S 4096 Introduced – CFATS Extension

Last month Sen Johnson (R,WI) introduced S 4096, a bill that would extend the Chemical Facility Anti-Terrorism Standards (CFATS) program through July 27^th, 2023.

Two days after this bill was introduced Johnson introduce a second CFATS extension bill, S 4148. That bill would also extend the CFATS program through July 27^th, 2023. S 4148 was passed by the Senate the same day it was introduced.

The bill the Senate passed was the same as S 4096 except that it added a second paragraph:

“(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date that is 1 day after the date of enactment of this Act.”

The House passed their own clean extension of the CFATS program (HR 6160) back in March. It would extend the CFATS program authorization through October 18^th, 2021. Technically, the wording of HR 6160 was made obsolete by the passage of HR 748 as that bill replaced the old “5 years and 3 months” language with an actual date; “July 23, 2020”.

Both the House and the Senate will be back in Washington next week in time to address the pending expiration of the CFATS program authorization on July 23^rd. While the Democrats in the House really want a chance to make some changes to the CFATS program, I suspect that they will go along with the three year extension as they hope to be in a stronger position to send legislation to the President in the 117^th Congress.

Interestingly, after this bill was introduced, Johnson introduced a third CFATS extension bill, S 4197. The language of that bill has not yet been printed, but it did not have any Democratic Senators as cosponsors.

S 3506 Introduced – CFATS Extension

Last month Sen Lankford (R,OK) introduced S 3506, the Chemical Facility Anti-Terrorism Standards Program Extension Act of 2020. This bill was intended to provide a short-term extension of the CFATS program through July 18^th, 2020.

Moving Forward

While Lankford is a sub-committee chair in the Senate Homeland Security and Governmental Affairs Committee, the committee to which this bill was assigned for consideration, future consideration of this bill has been made problematic since another short-term extension was provided for the program in HR 748 (PL 116-136). That bill extended the program authorization through July 23^rd, 2020.

Commentary

This bill was introduced three days after the House passed HR 6160, a longer-term extension of the CFATS program. That bill would extend the authorization for the program through April 18^th, 2020. The shorter extension in S 3506 would have given the Republican leadership another chance to get S 3416 through Committee and onto the floor of the Senate. Unfortunately, I think the COVID-19 problems are going to effectively block any controversial bills from consideration in the Senate for the remainder of the session.

The only CFATS bill that appears to have any chance of making it to the President is HR 6160. This kicks the can to the 117^th Congress. That Congress (which could be dominated by the Democrats in both the House and Senate) will be focused on re-building the economy after the pandemic has run its course. I expect that the CFATS program is going to run on short term extensions for a while.

There is still a possible monkey wrench that could disable the program. While CFATS generally has wide spread support in Congress, the President’s 2021 budget request proposed shutting down the program and moving the chemical security inspectors into protective security advisor slots. If Trump is serious about closing the CFATS program, then a veto of HR 6160 would certainly be an easy way to do that. I suspect that partisanship in the Senate would overcome CFATS support in preventing an override of that veto.

Rep Thompson (D,MS), Chair of the House Homeland Security Committee, is well aware of the President’s stated opposition to the CFATS program (any regulatory program for that matter) so we may see another short-term reauthorization in the inevitable next COVID-19 relief bill. That extension would probably carry through October 1^st so that repeated CFATS extensions could go back into the DHS spending bill or continuing resolutions where they resided for so many years.

House Passes HR 6160 – CFATS Extension

Yesterday (actually early this morning) the House took up HR 6160 under the unanimous consent process and passed the bill. There was no debate and no vote. The bill will extend the current CFATS program through October 18^th, 2021. The program authority is currently set to expire on April 18^th, 2020.

This early action by Rep. Thompson (D,MS) sends the bill to the Senate. The bill will almost certainly be taken up there under similar proceedings.

HSGA Markup Hearing – No CFATS Bill – 3-11-20

Earlier this week the Senate Homeland Security and Governmental Affairs Committee held a business meeting to markup 14 pieces of legislation. S 3416, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2020, was not considered. Two other bills of interest here (S 3045, Cybersecurity Vulnerability Identification and Notification Act of 2019; and S 3207, Cybersecurity State Coordinator Act of 2020) were amended and adopted by the Committee. I will discuss those revisions in separate posts.

Where was S 3416?

S 3416 was removed from the agenda early this week, shortly after the introduction of HR 6160, the House CFATS extension bill. That bill, if passed (and it will almost certainly be passed next month), would take pressure of the Committee to address the CFATS program in a more complicated fashion. That is one of the contributing factors to S 3416 not being considered on Wednesday.

The other consideration is almost certainly the inability of the Committee to come up with some sort of consensus language for S 3416. Chairman Johnson (R,WI) knows that for a bill to make it to the floor of the Senate under the unanimous consent process (the only way a stand-alone CFATS bill is going to be considered in the Senate) is with the active support of Ranking Member Peters (D,MI) and, probably more importantly, the support of Sen. Carper (D,DE) who effectively killed Johnson’s last attempt at CFATS legislation, S 3405, in the 115^th Congress.

Commentary

Johnson has never been a strong supporter of the Chemical Facility Anti-Terrorism Standards (CFATS) program, basically because he does not like regulatory programs. He has voted for CFATS bills in the past because the program allows for regulatory standards to be negotiated at the facility level, so it is not a one-rule-fits-all style regulation. The fact that industry is generally supportive of the program also provides Johnson with some political cover.

With the President’s budget proposal to eliminate the CFATS program in FY 2021, Johnson was put in a tough position of trying to decide who to support, the President or industry. HR 6160 looks like his easy out, kicking the can down the road for 18 months. One thing Johnson should consider, however, is that 18 months puts the problem before the 117^th Congress.

With the potential for COVID-19 tanking the economy between now and November, Johnson should not assume that he will chair the HSGA Committee next session. There is now a definite possibility that the Democrats will control the Hill and the White House next year, possibly (depending on how bad things get) with strong, veto-proof majorities. This could be Johnson’s last chance to have a major say in how the CFATS program proceeds.

EC Subcommittee Approves HR 6160 Without Amendments

Yesterday the Environment and Climate Change Subcommittee of the House Energy and Commerce Committee approved HR 6160 without amendment by a voice vote. Comments by Committee Chair Pallone (D,NJ), Chairman Tonko (D,NY) and Ranking Member Walden (R,OR) were all supportive of the bill and the CFATS program in general.

The debate, such as it was (starting at 21:45 in the video), focused on the 18-month length of the extension. Rep. Barragan (D,CA) wants (32:30 in video) new CFATS reauthorization to include look at location of high-risk chemical facilities.

CFATS Extension Hearing – 3-12-20

This evening the House Energy and Commerce Committee announced that the Environment and Climate Change Subcommittee would hold a markup hearing on Thursday that would take up two bills; one of which would be HR 6160, which would extend the Chemical Facility Anti-Terrorism Standards (CFATS) program. Chairman Pallone (D,NJ) is a co-sponsor of the bill; as is Rep Tonko (D,NY), the Subcommittee Chair.

The GPO has not yet printed a copy of the bill, but the hearing website contains a committee draft of the bill. This would be a clean extension of the CFATS program until October 18^th, 2021. That would kick the can down the road to the 117^th Congress.

I do not expect much in the way of amendments to this bill. There will be some proforma objections to the extension of the CFATS program rather than a reauthorization, but the Energy and Commerce Committee has not been able to come up with consensus reauthorization language for HR 3256.

Bills Introduced – 03-09-20

With both the House and Senate in session there were 46 bills introduced. One of those bills will receive future coverage in this blog:

HR 6160 To extend the chemical facility anti-terrorism standards program of the Department of Homeland Security. Rep. Thompson, Bennie G. [D-MS-2]

This is almost certainly a short-term extension of the CFATS program. Disappointingly, there are currently no Republican cosponsors to the bill. This also probably indicates that the Senate bill, S 3416 (which I have not seen yet), is not acceptable to the Democrats in the House (or at least to Chairman Thompson). Nor is there a likely agreement to break HR 3256 out of the House Energy and Commerce Committee. The current authorization ends April 18^th.