the Board, the solving of endemic morale issues and the long-term growth of the Board will have to await the next Chair.

While I was encouraged to see the Committee support a Water Treatment Facility Test Bed, I was disappointed to see the lack of specific funding being earmarked for such a facility or any guidance on what type of activities the facility should target. The EPA has a history of providing support for physical security protections of water treatment facilities to protect the safety of the water quality. The history on providing support for hazardous chemical security or cybersecurity is not quite as strong. This would have been a good place for the Committee to expand the scope of water treatment facility security oversight. At the very least, I would have expected to see a requirement to report to the Committee on the progress being made on the Test Bed.

Bills Introduced – 06-19-18

Yesterday with both the House and Senate in session there were 36 bills introduced. Of those there are three that may be of specific interest to readers of this blog:

HR 6147 Making appropriations for the Department of the Interior, environment, and related agencies for the fiscal year ending September 30, 2019, and for other purposes. Rep. Calvert, Ken [R-CA-42] 

S 3085 A bill to establish a Federal Acquisition Security Council and to provide executive agencies with authorities relating to mitigating supply chain risks in the procurement of information technology, and for other purposes. Sen. McCaskill, Claire [D-MO]

S 3088 A bill to amend the Energy Policy Act of 2005 to require the Secretary of Energy to establish a program to prepare veterans for careers in the energy industry, including the solar, wind, cybersecurity, and other low-carbon emissions sectors or zero-emissions sectors of the energy industry, and for other purposes. Sen. Duckworth, Tammy [D-IL]

HR 6147 is one of those spending bills that I expect will not receive any additional coverage here, but you never can tell what may be slipped into the Committee Report.

I will be watching S 3085 for the definitions it uses. Hopefully, someone on the staff realizes that the Federal government is a consumer of control systems in various guises.

Depending on the definitions used here for ‘cybersecurity’ I may be watching S 3088 for its effects on cybersecurity manpower development.